First Nations challenge to Site C approval could make dam a test case

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BC Hydro has cleared major environmental hurdles for its Site C megaproject, but opposition from First Nations is almost certain to result in new court action. And that could make the dam a test case for the thorny legal question of when and how public interest can trump aboriginal claims.

"It will be one of probably dozens of projects where that question comes up," Gordon Christie, an associate professor with University of British Columbia's Faculty of Law, said on Wednesday, adding that, "I have a hard time seeing how this won't end up in court."

In a conference call Tuesday, B.C. Environment Minister Mary Polak said First Nations do not have a veto on Site C and emphasized the mitigation and accommodation measures included in the province's environmental assessment certificate for the project.

"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," Ms. Polak said.

But some First Nations leaders questioned whether the province is heeding the latest legal developments, including a landmark Supreme Court of Canada decision in June that granted the first declaration of aboriginal title in Canada to B.C.'s Tsilhqot'in Nation. That landmark case, often referred to as the William case after plaintiff Roger William, found government incursions on aboriginal title must be justified on the basis of a "compelling and substantial public interest" and is widely seen as having strengthened First Nations' role in land-use decisions.

Grand Chief Stewart Phillip, head of the Union of B.C. Indian Chiefs, on Tuesday accused the province of denying First Nations' constitutional rights by pushing ahead with a "grandiose energy plan."

Both the provincial and federal governments this week issued environmental approvals for Site C, a $7.9-billion hydroelectric project that would become the third dam on the Peace River and generate enough electricity to power about 450,000 homes a year.

The approvals come with dozens of conditions designed to mitigate impacts on First Nations whose lands would be affected by the project, which would flood 83 kilometres of the Peace Valley to create a reservoir.

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.

Treaty rights in B.C. are broad and typically include the rights to hunt, trap and fish, said Drew Mildon, a partner with Woodward and Company, a Victoria law firm that represented the Tsilhqot'in Nation in its recent court case.

If the Site C debate winds up in court, the province could find it challenging to argue the project is in the public interest, Mr. Mildon said.

"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."

Treaty rights would be a key element in any court case, Dr. Christie agreed.

"That's the thing they [plaintiffs] will hinge their arguments on, the extent to which the flooding of this territory will make hunting and fishing problematic," he said.

Those issues are already playing out in Alberta, where some First Nations have challenged oil sands expansion in court, Dr. Christie said.

The Site C debate also involves the question of cumulative impact of resource developments, he said, adding that the oil and gas industry has already had a major impact in the form of roads, wells and pipelines in northeastern B.C.

At a press conference in Vancouver Wednesday, Energy Minister Bill Bennett said he hopes First Nations will recognize the economic opportunities that could come along with the dam if it is built.

"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," Mr. Bennett said.