a mob of reporters talking to an Indigenous man on the lawn in front of the BC Legislature

Why a highly anticipated Site C dam ‘mega trial’ isn’t happening right now

By Matt Simmons, The Narwhal, Local Journalism Initiative reporter

For those following the Site C dam project closely, March 14 was supposed to be a big day. After years of negotiations and court proceedings, a six-month “mega trial” was set to begin in B.C.’s Supreme Court to determine whether the $16 billion project — the most expensive dam in Canadian history — infringes on Treaty 8 Rights. 

Instead, representatives from West Moberly First Nations, who brought forward the case  against B.C., the federal Attorney General and BC Hydro, are having  “confidential discussions to seek to settle this litigation” outside of  court, according to a BC Hydro progress report submitted to the BC Utility Commission on March 31. 

The report reveals the case was adjourned  on Jan. 21, 2022, raising questions about why the parties have once  again entered private discussions and what this will mean for the future  of the case and the project. 

“I​​f they think that there’s a possibility of them getting a negotiated settlement, then they will  postpone,” explains lawyer Cynthia Callison, founding partner of  Callison and Hanna law firm and member of the Tahltan Nation. The  Indigenous-led firm focuses on providing advice and strategies to  Indigenous governments on decisions and agreements related to resource  development. 

Callison says negotiating an agreement is preferable to slogging through a lengthy court case — for everyone involved. 

“In my mind, a negotiated settlement is  far superior than what could be crafted from a judge’s decision,” she  said, adding that doing so sets the stage for a healthier, ongoing  relationship between the First Nations government, the province and BC  Hydro.

“It’s good in the sense that the  government side, the [BC] Hydro side, is recognizing that there are some  rights and that they need to have a negotiated settlement,” she told  The Narwhal in an interview.

“For a long time, there was denial — deny,  deny, deny — and now we’re moving into an era where there’s supposed to  be an acknowledgement or recognition and reconciliation.”

The Site C dam, which has been mired in controversy,  would flood 128 kilometres of the Peace River watershed in northeast  B.C., submerging First Nations burial grounds, agricultural lands and  areas of cultural significance, including important hunting, trapping  and fishing grounds. 

In 2018, a B.C. Supreme Court judge ruled the West Moberly First Nations case must be heard before mid-2023, the  earliest point at which flooding to create the dam’s reservoir would  occur. Adjourning the trial means the clock is ticking to resolve the  litigation on this timeline.

This isn’t the first time West Moberly has  entered confidential discussions with the B.C. government and the  public utility to resolve the litigation. The nation was previously in  discussion from February to August of 2019 and Chief Roland Willson said  at the time those talks were “essentially kicking a dead horse.”

“They wanted to have discussions and now we’re not talking anymore. We’re going to court,” he told The Narwhal in 2019.

The nature and scope of the current  discussions is unknown. Willson told The Narwhal he is unable to  comment, given the nation is still embroiled in a legal challenge.

A spokesperson for the public utility  reiterated the contents of the progress report but did not provide any  further information. 

“BC Hydro remains committed to working  with Indigenous communities to build relationships that respect their  interests,” the spokesperson wrote in an email to The Narwhal. 

“We can confirm that earlier this year,  all of the parties to the litigation agreed to adjourn the trial that  was scheduled to begin in March 2022. Confidential discussions are  continuing between the parties,” the BC Hydro statement says. 

Premier John Horgan’s office declined to  comment and referred The Narwhal to the Ministry of Energy, Mines and  Low Carbon Innovation, which said all parties agreed to adjourn the  trial and are now in negotiations.

“Out of respect for the ongoing  discussions, the ministry will not be providing any further comments at  this time,” a spokesperson wrote in an email.

Publicly funded Site C dam shrouded in ‘excessive government secrecy’ 

Wrapped up in the anticipation of this “megatrial” is the potential for documents that have been kept secret  finally being made public. Despite this being a publicly funded  project, documents that analyze safety concerns about the stability of  the dam, geotechnical issues, projected final costs and risk mitigation  strategies have been fully or in-part withheld from the public. 

“Site C has all the elements of a typical  boondoggle, including cost overruns and questions about whether it’s  even a good idea — and it’s all due to excessive government secrecy,”  Duff Conacher, co-founder of Democracy Watch, told The Narwhal in an  interview. 

West Moberly has been using the court  system to try to obtain as much documentation as possible. Last year,  their efforts paid off as the court ordered  the province and BC Hydro to release Site C financial and safety  documents to West Moberly. But a condition of releasing these documents  was that West Moberly keep them confidential. 

“All the reports, everything they’re doing on this project, should be available to the public,” Willson told The Narwhal at the time.  “The court has said we have to hold whatever information we get in  confidence and not divulge it to anyone. There’s nothing we can do about  it. That’s the condition.”

At the heart of the secrecy controversy is a 2020 report on the status of the project prepared by former deputy  finance minister Peter Milburn. He was brought on as special advisor to  examine the project and give the government independent advice. 

As The Narwhal previously reported,  Milburn focused on four key areas of the Site C project: governance and  oversight, geotechnical issues, risk and construction supervision and  claims management. 

He found  that the level of resources BC  Hydro dedicated to risk management were “very inadequate” and that the  crown corporation should have made greater allowances for the  geotechnical risks. 

But the government only released a 37-page  summary document of Millburn’s report. A full version has never been  released publicly. 

Tim Thielmann, former legal counsel for  West Moberly First Nations, told The Narwhal in a previous interview  what little was made public did not include any details on the nature of  the problems nor any potential solutions.

“There’s absolutely no plans made public  about what the solutions to these structural problems might be, what the  costs of any of the solutions or options might be, what the schedule  implications of any of those solutions or options might be and whether  any of them can be completed safely,” he said at the time.

The recent BC Hydro progress report noted  Milburn’s review made 17 recommendations aimed at “improving oversight  and governance and strengthening Site C risk reporting and management”  and said all 17 recommendations had been implemented by Sept. 30, 2021.

“This includes changing the structure of  the project assurance board by having a majority of independent members  on the board with expertise in the areas of capital project construction  and management; delivery of major civil projects; commercial  negotiations and construction-related claims settlements,” the progress  report said.

Yet, many details around the project —  which has been described as “extraordinary” by international hydro  expert Harvey Elwin for its lack of transparency — remain hidden from  the public.  

BC Hydro monitoring ‘significant risk’ posed by Blueberry River First Nations court ruling

BC Hydro’s progress reports have a  “project status dashboard” that outlines various pieces of the project  and give each one a red, amber or green light. When it comes to the  regulatory permits and tenures BC Hydro gives itself an amber status,  meaning there are “moderate issues” with this piece of the Site C  puzzle. 

This “reflects the possibility that the  Blueberry River decision could affect the timing of the issuance of  provincial permits required for the completion of the project,”  according to the most recent report. 

In June, 2021, the B.C. Supreme Court ruled that the province had infringed on Blueberry River First Nations’ Treaty Rights  by permitting and encouraging vast industrial development on its  territory. Since the ruling, all new proposed projects on Blueberry  River territory have been paused while an agreement is negotiated with  the province. The Site C dam, if completed, would have significant  impacts on the already heavily impacted territory

The BC Hydro report noted that as of Dec.  31, 2021, it has obtained 84 per cent of the estimated 633 provincial  and federal permits required for the project. 

Blueberry River, like West Moberly, is a  Treaty 8 nation and the implications of the court ruling on the Site C  project and Treaty Rights have been described as a “game changer” by  legal experts.  

Chris Tollefson, professor of law at the University of Victoria, told The Narwhal in a previous interview the implications of the ruling to Site C are “enormous.” 

“I don’t think this was a development in  the law that was necessarily expected but it is a game changer for the  Site C litigation,” he said last fall.

Conacher says while the impact of a  successful court case like the Blueberry River ruling may extend beyond  the nations’ territory, a win in the courts doesn’t address the  underlying problems.

“If you look at the history of these  cases, governments again and again do the same thing and essentially  challenge whichever Indigenous Peoples or First Nations are in the area  to go to court,” he says. “The default position is pile head, we have  full power to make any decision we want.”

Callison notes this is an immense burden  to First Nations — bringing forward litigation on issues related to  rights and infringement is a barrier to many nations across the  province.

“It’s prohibitive, not just in terms of  cost but in terms of time, the length of time to have these cases moved  through the court system,” she says, explaining many nations simply  don’t have the capacity or resources to pursue litigation.

Whatever the outcome of the discussions  between West Moberly, BC Hydro and the province and the fate of the Site  C dam, all parties will need to work together on new and existing  projects. 

“Reconciliation isn’t just a one-off commitment — it’s basically an ongoing working relationship,” Callison says.

Cynthia Callison is the sister of Candis Callison, who is a member of The Narwhal’s board of directors. The Narwhal’s board is not involved  in editorial decisions.

Top photo credit: Chief Roland Willson of the West Moberly Nation talking to reporters in front on the legislature in 2015 – Photo courtesy Press Conference by Torrance Coste, Wilderness Committee

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