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Amnesty International says Hydro and government using excessive legal tactics in Site C injunction hearing

West Moberly First Nation Chief Roland Willson (centre), along with members of the Prophet River First Nation and their legal team in a Montreal federal courtroom in September 2016. File photo
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VANCOUVER, B.C. — Amnesty International Canada says it is questioning why lawyers for BC Hydro and the provincial government sought to get evidence about the Site C dam excluded from an injunction hearing set to begin this July.

The West Moberly and Prophet River First Nations are seeking an injunction to halt construction of Site C until the conclusion of a lawsuit against the two parties for violating the Treaty rights the First Nations’ treaty rights. In an oral judgment in B.C. Supreme Court made on April 24 and publicly posted on May 8th, Madam Justice Grace Choi allowed an application by BC Hydro and the Province to exclude some of the evidence First Nations had submitted for the injunction hearing. Among the evidence excluded from the hearing were sworn statements from former BC Hydro president and CEO Marc Eliesen, and Federal-Provincial Joint Review Panel chair Harry Swain.

Eliesen’s affidavit details BC Hydro’s 1993 decision not to proceed with Site C after the B.C. Utilities Commission concluded that the project was not “the only or best project” to meet the province’s energy needs. The affidavit also includes an expert report that Eliesen submitted to the BCUC review of Site C last year in which he concluded that BC Hydro’s budget estimate for the project was unreliable, and that further delays and cost overruns are likely.

The affidavit by Harry Swain stated that because the environmental impact assessment of Site C was framed within a provincial public policy geared to the construction of further dams on the Peace River. Although the joint review panel called for Site C to be reviewed by the BCUC, the affidavit was critical of the terms of reference imposed by the province when it announced the BCUC review last July. Swain called the terms of reference “highly restrictive,” noting that the BCUC was required to accept BC Hydro’s estimation of future energy demands.

In arguing for the exclusion of Eliesen’s affidavit, lawyers for BC Hydro claimed that the Crown Corporation’s former president and CEO has also been Chair of both Manitoba Hydro and Ontario Hydro while also serving as the latter’s CEO, and is not properly qualified to be considered an expert witness on these matters.  The province and BC Hydro sought to exclude Swain’s evidence by arguing that his affidavit was biased and unnecessary since it presented arguments that could be made by the First Nations themselves.

In Madame Justice Choi’s judgement posted Tuesday, the affidavits by Eliesen and Swain were excluded, along with affidavits by toxicologist Annette Muttray and ecologist Petr Komers, as not meeting the technical criteria for admissibility of expert evidence established in previous court rulings. The court dismissed BC Hydro’s application to exclude three other affidavits related to a report comparing the environmental impacts of Site C to other viable alternatives.

“The West Moberly and Prophet River challenge to the destructive Site C dam is vitally important both for the future of the Peace River Valley and for holding governments in Canada accountable for respecting the rights of Indigenous peoples,” said Union of BC Indian Chiefs Grand Chief Stewart Phillip. “During the upcoming injunction hearing, BC Hydro will no doubt argue that there’s an economic imperative to continue construction of Site C despite the irreversible harm that will be ravaged on crucial ecosystems and cultural sites that are at the heart of this court case. First Nations deserve to be able to challenge BC Hydro’s claims with the best available expertise. The fact that government lawyers are using legal technicalities in an effort to deny them this opportunity – especially with so much at stake – is nothing less than totally unconscionable and utterly shameful.”

The Union of BC Indian Chiefs is part of group of organizations, including Amnesty International Canada, Council of Canadians, Sierra Club BC, the Peace Valley Solidarity Initiative, Fight C and the Yellowstone to Yukon Conservation Initiative that have come out in support of the two First Nations in their court case against the provincial government and BC Hydro.

“If the provincial and federal governments are serious about their commitments to recognize and respect the rights of Indigenous peoples, they need to demonstrate it in court,” said Secretary General of Amnesty International Canada Alex Neve. “Focusing on technicalities rather the substance of the case puts an even greater unfair burden on First Nations that have been forced to go to court to defend their rights. That is not reconciliation. It is not in keeping with the BC and federal governments’ unconditional promise to uphold the UN Declaration on the Rights of Indigenous Peoples. And it is certainly not consistent with the obligation of governments to protect and promote the human rights of all without bias or discrimination.”

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