Defending the indefensible: Five particularly insidious arguments made by the Government of British Columbia in the Site C injunction hearing

“A B.C. government, led by me, will officially adopt the United Nations Declaration on the Rights of Indigenous Peoples…I will work with you to align the actions of my government with the Declaration.” – NDP leader John Horgan, prior to the 2017 provincial election

“It is well established that statements by elected representatives do not fetter decision makers, nor do political speeches constitute legally enforceable promises against the Crown.” – the Government of British Columbia’s written submission to the Site C injunction hearing

BC Premier John Horgan has said many fine words about upholding the rights of Indigenous peoples. He made these promises while running for office and he has repeatedly affirmed them since becoming Premier. But in the most significant test to date of the veracity and integrity of these commitments — the arguments now being made in front of the crucially important Site C injunction hearing — Premier Horgan’s government has done the very opposite of what it promised.

The BC government’s submissions, which are available to be read on line, explicitly recognize that “construction and operation of Site C will result in adverse impact to the exercise of Treaty rights.” But rather than committing to work with First Nations to ensure that those rights are protected in a meaningful and lasting way, the province talks only about offering financial compensation; something that the West Moberly and Prophet River First Nations have already rejected as irrelevant to their concerns. As West Moberly’s legal counsel stated in court this week, “First Nations did not enter into Treaties with the Crown so they could have compensation once their way of life was destroyed, but to ensure protection of that way of life.”

The province then goes on to set out a series of legal defences as to why BC Hydro should be allowed to continue construction of the Site C even while the underlying issue of whether it unjustifiably violates the Treaty rights of First Nations is still before the courts.

These arguments, if upheld, could have far reaching negative implications for human rights in BC and across Canada, including undermining the power of Treaties to protect the rights of Indigenous peoples, making it even more difficult for Indigenous peoples to obtain justice, and further shielding government from the oversight and scrutiny of the courts.

This is all a far cry from the Premier’s promise not only to uphold Treaty rights, but to apply the rigorous standard of protection set out in international human rights instruments like the UN Declaration on the Rights of Indigenous Peoples.

But as the quotation above indicates, BC’s written submission actually states that First Nations should never have relied on the Premier to keep his promises in the first place.

There are times when we expect lawyers to use every argument at their disposal to advance the interests of their client. But when lawyers are in court to represent the public, and issues as fundamental as Treaty rights and regard for international human rights obligations are at stake, the arguments must be consistent with the basic obligation of governments to promote human rights and to pursue reconciliation — and certainly must not in anyway undermine rights or extend and deepen conflicts with Indigenous peoples.

Below is a quick outline of some of the aspects of the province’s argument that Amnesty International finds to be particularly troubling.

1. The BC government would exclude Indigenous history, culture, traditions and law from the interpretation of the Treaty

West Moberly’s written submission provides a powerful account of why the Treaties are not mere contracts, but solemn agreements between nations that must be honoured and upheld according to their original spirit and intent.

Treaty 8, like many of the other Treaties of its era, includes in its written text a provision that the Crown can “take up” land “from time to time” for its own purposes. According to the courts, this means that government actions that disrupt the ability of First Nations to practice their Treaty rights in a particular part of their traditional territories may not be a violation of the Treaty if the First Nations can still “meaningfully” exercise their rights elsewhere in their traditional territories.

In the 2004 Mikisew decision – which concerned First Nations in Alberta but the same Treaty that is at stake in the Site C case – the Supreme Court said, “If the time comes that in the case of a particular Treaty 8 First Nation no meaningful right to hunt remains over its traditional territories” the promises made in the Treaty “would clearly be in question.”

West Moberly and Prophet River are arguing that with Site C that time has come.

In their submissions to the court, the First Nations argue that the Peace Valley has such historic, cultural and ecological significance that its preservation from further harm is essential to ensuring that they can meaningfully exercise their Treaty rights.

Here’s part of what West Moberly said in its written submission:

The Peace River is “the network that tied the people and territory together… the Peace River connected the Dunne-Za people and was central to their survival, cultural practices, gatherings and way of life… With construction and operation of Site C, absolute transformation of the Peace, the main artery of the territory, will be complete.”

In an extraordinarily narrow interpretation of what it means to be a Treaty partner, the BC government is claiming instead that the province has no legal obligation to protect the areas of greatest historical, cultural and ecological significance to people of West Moberly. The government writes, “Treaty 8 does not provide for the exercise of rights at specific or ‘preferred’ locations.”

In other words, according to the BC government, BC has fulfilled its Treaty obligations so long as there is someplace left in the territory where First Nations can practice traditions like hunting and fishing – whether or not doing so in that area is connected to their stories and traditions or whether or not the area is even accessible to elders and youth.

Canadian courts have already clearly established that Indigenous peoples’ own perspectives, laws, protocols and traditions must be part of how Treaties and other laws are interpreted. In effect, however, the BC government is arguing that only its perspective matters in determining whether a crucial cultural landscape like the Peace Valley is necessary for rights like hunting and fishing to be meaningfully exercised.

2. The BC government’s position effectively denies any responsibility to actually protect Treaty rights

BC is denying that the Peace Valley is crucial to the meaningful exercise of Treaty rights. The province is also asserting that it has no obligation to determine that there actually are any other areas where First Nations might possibly hunt, fish or gather plant medicines before the government destroys the areas where they currently exercise these rights.

To the contrary, BC is arguing that the onus is entirely on First Nations to prove that they can’t meaningfully exercise their rights elsewhere in their territory.

What’s more, the BC government is actually contesting the injunction application by arguing that it may be impossible for First Nations to ever establish the level of proof that would be needed to compel the government to act to protect their rights.

West Moberly argues that the massive scale of resource development elsewhere in their territory has left no other comparable lands left for their use or able to sustain the plants and animals on which they rely. The BC government asserts that the evidence submitted by West Moberly isn’t sufficient to establish even a prima facie case that the meaningful exercise of their rights is at risk. The province’s written submission states, “While the Plaintiff’s evidence suggests that construction activities may prevent them from exercising Treaty rights in specific locations, that evidence does not establish that the Plaintiff cannot meaningfully exercise their Treaty rights at other locations within their traditional territory.” [Paragraph 41]

The government goes on to argue that an injunction should not be granted because — to date —  there are no other cases where courts have concluded that the scale of development on Indigenous peoples’ territories have taken away all the remaining options to meaningfully exercise their rights. The government writes,  “There are no decided cases which have held that treaty rights are unjustifiably infringed through cumulative impacts.” [Paragraph 36] The implication is that it might be impossible to establish such proof.

3. The BC governments thinks two small, remote First Nations should be punished for trying to avoid a long and costly court case

In its written submission, the BC government says “the Plaintiff’s substantial delay” in launching the current court case “weighs strongly against” granting an injunction. [para 56]

However, as the government acknowledges elsewhere in its written submission, the current civil suit is far from the first time that these two First Nations have sought to protect their rights through the courts.

West Moberly and Prophet initially challenged the project approval through a procedure called judicial review. A judicial review application is meant to provide a more timely and less costly alternative to a full law suit by relying primarily on the public record before the government when it made its original decision. Unfortunately, this avenue for resolving the case was closed down on June 29, 2017. After a series of lower court decisions in which the federal and provincial governments successfully argued that a full civil trial was needed to address the complexity of Treaty rights violations, the Supreme Court declined to hear a further appeal.

Significantly, by that time, there had been a change of government in BC. The newly elected Premier was on the public record condemning Site C as a violation of Treaty rights. The NDP had also promised to subject the project to independent review before the BC Utilities Commission; which they did.

The First Nations launched the current civil suit roughly a month after the province announced on December 11, 2017 that it would continue construction of Site C despite the findings of the BCUC. Assuming that the Horgan government was acting in good faith, and was genuinely weighing the evidence before making a decision on whether or not construction would continue, there was no reason for First Nations to launch an extremely expensive and time consuming legal challenge before that decision was made.

Yet, the government’s written submission actually argues that if the First Nations really wanted to protect the Valley, they effectively should never have trusted the Premier. In arguing that the First Nations don’t deserve an injunction because they waited too long to launch a law suit, the government submission states that the promises made by the Premier, and the BCUC review that he launched, are all irrelevant. The government writes, “It is well established that statements by elected representatives do not fetter decision makers, nor do political speeches constitute legally enforceable promises against the Crown.” [Para 61]. 

It is hard to imagine a more dismal and cynical description of the faith and trust that Indigenous peoples, and the public in general, should be entitled to place in the democratic process and the integrity of our elected representatives.

4. The province expects to be rewarded for rushing ahead with construction while underlying Treaty rights concerns went unresolved

The BC government argues that it should be allowed to continue construction of the Site C dam, even while the fundamental matter of unresolved Treaty rights is before the courts, because it has already spent so much money on the project. The submission states that by the time the injunction application was filed, the project “has been underway for more than two years, with expenditures exceeding $1.8 billion.” [Para 74]

In injunction hearings, the courts lean in favour of preserving the status quo. Here the BC government explicitly defines the “status quo” as continued construction, not as protection of the vast areas of the Peace Valley as yet undisturbed by Site C or – obviously – respect for Treaty rights.

The really worrying aspect of this argument is that if an injunction isn’t granted, the same rationale, compounded by the additional money spent in the meantime, could be used to argue against ever stopping the project, even if the court finds that it violates the Treaty.

Nowhere in this argument is there any acknowledgement that the Crown —  of course a party to and bound by Treaty 8 — should have, from the very outset of considering the project and long before any money was spent, taken steps to determine whether the project risked violating the Treaty and taken measures to avoid that outcome.  Instead, the government puts the entire responsibility for upholding the Treaty on the shoulders of the two First Nations.

5. The province wants to exercise unfettered decision-making powers, even while ignoring Constitutionally protected rights

Even though to date no government decision-making process has ever considered whether Site C may violate Treaty 8, the province tells the court that it should “defer” to the government’s determination that “construction of Site C was in the public interest.” [Para 52]

The purpose of an interlocutory injunction is to prevent irreparable harm while an outstanding legal question is resolved. According to the BC government’s submissions, the real risk of irreparable harm is not the flooding of the Peace Valley, but a court overturning a government decision in order to protect the rights of Indigenous peoples. The province writes, “Granting an interlocutory injunction… would constitute a high level of interference with democratic governance and usurp the role of elected officials. This would cause irreparable harm to the public interest.” [Para 65]

But if — according to the BC government’s logic – – a court can’t step in to at least temporarily protect Constitutionally entrenched rights that governments have deliberately chosen to ignore, when could a court ever hold a government accountable for violating human rights? 

It is in fact precisely the courts who have been empowered and are expected to play that critical role; a role that is the very essence of constitutional democracy and an essential bulwark against  human rights violations.  Standing by this fundamental principle by no means constitutes “interference” with democratic governance; it is at the very core of upholding and strengthening democractic governance.

A call for action

There is a fundamental injustice in forcing marginalized and impoverished Indigenous nations to go to court time and again to prove and defend rights that Canada has already committed to uphold. This injustice is further compounded when government lawyers use every argument at their disposal, however ludicrous or harmful, to defend government actions.

Governments are not supposed to be bullying Indigenous peoples in the courts. The provincial government, like the provincial government, has recognized that such an adversarial approach is the antithesis of reconciliation. West Moberly lawyer Reidar Mogerman put it this way in his presentation to the injunction hearing:

“You have both the federal government, and the Province, very recently, saying one of the problems we have in how we’ve been approaching Aboriginal rights and treaty rights, is that we’re kind of starting from the proposition that until you prove it, you don’t have it. And if you start from that proposition, then you are forcing people into a litigation morass and you are depriving them of substantive access to justice.”

The courts will decide whether the BC government’s arguments in this case are supportable in Canadian law. It is the responsibility of all of us to judge whether these arguments are compatible with the values of reconciliation, justice and regard for rights that we claim to have embraced as a nation.

In the days leading up to the injunction hearing, Amnesty International was part of a coalition of social justice organizations that launched a phone action to urge the Premier not to fight the injunction application. Despite the hundreds of people who called, the Premier didn’t listen.  Instead, lawyers are in Court making these deeply troubling arguments on his behalf.

It is not too late! Site C is not past the point of no return. And it is not too late for the province to abandon these legal tactics. As the case proceeds, it is more important than ever to let the Premier know that the corrosive arguments the province is making in this case are simply unacceptable.

Call the Premier Now