Canada: BC Hydro Site C Litigation Update – New Petition Filed By Treaty 8 First Nations, While Injunctive Relief Denied; Federal Court Dismisses Peace Valley Landowner Association Petition

This post provides an update on the latest developments in the litigation proceedings involving BC Hydro's Site C Clean Energy Project (Site C), and a summary of the current status of each of the judicial review applications that have been filed to date. Please see our earlier posts on July 21st and August 14th for additional background on the judicial review proceedings filed in BC Supreme Court and Federal Court.

New Petition filed by West Moberly and Prophet River First Nations in BC Supreme Court; Application for Injunctive Relief Dismissed

West Moberly First Nations and Prophet River First Nation are currently awaiting decisions from the BC Supreme Court and Federal Court on their applications which were heard during April/May 2015 and the week of July 21, 2015, respectively. Meanwhile, on August 4, 2015, these two Treaty 8 First Nations filed a further petition in the BC Supreme Court against the Minister of Forests, Lands and Natural Resource Operations (MFLNRO); Regional Manager & Regional Water Manager, Northeast Region; Chief Inspector of Mines – Ministry of Energy and Mines (MEM) (collectively, the Crown Respondents); the Ministry of Attorney General (MAG); and BC Hydro.

The new petition alleges a breach by the Crown Respondents of their duty to consult and accommodate at common law, as well as a breach of their duties under a custom consultation process negotiation agreement (Negotiation Agreement). MFLNRO and the First Nations entered into the Negotiation Agreement in April 2015 to facilitate the negotiation of a custom consultation process agreement as well as to guide interim consultation in respect of a range of permits and statutory authorizations under the Forest Act, Forest and Range Practices Act, Land Act, Water Act, Wildlife Act, Heritage Conservation Act and Mines Act (Permits) that would enable BC Hydro to commence site preparation and construction activities for Site C.

The First Nations allege that the Crown Respondents failed, in various ways, to consult on the Permits in accordance with the procedures set out in the Negotiation Agreement. They seek an order quashing the Permits, or alternatively suspending such Permits until consultation and accommodation has been fulfilled.

On August 5, 2015, the First Nations filed an application for injunctive relief to enjoin BC Hydro from undertaking any work pursuant to the Permits until their petition is heard and determined. The injunctive relief hearing was scheduled for August 18 and 19, 2015, and the application was dismissed by the Court on August 28, 2015. To date, no appeal has been filed and written reasons have not yet been published. As a result, it is difficult to assess the potential significance or any broader implications of the court's decision at this stage.

Although the injunctive relief application was dismissed, the petition itself has not yet been heard by the Court. Indeed, responses to the First Nations' petition have not yet been filed.

Federal Court dismisses Petition of Peace Valley Landowner Association (PVLA)

On this petition, PVLA asked the Court to consider the extent of the reasons (if any) that the Federal Cabinet must provide when making a justification decision under the Canadian Environmental Assessment Act, 2012. PVLA took issue with the Federal Cabinet's justification decision on the basis that it failed to address whether there is a present need for Site C (as opposed to a future need).

On August 28, 2015, the Federal Court dismissed the PVLA's petition. To date, no appeal has been filed and written reasons for judgment have not yet been published. As a result, it is difficult to assess the potential significance or any broader implications of the court's decision at this stage.

Current Status of All Site C Petitions

BC Supreme Court proceedings

Peace Valley Landowner Association

  • Petition filed October 28, 2014, heard between April 20 and May 6, 2015
  • Application dismissed on July 2, 2015
  • PVLA has filed an appeal

BC Treaty 8 First Nations – Prophet River First Nation, West Moberly First Nations and McLeod Lake Indian Band

  • Petition filed December 22, 2014, heard between April 20 and May 6, 2015
  • McLeod Lake Indian Band withdrew from proceedings on July 2, 2015
  • Judgment is reserved

BC Treaty 8 First Nations – Prophet River First Nation and West Moberly First Nations

  • Second petition filed on August 4, 2015
  • Injunctive relief application filed on August 5, 2015
  • Injunctive relief application dismissed on August 28, 2015
  • The hearing of this petition has not yet occurred

Federal Court proceedings

Peace Valley Landowner Association

  • Petition filed November 6, 2014, heard during week of July 21, 2015
  • Application dismissed on August 28, 2015

BC Treaty 8 First Nations – Doig River First Nation, Prophet River First Nation, West Moberly First Nation and McLeod Lake Indian Band

  • Petition filed November 5, 2014
  • McLeod Lake Indian Band withdrew from proceedings in June 2015
  • Application heard during week of July 21, 2015
  • Judgment is reserved

Alberta Treaty 8 First Nations – Mikisew Cree First Nation and Athabasca Chipewyan First Nation

  • First petition filed on June 9, 2014
  • Second petition filed on November 12, 2014
  • Petitioners discontinued both actions prior to the Federal Court hearings held in July

We will continue to keep you updated on future developments in these proceedings.

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