Site C is a massive hydroelectric dam that, if completed, would flood more than 100 km of the Peace River Valley and its tributaries. For First Nations, Site C threatens one of the few remaining areas in the Valley and in the region where they can still practice their cultures and traditions. The Site C dam would also displace family farms, destroy valuable farm lands, and inundate countless graves and cultural sites.

Frequently Asked Questions

What is the case about?

Two First Nations in northeast BC, the West Moberly and Prophet River First Nations, are arguing that the exercise of rights protected by Treaty 8 requires the protection of the Peace River Valley. They seek to have Site C dam permanently stopped.

As part of this legal action, they are also asking the court to suspend construction – at least in the most crucial and sensitive areas of the Valley – until the case is resolved. This injunction application is expected to be heard in the summer of 2018.

What is the legal status of Treaty 8?

The duty to uphold Treaty rights is affirmed in the Canadian Constitution. In other words, Treaty rights are part of Canadian law.

International legal standards, including the UN Declaration on the Rights of Indigenous Peoples, also require governments to honour their Treaty obligations.

One aspect of the discriminatory treatment of Indigenous rights in Canada, however, is that the onus to uphold Treaty rights has been placed entirely on Indigenous peoples. Historically, the federal and provincial governments have taken no responsibility to ensure that their actions are compatible with their Treaty obligations. Indigenous peoples are often left little choice but to engage in long and expensive legal cases just to defend rights that governments have already committed to uphold.

The federal and provincial governments approved construction of the Site C without ever considering whether flooding the Peace River Valley would violate Treaty 8, despite longstanding objections by affected First Nations. Instead, the federal and provincial governments have said that if First Nations think their Treaty rights are being violated, they should go to court, which is what has happened.

Haven’t the legal issues around Site C already been resolved?

Previous court cases never resolved the fundamental issue of whether proceeding with Site C violates federal and provincial Treaty obligations. These previous court challenges took the form of judicial reviews, a kind of legal hearing that is meant to provide a faster and less expensive way to resolve disputes over government decisions. The federal and provincial governments successfully argued in court that the issue of Treaty rights violations could not be addressed in this way, but would require a full lawsuit. That is what West Moberly and Prophet River have now launched.

What did the environmental impact assessment say?

The joint federal/provincial environmental impact assessment of the Site C dam found numerous “severe,” “permanent’ and “irreversible” impacts from the flooding of the Peace River Valley including loss of vital plant and animal habitat, mercury contamination of fish, and destruction of graves and cultural sites from thousands of years of occupation and use of the River Valley.

The federal and provincial governments specifically instructed the assessment panel not to make any conclusions about whether building Site C would violate Treaty 8.

What did the BC Utilities Commission say?

In 2017, the newly elected government of Premier John Horgan mandated the BC Utilities Commission to examine the economic case for Site C. The review looked at the best estimate for the eventual cost of Site C, the province’s projected future energy needs, and the potential to meet these needs through other means. The Commission concluded that even with the money already spent on building the dam (the “sunk costs’), in most scenarios stopping Site C and pursuing other, less destructive projects would either make little difference to the eventual price to meet the province’s energy needs, or would actually save the province money.

The BCUC was not asked to consider the impacts of Site C on First Nations’ rights. However, the BCUC findings could be significant in this case if the province attempts to argue that violation of Treaty rights is justified by the economic benefits of Site C.

What about BC Hydro’s claim to have consulted with First Nations?

Consultation is meant to be a tool to identify and address the concerns of Indigenous peoples so that their rights can be protected. Regardless of how much consultation takes place, there are some projects that shouldn’t proceed because the harm to the rights of Indigenous peoples is unacceptable. West Moberly and Prophet River are arguing that this is the case for Site C.

Don’t some First Nations support the Site C dam?

Making the best of a bad situation isn’t the same as supporting Site C. Throughout the environmental impact assessment process, First Nations in northeast BC were clear in their opposition to Site C. After the federal and provincial governments approved the project — despite the findings of the environmental assessment, and over the objection of bodies like the Treaty 8 Tribal Association, the Union of  BC Indian Chiefs, the First Nations Summit and the Assembly of First Nations — some First Nations entered into agreements with BC Hydro so that they would receive benefits from the construction.

Meanwhile, West Moberly and Prophet River have continued to challenge Site C in court. Another First Nation in Treaty 8, Blueberry River First Nations, has also challenged Site C as a part of a much larger court case about how decisions are made in the northeast. The rights of these nations must still be addressed.

Isn’t Site C already past the point of no return?

To date, nothing that has been done is irreversible. The injunction application now before the courts calls for vital habitat and cultural sites to be protected while the case is heard. This is crucial. Especially given the fact that the federal and provincial governments have been aware all along of Treaty rights concerns, it would be a travesty of justice if First Nations were to win in court and still not be able to exercise their rights because the Valley had been destroyed in the meantime.

Are First Nations opposed to all resource development?

The West Moberly and Prophet River First Nations have a long history of partnering with resource development projects in the northeast. Their legal case is intended to stop Site C and only Site C.