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Site C legal decision date unclear

West Moberly First Nation Chief Roland Willson said that while a decision could be made in provincial court regarding the Site C dam by July, it may take longer. “[The judge is] rendering his decision right now,” he said.

West Moberly First Nation Chief Roland Willson said that while a decision could be made in provincial court regarding the Site C dam by July, it may take longer.

“[The judge is] rendering his decision right now,” he said. “I’m just assuming that because they want to have shovels in the ground by July, the judge has got that in his head that he needs to make his decision by then. But he takes as much time as he wants. You can’t rush the judge.”

Willson also said that he believed the matter would make its way to the nation's highest court.

“If we win, guaranteed that B.C. is going to appeal. If B.C. wins, we’re going to appeal immediately,” he said. “This is not a case that is going to be done in the lower courts. This is going to the Supreme Court of Canada.”

According to Treaty 8 Tribal Association Natural Resource Manager Jeff Richert, it is “anybody’s guess” as to when a final decision by the courts could be made about the project.

Allisun Rana, a lawyer for the First Nations, wrote in an email to the Alaska Highway News that the judge did not make an indication as to when he would make a decision.

This comes despite a statement last Wednesday by Premier Christy Clark that a timeline for summer construction “stands.”

“It’s my hope that we’ll get going this summer,” Clark said. “We intend to move forward. I know there is going to be court action, as with any economic development project that’s large enough…but BC Hydro has done a decade of work on making sure that all of the I’s are dotted and the T’s are crossed.”

Last December, the province announced it had approved the construction of the Site C dam. Clark said the $8.8 billion project, slated to be built seven kilometres from Fort St. John, would begin construction this summer. 

West Moberly and other First Nations, along with local landowners, launched a legal battle against the dam.

In April, these First Nations were in provincial court to argue their case.

According to Willson, there was some concern because the judge who had been called to hear their case “had never heard a treaty case before.”

“He worked in the commercial law field [before], so this was a whole new thing for him,” he said. “You could see that he had a hard time understanding all the different cases, the First Nation treaty cases, the consultation cases.”

Regardless, Willson felt his legal team did a “fantastic job in making him aware of all these things.”

Richert explained to members of the public at a Treaty 8 Tribal Association meeting last Thursday that their case relied on legal precedent. 

Richert said that their case would rely on the so-called Sparrow case, a 1990 decision that  recognized certain Aboriginal rights could be infringed if the government could prove it was justified in doing so.

Richert said that their case relied on what information was given to the ministers.

“The Federal Government has stated that it did not consider whether the project might actually infringe Treaty rights and only looked at whether the consultation had been adequate,” wrote Rana. “The Federal Government is of the view that this is all it was required to do. The First Nations take a different view, based on constitutional and administrative law principles.”

Either way, it’s likely not going to be a simple case for either the provincial or Federal judge.

Richert said that the provincial judge had to look at approximately 40,000 pages of record in the case.

“Even with his staff and his assistants and aides, he’s got a monumental task,” he said. “Speaking with our legal counsel this morning, it’s really anybody’s guess as to when we’ll get a determination of our case.”

Richert said that he “couldn’t see” a decision being made before the proposed construction start date.

All this could be complicated by whether or not a judge will allow an injunction to be placed upon the Site C dam. Willson has indicated that he would seek one should the project begin construction.

The lawyers for Treaty 8 have until June 8 to make their submission to a Federal court. The submission for the government response has a deadline of July 8, Richert said. 

reporter@ahnfsj.ca