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Construction of the Site C dam project’s south bank cofferdam is shown in September.

BC Hydro/Globe and Mail Update

The Federal Court of Appeal has rejected a legal challenged filed by two British Columbia First Nations that argued the $8.8-billion Site C dam project violated their treaty rights.

The Prophet River First Nation and the West Moberly First Nation appealed a Federal Court judge's decision to deny an application for a judicial review of the federal government's approval of the project.

A three-member panel issued a unanimous decision Monday to uphold the earlier ruling, which rejected the First Nations' claims that the environmental review and ensuing government approval should have assessed their treaty rights and determined whether the project infringed on those rights.

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"The (environmental assessment) process is an information-gathering process and not a process intended to result in a binding determination of aboriginal or treaty rights," wrote Judge Richard Boivin on behalf of the panel.

The case is the tenth court challenge of the massive hydroelectric dam project to be dismissed or discontinued, while four legal actions remain, BC Hydro spokesman David Conway said.

Site C will flood more than 5,500 hectares of land along the Peace River in northeast B.C., creating an 83-kilometre-long reservoir and providing enough power to light up 450,000 homes a year. Project construction started in the summer of 2015 and is scheduled for completion in 2024.

Prophet River and West Moberly are among the Treaty 8 First Nations, which signed a historic treaty in 1899 that granted them hunting, trapping and fishing rights within treaty territory.

The appeal was dismissed with costs. The chiefs of the two First Nations and their lawyers did not immediately return requests for comment on Monday.

The environmental review of Site C was conducted jointly by the federal and provincial governments. It examined the effects of the project on Aboriginal Peoples and rights and determined it would cause significant harm to fishing, hunting and other traditional uses of the land.

The federal cabinet said these effects were justified in the circumstances when it approved the project in October 2014.

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The two First Nations filed an application for judicial review shortly after, and Federal Court Judge Michael Manson dismissed it in August 2015. He ruled that the Crown had fulfilled its duty to consult, and the First Nations didn't appeal that element of the ruling.

Boivin wrote in the ruling issued Monday that the bands did not provide adequate information to the environmental review process to support the allegation that Site C would violate their treaty rights.

There's no evidence that the rights of West Moberly and Prophet River cover the entire Treaty 8 area of 840,000 square kilometres, an area larger than the province of Manitoba, Boivin wrote.

The First Nations engaged in consultations under an umbrella group called the Treaty 8 Tribal Association and provided only one map of their joint traditional territories. BC Hydro requested a map for each First Nation within the group, but the request was refused, Boivin wrote.

In addition, the Prophet River nation exercises its Treaty 8 rights about 200 kilometres north of the area to be directly impacted by Site C, he wrote.

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