A negotiated settlement might be the best bet, particularly given the likelihood that with appeals, Site C will be producing electricity before the litigation is concluded.
VICTORIA — Not often does a government press release lay out two options in such dramatic contrast as the one this week on the high-stakes legal battle over Site C.
“The provincial government, B.C. Hydro, West Moberly First Nations and Prophet River First Nation have agreed to enter into confidential discussions to seek alternatives to litigation related to the Site C dam project,” it began.
But meanwhile, the fallback option of litigation would be proceeding down a parallel track.
“The parties will continue trial preparations as discussions proceed on alternatives to litigation,” the NDP government press release continued.
“The parties appeared in court on Feb. 26” — Tuesday, same day as the press release — “and proposed a case plan for a 120-day trial commencing in 2022.”
So on the one hand a six-month trial starting the year after the next provincial election and, regardless of outcome, setting the stage for a predictable round of appeals to the highest court in the land.
Or a well-meaning attempt to find alternative resolution to the longest-running and farthest-reaching of the legal disputes surrounding construction of the giant hydroelectric dam at Site C on the Peace River.
West Moberly and Prophet River are both members of the Treaty 8 group of First Nations based in the Peace River region.
Together they claim their treaty rights have been infringed by ongoing construction of Site C as well as by the earlier W.A.C. Bennett Dam completed in 1968 and the Peace Canyon Dam completed in 1980.
West Moberly was collectively in court last summer, seeking an injunction to halt construction on Site C pending full airing of the claims of treaty infringement spanning a period of 50 years.
The First Nation failed to persuade B.C. Supreme Court Justice Warren Milman to grant a full or even a partial injunction against the B.C. Hydro project.
“The massive scale of the project — that is, the very thing that makes its impact on West Moberly’s treaty rights so significant — also amplifies commensurately the harm weighing on the other side of the scales if the project were to be enjoined, even in part, as proposed,” wrote the judge in a decision released last October.
He also faulted West Moberly for waiting until early 2018 to seek an injunction against a project that has been under construction since the summer of 2015.
“This action was inexcusably commenced well over two years after construction began, compounding the prejudice to the defendants and third parties that would flow from an injunction.”
But even as the judge rejected an injunction, he recognized that West Moberly was entitled to an expedited trial on its claim of treaty infringement.
“I agree with West Moberly that the trial should be scheduled so that a judgment will be forthcoming in advance of reservoir inundation, when the most significant component of the alleged harm to treaty rights will take place,” he wrote.
With Hydro scheduled to begin filling the reservoir in the fall of 2023, the judge directed the parties to agree upon a schedule that would see the trial conclude by no later than that threshold.
“To that end,” he continued, “I am also directing the parties to set down a case-management conference before me prior to the end of 2018 or in early 2019 to formalize such a schedule or have it set for them if they are unable to agree on one.”
The scheduling conference took place earlier this month and resulted in the two-pronged approach announced this week, including both West Moberly and the similar claim from Prophet River.
The New Democrats have already managed to establish a precedent for seeking alternatives to litigation in cases like this.
Last spring, Blueberry River, another of the Treaty 8 First Nations was preparing to go to court claiming infringement of treaty rights owing to the cumulative impact of timber harvesting, natural gas extraction, roads, pipelines and other development within its traditional territory.
Instead Blueberry River agreed to put the litigation on hold until fall while seeking alternative relief in direct talks with the provincial government.
The first round of talks went so well that the litigation hiatus was extended to April 29 of this year.
Progress to date includes new measures to protect wildlife, an agreement to update land management and resource plans in the region and restoration of inactive resource roads, seismic lines and oil and gas sites.
Granted, the claims regarding Site C and the earlier Hydro dams differ in degree as well as impact.
In terms of compensation, West Moberly leader Roland Willson is on record as suggesting damages should be in the range of $1 billion.
But worth noting as well that Hydro has a winning record on the project, not having lost a round in 15 proceedings of one kind or another.
Even as Justice Milman expedited a full-blown trial for West Moberly on the claim of treaty infringement, he cautioned the First Nations would not necessarily emerge from the proceedings victorious.
“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 wrote. “Its claim, therefore, cannot be described as a particularly strong one.”
On that basis, a negotiated settlement might be the best bet, particularly given the likelihood that with appeals, Site C will be producing electricity before the litigation is concluded.
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