Ottawa will not oppose Site C injunction, leaving B.C. to battle in court alone

Sunday, May 13, 2018
Globe and Mail

When lawyers for B.C. Premier John Horgan’s government return to the courtroom this summer in the continuing battle over the Site C dam, their co-defendants will be notably absent.

The federal government, which approved the $10.7-billion project in 2014, has served notice to the courts that it will not oppose an injunction that aims to halt construction.

The surprise decision by the federal-justice department to sit on the sidelines was made just as Ottawa prepares to unveil its plans to fight Mr. Horgan’s government’s bid to stall construction of a different energy megaproject – the Kinder Morgan pipeline expansion.

Kinder Morgan has issued an ultimatum for Ottawa to clear away the obstacles B.C. has raised to the pipeline by the end of May or it will walk away from the $7.4-billion project that Prime Minister Justin Trudeau has promised will be built. The federal government is expected to announce its measures to “de-risk” the pipeline project by the end of May.

Perhaps it is a mere coincidence that the federal government has lost interest in the fate of the dam it helped launch. In theory, the oil-pipeline dispute should have no bearing on a clean-energy project that both levels of government have approved. But there is frustration in Ottawa that Mr. Horgan has followed through on his election commitment to stop the pipeline project by taking a reference case to the courts, seeking the authority to limit the transport of heavy oil.

Starting in July, the B.C. Supreme Court will hear an application on the Site C dam from the West Moberly First Nation. The community is seeking an injunction to halt construction on the province’s most costly civil-works project in history. An injunction would result in thousands of pink slips for workers at the construction site and would likely lead to significant budget overruns because of delays. (BC Hydro has already written off $610-million because it missed a target to divert the river.)

The West Moberly have filed a civil suit that argues the dam infringes on their aboriginal treaty rights. The injunction is being sought to prevent any further construction until that case is resolved – which could take a year or more.

Until now, the West Moberly First Nations have faced three opponents in court in their multiple attempts to stop the Site C dam – British Columbia, its Crown corporation BC Hydro and Canada. Their lawyers were stunned when the federal-justice department filed its response to the injunction application in B.C. Supreme Court. “Canada does not oppose” and “takes no position” on the application, the court documents state.

Canada is named as a defendant in the proceedings because the project needed approvals from both levels of government to proceed.

Now, the federal government is effectively shrugging its shoulders at the risk posed to the project of a legal stoppage of work. As of the end of March, BC Hydro had paid out $2.4-billion in construction costs and has financial commitments – including contracts and agreements – totalling nearly $6-billion. There are more than 2,100 workers on site.

West Moberly Chief Roland Willson, in a statement, called on B.C. to follow Ottawa’s lead. “Canada has laid down its weapons. Now, it’s time for B.C. to disarm. Let’s put the lawyers away and try diplomacy,” he said.

“The Premier can meet with us and our federal counterparts to work out how best to wind down work on Site C until the question of Treaty infringement is finally decided,” stated Chief Willson.

Mr. Horgan’s government made the decision last December to proceed with construction of the Site C dam “with a heavy heart,” saying the former B.C. Liberal government had managed to push the project past the point of no return. In doing so, the NDP angered environmental and Indigenous supporters who had hoped to see the project cancelled under Mr. Horgan’s leadership.

The B.C. NDP was deeply divided over the decision to continue building Site C. Now, they must be wondering if they can count on Ottawa’s support in defending this project that has cost them so much political capital.

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