BC Hydro argues against applying UNDRIP to Site C dam project

Lawyers for BC Hydro are taking an “appalling” position on the human rights of Indigenous people by arguing against the United Nations Declaration on the Rights of Indigenous People in a Site C Dam case now before the Federal Court of Appeals, says the First Nations Summit.

BC Hydro argues that the UN Declaration is not part of Canadian law, nor a customary standard, and is only “aspirational.”

The argument was made in response to an application from Amnesty International for leave to intervene in the case Prophet River First Nation and West Moberly First Nation v. The AG of Canada, Minister of Fisheries, Minister of Environment, Minister of Transport and BC Hydro and Power Authority.

BC Hydro lawyers told the court March 21 that Canada’s support for the UNDRIP is “expressly qualified by statements that it is ‘aspirational’ and ‘non-legally binding’,” and that the UNDRIP is not comparable to international laws that Canada has ratified.

“BC Hydro’s position on the UNDRIP represents a fall back to the old colonial Crown policies of denying the human rights of Indigenous peoples,” said Grand Chief Edward John, a political executive of the First Nations Summit, and the North American representative to the United Nations Permanent Forum on Indigenous Issues.

“This position is incredibly counterproductive and flies in the face of Canada’s unequivocal support for, and commitment to, implement the UNDRIP and the Truth and Reconciliation Commission’s 94 Calls to Action,” he said.

 “The adversarial arguments presented by BC Hydro conflict with their claim to be a Crown Corporation that is a leader in Aboriginal relations and do not reflect well on the government of B.C.’s commitments to the principles of reconciliation,” said John.

Craig Benjamin, Amnesty International campaigner, said Amnesty International was already involved in the case at the lower Federal Court level and should hold space at the Appeals Court level.

“The biggest thing is that Canadian courts use international law all the time. We do a lot of court work and we always do it as an expert in international law,” said Benjamin.

“It’s a really well-established principle that Canadian courts can look to international law to interpret Canadian law… because Canada is a participant in all these international bodies, we’ve made commitments in all these bodies, and we’ve made commitments in international law,” he said.

Amnesty International sought to become involved in the cae on its own, said Benjamin, acting as a neutral party upholding human rights law without an investment in one side of the case or another.

The issue they are most concerned with is the fact that, in this case, a “justification” requirement for the Site C Dam was never actually met, he said.

“Canadian courts have repeatedly said, just because treaty rights exist doesn’t mean the government can’t override that, but it has to pass the justification test… The justification test, usually referred to as the Sparrow test, has a direct parallel to the UN Declaration,” said Benjamin.

“The last article talks about how when you have to balance rights and different interests, how you do that… And that if the government thinks this is an instance where other interests could override Indigenous rights, here’s the test it has to live up to. It’s interesting Canada played a role in drafting that text,” he said.

Roland Willson, chief of West Moberly First Nations, welcomed support of the case from Amnesty in the Federal Court round, and welcomes it in the Court of Appeal as well.

He said that Amnesty is on board with the fact that neither West Moberly First Nations, nor Prophet River First Nation, gave “free, prior and informed consent” for the Site C development in their treaty territory.

“They contacted us and said ‘we want to intervene,’ and we said ‘That’s great, the more support, the better...’ They see the atrocity that’s going on here, and I applaud them for their willingness to take a stand,” said Willson.

He believes it really is a human rights issue that BC Hydro is going ahead with the Site C Dam development despite concerns from Indigenous people in the area.

Willson recalls past projects on West Moberly Nation in which Indigenous voices were not heard, and in which the environment and the people then suffered.

The building of the Williston Reservoir in 1969 is one such project, and it destroyed three main river systems and poisoned the fish supply, Willson said.

He is now fearful the same disregard for his people is being shown again, with the same grave consequences.

“I hope they’re successful,” he says of Amnesty’s application for intervention in the case now. “If this is not a test of free, prior and informed consent, then nothing is.”