Judge closes one door, opens another on Site C legal challenge

A B.C. Supreme Court judge has dismissed another legal challenge against the Site C dam, but left room open to First Nation opponents to take the matter to civil trial.

"The BC Supreme Court has dismissed the West Moberly/Prophet River (First Nations) judicial review of the environmental assessment certificate for Site C," Dave Conway, a spokesman for BC Hydro, confirmed on Saturday.

Justice Robert Sewell rendered his decision on Friday.

The dam's environmental assessment certificate, issued last fall, gave the provincial government the go ahead to proceed with the project. Premier Christy Clark announced last December the province was moving forward with building the $8.8-billion dam on the Peace River.

West Moberly and Prophet River argued the province was wrong in making its decision to approve the dam, since it would infringe on their treaty rights.

"The loss of the Peace River valley would be an infringement on the exercise of our treaty rights, given the high value for the exercise of our treaty rights and the sustenance of our mode and way of life, which was promised by the Crown to continue after the treaty was signed as if we never entered into it," court documents state.

"The significant adverse effects of Site C, as they relate to Treaty 8 First Nations, cannot be justified."

In his judgement, however, Sewell said provincial ministers "made no error" in issuing the certificate without determining whether or not the project infringed on the two First Nations' treaty rights.

"The legislature did not intend to vest the Ministers to decide the complex question of whether the project was an infringement of the petitioners' Treaty 8 rights," he wrote.

"The procedures set out in the (law regarding environmental assessment certificates) are simply inadequate to permit determination of the issues framed by the (First Nations) in this proceeding."

The matter of treaty infringement could not be determined in a judicial review. It would need to go to a civil claim trial to determine if treaty rights were infringed.

"It is apparent that there is a considerable degree of conflict in the evidence which can only be resolved at trial," he wrote.

It would be up to First Nations to decide whether or not to go to trial.

When reached on Saturday, Allisun Rana, a lawyer representing the First Nations, declined comment. Rana said her clients would likely be making a comment about the decision "sometime next week."

Sewell's decision follows an earlier loss for the First Nations on a challenge against the project's environmental assessment certificate issued by the federal government.

Sewell also dismissed a case brought forward by the Peace Valley Landowner Association in July, which argued the province did not give adequate consideration of economic recommendations made by the joint review panel appointed to review the dam and its impacts.

Court challenges are set to continue.

On Nov. 17, B.C. Supreme Court will hear arguments from West Moberly and Prophet River about permits issued for the first phases of dam construction.

"We're continuing to work with Aboriginal groups to address their concerns and benefit from the project," Conway said.

reporter@ahnfsj.ca

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