Les Leyne: Site C court decision departs from trend

Les Leyne mugshot genericThe province and B.C. Hydro are on a winning streak so far when it comes to fighting off legal challenges to the $9-billion Site C power project on the Peace River.

The Prophet River and West Moberly First Nations’ request for a judicial review of the dam approval was dismissed in Federal Court last month and an identical action in B.C. Supreme Court was dismissed last week. The Peace Valley Land Owners’ pleas for judicial reviews were also dismissed in July in B.C. Supreme Court, and last month in Federal Court.

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An injunction application has also failed. Some of those rulings are being appealed, but the scorecard so far is a departure from the historic trend of First Nations generally doing well in the courts when it comes to arguing over land-use decisions.

At issue in most of the cases was the environmental-assessment certificate issued by two cabinet ministers in October 2014, the final regulatory approval needed before the cabinet could approve the project. The Prophet River and West Moberly First Nations argued that the environmental approval — based on a joint review by governments — did not consider whether their treaty rights would be infringed upon.

Both signed treaties at the turn of the last century ceding their rights and title. The government agreed in the treaty that they retained the right to pursue hunting, trapping and fishing “excepting such tracts as may be required or taken up … for settlement … or other purposes.”

Despite an escalating series of offers from B.C. Hydro during the years the dam was planned, the bands insisted it wasn’t possible to compensate the community for “the permanent destruction of the Peace River valley.” Those offers continued right up to the weeks before the certificate was issued. They’re listed in the judgment and they illustrate what was at stake, and how valuable Hydro judged the First Nations’ acquiescence to be.

It offered West Moberly clear title to up to 1,200 hectares of Crown land elsewhere and $3.5 million in staged payments, plus $350,000 a year for 70 years, adjusted annually for inflation. It offered Prophet River $1 million and some land measures, as well a $10-million compensation fund for all aboriginal groups affected by the project. The two First Nations remained holdouts.

On the question of whether the cabinet ministers considered treaty rights, B.C. Supreme Court Justice Robert Sewell agreed last week they did not. But he said the environmental-assessment certificate process isn’t the right forum to determine treaty rights and wasn’t designed to do so.

Deciding the treaty rights would require a full-scale trial on that issue alone, not just a judicial review of a cabinet decision, he said.

Another aspect of the case was about the government’s duty to respect aboriginal rights. Based on the years of consultation, he concluded the ministers were aware of that requirement.

As to whether the consultation was adequate, the judge found there were reasonable and good-faith efforts to consult and accommodate the First Nations with respect to the project. The petitioners were on a working group that reviewed part of the process. They participated in the joint review panel process. Government and B.C. Hydro contributed $5 million in funding to First Nations to participate.

The petitioners also argued the ministers failed to consider all relevant material, mostly the numerous reservations expressed by the joint review panel. But the judge said they seem to have overlooked the joint review panel’s overall conclusion that Site C would produce less expensive power than any alternative.

The last argument was that there was a reasonable apprehension of bias, given that government policy generally favours another dam on the Peace River, so the ministers had closed minds. But the judge said that argument establishes only that the government wanted power generation that minimized emissions and only from rivers that have already been dammed.

“A governmental policy favouring one approach to addressing an issue does not equate to a minister having a closed mind in exercising a statutory discretion,” said the decision.

There are more hearings ahead, but a lot of the objections aren’t finding much favour with judges to date.

lleyne@timescolonist.com

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