By Craig Benjamin, Amnesty International Canada
Consider these facts:
- Treaty 8 protects the rights of First Nations in northeast BC to maintain their traditions and ways of life, including hunting and fishing.
- The Peace Valley is central to the history and culture of Treaty 8 First Nations, is a unique ecosystem supporting a wide range of plant and animal life, and is one of the few remaining areas in the region that has been largely protected from the massive scale of oil, gas and other resource development in northeast BC.
- The Site C dam would flood more than 100 km of the Peace River Valley and its tributaries.
- The joint federal-provincial environmental review of the Site C dam found that its impact on First Nations use of the land would be severe, permanent and irreversible.
Given all this, you might expect that no government could possibly approve the construction of the Site C dam — or invest the billions of dollars necessary to complete the project — without first carefully determining whether or not building the dam would violate Canada’s legal obligations under Treaty 8.
And yet here we are.
After an environmental impact assessment, an economic review by the BC Utilities Commission and more than two years of construction, Canada’s legal obligations under Treaty 8 have still not been addressed — and won’t be addressed until the lawsuit launched by West Moberly and Prophet River is finally heard in court.
Treaty obligations were intentionally excluded from the decision-making process
The findings of the environmental impact assessment of Site C set out a pretty clear basis for determining that Site C threatens Treaty-protected rights. But the review panel was not allowed to make that conclusion or any related recommendations.
The terms of reference established by the federal and provincial governments explicitly directed the panel not to “make any conclusions or recommendations” concerning a number of rights issues, including the nature, scope and strength of the rights of affected First Nations, “whether the Project is an infringement of Treaty No. 8” and “any matter of treaty interpretation.”
Having excluded the issue of Treaty rights violation from the public review of Site C, the federal and provincial governments failed to ever return to the matter before deciding that construction of Site C could begin. The failure to consider the Treaty-rights implication of this decision has been confirmed by BC Hydro and the federal government in documents they’ve filed in court.
When the West Moberly and Prophet River First Nations attempted to challenge the legitimacy of that decision through a judicial review – a legal mechanism designed to provide more efficient and timely access to justice by dealing only with the facts and analysis originally in front of the decision maker — BC Hydro responded:
This process [the process by which Site C was reviewed and approved] was never designed – or equipped – to adjudicate the legal scope of Aboriginal or treaty rights, or their potential infringement. Determining whether a project will result in an unjustified or justified infringement of an Aboriginal group’s section 35 rights is a task for judicial or quasi-judicial bodies capable of testing evidence and determining questions of law. It is not a task for Cabinet, and it is not a task for a reviewing court on judicial review, who is limited to the record that was before the statutory decision-maker.
First Nations have been told that if they want their rights upheld, they have to take the government to court
BC Hydro’s statement was part of an overall argument by the provincial corporation, together with the federal and provincial governments, that the only way to address Treaty rights concerns is for First Nations to launch a long and costly lawsuit.
Pause for a moment to consider the implications.
Treaties are solemn, legal agreements meant to stand the test of time. The people of Canada – all of us – are parties to the Treaties that the government has entered into in our names. We are all Treaty people.
Now, in respect to one of the largest and far-reaching decisions that any government could make about how Treaty lands are used, the federal and provincial governments have taken the position that only one party to the Treaty, the First Nations, must bear the entire responsibility for ensuring that the Treaty is respected and must bear the burden of bringing the other Treaty partners to court.
The fact that BC Hydro and the federal and provincial governments were ultimately successful in this argument is precisely why the case is now back before the courts with exactly the kind of full-scale lawsuit that the federal and provincial governments said was necessary.
This time, one hopes, the fundamental question of Treaty rights in the Peace Valley will finally be dealt. Even more critically, the Valley itself must be protected until this resolved. This could be accomplished by the court issuing an injunction – which is the subject of the initial hearing to begin July 23. Or it could be accomplished by the provincial and federal governments deciding to act honourably. The federal government has already informed the court that it will not oppose the injunction application. However, BC Premier John Horgan has the power to halt construction until the case can be heard and should do so immediately.
Craig Benjamin coordinates Amnesty International’s campaigns in Canada in solidarity with First Nations, Inuit and Métis peoples and communities. Amnesty’s report on human rights violated by the construction of the Site C dam can be found at: www.amnesty.ca/sitec