First Nations lose bid to nullify government OK for Site C dam

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Opponents of BC Hydro's Site C dam have suffered another legal setback in the Supreme Court of British Columbia.

In a ruling released Friday, the court rejected an attempt by the Prophet River and West Moberly First Nations to quash an environmental certificate issued by the government for the $8.8-billion project on the Peace River.

"I am satisfied that the petitioners were provided a meaningful opportunity to participate in the environmental assessment process," Justice Robert Sewell wrote. "I am also satisfied that the environmental assessment process as a whole did provide the petitioners with a reasoned explanation as to why their position, that the Project should not proceed at all, was not accepted."

In July, Justice Sewell ruled against a claim by the Peace Valley Landowner Association for essentially the same reasons he gave in dismissing the Prophet River, West Moberly case. That matter is now under appeal.

Following the government's decision to go ahead with the controversial power project last year, several aboriginal, environmental and citizen groups initiated challenges in both the Supreme Court of B.C. and Federal Court. The rulings in the first two cases heard have both gone against the petitioners.

Justice Sewell dismissed almost all the points advanced by the Prophet River and West Moberly First Nations. He rejected an argument that the government ministers were biased or had failed to properly inform themselves of all the relevant issues before they decided to issue the environmental certificate.

"There is simply no evidence that the Ministers had closed minds before they entered into consideration of whether to issue the Certificate," he stated.

He also found the government "made reasonable and good faith efforts to consult and accommodate" First Nations.

A key part of the claim by the two bands was that the project would violate Treaty 8, a document signed by eight First Nations in the region more than 100 years ago.

Under Treaty 8, the bands were promised they could continue to hunt, trap and fish throughout the area in the same manner as they had before agreeing to surrender their lands.

Treaty 8 also states, however, that the Crown has the right to "take up" land from time to time for purposes of settlement and exploitation.

The First Nations basically argued that Site C, together with oil and gas developments in the same area, would take away so much land that trapping, hunting and fishing could no longer be pursued in traditional ways.

Justice Sewell observed that a consultation report prepared by the B.C. Environmental Assessment Office stated that "if, as a result of taking up [land], a Treaty 8 First Nation no longer has a meaningful right to hunt, trap, or fish in its traditional territory, then this would result in an infringement of Treaty 8."

But he ruled that a petition to the Supreme Court was the wrong place to hear that argument.

"I have concluded that the infringement issue as framed by the petitioners cannot be determined in this proceeding," Justice Sewell stated. "In my view, an action commenced by notice of civil claim and conducted in accordance with the Supreme Court Civil Rules is the proper forum for determination of the infringement issue."

First Nations representatives could not be immediately reached for comment. A government spokesperson declined to comment.

Dave Conway, British Columbia Hydro and Power Authority's community relations manager for the Site C project, did not comment on the court ruling, but said work on the project is proceeding.

"BC Hydro is continuing with construction as planned. We are also continuing to work with aboriginal groups to address their concerns and identify opportunities for them to benefit from the project," he said in an e-mail.