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B.C. government backtracking dangerously on commitment to Indigenous rights in Site C injunction arguments

Alex Neve is the secretary-general of Amnesty International Canada

B.C. Premier John Horgan has said many fine words about upholding the rights of Indigenous peoples. He made these promises while running for office and he has repeatedly affirmed them since becoming Premier. But in the most significant test to date of the veracity and integrity of these commitments – the arguments being made on his government’s behalf during the continuing Site C injunction hearing – Premier Horgan’s government is doing the very opposite of what it promised.

Alex Neve.

Sean Kilpatrick/The Globe and Mail

The B.C. government’s legal submissions, which are available to be read online, explicitly recognize that “construction and operation of Site C will result in adverse impact to the exercise of treaty rights.” But rather than committing to work with First Nations to ensure that those rights are protected in a meaningful and lasting way, the province is trying to persuade the court to interpret these rights so narrowly that they would render not only the treaty, but also the province’s wider human-rights obligations toward Indigenous peoples, all but meaningless.

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Consider for example the government’s assertion that the profound historical and cultural importance of the Peace River Valley to the Dunne-Za people, so powerfully articulated in court by the West Moberly First Nations, are somehow irrelevant to the spirit and intent of the treaty.

Or look at the government’s claim that the real threat of irreparable harm is not the planned destruction of the Peace River Valley but the possibility that a court would intervene in the decisions of a democratically elected government. The implication is that the courts have no role in curtailing the actions of governments that deliberately refuse – as the B.C. government has done – to even consider whether actions may violate constitutionally protected rights.

The province’s arguments, if upheld, could have far-reaching negative implications for human rights in British Columbia and across Canada, including undermining the power of treaties to protect the rights of Indigenous peoples, making it even more difficult for Indigenous peoples to obtain justice, and further shielding government from the oversight and scrutiny of the courts.

Perhaps the most extraordinary claim in the province’s court submissions is the assertion that the First Nations don’t deserve the injunction they are seeking because they waited too long to seek protection of their rights. The government’s argument ignores the fact that the First Nations fought very hard to protect their rights through judicial review, a legal proceeding meant to provide a more expeditious resolution of disputes over government decisions. The provincial government, BC Hydro and the federal government all vigorously argued against the approval of Site C being subject to such review, asserting that a much longer, more expensive trial process was required.

The option to resolve matters through judicial review was only closed off by the courts at the end of June last year, by which time Premier Horgan had come to power.

The NDP had denounced Site C’s violation of treaty rights while in opposition. After their election, they not only launched an independent review of the economic rationale for Site C, they promised that their final decision would consider the impacts on Indigenous rights.

Despite all this, the government’s submission to the injunction hearing asserts that the First Nations should have taken on the enormous burden of launching a legal action even while the province was ostensibly still making up its mind whether the project would proceed. The government’s submission actually states that “political speeches” of that nature are not “legally enforceable promises.”

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It is hard to imagine a more dismal and cynical description of the faith and trust that Indigenous peoples, and the public in general, should be entitled to place in the democratic process and the integrity of our elected representatives.

There is a fundamental injustice in forcing marginalized and impoverished Indigenous nations to go to court time and again to prove and defend rights that Canada has already committed to uphold. This injustice is further compounded when government lawyers use every argument at their disposal, however ludicrous or harmful, to defend government actions.

The courts will decide whether the B.C. government’s arguments in this case are supportable in Canadian law. It is the responsibility of all of us to judge whether these arguments are compatible with the values of reconciliation, justice and regard for rights that we have embraced as a nation.


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