Vaughn Palmer: Expensive and lengthy litigation over Site C dam continues despite NDP's best efforts
Credit to Author: Stephen Snelgrove| Date: Wed, 28 Aug 2019 00:07:12 +0000
VICTORIA — The New Democrats were accused of presiding over a “self-induced catastrophe” Tuesday, after the West Moberly First Nations ended six months of talks aimed at heading off further litigation over the Site C dam.
“Talks End, Horgan Government Set to Defend Christy Clark in Site C Megatrial,” said a West Moberly news release that suggested the break-off had been less than amicable. “At trial, the Horgan government is expected to defend the decision made by Christy Clark’s B.C. Liberal government to approve Site C, a decision which Premier Horgan and his cabinet have themselves repeatedly condemned.”
Hence West Moberly Chief Roland Willson’s characterization of the NDP decision to proceed with the giant hydroelectric dam as a “self-induced catastrophe.”
“Stopping this dam has always been the right thing to do,” said Willson, leaving little doubt about what would have persuaded him to settle out of court. “It would have taken some courage and some leadership, but it could have saved B.C. billions of dollars and produced a clear example of reconciliation with First Nations.”
The headline-making part of the West Moberly litigation involves the damage being done to its traditional territory by Site C. But the claim extends back to construction of the W.A.C. Bennett dam in the 1960s and the Peace Canyon dam in the 1970s.
West Moberly last year lost a bid for an injunction against further construction at Site C pending a full airing of the claim.
But B.C. Supreme Court Justice Warren Milman did rule that the case should be heard in full before B.C. Hydro begins filling the Site C reservoir in fall 2023. A case-management hearing in February of this year set a date for trial starting March 2022. At the same time, the province and West Moberly opened talks about possibly putting the litigation on hold permanently.
The West Moberly First Nation failed in a bid for an injunction on preparatory work for the Site C dam project last year, but litigation continues.
With the failure of those talks, the trial will now go ahead. It’s expected to entail 120 days of court time, meaning proceedings could extend well into 2023, by which time Site C will be nearing completion.
On that expectation, West Moberly seems more likely to succeed in a claim for damages than in stopping the project altogether. Willson has speculated in the past about a $1-billion payout.
But in rejecting the injunction application, Milman provided some perspective on the strength of the claim.
“West Moberly will face significant hurdles at trial on every essential issue going to the merits of its claim in seeking a permanent halt to the project,” he cautioned. “Its claim, therefore, cannot be described as a particularly strong one.”
Willson warned this week that there could be more bad news about Site C even before the case goes to court.
“I can assure you that there are dark days ahead for Site C,” he said via a news release. “Watch the numbers climb and the dates slip. Wait for the excuses and the distractions.”
He said he wasn’t speaking on the basis of anything learned in the confidential talks with the government. But in the court-regulated process of discovery, West Moberly has already gained access to Hydro’s internal documentation about Site C. Indeed, Hydro has publicly flagged continuing risks to the project timetable and budget in its regular reports to the B.C. Utilities Commission.
“Risk of river-diversion system delay if contractor productivity does not meet plan and or/differing geotechnical considerations” was one of a dozen concerns acknowledged in the most recent filing. This could lead to a one-year delay to 2021 in diverting the river to allow construction of the dam, as has happened once already owing to tension cracks on the notoriously unstable banks of the Peace River.
Responding to West Moberly’s provocative news release on Site C this week, the New Democrats didn’t reply in kind.
“It is unfortunate that we were not able to reach a successful conclusion to our discussions, but we recognize it’s not always possible to come to agreement,” said the statement from the Ministry of Indigenous Relations and Reconciliation.
It was the second time this year that the ministry had to make excuses for failing to persuade a First Nation to forego litigation in similar circumstances. Earlier it was the Blueberry River First Nations that abandoned talks and went back to court on a claim of treaty infringement.
Like West Moberly, they’re one of the Treaty 8 group. Their claim also addresses the damage done by hydroelectric development, though they have been more concerned about natural gas drilling in their traditional territories.
In heading back to court, Blueberry River faulted the New Democrats for failing to live up to their endorsement of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP).
“We do not see how forcing us to this course can meet this provincial government’s commitment to fully adopt and implement UNDRIP,” they said. “We repeat our disappointment in being forced to spend precious time and money litigating when we would prefer to continue the real work of solving this crisis.”
The Blueberry River case got underway in B.C. Supreme Court in late May and proceedings are expected to continue into next year. Still up in the air is a related case involving another Treaty 8 nation, Prophet River.
But for all their good intentions at the negotiating table, the New Democrats continue to find themselves facing expensive and lengthy litigation over Site C.
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