Alberta First Nations drop court action against Site C dam

Alberta First Nations drop court action against Site C dam
An engineer’s illustration of the Site C dam on the Peace River. The project received construction permits this month.Image courtesy of BC Hydro.

First Nations in northeastern Alberta dropped their legal fight against BC Hydro’s Site C dam last week after the company and federal government agreed to address the hydro project’s potential impacts on the Peace-Athabasca Delta.

The Mikisew Cree and Athabasca Chipewyan First Nations were prepared for federal court last week when Canada and BC Hydro acquiesced to concerns about downstream impacts the third dam on the Peace River could hold for the delta in Wood Buffalo National Park.

“It’s interesting how this all unfolded,” said Melody Lepine, director of government and industry relations for the Mikisew Cree. “Our judicial review was about the potential water issues Site C would cause downstream to our delta and now, just days before court, they agreed it will be dealt with. In a way, this is a good thing, since we finally got them to address impacts to the delta, our issue all along.”

The court challenges from the two Fort Chipewyan First Nations both alleged a lack of adequate consultation and accommodation with respect to their inherent rights. Both say the existing hydro on the Peace River has already impacted the environment and their traditional way of life in the delta. While those concerns were raised during the Site C review process, management actions for the delta were never included in the review panel’s final recommendations. In fact, the report said the delta would not be affected.

Now, with promises from the Crown and company that the delta will be addressed, Lepine said Mikisew had no choice but to drop the lawsuit.

“We had to withdraw the challenge in order to accept this offer from them,” she said. “We would be seen as being unreasonable, and asking the courts to deal with an issue that Canada and BC Hydro would say is dealt with would allow the courts to rule against us, resulting in us possibly losing, not having the delta issues addressed and also having to pay for all the legal costs.”

The state of the delta is currently under international scrutiny after the Mikisew brought their concerns about hydro and oilsands impacts to the UNESCO World Heritage Committee. The delta is situated in the heart of Wood Buffalo National Park, a world heritage site.

Our judicial review was about the potential water issues Site C would cause downstream to our delta and now, just days before court, they agreed it will be dealt with. In a way, this is a good thing.
—  Melody Lepine,
Mikisew Cree First Nation

Earlier this month, the committee announced it would be sending a fact-finding mission to the park to assess the First Nation’s concerns and the health of the delta. It also instructed Parks Canada to conduct a strategic environmental assessment of the park, including possible management actions to address the cumulative impacts of industry, and warned Canada against taking “any decision related to any of these development projects that would be difficult to reverse.”

Lepine wonders if the global attention had anything to do with last week’s decision by Canada and BC Hydro.

“I’m wondering if the UNESCO petition had put pressure on Canada to deal with the delta issue,” she said. “Something is telling me that is quite possible since this all came so suddenly and we have been dealing with them for the past three years on this issue and they refused to listen to us, resulting in the court action.”

The Journal approached the Canadian Environmental Assessment Agency for comment, but they declined on the basis that there is ongoing litigation in relation to the federal environmental assessment of BC Hydro’s Site C project.

This is the third instance of First Nations withdrawing from legal action against the dam this month.

On July 2, the McLeod Lake Indian Band withdrew from a Supreme Court challenge launched in coordination with the Prophet River, Doig River and West Moberly First Nations, one month after hearings wrapped up in May. The three remaining First Nations began their federal challenge of the dam last Tuesday.

Soon after, the Saulteau First Nations completed an impact benefits agreement with BC Hydro for Site C on July 12, thereby consenting to the project.

A similar lawsuit launched by the Peace Valley Landowners Association was dismissed on July 3. The group, which alleges the province overlooked critical economic recommendations made by the review panel in approving the dam, put forward a separate federal challenge last week in federal court in Vancouver.

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