Documents disclosed in a treaty infringement case offer a rare glimpse into the payments BC Hydro offered to First Nations as it sought support for the dam, the most expensive public megaproject in B.C.’s history

BC Hydro offered West Moberly First Nations $28 million in lump-sum payments and annual payments to address the impacts of the Site C dam, according to new court documents for a treaty rights infringement trial.

The documents also reveal details about deals BC Hydro signed with four of seven other B.C. Treaty 8 First Nations, which consented to the Site C dam project or did not “oppose or object” to it.

Until now, BC Hydro has withheld financial information about the secret deals it offered First Nations for the $10.7 billion Site C dam, the largest publicly funded project in the province’s history.

The documents, filed in B.C. Supreme Court on March 2, form part of BC Hydro’s response to a civil claim by West Moberly First Nations, which alleges the Site C dam and two previous dams on the Peace River constitute an unjustifiable infringement of treaty rights. A trial, scheduled to begin in March 2022, is expected to last six months.

According to the court documents, West Moberly First Nations did not accept BC Hydro’s financial offer, made in July 2014 — five months before the Site C project was approved by the B.C. government. That offer included a fee simple transfer of up to 3,000 hectares of Crown land, an area one and a half times the size of the city of Victoria.

West Moberly also declined an offer from BC Hydro to apply for funding from a $10 million compensation fund for Indigenous groups, established to help address the Site C’s project’s impacts on land and resources used for traditional purposes, the documents state. (As of April 2, there was no information about the $10 million fund on BC Hydro’s Site C website, which lists other compensation funds related to the project.)

The Site C dam is slated to flood 128 kilometres of the Peace River and its tributaries, destroying Indigenous burial sites, traditional hunting and fishing grounds and dozens of cultural and spiritual sites with names such as Dreamer’s Island, Dancing Rock, Vision Quest Island and Canoe in Bush.

A Joint Review Panel that examined the project for the B.C. and federal governments concluded the impacts of the dam on First Nations traditional land use would likely be adverse, significant and impossible to mitigate.

Agreements are ‘important public documents’

Judith Sayers, an adjunct professor at the Peter Gustavson School of Business at the University of Victoria, said Site C project agreements with First Nations are “important public documents” and should be disclosed.

“I don’t think there’s anything that should be confidential,” said Sayers, who has been involved in the clean energy industry since 2001, including as a previous member of the B.C. government’s Climate Solutions and Clean Energy Advisory Council.

The only exception should be the location of sacred sites, Sayers, the president of the Nuu-Chan-nulth Tribal Council, told The Narwhal.

“If a First Nation is going to enter into an agreement with the government why can’t we see what that is? It’s public funds, it’s impacts on our territories.”

The lack of transparency doesn’t foster equality among First Nations, said Sayers, who received the Order of Canada in 2018 for her work on clean energy.

“They might put more on the table with [West Moberly] and not give as much to the other Treaty 8 nations because they settle for less. I know it’s dependent on the degree of damage within the territory, the amount of lands flooded, the loss of hunting rights, that sort of thing. But there still should be a formula out there that allows First Nations to know what is possible.”

Documents describe offers to other Treaty 8 First Nations

After the B.C. government gave final approval to the Site C project — with former B.C. Premier Christy Clark vowing to push construction past “the point of no return” — four B.C. Treaty 8 First Nations signed Site C impact benefits and land transfer agreements with BC Hydro.

All eight B.C. Treaty 8 nations were opposed to the project prior to its approval.

According to the court documents, the four nations who signed agreements received lump sum payments, annual payment streams for 70 years indexed to inflation, procurement opportunities related to the construction of the Site C dam, fee simple transfers of Crown land and land protection measures of other parcels of Crown land.

Two Alberta Treaty 8 nations, whose traditional territory is downstream of the Site C dam, also signed confidential agreements with BC Hydro.

The court documents only put a price tag on the financial offer to West Moberly First Nations — $3.5 million in lump sum payments over three instalments and annual payments of $350,000 for 70 years, indexed for inflation, for a total of $28 million before inflation.

Sayers called the offer “peanuts” in light of the Site C dam’s impacts on the nation’s traditional territory, which include poisoning bull trout, a food fish, with methylmercury.

A lawyer for West Moberly First Nations did not respond to a request for comment.

If BC Hydro offered that same sum of money to the four B.C. Treaty 8 First Nations who signed Site C impact benefit and land transfer agreements, the payout would be $112 million — not including indexing for inflation, the value of land transfers or procurement opportunities.

That’s on par with what Coastal GasLink estimated it would give five elected Wet’suwet’en band councils over a 25-year period in cash distributions totalling $4.6 million a year, for a sum of $115 million, according to a story in the Globe and Mail.

The disclosure about the money BC Hydro offered to West Moberly First Nations comes as the public utility falls under increasing criticism for continuing construction on the Site C project during the COVID-19 pandemic.

Although BC Hydro has scaled back its workforce, it continues to fly workers in and out from across B.C. and Alberta, despite calls from the Union of British Columbia Indian Chiefs and Fort St. John city councillors to shut down the project during the pandemic. As of April 1, there were 935 workers at BC Hydro’s Site C dam camp and seven were in self-isolation with flu-like symptoms.

Balance between transparency and confidentiality

Shiri Pasternak, research director for the Yellowhead Institute, a First Nations think tank based at Ryerson University, said finding the balance between transparency and confidentiality in agreements such as those for the Site C project is challenging.

“First Nations, just like any other government in Canada negotiating a deal based on their interest, should have a right to protect the terms of those agreements if they so choose,” Pasternak told The Narwhal.

“On the other hand, the way that the negotiations take place and the way that companies approach communities … raises significant concerns about whether First Nations communities themselves are aware of everything in the agreement that their band councils are signing on to.”

The scales are also unbalanced because individual First Nations are at the negotiating table without knowing what neighbouring nations were offered, or agreed to, for the same project, Pasternak said.

Negotiators for government, Crown corporations or business, on the other hand, are privy to dozens or hundreds of confidential agreements “and know exactly what the percentages are,” she said.

“They don’t explicitly disclose at the table but they know the limit that they’re willing to go to. That is a huge advantage in negotiation.”

The nature of the negotiations is also antagonistic because band councils are approached one at a time, Pasternak also noted.

“The transparency is not just about the figures that are not disclosed, it’s about the process that pits First Nations against each other. The issue is about governance, not transparency.”

Four B.C. Treaty 8 First Nations — West Moberly First Nations, Prophet River First Nation, Blueberry River First Nations and Fort Nelson First Nation — have not signed Site C impact benefits and land transfer agreements.

Prophet River First Nation has filed a separate civil claim alleging that the Site C dam and two previous Peace River dams constitute an unjustifiable infringement on treaty rights.

The dam will flood the last tract of the Peace River Valley available to First Nations for traditional practices, putting a total area roughly the distance of driving from Victoria to Nanaimo under up to 50 metres of water.

In the court documents, BC Hydro said First Nations that signed agreements “have confirmed that they either consent to or do not oppose or object to the project and have been adequately consulted and accommodated in relation to the impacts of the project on their section 35 rights,” which enshrine Indigenous rights in the Canadian constitution.

Only one nation — the McLeod Lake Indian Band, which joined Treaty 8 in 2000 — has spoken out in favour of the Site C dam, whose price tag has climbed by almost $3 billion since the Joint Review Panel issued its final report.

The global human rights organization Amnesty International and the United Nations Committee for the Elimination of Racial Discrimination have criticized the Site C project for failing to uphold the UN Declaration on the Rights of Indigenous Peoples, which states that resource projects must have the full, prior and informed consent of Indigenous peoples.

In December, the UN committee called on the federal government to immediately suspend construction of the Site C dam, along with the Coastal GasLink pipeline and the Trans Mountain pipeline, until consent is obtained.



First Nations given direct award Site C contracts

Procurement opportunities on the Site C project have been especially lucrative for B.C. Treaty 8 First Nations that signed agreements with BC Hydro, which has given tens of millions of dollars in direct award contracts for work on the project.

Direct award contracts allow BC Hydro and other public bodies to decide which companies or consultants get contracts, instead of going through a more transparent and competitive tender process.

In 2016, a construction company owned by the McLeod Lake Indian Band received a $29.5 million direct award Site C project contract for “site preparation” on the Peace River’s south bank, according to the response to a Freedom of Information request filed by The Narwhal.

A company owned by the Halfway River First Nation received $13.2 million direct award contract in 2016 for its role as the “Site C health clinic provider,” while Doig River Timber Ltd., a company owned by Doig River First Nation, was awarded $357,000 that same year for “grinding.”

Paul Paquette and Sons, a private company owned by a Saulteau First Nations member, received $2.8 million in direct award contracts in 2017 and 2018 for “site clearing” on the Peace River’s north and south banks, according to the FOI response.

Sayers said she supports the right of First Nations to receive direct award contracts for the Site C dam and other projects that impact their traditional territories.

But information about the contracts should be publicly available without having to go through freedom of information requests, she said.

“I don’t see why anything should be secret if it’s a fair contract … I think people need to know the full cost of building the Site C dam.”

Sayers said good faith negotiations that align with the UN Declaration on the Rights of Indigenous Peoples would give First Nations a say when it comes to choosing clean energy options on their traditional territories.

“When they come to the table and say, ‘here’s what we’re doing, we’re not changing this,’ then where do you go? There’s no place to go. You must either oppose the dam or go with the dam. Some of those who signed agreements on the dam did it because they know they’re not going to get anything … They know it’s going to go ahead anyway and they want to get something out of it.”

“So that’s why they say yes,” Sayers said. “That’s the catch 22. It’s tough. It’s really tough when people are waving money in front of you when you have nothing.”

Morning mist rises from the Peace River Valley in the summer of 2018. More than 120 kilometres of the Peace River and its tributaries are slated to be flooded by the Site C dam, which will destroy some of Canada's richest agricultural lands. Photo: Garth Lenz / The Narwhal