Canada, New Development, North America, Regulation and Policy, Site C

Site C construction to continue after First Nations injunction application refused

The Supreme Court of British Columbia has refused an application for an interlocutory injunction from West Moberly First Nations and Roland Wilson seeking an order to prohibit the British Columbia Hydro and Power Authority (BC Hydro) from continuing with certain work on the 1,100-MW Site C hydroelectric project.

Site C is currently under construction on the Peace River in northeast British Columbia. The project is expected to cost $8.2 billion and be completed in 2024. It will feature an earthfill dam 60 m tall and 1,050 m long and a powerhouse with six Francis turbine-generator units.

The application alleges that the project infringes West Moberly’s rights under Treaty 8 as protected by s. 35 of the Constitution Act, 1982. West Moberly sought a permanent injunction to prohibit BC Hydro from continuing with or completing construction of the project and to prevent the federal and provincial governments from issuing further permits allowing for its construction, completion or operation.

BC Hydro and Her Majesty the Queen in Right of the Province of British Columbia opposed the application, saying the claim is without merit, that there is no risk of irreparable harm if no injunction is granted, and that the balance of convenience lies against granting an injunction.

The Attorney General of Canada opposed the relief sought in the action but took no position on the application.

The Honourable Mr. Justice Milman, the presiding judge, said in his decision: “I have concluded that the proposed injunction … would be prohibitive as opposed to a mandatory order. I have also found that West Moberly has raised a serious question to be tried and that there is a risk that it will suffer irreparable harm if an injunction is not granted. Nevertheless, I have concluded that the balance of convenience lies against granting either form of the injunction sought.” Reasons cited were:

West Moberly’s chances of ultimately succeeding … and halting the project permanently are not strong

The proposed injunction would be likely to cause significant and irreparable harm to BC Hydro, its ratepayers and other stakeholders in the project, including other First Nations, and that harm outweighs the risk of harm to West Moberly flowing from not granting an injunction

The application was brought relatively late in the life of the project, significantly compounding the harm an injunction would cause

Justice Milman said a trial should be scheduled so that a judgment will be forthcoming in advance of reservoir inundation, when the most significant component of the alleged harm to West Moberly’s treaty rights will take place. “I am directing the parties to agree upon a schedule leading to trial that would see the trial conclude by no later than mid-2023,” he ordered. “To that end, I am also directing the parties to set down a case-management conference before me prior to the end of 2018 or in early 2019 to formalise such a schedule or have it set for them if they are unable to agree on one.”