Vancouver: In a June 16 statement, a group of Canadian scholars who had earlier expressed concern about what they regard as inadequate regulatory review of BC Hydro’s massive Site C Dam project (https://sitecstatement.org/), focused on “questions of good governance, public accountability, and genuine reconciliation between First Nations and settlers.”
Their statement is below:
Canadian law recognizes the sanctity of Crown-Aboriginal treaties, and requires the Crown act honourably in its actions in relation to the treaties [Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, http://canlii.ca/t/1m1zn]. Site C is on Treaty 8 territory. As with other treaties, Treaty 8 was entered into as the foundation for an ongoing relationship between Canada and the Treaty 8 nations.
The government has not assessed whether the Site C dam would infringe Treaty rights, despite the fact that the Joint Review Panel jointly commissioned by the provincial and federal governments made findings that directly support the claim that infringements would occur. Affected First Nations have argued that these infringements would not be justifiable in Canadian law.
Our earlier statements called on the Crown to act honourably, which clearly and unequivocally requires the Crown to assess – and if need be justify – infringement of treaty rights before it acts. Our concern is that the current process, which allows the Crown to infringe treaty rights and then wait for treaty nations to challenge them in court (via years-long legal actions), effectively places governments above the law.
Ultimately, citizens need to frame the Site C dam in terms of the rule of law. Law only rules when it binds governments as well as citizens – that is the heart of the notion of rule of law. Simply put, the main issue at stake is one of lawful governance. Does Canada follow its own laws and the recommendations of its review boards, or do governments choose not to follow their own laws, and ignore evidence-based expert panel recommendations with impunity?
On this basis, our position remains: “construction of Site C should be halted until court proceedings conclude.” Disagreement with this position, we respectfully suggest, constitutes disagreement with the notion of the rule of law.
The preceding points are distinct and separate from the important question of consultation, which is secondary to the matter of treaty rights currently in the courts. Consultation does not, in other words, absolve governments from their responsibility to act in accordance with the honour of the Crown.
Further, to restate our concern regarding the environmental assessment process: our earlier Statement noted that the government did not follow the Joint Review Panel’s recommendation to refer the Site C project to the BC Utilities Commission. In asking for this referral, concerned scholars are calling for the federal and provincial governments to follow the recommendations of the Joint Review Panel, which they themselves commissioned. The question of whether or not individual scholars or the Royal Society participated in the environmental assessment is not the issue. Rather, the issue is that a major recommendation of the Joint Review Panelreferral to the BC Utilities Commission, and thorough study of key issueswas not followed by the governments.
The federal and provincial governments have an unfettered opportunity to do the right thing: to put applications for further permits on hold, and then assess Site C through a proper process (including whether the project unjustifiably infringes Treaty 8 Rights). This would express a genuine commitment to meaningful reconciliation with First Nations, and to evidence-based decision-making.
At least one First Nation disagrees
However, McLeod Lake Band announced July 5 that they had concluded agreements with BC Hydro that will provide them with economic benefits from the project.
The agreements, which were endorsed in a vote by McLeod Lake Indian Band members, include an Impact Benefits Agreement, a Contracting Agreement, as well as a Tripartite Lands Agreement, to which the Province of British Columbia is also a party. Benefits under the agreements include a lump sum payment, a payment stream over 70 years, procurement opportunities for McLeod Lake companies, the transfer of provincial Crown lands to McLeod Lake, and a commitment to consider land management initiatives involving McLeod Lake respecting certain lands.
McLeod Lake Indian Band is a Tse’khene First Nation that adhered to Treaty No. 8 in 2000. The main community of McLeod Lake Band is located on McLeod Lake Indian Band Indian Reserves #1 and #5 near the unincorporated village of McLeod Lake, approximately 150 kilometers north of Prince George on Highway 97. McLeod Lake Band Membership totals about 515 members.
Chief Derek Orr of the McLeod Lake Indian Band said, “We set out to negotiate agreements with BC Hydro and the Province that recognize and address the adverse effects of Site C on our aboriginal and treaty rights. The agreements were put forward to our members and supported in a referendum vote. We hope these agreements indicate the start of a long-term relationship based on trust and respect.”
See also, “First Nation objects to NH interconnection,” elsewhere this issue.