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Site C survives first legal challenge

Hydro is one for one on seven cases brought against Site C dam

A B.C. Supreme Court judge has dismissed a case by the Peace Valley Landowner Association (PVLA) aimed at blocking the Site C dam.

It's the first decision on any of the seven cases against the $8.8 billion hydroelectric project.

The PVLA’s case focused whether the Ministry of Environment gave adequate consideration to recommendations made by the Joint Review Panel (JRP) appointed to review the project.

The JRP advised the government to refer key questions about the cost of and demand for the dam to the independent British Columbia Utilities Commission (BCUC).  

While landowner and PVLA President Ken Boon said the judge's decision is "disappointing," he was still optimistic about the chances of quashing the dam.

RELATED STORY: Site C looks to tap embattled Tumbler Ridge economy

"It's disappointing, but it's a small little piece in a bigger picture," he told Alaska Highway News, adding that six other cases had yet to be decided.

Boon said that compared to cases brought by Treaty 8 First Nations, the landowner's provincial case was "narrow."

The PVLA alleged that by failing to consider all recommendations of the panel, the current and former provincial environment ministers, Terry Lake and Mary Polak, erred in law and suggested the environmental approval be withdrawn.

Sometime after the May 1, 2014 release of the JRP’s report, the director of the B.C. Environmental Assessment Office advised the ministry that they need not consider the BCUC recommendation in their final decision.

The PVLA argued this advice was not correct. 

The ministry argued that the B.C. government did consider these points, adding there was no basis for the court to interfere in the issuing of the certificate. 

In the decision, issued July 2, Justice Robert J. Sewell sided with the B.C. government, advising the court that he could see no reason to conclude that the director had erred in his advice to the minister. 

"The relief sought by PVLA is based to a large extent on the assertion that the director erroneously misled the ministers in his response to the report by advising that the economic recommendations were outside the scope of the panel’s mandate," Sewell wrote. "However, the director clearly has a high degree of expertise in relation to the matters on which he advised the ministers."  

Sewell added that he was not convinced that the director's advice led the ministers to not consider the JRP's recommendation in their decision. 

“On the contrary, the director’s response to the report brought the economic recommendations to the minister’s attention and gave [advice] with respect to them.” 

In addition, the judge found that the B.C. government’s Clean Energy Act excluded the BCUC from having any jurisdiction over Site C.  

While the act requires the B.C. government to source 93 per cent of its electricity from clean or renewable resources, it also modifies the assessment process required for Site C and other clean energy projects by exempting BC Hydro from BCUC review.  

“The decision to grant the certificate was clearly within the range of reasonable options in light of the facts and the law,” Sewell wrote. “It is not for this court to substitute its views of what the ministers ought to have decided or the weight they were required to give to the many factors they had to consider in arriving at their decision.” 

The PVLA have a separate case against the dam in federal court, which will be heard July 20.

The judge is also requiring BC Hydro to pay its own legal costs, instead of passing them on to the PVLA.

"That's good news for us," Boon said. "In some ways, it's almost a nod from the judge that it was a justified, reasonable case that we brought forward. It wasn't frivolous.",