Canada: What The October 2018 Decision On The Site C Dam Means For The "Taking-Up" Clause In First Nations Treaties

Last Updated: November 8 2018
Article by Stanley D. Berger

BACKGROUND

The West Moberly First Nations were unsuccessful on October 24, 2018 (see 2018, BCSC 1835) in obtaining an injunction against B.C. Hydro and Power Authority from further construction and related activities on the Site C Project. The project consists of a hydroelectric dam, generating station and associated infrastructure including, the widening of an existing transmission line and the realignment of a highway along the Peace River in northeastern B.C. The primary relief sought was to enjoin work for 24 months or pending final determination of their claim, whichever came earlier, except for such measures as Hydro and the regulators determined to be necessary to ensure safety, prevent environmental harm and preserve, maintain and care for the work product already done. Alternatively, the First Nation sought to prohibit work during this period in 13 critical areas of particular importance to the exercise of their rights under Treaty 8. That concession was however, accompanied by a caveat that Hydro could not later argue that the Project was too far advanced outside the critical areas to be stopped. The Site C Project is the third hydroelectric project on the Peace River and the 83 kilometre long reservoir will flood 5500 hectares of land. With 70% of the Peace River Valley already flooded by previous hydroelectric development, the Project flooding will raise that percentile of flooded land to 85%.

BC Hydro submitted a project description to both the BC Environmental Assessment Office and the Canadian Environmental Assessment Agency in 2011. Following Environmental Assessment (EA) and a joint review panel report, the Province in late 2014 found the project to be in the public interest and approved it, subject to 77 conditions designed to avoid or reduce adverse impacts on Aboriginal rights and interests. West Moberly First Nations opposed the Project from the outset, though other First Nations and local communities sought to benefit economically from the Project and its associated employment and contracting opportunities. Judicial applications seeking to quash the provincial and federal EAs were refused (see 2017 BCCA 58 and 2017 FCA 15) and further appeals to the Supreme Court of Canada were denied on June 29, 2017. Construction activity commenced in July of 2015 and an interlocutory injunction pending judicial review was refused (see 2015 BCSC 2662).

THE TAKING-UP CLAUSE

Treaty 8 gives First Nation signatories the rights to traditional hunting, fishing and trapping, but at the same time, gives the Crown the right to "take up" lands when needed for settlement, mining, lumbering, trading or other purposes.

WHAT WAS DECIDED IN THIS MOST RECENT INJUNCTION APPLICATION

The threshold for establishing the first of the 3 requirements for an injunction — a serious question to be tried is admittedly low and the Court accepted that it was met by the First Nation:

"...if West Moberly can show that the Peace River region has a special status among other places in its traditional territory, such that the treaty rights it asserts can only be exercised in connection with the Peace River region as it existed before the construction of the existing dams, then the cumulative effects of the previous projects on the Peace River region could, when combined with the Project, be said to give rise to an infringement. The Crown's "taking up" power cannot be exercised so as to leave West Moberly with no meaningful way to exercise its treaty rights."[257]

The Court was further satisfied that West Moberly had established the second requirement for an injunction i.e. risk of irreparable harm if an injunction is not granted. The Court relied on the decision in Taseko Mines Ltd. v Phillips 2011 BCSC 1675 at par. 65 that in an area already affected by industrial activity, every additional incursion matters all the more.

The 3rd requirement though, proved to be the stumbling block. The Court was not satisfied that the balance of convenience favoured the granting of the injunction. While the threshold of a serious question to be tried was met, the Court found that the claim was "not particularly strong." Secondly, West Moberly's action was "inexcusably commenced well over two years after construction began compounding the prejudice to the defendants and third parties that would flow from an injunction." (346) That harm consisted of the escalation of costs and in the case of the more limited injunction in critical areas, the new highway would not be completed before the scheduled reservoir filling. Uncertainty surrounding the duration of the injunction would cause unmanageable planning difficulties. The First Nation had suggested during oral argument that the parties could return to court to re-argue the injunction application again in a year. The Court rejected this suggestion: "I am not persuaded that the appropriate response to ongoing uncertainty is to invite serial injunction applications between now and trial." (315)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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