Site C court decision: more important than ever that the Trudeau government keep its promises
This week's Federal Court of Appeal decision leaves unanswered the critical question of whether the construction of the Site C hydro-electric dam in northeast British Columbia violates the Constitutionally-protected Treaty rights of the First Nations who live in and depend on the Peace River Valley.
The court accepted the federal government’s argument that, because the Canadian Environmental Act doesn’t explicitly require consideration of Treaty rights, it was “reasonable” to approve the project without first determining whether it would cause unjustifiable harm to the exercise of these rights.
If the decision stands, it has the potential to set a dangerous precedent for rights protection in Canada as it effectively allows the terms of an individual piece of legislation to trump wider Constitutional rights protections.
Amnesty International believes that this is a critical case not only for the well-being of Indigenous peoples in the Peace Valley, but for the fundamental standards of rights protection in Canada. We will continue to stand with West Moberly and Prophet River in this fight, whether in the courts or in the public arena.
The legal challenge brought by West Moberly and Prophet River was by means of judicial review. Judicial reviews are meant to provide a more expedient way to address legal concerns as an alternative to expensive and protracted lawsuits.
The Federal Court of Appeal accepted the government's argument that the crucial issues of whether Treaty obligations had been upheld cannot be resolved through a judicial review, but would require a full trial process, one that would likely require many years to resolve. This is cause for serious concern given BC Premier Christy Clark’s public vow to push the Site C dam to the “point of no return” long before such a case could be resolved.
Amnesty International agrees with the Court ruling that the Federal Cabinet should not be in a position to "adjudicate" whether or not Treaty rights have been violated. However, we also strongly believe that serious, well-founded concerns over Treaty rights violations - such as were raised in respect to Site C - cannot be ignored.
The commitments made through the Treaties, the Constitutional entrenchment of these rights, and their protection in international law, require the government to ensure concerns over potential violation of these rights are appropriately addressed before moving ahead with a decision. This may mean establishing a specific process capable of adjudicating the complex issues of Treaty infringement. Or it may mean sitting down with the affected First Nations to develop a shared understanding of the rights at stake and an agreed way forward. What it does not mean is rushing ahead regardless of these concerns; putting the onus on Indigenous Peoples to conclusively prove their rights in court; and only taking action when it is too late to make a difference.
There will be some who interpret the latest decision as a victory for proponents of the Site C dam. What it really does is put the ball back with the federal government.
Prime Minister Trudeau and his Cabinet have said that they will not revisit environmental approvals granted by the Harper government. But now the Trudeau government has told the court, and the court has accepted, that the crucial issue of potential Treaty rights was never part of the approvals process in the first place.
The question now is how will this gap be rectified by the Trudeau government, which has publicly committed to uphold Treaties, the Constitution, and international law?
The fair and just solution – and the only solution consistent with Prime Minister Trudeau’s promises – is for the federal government to immediately suspend all permits for the Site C dam until the unresolved issue of Treaty rights violations is finally addressed.