The BC Supreme Court is currently considering whether to halt, or at least limit, construction of the Site C dam in order to protect the Peace River Valley until the court can rule on the bigger question of whether construction of the Site C dam violates federal and provincial Treaty obligations.
The injunction hearing concluded on Friday, September 7. A ruling is expected before the end of October. All parties have agreed that there will be no clearcutting in the Valley before November 1.
The court has agreed that this important legal process can be video recorded so that it can be made more accessible to the interested public – especially members of the northeast BC First Nations who are in court to fight for their Treaty rights.
The written arguments of the federal and provincial governments, and BC Hydro can be read online. It’s important to take a close look at these arguments as they are being made in the name of the public interest.
West Moberly’s arguments are also posted on our court documents page.
The Union of BC Indian Chiefs has sharply criticized the arguments made by BC Hydro and called on Premier Horgan and Attorney General Eby to denounce these efforts to diminish and undermine the rights of Treaty 8 Nations and issue a formal apology.
There has been no response from the province.
The following summaries are based on notes from observers in the courtroom and a review of the video recordings.
DAY 14- Friday September 7
In his concluding arguments, Reider Morgerman, the lawyer for West Moberly argued that the construction plans for Site C were designed to accommodate change. If an injunction is imposed in a proper fashion, the consequences will not be as significant as BC Hydro and the province have suggested.
In constrast, the consequence of not granting an injunction would be to preempt the possibility of fully protecting the Treaty rights that are stake. If West Moberly and Prophet River win this case, they would still be left with a valley that has been clear cut and fundamentally changed, with spiritual sites disrupted. This is what they are trying to prevent.
Mr. Morgerman also talked about the interpretation of the harversting rights in Treaty 8. In order to be meaningful, Treaty rights must mean something more than simply the right to harvest. In order to be meaningful, the Treaty right has to be tied into this broader land base. Its an interconnected land base that has already been severely impacted.
“The places where you can harvest…are dramatically declining, and the places that are required to sustain the animals are dramatically declining. So both habitat and harvesting sites are dramatically declining.” [at 1:07:20 in the morning recording]
In earlier orgal arguments, BC Hydro said that some of the ceremonies that the tradition keepers of West Moberly are trying to protect are not from their nation. Community members actually had to go to the prairies to learn about ceremonies that were practiced there, and bring them back to their territory. But the Dunne-Za had parallel ceremonies that used to be practiced in the region, but the church eradicated them. You need to look at how ceremonies are practiced in the context of colonialism and the attempts to wipe them out.
“It’s not good enough just to say, ‘oh that’s a Sioux ceremony so that actually couldn’t have anything to do with your treaty rights’, when the nation had the parallel ceremony eradicated and was trying to figure out a way to rebuild it because they see it as important to the continuation of their own practices.” [at 1:17:50 in the morning recording]
Speaking to the argument made by BC Hydro and the province that the court shouldn’t interfere with the decisions of democratically elected government, the counsel for West Moberly said, “We do live in a democracy, but we live in a constitutional democracy….You’re allowed to call into question these government actions. You’re supposed to, we need to, its important to.”
In its concluding arguments, BC Hydro once again made the claim that West Moberly will still be meaningfully able to exercise their treaty rights after the flooding of the Peace Valley. BC Hydro’s lawyer also claimed that traditional uses of the Valley would not be significantly harmed by clearcutting and other construction activities prior to the completion of the dam.
“We have to look at where we are. This is not a case about a pristine wilderness. This is a case where, if you were to walk down there or fly a drone over there, you would see that on the north shore of this valley, large portions of it have been cleared, and yet, and yet the valley still supports the kinds of uses and traditional uses set out in the evidence. It’s not a case where every tree that you cut down there is derogating from an untouched, unspoiled wilderness.” [at 42:30 in the afternoon recording]
DAY 13 – Thursday September 6
Much of the morning focused on the question of whether expert evidence by Harry Swain, who chaired the joint federal-provincial environmental assessment of Site C, should be admissible or not. This involved debate about whether restrictions that often apply to decision-making bodies should also apply to a panel that merely provides advice to government.
Swain’s expert testimony is significant to the case because it deals with concerns raised in the assessment report about the reliability of BC Hydro’s claims regarding the actual need for the project, its final cost, and its merit relative to alternatives that would not threaten the Valley. These points are relevant to whether continued construction is in the public interest as claimed by the province and BC Hydro.
Lawyer’s for the province continued to argue that action by the court to uphold Indigenous rights ignored by the government would be an unacceptable interference in the democratic process and harmful to the public interest.
“The actions by the Crown are prima facie deemed to be in the public interest and so preventing the Crown from exercising its statutory authority harms the public interest. [5:30 in the morning recording]
“Granting of an interlocutory injunction by the court would constitute a high level of interference with democratic governance.” [8:10 in the morning recording]
Also today, lawyers for West Moberly responded to the question of whether saving the Peace Valley is necessary to uphold Treaty 8. They set out the argument for why it is essential.
Treaties cannot be understand only from the perspective of settler society. They have to be understood from the perspective of First Nations as well. West Moberly’s lawyer said that the First Nations signatories would never have agreed that the Peace Valley could be taken out of the Treaty.
Contrary to the claims by BC Hydro and the provincial government, the harvesting rights protected in the Treaty cannot be separated from the overlay of Indigenous culture, spirituality, governance and ecological preservation. These relations make the exercise of the right meaningful.
In the context of what has already been lost, the Williston Reservoir and the Peace Canyon Dam, the area of the Peace Valley threatened by the Site C dam is all the more important because it is the last of the Valley left for the use of these First Nations.
Reidar Mogerman, counsel for West Moberly: “If we were talking about taking up a small, or relatively small portion of the river we would be having a different discussion than – from West Moberly’s perspective – talking about taking up the last remaining portion of the river… Within this territory, for the purpose of these people, the Peace River [would be] gone.” [at 2:39:10 in the morning recording]
The planned destruction leading up to the flooding, such as the clearcutting, is particularly significant because it represents additional loss when so much has already been taken away. Furthermore, it is part of the sequence that would lead to the final irreparable harm of the total destruction of the Valley.
DAY 12 – Wednesday September 5
Many groups and networks, including witnessforthepeace.ca, have urged Premier Horgan to ensure that BC’s arguments in the Site C injunction case are consistent with his government’s promise to respect Indigenous rights.
BC government lawyers demonstrated in court today that the Premier hasn’t listened.
Oral arguments made on behalf of the province repeated the same troubling lines of reasoning as set out in BC’s May 10th written argument (analyzed here), including assertions that courts shouldn’t interfere with the decisions made by governments – even when those governments chose to ignore legal obligations, such as the protection of Treaty rights, that are entrenched in the Constitution.
BC government lawyer: “What we have are fiscal implications which ultimately may impact, and were the subject of high level provincial executive decision making, essentially.”[at 44:20 in the afternoon recording]
“An interlocutory injunction would constitute a high level of interference with democratic governance…because this has been the subject of Cabinet decision making. We say that consultation is the preferable means of protecting West Moberly’s impacts pending trial of the claim.” [at 46:00 in the afternoon recording]
“The court must consider that its role is not to make political decisions or design public policy.” [at 2:28:00 in the afternoon recording]
The center piece of the province’s defense is its claim that even though the Site C dam will be harmful to First Nations, the province fulfilled its Constitutional obligations because it “consulted” first.
BC government lawyer: “…consultation is actually the foundation upon which reconciliation is based…It is the foundation of the house on which the province and First Nations can work together toward reconciliation of their interests.” [at 51:10 in the afternoon recording]
We know, of courseg, that consultation alone is not enough to meet the standard of international human rights law that the Horgan government has promised to implement. The UN Declaration on the Rights of Indigenous Peoples is clear that both consultation and collaboration are always required and that projects that risk serious harm to the rights of Indigenous peoples must also meet the additional requirement of free, prior and informed consent.
We also know that governments and government agencies always claim that their consultation processes are faultless, even when the failings are profound. The recent decision on the Trans Mountain pipeline is only the latest instance of a court finding that governments have endorsed and relied on a severely flawed consultation process that falls far short of the legal requirements of Canadian law.
In this case, BC Hydro’s testimony during the injunction – described by the Union of BC Indian Chiefs as an arbitrary, one-sided interpretation of the Treaty and disrespectful of the wisdom of First Nations elders – calls into question how well the Crown corporation was able to listen when it “consulted” with First Nations.
But the deeper failing of the Site C “consultation” process is even more obvious: despite the serious concerns raised by First Nations, BC Hydro and the provincial government have never seriously considered any possibility other than building the dam.
The First Nations challenge to Site C, however, is not about consultation. It’s about the obligation of governments to actually protect the rights that they committed to uphold when they entered into Treaties with First Nations.
It’s hard to see how there can be reconciliation when concerns over violation of rights are deliberately ignored in the decision-making process, as BC Hydro, the province and the federal government have all acknowledged was the case in the decision to approve the Site C dam. It’s also deeply concerning that the BC government is now apparently trying to redefine its legal obligations to be limited only to consultation.
The West Moberly and Prophet River First Nations are arguing that the unique cultural landscape of the Peace River Valley, with its millennia of history, stories and traditional knowledge, and all the wildlife that depend on it, are essential to any meaningful exercise of the rights set out in Treaty 8. They are further arguing that the massive scale of resource development throughout most of the rest of northeast BC means that there is no comparable area left to support their culture and the exercise of their rights.
The BC government’s oral arguments echo what BC Hydro has already set out. First, the provincial government claims that Treaty protection of the right to hunt, fish and trap means only the potential to practice these traditions somewhere in their traditional territory and that the cultural significance attached to carrying out these practices in the Peace Valley is simply irrelevant to the interpretation of the Treaty. Second, the province asserts that First Nations cannot prove that there is nowhere else that they can practice these traditions – although the government itself has not offered any suggestions of where this might be possible.
BC government lawyer: “Their materials don’t support a finding that they cannot meaningfully exercise their Treaty rights within their traditional territories. And in fact it is the plaintiffs who bear the onus of showing that they cannot meaningfully exercise their rights within their traditional territories, not just in relation to the area Site C will be in.” [at 1:10 in the afternoon recording]
These are ultimately matters that will be decided by the full trial process, which is still to come. The purpose of the current injunction hearing is to determine whether or not to protect the Valley in the meantime in order to ensure that if the court’s final decision won’t come too late – that if the court concludes that the Valley is essential to the enjoyment of Treaty rights, there will still be a Valley left where these rights can be exercised.
The federal government, which has acknowledged that the underlying Treaty rights still need to be addressed, decided not to oppose the injunction application. The Horgan government could have done the same, but chose not to. Instead it is trying to persuade the court that it is unlikely that First Nations will win the case and therefore there is no need to delay the continued construction of this mega-dam.
This effort to deny First Nations even the opportunity for their case to be meaningfully considered — that is, with the potential to actually protect the rights at stake if the court rules in favour of West Moberly and Prophet River — puts the province’s actions in court sharply in opposition to its own commitments to Indigenous rights.
DAY 11 – Tuesday September 4
Hearings resumed today after a break necessitated by the health of the presiding judge.
The West Moberly First Nations have filed a written reply to the arguments made by BC Hydro before the break. The reply can be read here. BC Hydro has also made additional written submissions which have not been publicly posted.
BC Hydro essentially argued today that the court should reward the Crown corporation and the province for having gotten away with ignoring Treaty rights up to this point – and further punish First Nations for the fact that their long standing objections to Site C have been repeatedly ignored.
The whole process for reviewing and approving SIte C was deliberately designed to exclude consideration of whether destroying the Peace River Valley would violate the legal requirements of Treaty 8. BC Hydro acknowledged as much in response to a previous court challenge.
Now that this crucial, outstanding legal issue is finally going to be heard, BC Hydro is urging the court to put the Site C schedule (which is already in question) and budget (which has repeatedly grown by billions of dollars) ahead of the Crown’s duty to ensure that Treaty rights are respected.
According to Hydro, even a limited work stoppage at this point would cause “irreparable harms”. The hyperbolic language used by BC Hydro’s lawyers to describe the implications of any rscheduling of construction plans contrastly sharply with they way they had earlier dismissed First Nations concerns about the harm to their culture and traditions. BC Hydro’s lawyer referred to the requested injunction on clear-cutting critical areas identified by West Moberly as “extremely invasive, extremely significant interference with the ability of BC Hydro to proceed with this project.” [At 43:38 in the morning recording]
Significantly, BC Hydro’s lawyer acknowledged that construction-related activities in the critical areas identified by West Moberly could be delayed until later in the construction schedule and that any impact is purely speculative (and rather minor in comparison both to the overall scale of the project and what’s at stake for the First Nations.)
While acknowledging that construction related activities in the critical areas identified by West Moberly could in fact be delayed until later in the construction schedule, BC Hydro’s lawyer said, “What this means is that you have created these stresses and strains on the project, you have stressed the project, you have made it more difficult to achieve your critical milestones. And you have made it more likely that you will miss them. And it you miss critical milestones then we’re talking hundreds of millions of dollars.” [ 19:28 in the morning recording]
BC Hydro’s lawyer gave as an example of the impact the claim that a temporary work stoppage in the critical areas would cut into their “float” – the leeway to adjust to other contingencies such as ongoing problems with the stability of the site.
BC Hydro also told the court that an injunction shouldn’t be granted because First Nations waited too long to launch a legal challenge to Site C.
BC Hydro’s lawyer stated that the “delay” in launching the current legal challenge “is an extremely important factor in this injunction application. We are in a really difficult situation with this project having run along for three years by reason of the plaintiffs’ decision, for whatever reason, the plaintiff’s decision not to bring this injunction application at the end of 2014 or early 2015. And that weighs very heavily in the balance. It’s the plaintiffs actions which have resulted in a situation where I’m making submissions to you about the irreparable harm of an injunction which impedes and interferes with a full-scale, massive project which is underway.” [At 1:42:10 in the morning recording].
In fact, until last year, First Nations were in court trying to use a judicial review process to challenge the legitimacy of the decision-making process in which the federal and provincial refused to consider potential Treaty rights violations. For its part, BC Hydro was before the courts fighting against the use of such a judicial review mechanism.
A judicial review is intended to provide a faster, more efficient way to address serious flaws in government decision-making processes. A judicial review is the same legal mechanism that overturned the approval of the Northern Gateway pipeline and, just now, the TransMountain pipeline. In both cases, the approvals were overturned because of government failure to properly engage with outstanding Indigenous rights concerns.
But when First Nations challenged the approval process around Site C through a similar judicial review, BC Hydro, the province and the federal government were successful in convincing the court that the Treaty rights issues at stake in this case were too complex for such a review and required a whole new, and much longer legal process.
So, in other words, having refused to deal with Treaty rights before the project was approved, and then having successfully fought off First Nations efforts to address their concerns through a shorter, more expedient legal process, BC Hydro is now arguing that even the current case — the very civil action that BC Hydro said was the only option to address the Constitutionally protected rights of Indigenous peoples — should not interrupt the continued destruction of the Peace River Valley.
BC Hydro’s lawyer went on to tell the court that the Treaty rights issues that it has previously claimed were too complex to even be considered in every previous stage of decision-making or litigation, can be resolved so “expeditiously” in the upcoming trial that a temporary injunction isn’t even needed.
“We do not want to prolong and expand and duplicate this fight over the project, over whether the project can go ahead. This is exhausting litigation, exhausting litigation that we have been engaged in for the last six months. We don’t want to be prolonging it or duplicating it or doing it any more. In my submission it’s perfectly clear, I say, on the basis of the evidence before you, that this injunction should not be granted and we should move on to trial in an expeditious fashion and deal with those issues as expeditiously as possible and we should not continue to be distracted by this interlocutory warfare.” [At 1:39:10 in the morning recording]
DAY 10 – Friday August 3
All this week, lawyers for BC Hydro have fought against an interim injunction by asserting that the meaningful right to hunt, fish and trap protected in Treaty 8 does not require the province to protect specific areas of the Treaty territory such as the Peace Valle. Today, as BC Hydro concluded its defense, BC Hydro argued that the harms that First Nations are trying to prevent, such as the loss of animal habitat and opportunity to practice their cultures and traditions, are in fact too general.
Hydro’s lawyers continued to minimize the impacts of its construction plans. They said that old growth forest in the Valley is not like the old growth we think of elsewhere in BC such as the coastal rainforest: it may be forest that has regenerated from forest fires perhaps 100 to 120 years ago. While acknowledging that Hydro plans to clear 46 hectares of old growth forest (as well as other forest) in preparation for the eventual flooding of the Valley, Hydro claimed that old growth and other forests with “similar habitat features” is available in abundance beyond the area impacted by the project. (from 40:20 to 45:00 in the morning recording.)
“What I submit to you is that the wildlife habitat created by old growth – there’s plenty of it, very little of it is being impacted.” – BC Hydro’s lawyer at 44:00 in the morning recording.)
BC Hydro also reiterated its economic argument for continuing construction while the Treaty rights case is before the courts. BC Hydro continue to claim – contrary to evidence submitted by West Moberly – that even a limited injunction to protect the most critical areas of the Valley would have too high a price. Hydro’s lawyers also argued that the money spent to date on the project – knowing that the Treaty issue was unresolved – is already too great to contemplate stopping the project even if the court concludes that Treaty rights would be violated.
According to BC Hydro, the real “irreparable harm” would be in suspending the project. Questioned by Justice Milman about suspending the project could be considered “irreparable harm” even if it were costly to do so, Hydro’s lawyers responded by saying that the irreparable harm would be in a court interfering in the ability of BC Hydro and the provincial government to manage the project as they see fit.
Lawyer for BC Hydro: “The injunction sought by the plaintiffs will cause irreparable harm by substantially impairing and disrupting the construction of a massive, complex mega-project.”
Justice Milman: “Why is that in itself ‘irreparable’? I realize that it’s a problem. It might be a very expensive problem. But why do you say it’s irreparable?”
Lawyer for BC Hydro: “It’s one of those things that has a fundamental impact on something very important which we cannot foresee or determine how it’s going to play out and it takes away from the person who is responsible for, and liable for, the conduct of that mega public works project the ability to manage it as it sees fit.” (from 2:10:40 on the morning recording)
Hydro’s lawyer went on to characterize the “public interest” as including having the courts respect the decisions and project approvals made by the government of the day – even, apparently, if it’s acknowledged that a fundamental aspect of the government’s legal obligations, such as the Treaty rights of First Nations, was willfully ignored in the process. (list to the morning recording from 2:15:50.)
Day 9 – Thursday August 2
West Moberly is asking for a temporary injunction to suspend all construction on the Site C dam until the court can consider the still unanswered legal question of whether the dam must be permanently halted as a violation of Treaty 8. In the event that the court is not prepared to suspend construction entirely at this stage, West Moberly has asked that at least certain critical areas identified by elders and others be protected from construction activities such as road building or advance clearcutting.
BC Hydro’s lawyers spent much of the day today disputing the need to protect even these identified critical areas. In doing so, they demonstrated extraordinary disrespect for the traditional knowledge of Indigenous elders and the right of Indigenous people to define their own cultures and traditions for themselves.
Due to colonial intrusions, the Dunne-Za people no longer have areas in the Peace Valley that they occupy year round. Instead they have worked to preserve sites that they go to and conduct ceremonies, gather medicines, hunt and fish, or protect as critical habitat. These uses of the land, set out in affidavits submitted by West Moberly elders, tradition keepers and leaders, are apparently insufficient evidence of the importance of these areas from the perspective of BC Hydro’s legal team which found various ways to characterize these critical areas as infrequently used.
First Nations oral histories about a buffalo jump, an historic site in the Valley where bison were once hunted, were dismissed as “speculative.” Other evidence about current First Nations use of the Peace Valley was implied to be unreliable.
BC Hydro’s lawyers questioned why the area around an elder’s sweat lodge should be protected, since the sweat lodge is not originally a Dunne Za tradition but has been adopted from other Indigenous relatives.
“It’s from another First Nation and he conducts it pursuant to permission granted to him. The sweat lodge was built by Mr. Desjarlais 11 or 12 years ago… ” 1:02:10 in the afternoon recording
“So I say, with respect, that this evidence shows that the sweat lodge ceremony being performed by Mr. Desjarlais came from the Prairies rather than the Dunne-Za tradition and the 1 kilometer zone [that West Moberly is asking to have preserved around the sweat lodge] is also not from Dunne-Za tradition.” at 1:06:50 in the afternoon recording
After mentioning that islands in the Peace River are nurseries for birthing moose and other animals, Hydro’s lawyers said this was not an issue for the injunction since flooding is not imminent – although they acknowledged that some will be logged.
Hydro’s lawyers also referred to the mountain peaks beyond the Peace Valley that are known as the ‘twin sisters’ and the sacred connections that the people of West Moberly have with these mountains. His point seems to be that since the people of West Moberly have this place intact, they don’t need the Peace River as well. This approaches ignores the relations across space for people who move through the area so as to support the regeneration of land and life, and not exhaust one spot.
BC Hydro’s lawyers have criticized West Moberly for not launching the current legal action sooner. There seems to be little appreciation of why a long and costly court proceeding would be the last resort for many First Nations.
Observing Hydro’s lawyers in court this week only underlines what an enormous burden the First Nations have been forced to bear in order to protect the Treaty relationship – a burden not just of the time and money needed to meet the standard of evidence demanded by such an adversarial and inequitable process, but also the burden of having their cultures and traditions once again treated with such profound disrespect.
DAY 8 – Wednesday August 1
BC Hydro told the court today that it believes there is no Treaty obligation to protect First Nations’ “practical, traditional, cultural, or spiritual connection to any land.”
‘Complexity’ as an excuse for denying justice
When the West Moberly and Prophet First Nations first challenged the Site C dam using the judicial review process, BC Hydro and the federal and provincial governments argued – successfully – that questions of Treaty infringement were too complex and required a full trial to resolve.
Now that these First Nations have launched a full law suit, BC Hydro is arguing, as it told the court today, that the First Nations shouldn’t be granted an injunction to protect the Peace River Valley because the legal issues at stake are so complex that they aren’t likely to be resolved quickly. In other words, BC Hydro is claiming the case could drag on for years but want to be able to continue with its own plans, including clear cutting the Valley, in the meantime. (And of course if an injunction isn’t granted, BC Hydro would have an incentive to ensure the case will drag on for as long as possible using the kinds of tactics already on display in the injunction hearing.)
BC Hydro’s lawyers made the point by referencing the tens of thousands of pages submitted on the case by BC Hydro and the provincial government.
BC Hydro also argued today that Site C construction is also too complex to be temporarily halted while these legal issues are resolved. An injunction “would add strain to an already difficult exercise.”
Given that BC Hydro acknowledges that the review and approval process for Site C did not even attempt to determine whether building the dam would infringe Treaty rights, the question that has to be asked is why the corporation and the province would rush ahead with construction knowing that a legal challenge was almost certain? And why do BC Hydro and the province think that it’s fair or appropriate for First Nations to be denied the opportunity to actually protect the Valley in the event of a court finally determining that Site C does, in fact, violate their rights?
This cold denial of Indigenous people’s perspectives exemplifies the systemic racism and environmental racism that Yvonne Tupper drew attention to at Monday morning’s rally.
BC Hydro went on to argue that, with some exceptions, the evidence of First Nations use of the Valley is “thin.” (at 1:48:00 in the morning recording) Even where it acknowledges continued use of the land, such as Bear Flats, an historic gathering place where First Nations people still conduct cultural camps, BC Hydro characterizes this as ‘limited use of the Valley through overnight stays.’
This goes back to a point made in our notes yesterday. BC Hydro defends its actions by claiming to have consulted extensively with West Moberly. Yet in its arguments in court BC Hydro demonstrates remarkably little ability to actually listen to First Nations and value their perspectives and expertise.
BC Hydro is also disputing the significance of the Peace River for First Nations fishing.
BC Hydro dismissed evidence submitted regarding Clarence Willson who describes catching 200 to 300 fish a year to give to elders. Hydro says that Willson doesn’t fish in the Peace River itself, even though he fishes in its watershed, in streams and tributaries like the Moberly River that flow into the Peace.
This raises another question: when BC Hydro says West Moberly members can exercise their Treaty rights “somewhere else” in the their traditional territory, does Hydro actually mean in the same watershed and affected by the same contamination as would be caused by Site C?
Hydro minimizes and disregards the impact that planned construction activities such as clearcutting forested islands on the river would have on First Nations and the exercise of their rights to fish.
“Perhaps you have to draw a distinction between aesthetics and harvesting rights.” – BC Hydro’s lawyer to responds to questions from Justice Milman about Hydro’s claim that planned clearcutting along the Peace would not interfere with the exercise of fishing rights (exchange beginning at 1:11:00 in the afternoon recording)
Hydro also complained that it has been unable to verify statements about plant medicines in the critical areas because elders and tradition keepers won’t pinpoint the exact locations for them. However, tradition keepers often protect sacred places and plant medicines by not revealing their location. Contrary to what BC Hydro is implying, there is no reason to interpret this as meaning that their knowledge is made up or false.
Day 7 – Tuesday July 31
The injunction hearing continued today with further arguments on behalf of BC Hydro. These are key points recorded by our observers attending the hearing.
BC Hydro suggests that Constitutional obligations in respect to the West Moberly First Nations were met by the long list of meetings that Hydro’s legal representatives put on the record. At the same time, other assertions made by Hydro’s lawyers cast doubt on the public corporation’s willingness or ability to listen to First Nations, no matter how often they met.
Although West Moberly and Prophet River tried to challenge the approval of the project through judicial reviews (meant to provide a more timely, less expensive way to access justice) BC Hydro, which along with the federal and provincial governments successfully fought against this method being used to resolve the outstanding legal questions, said the First Nations must ‘account for the consequences of their inaction.’ (at 45:35 in the morning recording.)
Hydro asserts that the importance of the Peace Valley to the history and culture of First Nations is irrelevant to the interpretation of Treaty 8. Hydro argues that the Treaty – contrary to First Nations’ understanding of its spirit and intent – is limited to protecting the right to hunt, fish and trap devoid of any relationship to where First Nations have historically practiced these traditions, or where, according to their values and traditions, they need or prefer to practice these rights today.
BC Hydro: ‘There are no oral promises made by the Treaty Commissioners that practical, traditional, cultural, or spiritual connection to any land would be protected.’ (At 55:10 in the afternoon recording.)
BC Hydro asserts that when Treaty 8 was signed, it applied to the whole area of the Treaty and that First Nations can continue to hunt, fish and trap somewhere in their traditions within the Treaty 8 area. This assertion fails to adequately address West Moberly’s factual evidence that the areas able to sustain these practices are alarmingly decreasing.
BC Hydro said that it “considered” the impact of Site C on the Treaty rights of First Nations, while also acknowledging that there has never been a determination of whether the dam violates the legal obligations of that Treaty.
Hydro asserts that it is still prepared to accommodate West Moberly’s concerns, provided that doesn’t mean halting the project, even temporarily, or protecting areas that West Moberly identifies as critical while the case is before the courts.
Hydro rejects the idea – central to the injunction application – that there are critical areas in the Valley that need to be protected until there is a resolution of these legal questions. Hydro’s lawyer basically said he didn’t think these areas are critical to West Moberly’s ability to practice their hunting rights. The assumption that they could go elsewhere shows the lack Hydro lack of understanding and relationship with Indigenous peoples and how they live on their traditional territories.
BC Hydro’s lawyers also made the extraordinary claim that despite established concerns over mercury contamination and its potential for severe human health impacts, the reservoir is actually “compatible” with the exercise of First Nations fishing rights.
BC Hydro: “Part of the land will be taken up, and will be put to a use that is incompatible with hunting and trapping because it will be inundated, but it will be compatible with fishing. Fishing rights will be compatible with the reservoir.” (at 27:05 in the afternoon recording.)
Day 6 – Monday July 30
West Moberly completed its arguments today and BC Hydro presented its defence. Here are some of the significant points noted by our observers at the hearing:
West Moberly’s lawyers pointed out BC Hydro’s heavy reliance on the evidence of its own employees or individuals with an interest in the project. West Moberly’s lawyers demonstrated how biased BC Hydro’s are.
For example, BC Hydro claims that methyl mercury contamination from dam building lasts for only ‘a finite period of time.” But First Nations fishers have demonstrated that today fish are still contaminated from the W.A.C. Bennett dam, built fifty years ago.
BC Hydro asserted that Site C will not cause irreparable harm to West Moberly’s entire traditional territory. BC Hydro suggested that destruction of the Peace River Valley would leave the people of West Moberly able to meaningfully exercise their rights ‘somewhere else.’
BC Hydro’s lawyer also argued that the rights protected under the Treaty are limited to harvesting rights. BC Hydro further argued that the harvesting rights protected under the Treaty 8 do not include cultural rights or cultural components and that as a result the Treaty doesn’t protect the right of the Dunne-Za to hunt and fish where their ancestors did or on the lands covered by their oral traditions.
BC Hydro is presenting an extremely narrow view of Treaty rights. The idea that harvesting rights can be protected without considering their cultural dimension is at odds with the established obligation to consider the Treaty from the perspective of the First Nations themselves. But the argument allows BC Hydro to ignore the historical and cultural significance of the Peace Valley to the Dunne-Za, which is an important part of West Moberly’s argument.
Despite the expert evidence presented by West Moberly that a temporary injunction protecting critical areas of the Valley would not have a serious impact on BC Hydro meeting the critical milestones of its construction plan, BC Hydro stated today that any ‘reasonable person’ would expect an injunction to create ‘major risks’ to the project.
Especially given that BC Hydro is ultimately answerable to the provincial government, and that government has made numerous commitments to foster reconciliation with Indigenous peoples, BC Hydro’s arguments displayed a disturbing lack of understanding or refusal to consider Indigenous perspectives.
Day 5 – Friday July 26
Written arguments submitted by West Moberly, BC Hydro, the Government of British Columbia and the Government of Canada are linked from the Court Documents section of this website.
Here are notes what what our observers heard in court today:
Representing West Moberly, lawyer Reidar Morgerman reviewed a series of cases where courts have considered temporary injunctions where outstanding questions of the duty to protect Indigenous rights and interests remained unresolved. A number of elements from these cases were considered including:
- Indigenous perspectives on what constitutes irreparable harm must be considered.
- An injunction can benefit both parties, providing space for negotiation.
- It can be inferred that ncertainty about the future of a project due to questions about budget and costs can weigh in favour of granting an injunction.
- The fundamental value of reconciliation is a crucial part of what makes up the public interest.
“In our theory of the case, those traditional patterns of activity and occupation are interwoven with the Peace. If you don’t have the Peace, you don’t have those patterns, and you have made that aspect of the treaty right meaningless.” At 10:20 in the afternoon recording
The obligation to protect the ability of First Nations to meaningfully exercise Treaty rights cannot be met by telling Indigenous peoples to go exercise their Treaty rights somewhere else. If the Peace is gone, there is no elsewhere. The connection to this specific land is the basis of the Treaty rights. There is also extensive evidence that there’s simply no elsewhere to go.
In this context of so much that has already been lost and destroyed., the remaining land that provides connection of people to their culture and spirituality becomes that much more important.
“There is extensive evidence that there isn’t an ‘elsewhere’ to go that satisfies the treaty right. It’s not as simple as saying, ‘within this treaty territory, get in your car and go find some fish or animals.’” At 43:05 in the morning recording.
Once infringement is established, the onus is on the Crown to establish that the project meets the test for justification.
The first part of this test is the procedural requirement good faith consultation. The Crown would say it consulted fairly. The First Nations would disagree. This is covered in the written submissions. But even if that were granted, then other questions arise: is the purpose of the project not just valid, but “compelling and substantial” from the perspective of First Nations and the wider public.
Any benefits have to be weighed against adverse impacts. Is the harm necessary (can the benefits be reasonably obtained in other ways). Are the harms proportional to the benefits? Are the benefits being pursued in a way that results in the least possible harm or minimal impairment of rights?
Finally, are the Crown’s actions consistent with the duty of reconciliation?
“Here there has been no determination whether Site C will infringe West Moberly’s treaty rights. Before the court has an opportunity to decide this question, it cannot be said that the public interest favours the defendants. Risk of delay, uncertainty in business disruptions to third parties and the Crown cannot outweigh a substantial risk that constitutionally protected treaty rights will be breached or that the public interest in upholding the Honour of the Crown will be harmed.” At 1:02:25 in the afternoon recording.
This is where the findings of the BC Utilities Commission are directly relevant as the evidence shows that there is isn’t a need for this power and that there are reasonable alternatives.
Day 4 – Thursday, July 25
Presentations on behalf of West Moberly will conclude tomorrow. Here’s what our observers heard in the court today.
West Moberly’s legal counsel set out the case that construction of Site C will continue to be behind schedule and over budget – not because of the injunction sought by the First Nations – but because of numerous problems of its own.
“Mr. Elwin, as an expert, looking at these documents, having seen a lot more than anyone else has been able to see about this project, concludes that yes, it is going to be delayed.” [afternoon video at 1:19:05]
Citing the affidavits of independent experts filed by West Moberly, as well as the report of the province’s own Project Assurance Board, they set out a long list of problems including:
- conflicts with the main civil works contractor,
- health and safety issues for Site C workers,
- the exhaustion of most of the contingency fund
- continued serious problems with the instability of the river bank where they are trying to build the dam, and
- the high number of ‘hand offs’, activities that can only begin once a previous activity has concluded.
The Expert Report of Harvey Elwin shows no impact to the key milestones on BC Hydro’s construction schedule if a 36-month injunction granted to protect at least the critical areas identified by West Moberly.
Elwin has calculated the financial costs of granting different lengths of injunction and found that costs of a 36 months, 2 year or 3 year injunction are reasonable and arguably easily absorbed within the larger context of the project’s budget.
West Moberly makes the case that the injunction they are seeking is similar to what has been granted in a number of other Indigenous rights cases. The province and BC Hydro would make it seem like an injunction is unreasonable or impossible but it has been done before in similar cases.
What is at issue is the potential for irreparable harm. If the land is cleared, the land can’t be remade into the way it was before destruction.
“Every senior high level significant overview is recognizing the reality that a project of this size and scale is going to have major impacts. And it’s going to have particularly major impacts on the first nations who depend on that river and that valley.” [Morning video at 47:40]
The oral argument on behalf of West Moberly also addressed the BC government’s assertion that the First Nations should not be granted an injunction because, in the province’s view, they waited too long to take the matter to court.
In fact West Moberly and Prophet River have been in court actively trying to stop the Site C dam. The First Nations are not “sleeping on their rights” but doing their utmost to stop destruction of land and culture.
They fact that their efforts to use the more expedient and loss costly route of a judicial review should not be unfairly used against them.
It’s a question of equity. First Nations should not be punished for reasonable efforts to seek justice.
Written arguments submitted by West Moberly are linked from the Court Documents section of this website.
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Day 3 – Wednesday, July 24
Presentations on behalf of West Moberly continued today. The following summary is based on what our observers heard in court.
West Moberly lawyer Reidar Mogerman reminded us that the injunction process is about the ability of the court to ensure substantive justice at the next stage of the legal process, when it determines whether Site C is an unjustifiable violation of Treaty rights.
If the court eventually concludes that there is a violation of Treaty rights that cannot be justified, it may order the project to be stopped. It’s crucial, however, to make sure that that such an order doesn’t come too late to make a difference. That’s why an interim injunction is needed.
Substantive justice maybe impossible to achieve if the project is further entrenched and if significant damage is already done.
The project of reconciliation fails if the court can’t provide an acceptable remedy when the Crown unjustifiably infringes Treaty rights. If the sacred Peace Valley is destroyed, the court will not be able provide meaningful access to justice if it rules in favour of the First Nations.
Parts of the evidence and arguments heard today concerned details of the construction timeline and the costs of the project, including costs of the injunction sought by West Moberly.
BC Hydro has been successful in limiting what details can be released to be public. Crucial details of their budget and timeline have been sealed by the court so that they cannot be made public.
The BC and federal government have both gone along with this bid for secrecy.
West Moberly’s lawyer cautioned the court that BC Hydro has a long history of inaccurately estimating costs and schedules. BC Hydro has repeatedly and predictably underestimated the overall costs to build the dam while overestimating the cost of any delay or modification to the project sought by First Nations.
Part of the presentation concerned the Expert Report of Harvey Elwin filed on behalf of the West Moberly First Nation. Elwin, a civil engineer with five decades experience with major hydroelectric projects around the world, says that temporarily protecting the areas identified by West Moberly would have no impact on the ability of BC Hydro to meet what are called Project Milestones.
In contrast, the expert report concludes that BC Hydro’s current work schedule is “overly optimistic and not realistically achievable” on a number of critical aspects of dam construction not affected by the requested injunction,
BC Hydro and the BC government have made too much of the fact that there were errors in the math in the November report of the BC Utilities Commission that later had to be corrected. However, Mogerman pointed out the more important fact that, even after these corrections, their conclusion stands that there is little or no economic advantage to completing Site C when it could instead stop the project in favour of less destructive alternatives.
Day 2 – Tuesday, July 23
Video of the hearings from Day 2 is now posted here
The hearing continued today with oral arguments on behalf of West Moberly.
Written arguments submitted by West Moberly are now linked from the Court Documents section of this website.
West Moberly lawyer Reidar Mogerman explained that the injunction application is not about a choice between building Site C or not building Site C – that’s the ultimate question to be decided later. What’s at issue is how much of the project will be completed when the Treaty rights issue reaches trial. This is important because continued construction can impair and destroy rights that will not be addressed until that trial takes place.
“If a nation actually proves that a project is an unjustified infringement of their constitutional rights, the remedy is not damages, the remedy is the project stops and comes out of the ground… That reality is part of what makes a case like this so difficult. Because how do you undo a project that’s this big if its allowed to continue?” [at 38:35 on the afternoon recording]
The following is an informal summary of some of the arguments that observers in court heard this morning. Because of their importance to the case, we are posting a longer summary covering many of the key elements presented to the court.
The Dane-zaa people who make up the West Moberly First Nation have lived in the Peace River watershed since time immemorial. When you start changing the land you start changing the culture. Site C will wipe out the cultural identity of the people.
The Peace is the Dane-zaa highway, the thing that ties the people together and that served as a territorial boundary before contact. Dane-zaa oral history overlays the physical map of the Valley.
Records show 708 known archaeological sites in the Valley, 442 of which are in the footprint of the dam itself. If these site are lost, West Moberly will lose a part of its identity.
BC Hydro intends to clearcut 730 hectares in preparation for completing the dam. Critical areas that are threatened include Dreamers Island and Bear Flats, a traditional gathering place for hundreds of years. Burial sites have been found there.
This is happening at a time when the population of ungulates are at an all-time low, not only because of previous dams and reservoirs on the Peace but also because of oil and gas operation and mining operations in the region.
Increased resource development in the region has resulted in a shrinking land base that reduces the ability of First Nations to exercise their rights.
Treaty 8 wasn’t a one-way deal. The Crown was getting something back and has continued to take things away.
The evidence is that the W.A.C Bennett Dam, the Williston Reservoir, the Peace Canyon Dam and the Dinosaur Reservoir have had devastating impacts on wildlife, specifically caribou populations that have been depleted.
Elders speak of the psychological and emotional impact of these dams on their communities.
The elders say that the love of the river has stayed with us all our lives. The river is like going home. The elders have painful memories of seeing moose that were unable to swim across the vast reservoir created for the Bennett dam and which drowned.
“What used to be a river that a moose could cross, was now a reservoir filled with debris that a moose would die in, and…there were thousands and thousands of deaths of all sorts of animals and the evidence is that this [Williston] reservoir and that this history has lead to dramatic changes.” [at 30:00 on the afternoon recording]
Dams, reservoirs and logging have had has a significant impact on hunting and fishing. When you dam a river you kill fish unless you create a fish passage system, which never work as well as the river.
Then there is the question of mercury contamination, which is well known and studied. Contamination occurs when the mercury in the vegetation rots faster because of the reservoir. Mercury levels have resulted in fishing advisories still being in place for 50 years after the Bennett dam was completed.
Day 1 – Monday, July 23
Supporters of the West Moberly and Prophet River First Nations, including Peace Valley residents who had travelled to Vancouver to attend the hearing, rallied outside the courtroom to express their appreciate for the difficult struggle these Nations have embarked on.
You can watch video of the rally here.
Much of the morning focused on a motion by CBC over use of the video recordings being made by the court. In the afternoon, the court ruled that CBC would be allowed broadcast and post of excerpts from the hearing.
The video recording of the full day’s hearing can we viewed here.
In the afternoon, lawyer’s representing West Moberly began setting out the argument for why protecting the Peace River Valley is so crucial for their Treaty rights. The legal team also acknowledged the important step taken by the federal government when it chose not to oppose the injunction application.
Thanks to everyone who came out to the rally or attended today’s hearing.