Injunction application hearing pitting treaty rights against Site C wraps in Vancouver

A three-week hearing on an injunction application led by the West Moberly First Nations wrapped in B.C. Supreme Court Friday, leaving Justice Warren Milman the task of deciding whether to put a stop to further Site C construction in northeastern B.C., pending a full trial on the matter.

At the core of the case is West Moberly's argument that the multi-billion dollar B.C. Hydro dam will cause irreparable harm to its territory and way of life — rights protected under Treaty 8.

The nation, along with Prophet River, has previously said it believes Site C constitutes a $1 billion treaty violation. (West Moberly is one of the few nations in B.C. that is party to a numbered treaty in Canada.)

B.C. Hydro has refuted the magnitude of the impact the dam will have on West Moberly's territory and treaty rights and instead argues that Hydro, not the nation, will be the party that suffers irreparable harm if the project is halted or delayed by the court.

The Crown corporation foresees the bulk of that harm in the form of costly delays that could mean the project misses critical milestones, like diverting the river.

"If we're talking about missing a critical milestone, we're talking about hundreds of millions of dollars," he told the court earlier this week.

He also pointed to the loss of jobs an injunction would create.

In wrapping the trial on Friday afternoon Justice Milman said he will attempt to have a decision on the injunction application by late October.

His choices in ruling are not approving an injunction, a blanket injunction or an injunction that limits further work in the Peace River Valley affecting critical sites identified by the nation.

Treaty infringement trial still to come

The injunction is linked to a separate legal action filed by West Moberly and Prophet River that will be heard in court at a later date to decide if the dam does, in the eyes of the court, infringe on the nations' treaty rights.  

More specifically, the nations are concerned about the destruction in the Peace associated with building the $10.7 billion project and how that will further compound the impacts they've seen on their treaty rights, such as hunting, fishing, and trapping from previous Hydro projects and other activities like mining and agriculture.

"Site C is only a fraction of the damage that is occurring in our territory right now," said West Moberly Coun. Clarence Willson outside the court on Friday.

Without an injunction, West Moberly argues in its court submission it will be left without a remedy for the infringement of its treaty rights.

"First Nations did not enter into treaties with the Crown, so they could have compensation once their way of life was destroyed but to ensure protection of that way of life."

The province, which is also party to the case, said in its responses during the trial that there are alternatives and opportunities for the nation to engage with the province and Hydro about its concerns, pending the resolution of the treaty infringement case, essentially arguing an injunction is unnecessary. 

Willson says he's hopeful the courts will decide in his community's favour but said it's sad to be spending time in a courtroom over this issue.

"They're asking us to sacrifice our way of life … is that reconciliation? I don't think so," he said outside the courthouse on Friday.  

'We need to preserve our way of life'

More than 20 people sat in the courtroom gallery as final legal arguments were made on Friday — many who have long opposed the Site C dam. During the break for lunch, they gathered outside the courthouse with supporters to rally and hand out pamphlets to passersby about their efforts.

Among the group was Chief Judy Wilson with the Union of B.C. Indian Chiefs, who said the union will continue to support the affected nations through all the means it can.

"We're not going to give up, are we? We're going to continue this opposition to Site C ... Until we get that final opposition, we will have to do whatever it takes," she said.

"We need to preserve the water. We need to preserve our way of life."

With the injunction hearing wrapped, work in the Peace will continue.

Justice Milman will be the judge who will hear the treaty infringement case when it goes to trial — a trial that is anticipated to last up to 100 or more days.