BALDREY: First Nations rights may thwart Site C

The issues that swirl around B.C.’s biggest-ever megaproject aren’t going away: jobs and a secure, "clean" energy supply versus environmental damage and ignoring some First Nations rights.

Those were among the issues at play when the first huge hydroelectric dams were built on the Peace River in the 1960s, and they remain attached to the latest dam – Site C – envisioned for the same waterway today.

The recent, mammoth (450-plus pages) report by a joint review panel flagged all those same issues, but didn’t side one way or another on whether the dam should be built. There is a lot of onthe-one-hand-but-on-theother-hand reasoning in the report, which can be used by either side in the debate to bolster its arguments.

But there is one big, important difference between the debate or legalities of today compared to the 1960s: the First Nations now have very real, court-upheld constitutional rights that weren’t a factor in the construction of the first dams, but which could ultimately block Site C’s construction today.

And the panel devoted more than 30 pages in its report addressing First Nations issues, an indication of the importance it attaches to how those interests must be weighed in the eventual decision for the project.

The dam would have "significant adverse effect" on local First Nations’ "traditional use" of the land, including hunting and trapping, the panel found.

We’re not talking here about the court-mandated requirement to "consult and accommodate" First Nations that impact so many land use decisions. These rights run far deeper, and are entrenched in section 35 of the Constitution.

Further, the valley to be flooded by Site C encompasses Treaty 8 territory, which affects 21 different First Nations bands. Treaty 8 specifically gives those First Nations

the right to "pursue their usual vocations of hunting, trapping and fishing throughout the tract" of land in question.

So, unless the panel’s analysis and conclusions on this one issue are completely off the mark, the Site C dam seems to be facing one heck of a steep mountain to get over before construction could begin.

As is so often the case, much of the controversy over Site C has focused on other issues over the years. For example, there are those who bemoan the potential loss of valuable agriculture land if Site C was built.

The dam would indeed flood about 3,800 hectares of potential agricultural land, but the panel found that would have an "insignificant" impact on crop production because the land isn’t terribly suited to high-end crop production. In fact, the annual loss in terms of crop

production would amount to a measly $220,000.

Opponents of Site C have also seized on the argument that it would greatly harm all kinds of wildlife and disrupt or destroy various migratory patterns. Not so, found the panel, at least when it came to moose, elk, deer or bears, the dominant species in the region (however, some bird, bat and fish habitats would indeed be adversely affected).

The panel expressed doubts about various arguments put forth by B.C. Hydro in advocating for the dam, on everything from cost estimates to the timeline for future energy needs.

In fact, in its closing summary, the panel specifically concluded that B.C. Hydro had not made the case that Site C was needed in the near future.

But the panel also acknowledged that B.C.’s energy needs will increase

over time and therefore more power generation will be needed. The question is not whether a new power facility (Site C or some other one) should be built, but when.

This conclusion alone is likely enough to convince the B.C. Liberal government to give the project the green light when it ultimately makes its final decision this fall.

But as with so many major land use decisions, the government may find that ultimately First Nations’ rights can thwart all kinds of political desires.

Legendary Premier W.A.C. Bennett was able to dismiss all kinds of protests when he ordered those other dams to be built, and a government can continue to successfully ignore environmental and agricultural objections when it comes to things like dams.

But ignoring First Nations rights? That’s a very different proposition, and even Wacky Bennett wouldn’t get away with that today.

Keith Baldrey is chief political reporter for Global BC Keith.Baldrey@globalnews.ca

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