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Treaty 8 First Nations expected to challenge Site C dam in court

The approval of the proposed Site C dam by the Harper and the Clark government in British Columbia is very likely to be challenged in court by Treaty 8 First Nations which have Title to the Peace River Valley.

On September 24, Grand Chief Stewart Phillip of the Union of British Columbia Indian Chiefs said, “In the event that either the provincial or federal government issues a Certificate of Environmental Approval, the Treaty 8 First Nations will immediately file a lawsuit challenging such a reckless and irresponsible decision.”

Site C is a proposed 60-metre high, 1,050-metre-long earth-filled dam and hydroelectric generation station that would be located on the Peace River in northeastern British Columbia. It would create an 83-kilometre-long reservoir and submerge 78 First Nation heritage sites, including burial grounds and places of cultural and spiritual significance.

The dam is opposed by twenty-three First Nations across B.C., Alberta, and the Northwest Territories. Three years ago five First Nations asked the United Nations to defend their rights under the UN Declaration on the Rights of Indigenous Peoples against this project. 

Late last month, Chief Roland Willson of the West Moberly First Nation said, “We have rights under our Treaty. They’re rights that cannot be infringed simply because a provincial utility wants more power. The recent Tsilhqot’in decision by the Supreme Court of Canada only bolsters governments’ obligation to accommodate our Aboriginal rights and title. This dam just doesn’t make sense: legally, environmentally, or economically. It needs to be stopped immediately.”

In June the Supreme Court of Canada ruled that infringements on aboriginal title must be justified on the basis of a “compelling and substantial public interest.”

The Clark government is taking a different view.

Environment Minister Mary Polak says, “Our understanding of our obligation is meaningful consultation, accommodation where it is appropriate – we don’t believe that constitutionally there exists such a thing as a veto.” And Energy Minister Bill Bennett says, “Government needs to make sure that enough engagement is happening with Treaty 8 First Nations so we can get to a point where even if the First Nations are not comfortable supporting the project, then at least they have recognized the opportunities that are there if we decide to build the project.”

But Drew Mildon, a partner in the law firm that represented the Tsilhqot’in Nation in the Supreme Court challenge, says, “To justify that infringement, it seems to me, is going to be a very difficult step. Because you have to essentially know that there is going to be enough undisturbed natural habitat for there to be a harvestable surplus of species.”

Site C would be the third dam on the Peace River. Fort Nelson First Nation Chief Liz Logan says it would “submerge what little is left of the Peace River Valley.”

The Globe and Mail reports, “The project would have the greatest impact on seven B.C. aboriginal groups that are signatories to Treaty 8, an 1899 pact that also includes signatories in Alberta and the Northwest Territories. BC Hydro is negotiating with five of those seven groups and has made offers to the two others.” But as recently as last month, the B.C. energy minister admitted, “Obviously, with no First Nation formally in support of the project at this time, we still have lots of work to do.”

With the approval of the financing for the dam expected next month it was believed that construction could begin in January, but with a pending court challenge that is now in question.

The Council of Canadians opposes the dam and stands in solidarity with the First Nations and frontline communities opposed to this destructive project.