Article

Supreme Court of Canada won’t hear two Site C cases

0 107 Government

by Russell Hixson

The Supreme Court of Canada will not hear a pair of appeals from B.C. First Nations who hoped to halt BC Hydro's Site C dam project.
Supreme Court of Canada won’t hear two Site C cases

"Opponents have tried to drag Site C through the legal mud for years, but BC Hydro continues to win at every level," said Jordan Bateman, director of marketing and communications for the Independent Contractors and Businesses Association of British Columbia (ICBA).

"Before today's Supreme Court of Canada decision to dismiss two more cases, Site C has been upheld nine times by various provincial and federal courts. This is a good project and BC Hydro has fully and thoroughly consulted all the relevant stakeholders."

The ICBA has been outspokenly in favour of the project, recently launching its #Get2Yes campaign at BC Hydro's Vancouver headquarters, using 2,252 Site C pink slips to illustrate how many people went to work that day on the Peace River dam site and would be out of work should the project be stopped.

The association has also encouraged members of the public who "support clean energy jobs" to visit Get2Yes.icba.ca and send an email to B.C.'s three political party leaders.

"This is as long-term a construction job as you can find in B.C., offering thousands eight full years of employment," said Bateman. "These workers should be proud of the contribution they're making to B.C.'s future — this dam will provide affordable, clean energy for the next century."

The Site C dam project involves the construction of a hydroelectric dam on the Peace River in B.C. The project is subject to regulatory review and approval processes under both federal and provincial legislation.

The province entered into an agreement for a harmonized environmental assessment (EA) process, including the establishment of a Joint Review Panel (JRP), and a consultation and accommodation process with Prophet River First Nation and West Moberly First Nation (PRWM), the two groups involved in the court cases.

The two groups are part of Treaty No. 8, which expressly grants hunting, trapping and fishing rights, subject to Crown regulation and subject to the Crown "taking up" lands for various purposes.

In May 2014, the JRP produced a report concluding that although the benefits of the project were clear, the dam would likely lead to significant adverse environmental effects, including an impact on the treaty rights of aboriginal groups with respect to hunting, trapping and fishing activities, which could not be mitigated.

In parallel with the provincial approvals process, the federal Governor in Council determined that the effects associated with the Site C dam project were justified in the circumstances and the project was authorized by a federal Order in Council.

The two First Nations then brought an application for judicial review of the Order in Council in Federal Court, alleging that the Governor in Council ought to have determined whether approval of the project would have constituted an unjustified infringement of their treaty rights, before reaching a decision on whether or not to approve the project.

The Federal Court dismissed their application for judicial review of the Order in Council, finding that the Crown had met its duty to consult and accommodate through the EA process, and that there was no requirement on the part of the Governor in Council to determine PRWM's treaty rights and whether these rights would be unjustifiably infringed. In addition, the consultation undertaken by the Crown was adequate.

The Federal Court of Appeal unanimously dismissed PRWM's appeal, agreeing that the Governor in Council is not empowered to adjudicate rights and to determine whether there would be an infringement of treaty rights and whether it would be justified. The Court of Appeal also agreed that the consultation was adequate in this case.

The Supreme Court of Canada gave no reasons for its decision not to hear the cases.

However, the project could face a new challenge with shifting B.C. politics. NDP Leader John Horgan is potentially on the cusp of taking power with the Green Party as of press time.

While campaigning, he pledged to send the $8.8-billion project to the BC Utilities Commission for review. Last month it was revealed he contacted BC Hydro president Jessica McDonald asking her not to start any new contracts on the project until the review was over.

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