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Gord Eby, a resident of Fort St. John, fishes on the Peace River in February. Treaty 8 First Nations argue that if the $8.8 billion dam goes ahead, it will have devastating impact on their ability to hunt, trap and fish.Ben Nelms

A treaty signed 116 years ago promising First Nations the right to pursue traditional lives is a key part of a legal challenge to the B.C. government's approval of the Site C dam.

The Prophet River and West Moberly First Nations, along with the McLeod Lake Indian Band, opened arguments in the Supreme Court of B.C. on Thursday, saying that if BC Hydro's $8.8-billion dam goes ahead, it will have devastating impact on their ability to hunt, trap and fish, which is already compromised because of resource developments in the Peace River region.

Construction of the dam is due to start in June, but first the government and BC Hydro have to overcome a court challenge filed by local landowners, which was in court earlier this week, and now one by Treaty 8 First Nations. Both cases are seeking a judicial review of the government's decision.

John Gailus, representing the three native groups, told court the government acted in a biased and unreasonable manner when it approved the Site C project. He also said the environmental assessment by a federal-provincial joint review panel (JRP) was "woefully inadequate" because it didn't consider the cumulative impact of other developments in the area.

"We say the government promoted Site C as a foregone conclusion," Mr. Gailus said.

He said BC Hydro already has two dams on the Peace River, which have drowned about 60 per cent of the river, and if Site C goes ahead, another 20 per cent of the valley floor will be flooded.

In a written argument filed with the court, Mr. Gailus said that when First Nations in the area signed Treaty 8 in 1899, they did so with the understanding their traditional way of life would be protected and the fish and game upon which they depended would be maintained.

Instead, he said, a myriad of resource developments over the past – including the building of highways, power lines, pipelines, mines, liquefied natural gas wells and hydro dams – have eroded the land base. Moose and caribou populations have crashed and fish have become tainted with mercury in the reservoirs, he said.

"Treaty No. 8 does not simply provide its signatories with the right to shoot a bow, to dip a net in the Peace River or to set a trap in the forest," stated Mr. Gailus, who argued that for the treaty to be honoured, there must be healthy fish to catch and game to shoot. "The promises made on behalf of the Crown at the time when Treaty No. 8 was concluded included the promises that the same means of earning a livelihood would continue after the Treaty as existed before it."

"I want to point out that it's not the mere act of fishing that's important," Chief Roland Willson of West Moberly First Nations said in the written argument. "If that was the case, I could sit in my house and fish out of my toilet bowl."

Lawyers for BC Hydro and the provincial government did not have time in court Thursday to respond to Mr. Gailus's opening statements.

But in a written response to the petition filed earlier with court, BC Hydro states the corporation consulted thoroughly with First Nations about Site C before advancing the project for environmental assessment.

The document says the decision by two ministers to approve the project "is highly discretionary" and there is "no legal basis upon which to challenge the merits of the Minister's decision … [and] no basis to suggest that the decision of the ministers was not reasonable."

BC Hydro also states that the argument that there has been an infringement of a treaty right "is not a proper matter for a summary process such as a judicial review."