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Another Site C Appeal dismissed in British Columbia Courts

View of the north bank, looking downstream above a storage area for relocated excavated material. Taken in November, 2016/Photo: BC Hydro
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FORT ST. JOHN, B.C. – The B.C. Court of Appeal has dismissed another appeal against the Site C dam.

The ruling was delivered today in Vancouver after hearings took place back in December of 2016.

The Honourable Mr. Justice Lowry delivered his reasons for the appeal which was between Prophet River First Nations and West Moberly First Nations and Minister of the Environment, Minister of Forests, Lands, and Natural Resource Operations as well as BC Hydro.

The ruling stems from an order of the Supreme Court of British Columbia, dated September 18, 2015.

First Nations were arguing that the controversial project will infringe on their treaty rights. They claimed that Ministers made no determination of whether the project would unjustifiably infringe their treaty rights

A Consultation and Accommodation Report was released in September of 2014 which concluded that consultation with First Nations had been carried out in good faith and that process was appropriate and reasonable in the circumstances.

In point 26 of the ruling, the judge notes that First Nations are contending that Ministers did not take into account treaty rights.

“The appellants contend that, because the Ministers issued the certificate without determining whether they were effectively authorizing an infringement of the appellants’ treaty rights, the Ministers were “indifferent” to the possibility that the appellants’ treaty rights might be unjustifiably infringed.”

He goes on to say that it is important to know that certificates being issued for a project, doesn’t mean that the project is automatically going to proceed as the previous judge noted.

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“It is significant that, as the judge recognized, an environmental assessment certificate is not a licence to proceed with a project but rather is only one necessary, albeit important, step in the overall approval process for a project.  The Ministers’ decision to issue the certificate did not serve to adjudicate the rights of those having an interest in the project.”

His last point of his ruling points again to the consultation process, saying that just because the appellants’ position wasn’t accepted, doesn’t mean the consultation process was not done properly.

“Viewed from the perspective of a reviewing judge at first instance, there is no sound basis on which to conclude the process of consultation in which the appellants were engaged was other than adequate in the sense of being reasonable in all the circumstances.  Reconciliation, as indeed the judge concluded, was not achieved because of an honest disagreement over whether the project should proceed, but that does not mean the process was flawed.  The fact that the appellants’ position was not accepted does not mean the process of consultation in which they were fully engaged was inadequate.  Although the appellants maintain the record is one only of quantity, it is apparent it is very much one of quality as well.  It demonstrates the thorough consultation and efforts to accommodate apart from abandoning the project that were made before, during, and after the environmental assessment, including meaningful consideration of, and consultation on, alternatives.”

The judge then goes on to say he dismisses the appeal.

You can view the full judgement and decision at: http://www.courts.gov.bc.ca/jdb-txt/ca/17/00/2017BCCA0058.htm

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