Federal government’s ‘motion to strike’ looks to quash First Nations’ argument

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Rana explains that the motion to strike is essentially the Crown disputing that certain parts of the First Nations’ argument have no basis to be heard by the judge in July.

“We’re not arguing the actual judicial review that the First Nations filed, that will be heard in July,” says Rana. “So tomorrow is a one-day hearing that Canada has brought to strike out certain grounds that the First Nations brought forward in their judicial review proceedings.”

More specifically, they’re try to strike out the part of the First Nations’ argument that the Crown has gone beyond the parameter set out by the Treaty 8 agreement that allows them to conduct work on parts of Aboriginal Traditional Land.

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“They’re saying, ‘Yes, you can argue that the process was flawed, but you can’t argue that at the end of that process, the decision that was made constitutes an actual infringement on the ground of Treaty rights,’” explains Rana.

“It’s really more of a technical, procedural argument that this matter of infringement is not ‘properly before the court’ – that it shouldn’t be heard in the context of a judicial review.”

The motion to strike will be heard tomorrow at a Federal Court in Vancouver – set to commence at 10 a.m.

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Rana says she can’t confirm when the judge will make a ruling on the motion to strike, but hopes it will be soon as Treaty 8 infringement is a strong bases to the First Nations’ argument.

“We have no control over how long it takes but the court is well aware of the timing issues in these circumstances.”

Doig River First Nation, Prophet River First Nation, West Moberly First Nation and the McLeod Lake Indian Band says the Site C dam will have significant adverse effects on the environment and on the traditional land use of the Treaty 8 First Nations.

The federal government nevertheless wants the project to proceed.

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The group says the government’s decision disregarded relevant findings of the Joint Review Panel and did not adequately consider the infringement of the First Nations’ Treaty rights that will result if the project proceeds.

“It is disappointing that the federal government has brought this application in a form of a pre-emptive strike to prevent this from being heard.”

The motion to strike was filed by the Crown in mid-March and is being heard May 8, 2015.

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