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BC Hydro loses bid to force First Nations to provide disclosure in Site C injunction case

VANCOUVER, B.C. – A B.C. Supreme Court judge ruled against BC Hydro last week after it sought to have certain sections of the West Moberly and Prophet River First Nations’ civil claim seeking an injunction to stop construction of the Site C Dam omitted.

Last December, B.C. Premier John Horgan announced that the provincial government was going to continue building the dam, following a 3-month review of the $10.7-billion project by the B.C. Utilities Commission.

That same day, the two First Nations announced that they would be launching a treaty infringement lawsuit against the Province, and would also be seeking an injunction to halt construction on Site C pending the outcome of the treaty infringement suit.

The lawsuit was filed in B.C. Supreme Court on January 15th.

In a written decision on July 11th, Justice Warren Milman dismissed an application by Hydro to have three sections of the First Nations’ notice of civil claim thrown out.

In section 14(c) of their civil claim notice, the First Nations claim that “The Crown’s solemn promises, in the context in which they were provided, guarantee the Plaintiffs’ rights to meaningfully: (c)  maintain access to resources and places which have a unique and central significance to their hunting, fishing, and trapping, or other aspects of their mode of life.”

The First Nations also claimed in sections 40. (i) that “Completion of the Site C Dam will result in the flooding of an additional 83 km of the Peace River. Another Reservoir will be created west of the Site C Dam to Peace Canyon Dam. Amongst other impacts, Site C and the associated reservoir will disrupt boat and shore-based fishing and practices along the proposed reservoir and Moberly river.” Section 41. (d) and (e) claims that, “The Site C Dam, in conjunction with the ongoing impacts from the Bennett and Peace Canyon Dams, will result in: (d)  disruption and curtailment of the continuity of West Moberly’s patterns of activities; (e)  loss of West Moberly’s preferred means of exercising their Treaty Rights;”

Earlier this year, Supreme Court Justice Grace Choi ruled that the First Nations needed to provide more detailed particulars about the claims contained in the sub-paragraphs. After the First Nations provided more details, Justice Milman ruled that B.C. Hydro argued without success that the plaintiffs failed to satisfy the requirements of earlier court order by Justice Choi.

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The injunction hearing is set to take place in BC Supreme Court from July 23rd to August 4th.

The full ruling can be read here: http://www.courts.gov.bc.ca/jdb-txt/sc/18/11/2018BCSC1165.htm#_Toc518981482

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