Two Treaty 8 First Nations have launched legal action in an effort to stop construction of the Site C dam.
The West Moberly and Prophet River First Nations filed two separate civil claims in B.C. Supreme Court Jan. 15, naming the province, BC Hydro, and Canada's attorney general as defendants in a case that will decide whether the controversial $10.7-billion project infringes their treaty rights. As part of the claims, West Moberly and Prophet River are seeking an injunction to halt work and further project approvals by both levels of government.
Both First Nations claim Site C, the third dam being built on the Peace River in British Columbia, violates their constitutionally protected rights under Treaty 8. Site C, along with the cumulative impacts of the Bennett and Peace Canyon dams upstream, would continue to displace First Nations hunters, trappers, and fishers, and interfere with their way of life by destroying habitat home to plants and animals the two nations rely on for spiritual, medicinal, and food purposes, according to the claim.
"The cumulative impact of the Bennett, Peace Canyon, and Site C Dams is to turn the Peace River into a series of reservoirs, destroying the unique cultural and ecological character of the Peace, severing the physical, practical, cultural and spiritual connection the (nations) have with the Peace, and infringing (their) Treaty Rights," the claims state.
Site C has been under construction since July 2015 after being approved by the BC Liberals.
NDP Premier John Horgan announced his government would continue its construction in December, after inheriting the project in a change of government last summer and launching a four-month economic review.
In a news release, the First Nations claim BC Hydro has refused their requests to suspend work or defer signing major contracts ahead of an injunction hearing expected in the spring. The First Nations say they hope to get previously undisclosed or redacted documents to get a better picture of the state of the project, which has ballooned in cost from $6.6 billion when it was revived in 2010. The dam's price tag jumped by $2.4 billion, from $8.3 billion to $10.7 billion, when Horgan made his announcement, they note.
“We need more information about the project’s schedule, budget, and ongoing geotechnical challenges to accurately estimate the implications of suspending construction until our Treaty infringement claims are decided at trial,” West Moberly Chief Roland Willson said in a statement.
“We are fighting for the land and the preservation of the Dunne-za way of life. But we are also fighting for values all British Columbians share, like transparency and economic prudence."
The claims have not yet been tested in court. A BC Hydro spokesperson did not immediately respond to a request for comment.
When completed, Site C will be able to produce 5,100 gigawatts of energy per year and add 1,100 megawatts of capacity to the provincial grid. It will also flood some 100-plus kilometres of the Peace River valley and its tributaries, including farmland and First Nations cultural sites.
The two nations warned Horgan last fall that his approval would lead to a civil suit, and claimed any damages could be as high as $1 billion.
Courts have previously dismissed lawsuits by the First Nations and landowners seeking a judicial review of Site C. However, the courts have yet to rule whether the dam infringes Treaty 8, with one provincial Supreme Court justice noting that matter would need to be decided in a civil trial in a September 2015 ruling against the First Nations.
In its December announcement, the government said BC Hydro and the transportation ministry will work with Treaty 8 nations to redesign the Highway 29 realignment at Bear Flat over Cache Creek to "reduce the effects on potential burial sites and sacred places."
It also said it would advance reconciliation with local First Nations, and establish a Treaty 8 advisory committee that will give input to a Peace River Legacy Fund.
"I respect and honour the commitment of people who oppose Site C, and share their determination to move B.C. to a clean, renewable energy future and to embrace the principles of reconciliation with Indigenous communities," Horgan said at the time.
"We know this decision is not what some First Nations wanted. Their voices were heard and their perspectives were an important part of the deliberations on a very challenging decision."
There were 1,681 workers employed on Site C in November 2017, BC Hydro's latest available figures for the project.