The federal government struck out in court Friday in its attempt to gut key passages of a Treaty 8 First Nations Judicial Review into the environmental certificate for Site C Dam.
After 3 hours of arguments on the crown’s motion to strike, brought with the support of the province, the presiding Prothonotary Lafreniere not only threw out the government’s argument – which he called “a very rare request” – but ordered costs be paid to the First Nation plaintiff. The decision presents another legal roadblock to the $9 Billion dam, on which the BC Liberal government and proponent BC Hydro intended to break ground this summer. The federal judicial review is now slated to be heard in July, with the nation’s key argument of rights infringement by the dam fully before the court. The Judicial Review is being brought jointly by West Moberly First Nations, the Prophet River First Nation, McLeod Lake Indian Band, and Doig River First Nation.
The right to be heard
At issue in Friday’s hearing was a highly technical but significant debate over whether a Judicial Review is equipped to deal with an Aboriginal rights-based argument. Both the crown and province maintained that in the past, the courts have refused to hear such arguments in a Judicial Review – referring them instead to full-on trials. The First Nation argues that the environmental review process and subsequent decisions by governments to award Site C its certificates failed to consider the infringement of its treaty rights to hunt, fish and trap on the land – unimpeded by development.
The crown countered that the matter of rights infringement falls outside of the scope of the environmental review – parameters that the government deliberately hardwired into the terms of reference for the Joint Review Panel. In other words, both the federal and provincial governments ensured that the questions of rights infringement never enter into the JRP hearings – even though the panel readily acknowledged the project would have adverse impacts on First Nations throughout the region.
“Put it to bed”
The crown argued that the plaintiff’s evidence and legal standing was “so utterly devoid of merit and hopeless that…it should be struck out and put to bed early on.”
Prothonotary Lafreniere disagreed. During the hearing, he challenged the crown’s argument that the rights issue couldn’t be adjudicated by a Judicial Review:
[quote]Why can’t you argue that in the hearing?…I’m very concerned about bringing a motion to throw them out before getting a fair hearing.[/quote]
Counsel: Govt totally ignored First Nations’ rights
In her clients’ defense, Lead Counsel Allisun Rana drew attention to the government’s carefully contemplated refusal to address meaningfully the Nation’s rights. While the JRP’s hands were tied from dealing directly with rights infringement – a loaded legal notion that goes deeper than merely observing adverse impacts – the government was supposed to consider the evidence gathered and deal with the rights issue later, before issuing its decision. It chose not to, whatsoever – a revelation that only came to to light through this recent motion to strike. Even the plaintiff seemed surprised to learn that no consideration was given at any point to the infringement by the dam on First Nations’ treaty rights.
The crown’s own consultation report on Site C contained a clearly-stipulated responsibility for the government to deal with rights infringement issues – as reflected in the report’s consultation schematic. Only later, without the nation’s knowledge, did the crown alter the language in the schematic to say “determining impacts” instead of “infringement“. Legally speaking, this one word makes all the difference as it speaks specifically to the breaking of legal promises made in Treaty 8 of 1899.
“[My clients] had a good faith belief that the governor in council would consider infringement and were led to believe that by the agency,” Rana told the court.
[quote]If the project is an infringement on First Nations’ rights and the governor in council approved it, then that’s a constitutional issue…that is a matter that needs to be heard before a full hearing.[/quote]
A big decision
“This is a project that will take up half of what remains of the Peace River in BC,” Rana added. “There are no First Nations in support, no impact benefit agreements in place…This is a big decision.”
While the crown argued that the plaintiff is “trying to go through the back door” in raising issues at a Judicial Review which both governments have clearly sought to keep off the table, the court disagreed. “It’s good to have this behind us,” said Rana on Friday’s decision, “so we can focus on the Judicial Review.”
The decision, just one in a long list of legal developments currently surrounding the controversial dam, is another troubling sign for governments which seem in a real hurry to get construction underway.
Perhaps that’s because they can feel the judicial sands shifting beneath their feet. And like quicksand, the harder they struggle, the deeper they may find themselves stuck.