Federal Appeal Court dismisses Site C treaty challenge

Federal Court of Appeal dismisses appeal of earlier decision by Federal Court

Prophet River and West Moberly First Nations fail again, this time at the the federal appeal court level, in treaty infringement claim over Site C dam.

Two First Nations that have been fighting Site C hydroelectric dam project have lost a major court battle.

The Federal Court of Appeal has rejected an appeal of an earlier Federal Court ruling that went against the Prophet River and West Moberly First Nations, which had sought a judicial review of the dam’s approval on the basis that it infringed their treaty rights.

The Prophet River and West Moberly are among the few First Nations in B.C. that signed historic treaties. They are signatories to Treaty 8, which covers a vast area – the size of Manitoba – in Northern Alberta, Saskatchewan, part of the Northwest Territories and a portion of Northeastern B.C.

The treaty ensures traditional hunting, fishing and trapping rights to the signatories. But it also includes the right of the Crown to “take up” lands when needed “for settlement, mining, lumbering, trading or other purposes.”

The Site C dam project was the subject of a joint review panel hearing that combined federal and provincial environmental reviews and was approved by Governor in Council.

The Prophet River and West Moberly First Nations had applied for a judicial review, which a federal court rejected, and which they then appealed to the Federal Court of Appeal. On Monday, January 23, the Federal Court of Appeal dismissed that appeal as well in a unanimous decision.

The dam project will create an 83-kilometre long reservoir that will require the flooding of 5,550 hectares of land. The court recognized that up to 70% of the Peace River Valley had already been flooded by previous dam projects.

Although it acknowledged that the dam project would have an adverse affect on traditional First Nation activities, the Governor in Council had determined that it was justified.

Unlike some other court challenges, the First Nations it the centre of the court challenge did not argue that there had been insufficient consultation. Rather, it argued that the Government in Council should have had the authority to rule on the question of whether the project would infringe their treaty rights.

But Federal Court concluded that the First Nations had not provided the kind of evidence the court needed to determine that the dam would sufficiently infringe their rights.

In the case of Prophet River, whose community is closer to Fort Nelson than Fort St. John, near where the dam is being built, the court said the Prophet River First Nation had not been able to provide evidence that their rights extended as far as the Site C dam area, some 200 kilometres away.

“In short, the evidence on record does not demonstrate that the exercise of the Prophet River First Nation’s treaty rights extends over 200 km to the Site C Project,” Justice Richard Boivin concluded.

Even if those rights had been infringed, there are provisions within treaties to allow for such infringement, when the activity is deemed to be for the greater public good.

nbennett@biv.com