Court dismisses landowners’ appeal to reverse Site C approval

Peace Valley Landowner Association president calls court's decision on panel recommendations ‘scary’

A temporary bridge over the Peace River to facilitate Site C construction | BC Hydro

The B.C. Court of Appeal has dismissed an appeal by the Peace Valley Landowner Association to overturn approval of the Site C dam.

The association sought the court to review a July 2015 BC Supreme Court decision on the province's move to grant the dam an environmental assessment certificate. That court found the provincial government was within its rights to approve Site C, despite a Joint Review Panel finding that the dam would cause significant environmental impacts.

In its decision released Sept. 15, the three-member appeals court panel concluded that four economic recommendations that a federal-provincial joint review panel made regarding the dam did not need to be considered by provincial ministers when approving the dam.

Those panel recommendations included referring the dam for review by the BC Utilities Commission, as well as having the commission review a long-term pricing scenario that included LNG demand, and reviewing BC Hydro's load forecast and demand side management plan.

The PVLA argued provincial ministers ignored those recommendations in its decision to approve the dam, however, Justice Harvey Groberman disagreed.

“The factual issue of whether the Ministers took Recommendations 46 through 49 into account is also, in the circumstances, of no moment. I would say, however, that I agree with the judge’s apparent view that the Ministers were aware of the recommendations and concluded, after due consideration, that they should not affect the issuance of the certificate, though they might be considered by government after issuance of a certificate,” Groberman wrote.

“Recommendations 46 through 49 in the Joint Review Panel’s report were not 'recommendations' coming within the ambit of s. 17 of the Environmental Assessment Act. They, therefore, did not need to be considered by the Ministers when they decided to issue an environmental assessment certificate. I would, therefore, dismiss the appeal.”

The decision was supported by Justices Kathryn Neilson and Gregory James Fitch.

The appeal was the last legal challenge from the PVLA. Ken Boon, president of the landowner association, called the court's decision “scary” and that the group would be reviewing the decision with its lawyers.

“You could argue they were the most important recommendations that could have come from the joint review panel on the economics and the need, and whether alternatives had been truly considered,” he said Thursday.

“To have the court of appeal make a decision like this … that's pretty scary.”

Construction on the controversial $8.8-billion project began in summer 2015. As of June 2016, there were more than 1,800 workers on the project, according to BC Hydro, with main civil earthworks, tunnel building and river diversion expected to ramp up in the coming months. 

In a statement, Site C spokesperson Dave Conway said the Crown utility continues to advance construction. 

“We’ll continue to work very hard to be respectful and open with property owners affected by the Site C project,” he said.

“Construction of Site C started in July 2015. The project is on track for schedule, scope and budget. Once complete in 2024, it will be a source of clean, renewable and affordable power for more than 100 years.”

In its decision, the appeals court noted “the panel was conscious of the magnitude of the project, and of its significance to the future of the province.”

The court pointed to the joint review panel acknowledging in its final report that some of its recommendations were targeted to government and not BC Hydro, and that they were “not to be interpreted as conditions” on the project.

Despite losing the appeal, Boon noted that opposition to dam continues to mount, with pressure coming from BC municipalities, FIrst Nations groups, an indigenous Liberal MP, the Royal Society of Canada, and Site C panel chair Harry Swain, among a long list of others.

“To us, this (decision) is not a reflection on whether this project should proceed or not. This was a legal argument on one aspect of the project. There's many aspects to this project,” Boon said.

“We've had the action on the ground, the Rocky Mountain Fort, Treaty 8 Stewards of the Land, we had the protest that took place in Vancouver, the caravan (to Montreal). We have a new federal government that campaigned on a new relationship… a lot of pressure is happening now, it just goes on and on.

“Then we have premier that ignores all of the above and says she's going to push it to the point of not return. It's been a wild and crazy ride.”