Top Court Won’t Hear Two First Nations’ Challenges to Site C

The Supreme Court of Canada will not hear two applications for leave dealing with the Site C hydroelectric facility in northern B.C.

The Prophet River First Nations and the West Moberly First Nations, signatories to Treaty 8, sought two applications for leave after the Federal Court of Appeal dismissed two earlier appeals, one that stemmed from Federal Court and the other from the B.C. Court of Appeal.

The case from the Federal Court began as an application for judicial review of the order-in-council that approved Site C. The order-in-council determined that the environmental effects and impact on treaty rights from the construction of the $8.8-billion hydro facility on the Peace River were justified.

The First Nations argued that the federal cabinet, which issues orders-in-council, should have made a determination on whether the project would have constituted an unjustified infringement of Indigenous rights before deciding on whether to give it a permit.

The Federal Court dismissed that argument. The Federal Court of Appeal dismissed it as well on the grounds that cabinet is not empowered to adjudicate rights. The decision was guided by a strong deference to Parliament in writing laws like the one that provided for Site C’s permit, the Canadian Environmental Assessment Act, 2012.

In the second case, the B.C. Court of Appeal agreed with an earlier B.C. Supreme Court decision that provincial ministers are not required to determine if a project constitutes an infringement of treaty rights. The First Nations were seeking for such a determination in that case.

B.C. ministers were involved in the decision thanks to an agreement on joint environmental assessment between the province and the federal government.

The Supreme Court of Canada does not provide reasons when it decides against hearing an application for leave.