West Moberly nation vows lawsuit over Site C dam

A First Nation has promised a court battle if B.C. approves plans to flood a swathe of its territories for the province’s long-sought-for 1,100-megawatt Site C hydroelectric dam.

West Moberly First Nation Chief Roland Willson announced the threat to apply for a judicial review in the province’s courts at a briefing on Sept. 9 in Vancouver, less than two months before a provincial decision is expected on granting a green-light to the project.

The band worries about the impacts of submerging traditional territories, but Indigenous leaders also raised the spectre of another dam wall failure on the scale of the massive Mount Polley tailings pond collapse in August. Both dams feature an earthen design.

“If we have to, we will litigate,” the chief said. “If they get an Environmental Assessment certification, we will file for a judicial review on it immediately.

“We will go to court, and if court doesn’t work, we’ll do other things. This is a ridiculous proposal. In light of everything else that’s out there right now, we shouldn’t even be contemplating something like this.”

BC Hydro’s proposal to flood 10,000 hectares of land in the Peace River district — more than 40 per cent of it classified as farmland — comes three decades after an earlier version of the plan was rejected by a provincial regulator, the B.C. Utilities Commission (BCUC), as being unnecessary.

Now, however, the province says the dam is needed to power the hoped-for boom in liquified natural gas (LNG). BC Hydro boasts on its website that the dam “would be a source of clean, renewable and cost-effective electricity for more than 100 years.”

“The decision to propose Site C was made after careful consideration of all available options to meet future electricity needs,” wrote the Crown corporation’s president Charles Reid in defence his project.

“BC Hydro’s conclusion is that Site C provides the best combination of financial, technical, environmental and economic development attributes, compared to alternatives. Site C would have a relatively small footprint for the amount of electricity it would generate.”

In May, a Joint Review Panel made up of federal and provincial reviewers granted its blessing to the nearly $8-billion dam as long as it satisfied 50 recommendations to mitigate its impacts. If the province follows the usual six-month timeline following a JRP ruling to approve the project’s environmental assessment certificate, that would mean a decision is forthcoming by Oct. 22.

Municipal and regional district elected officials, at the same press briefing in a posh Vancouver hotel, issued a call for the province to instead push the decision to the BCUC, as it did in the 1980s.

“If you have any kind of review, you have to make sure that whatever it’s called and under whatever jurisdiction it is … it has to be transparent,” said Gwen Johansson, mayor of the nearby District of Hudson’s Hope. “It has to be accountable, it has to be independent.

“The current process that we just went through, BC Hydro wrote the environmental assessment statement, it [went] then to the province, which the Premier at one point described the government as a proponent for Site C … The process has just  been simply very flawed.”

Willson, whose band is a signatory to Treaty 8, disagreed with that suggestion.

“The Joint Review Panel was very clear that the impacts of Site C cannot be mitigated on First Nations rights,” he said. “… Because of that, you have to stop this process.

“It should not go to the BCUC at all. It should be stopped dead in its tracks just on the fact that they cannot mitigate the impacts on First Nations of Treaty 8. From the First Nations point of view, Site C is not an option at all.”

Arguing against the dam, Grand Chief Stewart Phillip of the Union of B.C. Indian Chiefs (UBCIC) pointed to June’s landmark Supreme Court of Canada ruling in favour of the Tsilhqot’in.

In that groundbreaking case, judges declared that a government must gain Aboriginal consent for infringing on their lands — unless it can demonstrate “both a compelling and substantial governmental objective” that is not “outweighed by adverse effects on the Aboriginal interest.”

For Phillip, the case represents a total shift in how Indigenous Peoples will assert their rights over their traditional lands, particularly in B.C. where the majority of the province was never ceded through treaties. The political and legal landscape, he said, “has been dramatically altered” by the court victory.

“We are moving from a paradigm of consultation to consent,” the long-time UBCIC president said. “The collective First Nations leadership in the province of B.C. stands in solidarity with Treaty 8 and the good people of the Peace River Valley, as does our national organization the Assembly of First Nations.

“Clearly, we’ve heard that there’s no good reason to proceed with this ill-considered, ill-conceived project, that the economics are suspect, that the provincial government has not established any good reason for this proposal to move forward.”

In the wake of B.C. passing its Clean Energy Act four years ago — legislation which encourages BC Hydro to pursue hydroelectric projects over fossil fuel ventures — the provincial mines and energy ministry granted the proposed dam an exemption from going to the BCUC for a green-light.