Legal Challenges To Site C Dam By BC First Nations Dismissed By Federal Court Of Appeal And BC Court Of Appeal

Two separate court challenges of the federal and provincial environmental assessment approvals for the Site C hydropower project in British Columbia have recently been dismissed by the federal and BC appellate courts. The two appellate courts separately upheld earlier decisions of the BC Supreme Court and the Federal Court which had dismissed applications for judicial review by the Prophet River First Nation and the West Moberly First Nation (the First Nations) of the provincial and federal environmental assessment decisions approving Site C. The First Nations argued that the approvals infringed their treaty rights under Treaty 8 and that there was inadequate consultation and accommodation.

These decisions provide important clarification that project reviews and judicial reviews related thereto are not the appropriate fora to determine alleged infringements of treaty rights. The decisions also further underscore the reciprocal obligations of Aboriginal groups in both consultation and accommodation and, in the case of the BC Court of Appeal decision, affirm once again that Aboriginal groups do not have a veto over resource development.

Project Background

BC Hydro's Site C project will be a third dam and hydroelectric generating station on the Peace River in northeast BC. It is expected to provide 1,100 megawatts of capacity and produce about 5,100 gigawatt hours of electricity each year. Construction of the project started in summer 2015 and will be completed in 2024. The Site C project was the subject of a joint review panel hearing that combined federal and provincial environmental reviews. The Joint Review Panel determined in its report that the Aboriginal consultation undertaken for the project had been carried out in good faith and that the process had been reasonable and appropriate in the circumstances.

The project was subsequently approved by the federal Governor in Council (GIC) in October 2014, which acknowledged that the project would have an adverse effect on traditional First Nation activities but determined that it was justified pursuant to section 52(4) of the Canadian Environmental Assessment Act, 2012 (CEAA 2012). On the same day that the federal Order in Council was issued, the BC Minister of the Environment and Minister of Forests, Lands, and Natural Resource Operations issued an Environmental Assessment Certificate for the project, which included 77 conditions aimed at addressing the concerns of First Nations and other impacts of the project.

The Prophet River First Nation...