In Depth

B.C. Supreme Court to decide whether to stop Site C dam work

A B.C. Supreme Court judge will hear arguments this week on an application to stop work on the Site C dam ahead of a trial to determine if the multi-billion dollar project violates First Nations treaty rights.

West Moberly First Nations want interlocutory injunction to stop work ahead of trial

Site C protesters gather after delivering a petition to politicians in Victoria in 2017. First Nations groups will seek an interim injunction against the mega-project this week. (THE CANADIAN PRESS/Chad Hipolito)

A B.C. Supreme Court judge will hear arguments this week on an application to stop work on the Site C dam ahead of a trial to determine if the multi-billion dollar project violates First Nations treaty rights.

The West Moberly First Nations are applying for an interim injunction that would either halt work altogether or suspend construction in so-called "critical areas" for the 18 months expected to hold an expedited trial.

The hearing should be groundbreaking on several fronts — not least of all because a judge is allowing parts of the proceedings to be streamed online so members of the northeastern B.C. First Nation can participate.

"Construction of Site C has not proceeded past the point of no return," the West Moberly First Nations argued in their application for the interim injunction.

"But there is a risk that, if not enjoined now, West Moberly will be left without a remedy for the infringement of their treaty rights. First Nations did not enter into treaties with the Crown so they could have compensation once their way of life was destroyed, but to ensure protection of that way of life."

'More than a place'

The injunction application followed notices of civil claim filed against BC Hydro and both the province and Ottawa by the West Moberly and Prophet River First Nations.

Different courts have previously found that the Crown met its duty to consult with the First Nations before taking action that could infringe on their rights — but that only a court could decide it that action violated Treaty 8.

The current claim is grounded in an argument that after already having built two other major dams on the Peace River, the cumulative effect of adding a third would be a violation of rights first established in 1899.

The B.C. Supreme Court hearing for an interim injunction will be streamed over the internet. (David Horemans/CBC)

According to court documents, the ancestors of the present-day West Moberly were admitted into Treaty 8 in 1914.

The agreement with the Crown promised they would be able to "continue the same patterns of activity that they practiced before entering Treaty 8" and that they would be free to hunt, trap and fish as before.

The West Moberly claim Site C would destroy 83 kilometres of the Peace River and the Peace River Valley, radically altering both the landscape and the culture tied to it.

"To West Moberly, the Peace has always been more than a place," the application for the interim injunction reads. "It is a vital part of their cultural identity, the main artery of their territory."

The documents go on to quote West Moberly Chief Roland Wilson: "The main artery of the area is going to get clogged up. It's just like the human body. If your arteries get clogged, you have a heart attack or a stroke, and you become dysfunctional or die."

'Indigenous groups do not have a veto'

In response, the province of British Columbia says the courts "have not yet considered whether it is possible for treaty rights to be infringed through 'cumulative impacts' to specific, defined areas."

But even so, the province says the combined pressures of the three dams would not result in West Moberly having "no meaningful ability to exercise their treaty rights."

BC Hydro says the harm caused by stopping construction of the $10.7 billion project would be irreparable. The West Moberly claim their way of life is at stake. (Christer Waara/CBC)

"Consultation will not always lead to accommodation, and accommodation may or may not result in agreement," the response says.

"In the absence of agreement, Indigenous groups do not have a veto over the government's proposed course of action."

Irreparable harm?

The lead up to this week's hearing has already produced some head-turning claims, the latest coming in an affidavit from an international dam construction expert hired by the West Moberly to review documents about the progress of the dam.

E. Harvey Elwin concluded that — contrary to the government's claims — there is an "extremely high probability" that the project's milestones are on target for a delay of at least one year, regardless of any injunction.

After reviewing confidential documents from B.C. Hydro, Elwin also criticized what he called an "extraordinary" lack of transparency for such a large public undertaking.

B.C. Hydro wouldn't comment directly on his claims, but a spokesperson for the project said Site C is on target to meet its deadlines and claimed the Crown corporation has been transparent in filings to the B.C. Utilities Commission.

In arguing against the granting of an interim injunction, B.C. Hydro claims a two-year work stoppage would add $1.44 billion to the estimated $10.7 billion cost of the project.

The company claims that stopping work in the so-called "critical" areas for the same period of time would cost $660 million. They also point to the impact on 2,000 workers, 200 of whom are Indigenous.

"The harm from the injunctions that are sought are irreparable," the B.C. Hydro response says.

"The irreparable harm to BC Hydro and third parties from granting the injunctions would be extremely serious, whereas the plaintiffs will still be able to exercise their treaty rights even if the injunction is not granted."

About the Author

Jason Proctor

@proctor_jason

Jason Proctor is a reporter in British Columbia for CBC News and has covered the B.C. courts and mental health issues in the justice system extensively.