How Is Proceeding With Site C Not Breaking A Treaty?

By Roy L Hales

Screen-shot-2014-03-18-at-3.43.47-PM1It has been eight days since the RCMP gunned down a demonstrator in Dawson Creek. According to the Independent Investigations Office, he “approached officers in an aggressive manner and when he did not comply with directions and commands, he was shot.” It is the latest in a series of  actions, which appear to have began with the BC government’s decision to break Treaty #8. Though this aspect of the project is not often talked about, the terms of the treaty seem clear. First Nations were to have use of the lands about to be submerged as long as the sun shines, the grass grows and the river flows. So how is proceeding with Site C not breaking a treaty?

An Ill Considered Project

Cover of Joint Panel Review on Site C (press image to access the document_
Cover of Joint Panel Review on Site C (press to access the document)

“There’s been a shocking lack of public consultation on the Site C dam,” says BC Government Employee’s Union (BCGEU) president Stephanie Smith. “The B.C. government has refused to allow the B.C. Utility Commission to review the project, and no effort has been made by this government to consider other sustainable energy sources.

“When a government refuses to consider alternative energy sources, sidelines its own utilities commission, ignores environmental concerns and aboriginal people’s constitutional rights, citizens have a responsibility to speak out. The BCGEU is proud to lend our voice to the growing chorus of British Columbians who say no to this ill-considered project.”

The Greater Vancouver Regional District Board, representing 23 local governments and 2.5 million people, has asked Premier Christy Clark for a 2-year moratorium on Site C.

“There’s a whole bunch of unanswered questions, some of which would be markedly advanced by waiting three or four years,” Harry Swain, Chair of the Joint Review Panel on Site C,  recently told DeSmog Canada. “And you’d still be within the period of time, even by Hydro’s bullish forecasts, when you’re going to need the juice.”

BC Hydro Poll

BC Hydro’s response was a poll in which 59% of the respondents expressed support for their Site C project and another 22% “can support it under certain circumstances.”

Their news release boasts that “75 per cent of British Columbians surveyed are aware of Site C, compared to 41 per cent in 2013.”

Did the respondents  know that many prominent British Columbians, municipalities and organizations, have expressed opposition to this project?

How many respondents were aware that construction of the Site C Dam appears to require breaking a treaty?

Opposition from First Nations

No Site C Dam Here by Jerry (CC BY SA, 2.0 License)
No Site C Dam Here by Jerry (CC BY SA, 2.0 License)

The First Nations Leadership Council in association with BC Assembly of First Nations, First Nations Summit and Union of BC Indian Chiefs are all opposed to this project.

“The provocative activities that the BC government is recklessly trying to advance are irreversible, and will leave an irreparable and permanent scar on the land,” said Grand Chief Stewart Phillip, President of UBCIC. “These deliberate actions will also indefinitely scar BC’s relationships with First Nations. If construction begins, it will be understood as a clear message that this government has absolutely no respect for the Treaty 8 First Nation people, and is blatantly disregarding constitutionally recognized Aboriginal Title, Rights, and Treaty Rights. Further, rushing ahead of the courts to build this project is an irresponsible and negligent use of tax dollars.”

One of the Treaty 8 First Nations, the Saulteau, has consented, in return for  “lump sum payments, an annual payment stream, contracting opportunities, Crown land transfers and protection of the Peace Boudreau, a land area of importance.”

Three other nations – the Doig River First Nation, Prophet River First Nation, West Moberly First Nations – and the McLeod Lake Indian Band filed a total of six legal challenges against this project.

The Joint Review Panel

Signs protesting the Site C dam are plentiful along Highway 29 between Fort St. John and Hudson's Hope. Photo credit: Emma Gilchrist, DeSmog Canada.
Signs protesting the Site C dam are plentiful along Highway 29 between Fort St. John and Hudson’s Hope. Photo credit: Emma Gilchrist, DeSmog Canada.

You need look know further than the Report of the Joint Review Panel to understand why. Some of the relevant passages are:

• (p 237) “BC Hydro recognized that some Aboriginal groups have indicated the Peace River holds spiritual and cultural value to them and that specific places that Aboriginal groups’ value and use for multiple purposes would be permanently changed or lost by the construction of the Project. BC Hydro recognizes that this effect cannot be mitigated and significant for Doig River First Nation, Halfway River First Nation, Prophet River First Nation, West Moberly First Nations, Blueberry River First Nations, Saulteau First Nations, and the McLeod Lake Indian Band. The Panel agrees.”
• (p 314/315) ” … The Panel disagrees with BC Hydro and concludes that the Project would likely cause a significant adverse effect on fishing opportunities and practices for the First Nations represented by Treaty 8 Tribal Association, Saulteau First Nations, and Blueberry River First Nations, and that these effects cannot be mitigated.”
• (p 315) ” … The Panel disagrees with BC Hydro and concludes that the Project would likely cause a significant adverse effect on hunting and non-tenured trapping for the First Nations represented by Treaty 8 Tribal Association and Saulteau First Nations, and that these effects cannot be mitigated.”

Peace Valley Landowner Association

Signs protesting the Site C dam are plentiful along Highway 29 between Fort St. John and Hudson's Hope. Photo credit: Emma Gilchrist, DeSmog Canada.
Signs protesting the Site C dam are plentiful along Highway 29 between Fort St. John and Hudson’s Hope. Photo credit: Emma Gilchrist, DeSmog Canada.

First Nations aren’t the only local inhabitants negatively effected by this project.

According to the joint panel review’ report (p 307), ” … the Project would be accompanied by significant environmental and social costs, and the costs would not be borne by those who benefit…. These losses will be borne by the people of the Valley, some of whom say that there is no possible compensation.”

On July 2, BC Supreme Court Judge Robert J. Sewell dismissed the Peace Valley Landowner Association’s (PVLA) appeal of the environmental assessment certificate for Site C dam. Their “case was based on the requirement that Ministers must consider the (economic) recommendations made by the Joint Review Panel.”

In his Reasons for Judgement, Sewell wrote, (paragraph 124) “The decision to grant the Certificate was clearly within the range of reasonable options in light of the facts and the law. It is not for this court to substitute its views of what the Ministers ought to have decided or the weight they were required to give to the many factors they had to consider in arriving at their decision.”

To which the PVLA responded, “the finding of the court that the failure of a Minister to meet mandatory legislative requirements to consider the outcome of independent environmental assessment may be cured by a determination that a decision is ‘reasonable overall’ is wrong at law.  Such a finding undermines the environmental assessment process not only for the certificate issued for the Site C dam, but also for the environmental assessment process in British Columbia as a whole.”

They will be appealing.

The Province Is Eager To Get Going

Meanwhile the province is eager to get going and, yesterday, announced they had awarded the road construction contract to A.L. Sims and Sons Ltd from Prince George.

A spokesperson from the Ministry emailed the Globe and Mail that “Site C has gone through one of the most comprehensive reviews for an infrastructure project in B.C. history. Site C is the right project for B.C. at the right time and it’s time to move the project forward.”

The Shooting & Its’ Aftermath

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On Thursday, July 16, the RCMP gunned down a demonstrator outside an BC Hydro “open house” in Dawson Creek. James Daniel McIntyre allegedly had a knife and was acting aggressively. A video, filmed moments after the shooting, shows two policemen with drawn revolvers trained on a slumped over a motionless figure. A voice explained, “The cops just #### dropped this guy. Holy Fuck.” The policemen are standing  on either side of McIntyre, around 15 to 20 feet distant. One of them nervously approached, never lowering his gun. The policeman appeared to kick something (a knife?) from McIntyre’s hand. He died en route to the hospital.

After learning of the incident, Treaty 8 First Nations leaders cancelled the “Drums for the Peace River Rally” that was to have been held in front of the BC Hydro offices, in downtown Vancouver, last night.

Another group announced an “Anti-Police Brutality March” to start at Hastings and MacDonald tonight.

The Violence Could Escalate

Signs protesting the Site C dam are plentiful along Highway 29 between Fort St. John and Hudson's Hope. Photo credit: Emma Gilchrist, DeSmog Canada.
Signs protesting the Site C dam are plentiful along Highway 29 between Fort St. John and Hudson’s Hope. Photo credit: Emma Gilchrist, DeSmog Canada.

The violence could escalate, especially as the government continues  to ram this project through.

However one of the first questions that Premier Clark’s government needs to answer, before proceeding with the Site C Dam, is how is not breaking Treaty #8?

Or do both the governments involved, Federal and Provincial, think aboriginal the title issues can be ignored?

In another era, this project would have provoked an Indian war.

This is 2015 and, as Damian Gillis points out,  the cowboys and indians have become allies in the fight to stop what appears to be a very ill considered project.

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