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First Nations & Peace Valley residents react to ruling on Site C dam
In a follow-up to her recent feature “Fighting for Peace Valley” at Cascadia Magazine about grassroots opposition to British Columbia’s Site C Dam, Alison Bate reports for Cascadia Daily on yesterday’s BC Supreme Court ruling refusing to grant an injunction that would have halted construction of the dam:
Residents and First Nations groups in B.C. are disappointed and feel betrayed that a new court ruling will allow work to continue on the Site C dam in northern B.C.
In his 98-page ruling released Wednesday, Justice Warren Milman ruled against West Moberly First Nation’s application for an interim injunction to stop work on the Peace River dam project.
However, West Moberly chief Roland Willson said in a statement the band had every intention of proceeding to trial and will be deciding whether an appeal of the judgment was necessary as well.
Farmer Ken Boon lives at Bear Flat with his wife Arlene on land mostly expropriated for the project already. He said in a phone interview Thursday that the court ruling was frustrating and obviously disappointing.
“I’m not really impressed. There are a lot of issues here and it seems the judge took the easy way out.
“He only agrees the Treaty case should be run through the courts before 2023. But what is this area going to look like then? I don’t think that the judge realised how much destruction this could cause. He refused to even issue a partial injunction. A partial injunction would have been prudent.”
The new Site C earth-filled embankment dam and its reservoir would flood 83 kilometres of the Peace Valley, plus about 35 kilometres of tributary valleys. A revised budget early this year put total costs at $10.7 billion Canadian.
In January, West Moberly First Nations, with the support of Prophet First Nations, filed suit against B.C. Hydro, the B.C. government and the government of Canada to stop work on Site C. The interim injunction was really a stopgap measure until a full civil trial could be heard, likely in two or three years’ time.
West Moberly claimed that Site C violated their Treaty 8 rights by destroying the last portion of the Peace River where they could hunt, fish, and trap in the same places and in the same way as their ancestors.
Boon added: “West Moberly were more than willing to compromise and the judge kind of criticised that. He does acknowledge that West Moberly and Prophet First Nations have been staunch opponents for many years. But I don’t agree with his analysis of them coming late to the game. They were working their way up the ladder and he diminishes the fact that they put any action on hold during the provincial election.”
In Boon’s opinion, that was the prudent thing to do given that the NDP leader John Horgan had pledged to stop Site C at that stage and that West Moberly didn’t have unlimited funds.
He added that preliminary work on the realignment of Highway 29 is already under way. “Highway 29 could turn into a billion-dollar fiasco,” Boon added.
A recent landslide at Old Fort, about four kilometres from the dam site, has caused villagers to be evacuated. Boon said it showed the unstable nature of the slopes in the area.
“It’s indicative of what could happen in the valley. BC Hydro is doing backflips, literally moving a mountain on the north slope of Site C. Meanwhile all these slopes nearby have huge safety issues. There are a lot of questions here, so why wouldn’t BC Hydro and the provincial government allow an independent site review?
“The other elephant in the room is the two diversion tunnels being built to carry the dam. If they get to that stage and it fails, a lot of money will have been spent. It’s a little scary.”
In a statement released Thursday, the Union of BC Indian Chiefs said they were deeply frustrated by the court decision.
“This decision is yet another grave disappointment to the Treaty 8 First Nations who have been betrayed, let down and lied to by this provincial government,” said Grand Chief Stewart Phillip, president of the UBCIC.
BC Hydro also issued a statement yesterday. “BC Hydro has reached benefit agreements with the majority of First Nations that we consult with on Site C. We remain committed to working with Indigenous communities to build relationships that respect their interests,” said Chris O’Riley, company president and chief operating officer.
“With the court’s decision today, we will continue our work to safely advance construction of the project. Once complete, Site C will provide British Columbia with clean, affordable and reliable electricity for more than 100 years.”
The case was heard at the B.C. Supreme Court in Vancouver between July and September of this year.
In his decision, Justice Milman said that:
- West Moberly had raised a serious question to be tried concerning Treaty 8. However, the band’s chances of ultimately succeeding with it and halting the project permanently were not strong
- It would also likely cause significant and irreparable harm to BC Hydro, its ratepayers and other stakeholders in the project, including other First Nations.
- The application was brought relatively late in the life of the project i.e. two and a half years after the start of construction, significantly increasing the harm an injunction would cause.
- Justice Milman said it would not be prudent for him in this application to attempt to resolve the issue of whether the treaty afforded protection to the broader cultural or spiritual practices unconnected to the harvesting rights expressly written in the treaty.
- He referred to a previous ruling in 2005 that Treaty 8 did not promise the First Nations “continuity of nineteenth century patterns of land use.”
- He concluded that West Moberly’s claim the project would infringe the treaty by adverse effects to the animal and fish populations was arguable but not strong.
- Overall, he concluded the case it advanced for a permanent injunction to halt the project “was not a particularly strong one on either the law or the evidence.”
Cascadia Magazine original:
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