In a six-month trial, the provincial NDP government will have to fight against the treaty rights of Indigenous peoples whose traditional territory and burial grounds will be destroyed by a hydro project — one that now could be cancelled at the eleventh hour

West Moberly First Nations will proceed with a Site C dam “megatrial” following six months of confidential talks with the B.C. government and BC Hydro aimed at avoiding litigation, chief Roland Willson announced on Tuesday.

“They’re not going anywhere,” Willson told The Narwhal. “It’s essentially kicking a dead horse. … They wanted to have discussions and now we’re not talking anymore. We’re going to court.”

In January 2018, West Moberly First Nations and Prophet River First Nation filed civil claims alleging that the Site C project and two previous dams on the Peace River unjustifiably infringe on their treaty rights.

West Moberly First Nations subsequently lost an application for an injunction to protect 13 areas of cultural importance for the Dunne-Za nations — including prime moose habitat, a rare old-growth white spruce and trembling aspen forest and two wetlands called Sucker Lake and Trappers Lake — from clear-cut logging for the dam.

But the judge ruled their treaty rights case must be heard by 2023, prior to scheduled flooding of the Peace River Valley the following year.

Tim Thielmann, West Moberly First Nations legal counsel, said the ruling leaves the door open for the court “to impose an eleventh-hour cancellation or injunction onto the project and to prevent the flooding of the Peace River if the First Nations are successful in their treaty infringement claim.”

NDP government’s position a ‘profound conflict’

The Site C dam would flood 128 kilometres of the Peace River and its tributaries, about the equivalent distance of driving from Vancouver to Whistler.

It would destroy First Nations burial grounds and culturally significant areas, some of Canada’s best farmland, habitat for more than 100 species at risk of extinction and the last intact section of the Peace River Valley still available for Treaty 8 members to engage in traditional practices.

At trial, B.C. Premier John Horgan is expected to defend the 2014 decision made by former Liberal Premier Christy Clark to proceed with the Site C project, a decision West Moberly First Nations says infringed Treaty 8, according to a news release the nation issued on Tuesday.

“You have this surprising situation where the provincial government is finding itself on a path to a large trial in which they will be defending the position that they have been fighting,” Thielmann told The Narwhal.

Thielmann pointed to a statement Horgan made shortly before Clark’s decision to proceed with construction of the Site C dam. In 2014, Horgan said in a filmed interview that First Nations in the Peace region had entrenched constitutional rights that were “going to be violated by this dam.”

“In his announcement to proceed with the dam in 2017 he still said that Site C should never have been started,” Thielmann added, pointing to other senior NDP cabinet ministers who made similar statements.

In a public Facebook post, for instance, B.C. Attorney General David Eby described the Site C dam as a “terrible situation of a massive public infrastructure investment without any apparent customer for the electricity it will produce.”

“That’s a profound conflict in their current position,” Thielmann said. “Now they have to go to court and decide what their position will be on the Christy Clark decision to approve the dam in 2014.”

It’s a no-win situation for the NDP government because if they “own up to the statement they have made on record,” that approval of the dam was a mistake and an infringement of Treaty 8, then “presumably they wouldn’t be fighting this case in trial,” Thielmann said.

But if they agree with West Moberly First Nations it will open them up to whatever orders the court chooses to impose, he pointed out.

“If they begin defending the Christy Clark position to approve the dam it will have untold political costs internally to the party and amongst many of the NDP voters and others in British Columbia that believe, like Premier Horgan apparently did, that this was a profound mistake.”

Site C dam still shrouded in secrecy

Willson said Horgan should have stopped construction of the “boondoggle” dam after the NDP came to power in July 2017.

Instead, Horgan green-lighted the dam six months later — following intense lobby efforts by construction trade unions that donated generously to the NDP — on the grounds the project was past the point of no return, a claim debunked by independent energy experts.

“Right from the beginning we thought this whole project was a sham,” Willson said. “We’ve been railroaded. … There’s billions and billions being spent on a project that is totally not needed. And the environmental footprint and the devastation that this thing is going to create is sad.”

Willson said he does not believe BC Hydro will make the scheduled date next year for diverting the Peace River so construction of the dam structure can begin. The missed deadline would add substantially to the escalating cost of the dam, the largest publicly funded project in B.C.’s history.

“Everything’s in the shadows,” Willson said. “This was supposed to be a public process and they’re keeping information from people.”

Last year, international hydro dam expert Harvey Elwin described the high level of confidentiality surrounding the Site C hydro project as “extraordinary,” saying he had never encountered such secrecy during his five decades designing, developing and managing large hydroelectric projects, including China’s Three Gorges dam.

In an affidavit for the West Moberly First Nations injunction application, Elwin outlined the five main categories of risk that, in his view, made it extremely unlikely that the dam would be on schedule to produce power in 2024 and within its revised budget of $10.7 billion.

“We haven’t seen any public announcements that BC Hydro has made up the kind of ground that they would need to make up in order to have any chance of achieving river diversion in a year’s time,” Thielmann said.

“And there may very well be other challenges that haven’t been disclosed at the present time but will become more clear in the months ahead.”

The B.C. energy ministry said in an April 24 email to The Narwhal that the Site C dam remains on schedule to produce power in 2024 and within its budget of $10.7 billion, an increase of $2 billion over the project’s 2016 budget.

But BC Hydro’s latest Site C project report to the B.C. Utilities Commission hints of potential problems, assigning a yellow status to the project’s schedule, budget and overall project health to indicate “moderate” concerns.

The project remains cloaked in secrecy, with the NDP government refusing to make public the findings of a “Site C Project Assurance Board” that began meeting early last year.

Commitment to reconciliation called into question

The news that West Moberly First Nations will proceed to trial follows an announcement in May that Blueberry River First Nations is returning to court after almost a year of negotiations with the province.

The Blueberry First Nations allege that the cumulative impacts of resource development in their traditional territory, including intensive fracking operations and the Site C dam, violates treaty rights.

“This government’s failure to achieve significant reconciliation victories in cases like this calls into question what reconciliation, in this government’s view, is intended to look like,” Thielmann said.

The NDP government is “being called to task for radical changes on the landscape in the northeast and the threats that Indigenous peoples in the northeast and in the Peace River region are experiencing to their way of life,” he said.

Willson echoed Thielmann’s comments, saying, “They want to talk reconciliation but they don’t want to reconcile anything.”

In a rare rebuke, the United Nations has requested that Canada suspend Site C dam construction until the project obtains the “free, prior and informed consent” of Indigenous peoples.

Thielmann, who also represents Prophet River First Nation, which was in the talks with the B.C. government and BC Hydro, said he can’t yet comment about Prophet River First Nation.

“At this point in time, they continue to have a civil action that is parallel to West Moberly’s,” he said. “Their action has not been suspended or discontinued. They continue to have a civil action that alleges essentially the same thing as West Moberly’s — that the combined effect of the three dams is an infringement of their treaty rights.”

The B.C. government does not normally comment on cases before the courts. The Narwhal will update our reporting if the government responds to the case.

The 120-day trial to hear the West Moberly civil action is scheduled to begin in March 2022 and will last about six months, according to Thielmann.

He said the trial will likely include dozens of witnesses and many thousands of pages of evidence about everything from the “cumulative effects of the three Peace River dams within the Peace region to the nature of the West Moberly First Nations’ seasonal round and the traditional mode of life and how it has been radically disrupted and would be radically disrupted by the completion of Site C.”

Willson said he remains hopeful about the trial’s outcome.

“The mere fact that we’re going to trial should speak volumes.”

Clearing along the Peace River in preparation for Site C dam construction, July 12, 2018. Photo: Garth Lenz / The Narwhal