Today the First Nations challenge to #SiteC in BC Supreme Court resumes, asking for an injunction to stop work on the dam until the rest of the Treaty 8 infringement case is decided in court. A critical case for BC. Follow the #SiteC & #SiteCInjunction hashtags this week! #bcpoli
Heading over to 800 Smithe now for 9:45 entry. All are welcome to be in the courtroom - please join us. Latecomers not admitted; proceedings start 10 am sharp. #bcpoli
This final week of the #SiteCinjunction hearing involves lawyers from the Province of BC (we have already heard from @sage_legal on behalf of West Moberly & Prophet River FNs, and BC Hydro's lawyers. #bcpoli #SiteC
@sage_legal For good background information about the First Nations Treaty 8 challenge in BC Supreme Court, see @WitnessthePeace witnessforthepeace.ca #SiteCInjunction #SiteC #bcpoli (In the courtroom now; lawyers are just doing some housekeeping)
@sage_legal @WitnessthePeace Province's lawyer saying if the stop work #sitecinjunction is granted to First Nations, the cost to BC Hydro/BC will be extensive, in the tens of millions of dollars. [With the project already radically delayed, costing billions, hard to see how this is significant] #bcpoli
Province of BC's lawyer trying to say critical milestones will be missed if work is stopped in the key areas of the #SiteC site that First Nations requesting be preserved while the rest of the case is heard. No talk of extensive delays due to geotechnical instability at site.
Lawyer saying the #sitecinjunction to stop work in these specific areas would represent "irreparable harm" to the "float" in the schedule to complete #SiteC i.e. would lose some sort of time buffer, esp in light of existing delays. [Delays that BC Hydro should have predicted]
BC lawyer referring to seasonal nature of work - that a delay of 2 months will impact work that can only be done in summer, some only in winter - i.e. a 2 month delay might mean a whole year delay because time of year critical.
Editorial note: the disrespectful & I would say racist tone of the BC Hydro lawyers who presented in August - dismissiveness bordering on mockery of FN arguments - is absent so far. Perhaps BC govt & BC Hydro legal representation might be seen as a sort of good cop/bad cop duo?
As @galenjoel says, the cost of this injunction to BC is paltry compared to the cost to BC of a dam we don't need and that can't be reasonably built on shifting silt on Treaty 8 territory. #SiteC #SiteCInjunction #bcpoli
BC lawyer saying the #sitecinjunction to stop clearing certain areas is "invasive" to BC Hydro's project. "This injunction drives a truck through our project," he says, which oddly mirrors the damage being done to the last intact area of NE BC, the #SiteC site.
And this (oh, just follow @galenjoel for the best reality check on what BC's lawyers are saying about the FN #sitecinjunction and challenge to #SiteC )
@galenjoel What's happening right now is a detailed discussion by BC's lawyer about each area at #Sitec that the Dunne-za First Nations are asking in this #SiteCInjunction not to be disturbed until Treaty case is resolved. Without a detailed map of #SiteC it's hard to relay these details.
@galenjoel As @fightc points out, failure to properly consult with First Nations (similar to failure with #KinderMorgan as demonstrated in federal court) is the cause for this delay, not FNs. Note that treaty rights are constitutional rights. #bcpoli #cdnpoli #SiteC
As discussion continues about cost of any #SiteC delay while this treaty infringement #sitecinjunction case is heard, I imagine the whole courtroom is thinking about the $$ cost of failure to abide by Canadian constitutional law. #Indigenousrights #bcpoil
CORRECTION! We're still hearing from BC Hydro lawyers! Lawyer this morning is Mark Andrews for BCHydro. The lawyers are on the first page of the response that West Mo's lawyers have posted at sagelegal.ca/plaintiffs-wri… and
fasken.com/en/mark-andrew… #SiteCinjunction #SiteC
fasken.com/en/mark-andrew… #SiteCinjunction #SiteC
If I may, the chummy, clubby, entitled, collegial old boy tone of Mr. Andrews as he details the "invasive" costs of any delay at #SiteC - when this is not the substance of the #SiteCinjunction case treaty rights challenge & when Hydro/BC failed to consult - is offensive #bcpoli
BC Hydro lawyer Mark Andrews disingenuously arguing First Nations should have brought this #SiteCinjunction earlier, in 2014. They have, in a number of different efforts, & despite the fact that FNs have to self-fund legal cases vs. the $$$$$ BC & BC Hydro lawyers. #bcpoli #SiteC
..As @sagelegal @fightC et al have argued, because they lack Hydro's & govts' deep pockets, First Nations must try what remedies are reasonable within their capacity before they reach for things they can't afford. #SiteC is a David vs Goliath fight. #bcpoli #SiteCInjunction
Sorry - FightC's twitter handle is @fightsitec - please correct. #SiteC
Wow. Hydro lawyer actually saying heatedly that #SiteC is cheaper than the alternatives and that at some point in the future BC will need the energy! He knows full well we can get the same energy cheaper & more easily. Disingenuous would be polite. #bcpoli #SiteCInjunction
The BCUC lawyer is, it seems, being deliberately misleading about what the BCUC said in its report. You can't say up is down & black is white. The BCUC clearly indicated cheaper alternatives were available if #SiteC went further over budget. Which it has. #bcpoli #SiteCInjunction
I spoke way too soon. This IS BC Hydro's lawyer, and it has become much more dismissive and offensive as the day has worn on
BC Hydro's lawyer Mark Andrews makes an outright admission of delays & overruns at #SiteC. As @galenjoel observes, it might have been nice if they'd admitted this to BCers earlier. #bcpoli #Sitecinjunciton
RECESS FOR LUNCH!
On the topic of BC Hydro's lawyer grossly misrepresenting the BCUC report, which clearly showed alternatives to Site C are cheaper: #sitec #SiteCInjunction #bcpoli
Note that BC Hydro's lawyer Mark Andrews had the gall to say that West Moberly/Prophet River FNs didn't bring this #SiteCInjunction earlier, when they tried multiple other legal routes - that Andrews was Hydro's lawyer for! #bcpoli #sitec
@FightSiteC Good point. And BC Hydro, BC & Canada have gone to great lengths to have expert testimony struck from this case, from JR Panel Chair Harry Swain to former Hydro CEO Marc Eliesen to top Canadian scientist David Schindler. #sitec #SiteCInjunction #bcpoli
@FightSiteC Dear BC, BC Hydro & Canada: if you didn't want the financial, energy utility & scientific testimony of experts, why do you ask these same experts to head or make submissions to your review panels & processes! You can't disregard them as you please. #SiteC #SiteCInjunction #bcpoli
@FightSiteC ..For those who'd like to see the BCUC #SiteC Review Final Report, it's here bcuc.com/Documents/wp-c… #SiteCInjunction #bcpoli #cnpoli
@FightSiteC Exactly.
@sage_legal @WitnessthePeace (just note @daveunger3 that in that tweet I meant BC Hydro lawyer, not Province of BC lawyer)
Wow. BC Hydro lawyer says the parts of Harry Swain's affidavit #1 that are "argument" & not mere testimony "so colour the whole affidavit that the whole affidavit should be inadmissible." As if all Hydro's submissions could not be accused of same. #SiteC #bcpoli #SiteCInjunction
..Recall that affidavits of Harry Swain and Marc Eliesen were struck in whole or in part in preliminary phase of this case by Judge Choy. Govt and Hydro lawyers argued people they previously considered expert to be "inexpert" etc. #bcpoli #sitec #SiteCInjunction
Just a reminder that we (BC taxpayers/ratepayers) are paying for the very fancy lawyers of BC, BC Hydro, & Canada. First Nations are forced to fund their own legal representation and costs for this #SiteCInjunction to defend their Indigenous/treaty rights. #bcpoli #cdnpoli #SiteC
This is actually happening. Harry Swain chaired the Prov-Federal Joint Review Panel on #SiteC. You can't make this stuff up. #SiteC #SiteCInjunction #bcpoli
May I just point out, BC Supreme Court, that your ceiling speakers for the courtroom proceedings are buzzing as if there's an angry bee trapped inside, which puts an even more disconcerting cast on the proceedings than already provided by BC Hydro's lawyers. #SiteCInjunction
For those who haven't read the BCUC's final report from its #SiteC review: #bcpoli #SiteCInjunction #sitec
..Final point by BC Hydro lawyer before the break almost harks back to 1970s attitude, dismissing FN oral history esp in relation to the observed effects of the WAC Bennett dam upstream of #SiteC being predictive of negative impacts of Site C. #SiteCInjunction #bcpoli
Re: an earlier disingenuous (I'm avoiding saying mendacious) point by BC Hydro lawyer about what the BCUC final report on #SiteC actually said #bcpoli #SiteCInjunction
..Here is the convenient executive summary of the @BCUtilitiesCom #SiteC Review - easier for laypeople to understand - especially the first few pages. bcuc.com/Documents/wp-c… #SiteCInjunction #bcpoli #cdnpoli
@BCUtilitiesCom ..As an aside, please take note: "Alberta's wind farm deal scored 'pretty remarkable price,' energy researcher says" - $37/MWHr for Alberta's new wind, vs. #SiteC's $95+/MWHr. What are we doing, exactly? cbc.ca/news/canada/ca… #SiteCInjunction #bcpoli
@BCUtilitiesCom Pretty much.
Sitting in this BC Supreme Court chamber for #SiteCInjunction & listening to BC Hydro try to justify itself & #SiteC infringement of Treaty 8, I'm sure the Federal Court of Appeal's judgement against #KinderMorgan is on everyone's mind. #bcpoli
...As an aside, the fact that a BC Hydro employee now under discussion in the #SiteCInjunction case - for the #SiteC dam that will inundate the Peace River Valley - is named Mr. Drown is tipping this long day over into the absurd. M'lord. #bcpoli
We are now overtime. BC Hydro lawyer going on about striking out testimony and other precedents. One such case he's referring to sounds like Westeros. Mr. Drown was absurd enough. What is he saying? Westerhof? Ok we are adjourned for today. See you all tomorrow!
..Could someone please water the ivy at the main courthouse? (After a day inside BC Supreme Court for the #SiteCInjunction this is how I feel also.) 
..So, it's Day 2 of the final week of the #SiteCInjunction case at BC Supreme Court, the First Nations treaty challenge to the dam. Judge Milman has just entered. Please follow #SiteCInjunction and #SiteC hashtags all week! #bcpoli #cdnpoli
BC Hydro has finished its submission. Now the lawyer from the Province of BC is presenting (sorry, will try to get her name). She's going to be talking about the regulatory structure [! given the province has gutted the power of the regulator, the BCUC].
Prov of BC lawyer will also be talking about "the public interest" in the issue of a stop work injunction at #SiteC while the treaty challenge is being heard. #bcpoli #SiteC #SiteCInjunction
Prov of BC lawyer saying the impacts of #SiteC have been mitigated as far as possible & that there's been extensive consultation to further the objective of reconciliation. Really? Then why has Chief Roland Willson of West Moberly FN detailed broken FPIC? #SiteCInjunction #bcpoli
BC govt lawyer saying plaintiffs don't satisfy requirements for their #SiteCInjunction (claim of irreparable harm to treaty rights and land req's for exercise of thos rights). Note: Sitting next to her is the lawyer for the FN side, Mr. Moberman of @sage_legal. #bcpoli #SiteC
@sage_legal Lawyer saying BC Hydro is constructing #SiteC acc to the [so-called] Clean Energy Act [which restricts Hydro to only dams, no new technology], detailing its characteristics. Acknowledges that BC has duty to consult with West Moberly FN re impacts on their treaty rights.
..and when I say that #SiteC has the highest number of adverse enviro impacts than any project in Canadian history, this isn't opinion - this is based on the official environmental assessment processes including the Fed-Prov Joint Review Panel. #SiteCInjunction #bcpoli
BC's lawyer telling judge about conditions in #SiteC that attempt to set aside bits of land for traditional purposes to mitigate impacts on FN treaty rights. [When the whole ecosystem of the valley is destroyed by #sitec this seems a tad paltry] #SiteCInjunction #bcpoli
This:
Recall - Hydro has ignored Treaty 8 and objections all along, First Nations have fought them all along, and yesterday Hydro lawyer had the gall to say why didn't you try this [extremely expensive] Supreme Court injunction earlier? Created murmur in room
BC lawyer clarifying that just because Hydro has permission to build the whole #SiteC dam, doesn't mean it doesn't need smaller permits to proceed with certain activities like cutting trees in a certain area. Each of those steps requires a statutory decision under relevant leg'n
From Craig Benjamin of Amnesty International Canada. Indeed! Why is it up to First Nations to assert Canadian law on their own dime? Hydro and govts should have operated within the law from the beginning. #SiteC #SiteCInjunction #bcpoli #cdnpoli
Judge Milman is explaining to BC's lawyer Erin Christie that Mr. Moberman representing West Moberly First Nation has claimed that there hasn't in fact been consultation or consideration of Treaty 8. Now Chistie falling back on argument that FNs only filed injunction in Jan 2018
..For all the Province of BC lawyer Erin Christie's & BC Hydro lawyer Mark Andrew's protestations that BC/Hydro conducted proper consultation & consideration of Treaty 8, there's a strong sense here of asking forgiveness instead of permission for #SiteC. #SiteCInjunction #bcpoli
..For those following along with the treaty challenge to #SiteC in BC Supreme Court, here is a blog post from @WitnessthePeace that reviews yesterday's #SiteCInjunction proceedings witnessforthepeace.ca/updates-from-t… #bcpoli
@WitnessthePeace Amnesty Internat'l says the BC govt’s written arguments for the #SiteCinjunction hearing not only break Premier Horgan’s promises to respect "IndigenousRights, they cd have far reaching negative implications for human rights in BC & across Canada witnessforthepeace.ca/why-we-should-… #bcpoli
@WitnessthePeace BC govt lawyer Erin Christie is now looking at other precedent cases regarding First Nations incl. Mikisew. Aguing that "taking up" land in such a way as it infringes on treaty rights to use the land for the people's own purposes is not what's happening at #SiteC #SiteCInjunction
@WitnessthePeace One of the things you notice in the BC/BC Hydro legal submissions is a narrowed view of #IndigenousRights and a very nostalgic, even paternalistic interpretation of what "traditional" uses means. Is it for the Crown to decide what is,and always will be, "traditional"?
@WitnessthePeace ..What has been traditional for First Nations in the Peace River Valley is hunting, fishing, & collecting of plants for food and medicine. Given what's coming with climate change, food reliance on the last un-industrialized area of NE BC/Treaty 8 is only going to intensify #SiteC
If the Crown even implicitly suggests it can decide which ongoing Indigenous activities on the land qualify as "traditional," that's obv. inappropriate. Regardless you can't subsistence fish in a methylmercury-laden reservoir. #SiteC will back mercury up into all connected waters
Note that this is my own digression. The Crown isn't explicitly challenging "tradition" but BC/Hydro seem to be everywhere implying that they aren't damaging the traditional way of life guaranteed by Treaty 8. Who are they to determine what the continuity of tradition looks like?
What I am now calling The BC Hydro Memorial Ivy is doing about as well as the financial case for the #SiteC dam. OK, back into the BC Supreme Court room for #SiteCInjunction now, at the Vancouver Law Courts. #bcpoli
.The #SiteCInjunction is brought by First Nations who argue #SiteC infringes on Treaty 8 rights. Note: govts can use treaty land IF IT IS DEEMED NECESSARY FOR THE PUBLIC INTEREST. Because BCUC showed alternatives are cheaper than #SiteC, infringing Treaty 8 is unjustified #bcpoli
Excellent points on #SiteC @YuLeoW ! #bcpoli #UNDRIP #MMIW #Reconciliation #foodsecurity #bcpoli #SiteCInjunction
@YuLeoW ..Ironically, BC govt lawyer Erin Christie cites a @BCUtilitiesCom #SiteC report finding that suspending #SiteC was more $$$$ option vs cancel/continue. But if she cites #BCUC report, she should say it also noted that alternatives to Site C were cheaper! #bcpoli #SiteCInjunction
@BCUtilitiesCom To repeat: a centrepiece of the First Nations plaintiffs' #SiteCInjunction case is that #SiteC's infringement of Treaty 8 is completely unjustified given that BC can gain this electricity more cheaply, as @BCUtilitiesCom showed. @sage_legal #bcpoli
@BCUtilitiesCom @sage_legal BC govt lawyer now talking about the December 2017 govt press release by @jjhorgan @GeorgeHeyman & @michellemungall who announced continuance of #SiteC where they acknowledge "we know it is not what all First Nations wanted to hear" #bcpoli #SiteCInjunction
@BCUtilitiesCom @sage_legal @jjhorgan @GeorgeHeyman @michellemungall Lawyer now referring to extensive court documents the judge can see but we don't have access to. Relate to complex & overlapping permit regions for all the activities at #SiteC (deforestation, digging, etc). These are overlaid onto the map of critical areas ID'd by First Nations.
@BCUtilitiesCom @sage_legal @jjhorgan @GeorgeHeyman @michellemungall Judge Milman intercedes to ask what her point is - i.e. if he grants the injunction, these permits will be "waylaid"? She says I don't know about waylaid but it will be complicated. She says the areas injunction wants to protect are large. Judge evidencing faint impatience.
Judge effectively asking BC Govt lawyer "what's your point?" and it's a question I have myself.
Seems the lawyer is saying that if they had to redo all these permits and activities it significantly changes the Crown's role at the site and might involve greater direct administration?
..Indeed. Why, when it has the greatest number of enviro impacts in history acc to official assessment, is a dam going ahead when cheaper alternatives are available? #SiteC #SiteCInjunction #bcpoli #cdnpoli
BC govt lawyer recognizes that due to the #SiteC dam First Nations will suffer adverse impacts on their land but is arguing it's not treaty infringement and is arguing that "the province went out to talk to First Nations." But going out to chat isn't FPIC #bcopli #SiteCInjunction
BC govt lawyer saying consultation is the foundation upon which province & First Nations achieve #Reconciliation. But this is not to say that there are not adjudications that are not what First Nations request. Cites Haida SCC 2004 case re deciding when consultation is adequate
..Chief Roland Willson @dunnezaman of West Moberly First Nation (the plaintiff in this case along with Prophet River FN) just arrived along with nation members down from N. BC. Note that FNs must fund own case & costs; taxpayers fund govt lawyers. #SiteCInjunction #SiteC #bcpoli
@dunnezaman We're on a short break now. Effectively the last section was about "balancing interests" but it is very hard to see that deleterious effects i.e. treaty infringements can be "balanced" or mitigated" when you're building a mega-dam. Impacts of dam will hit entire surrounding area.
@dunnezaman This just can't be framed as a "balancing of interests" between BC Hydro (for power we don't need) and First Nations; this is an either/or scenario, and if they lose, First Nations will lose the last unimpacted bit of land in NE BC, land crucial for ecology, fishing, continuity.
@dunnezaman BC govt lawyer: "the basis for the injunction has to be grounded in the claims. We say the claims are inconsistent and overreach the claims actually in their notice of civil claim at paras 11 & 14.. i.e. treaty rights"..The meat of this has to do with specific claims to the Peace
BC govt lawyer continues: the plaintiff's claim conflates rights confirmed by the Treaty with the notion of what they're claiming to be the infringement here. SCC found that treaty rights can be exercised within Treaty 8 territory... cont'd #SiteCInjunction #Sitec #bcpoli
.. cont'd - but not specific areas - there are no specific cases in Canada that says this is infringement by law, that they can't exercise rights in traditional territory unless on specific area within treaty boundaries." It will be interesting to see rebuttal to this.
So the BC govt lawyer says govt won't admit this amounts to an infringement at law based on legal precedent - even if the Peace River has always been a key & unique feature of Treaty 8 & a fishing, hunting & gathering area. Seems a rather desperate argument but we'll see. #SiteC
BC govt lawyer suggesting that other areas could be set aside with priority use for FN. Judge jumps in and seems to ask "does this mean you're implying there's infringement at #SiteC? #bcpoli #SiteCInjunction
Prov of BC lawyer using language from Treaty 8: (paraphrasing) 'the government has not "taken up" enough land to constitute infringement' by building #SiteC
Now we're just in a lengthy detailed submission by Prov of BC lawyer to argue that the Province has protected ecology & wildlife in a number of different ways (I will detail later the destructive & wasteful actions at the Site, so these protestations aren't v credible)
Province/BC Hydro only saved a key wetland, Watson Slough which is used as gestation place for many species, after intense public outcry. #sitec #SiteCInjunction #bcpoli
Without going into too many details, Province of BC lawyer is effectively saying that damage to wildlife can be mitigated (despite environ'l assessment warning that #siteC will have more adverse enviro effects than any other project in our history) #bcpoli #SiteC #Sitecinjunction
Now BC govt lawyer saying accepting compensation for treaty infringement then she preclude further actions by First Nations against infringement. Judge questioned this - it appears not to be established? Many groups accept compensation when they feel they can't fight projects
OK, for the second time Judge Milman seems effectively to have questioned BC's lawyer whether she is not, when she talks about remedies flowing from an infringement, admitting there's an infringement here. #bcpoli #SiteC #SiteCInjunction
Perhaps someone reviewing the tapes of today's #SiteCInjunction can check the wording of that exchange for me? #bcpoli #siteC
The Govt of BC lawyer now touting the BC Clean Energy Act. That's arguable a corrupt bit of legislation by Gordon Campbell &c that forbids Hydro from pursuing alternative energy other than dams, sidesteps the energy regulator BCUC (!!), & was designed to ram IPPs & #SiteC thru
I meant “arguably” but I should just have left the word out altogether & called it corrupt. That Clean Energy Act condemned BC to buying $$$ private power off all those IPP private dams belonging to Campbell’s pals, that Hydro is now more than $50bn in hock to. For uneeded power
I had to leave the #Sitec hearing slightly before end but will catch up tomorrow a.m. Session starts 9 am Sept 6. In the meantime, have a look at the unredacted written submission of West Moberly First Nations prepared for the #SiteCinjunction. sagelegal.ca/plaintiffs-wri… #bcpoli
.Today during #SiteCInjunction hearing on #SiteC, the distinction between treaty rights & "duty to consult" (both relevant to Site C) was discussed. "Duty to consult," key to the Federal Court of Appeal decision on #KinderMorgan, explained here: #bcpoli
Sorry I’m late this morning. We are in our way to Supreme Court but are trapped in traffic due to a movie shoot. Be there shortly
Prov of BC lawyer Erin Christie is currently wrapping up her arguments that BC/BC Hydro are not infringing on Treaty 8 with #SiteC. The dam is underway "and we can't make time stand still" and have a stop work #Sitecinjunction. #bcpoli
Christie is saying that it's not at all certain that over a 2 yr injunction period permits can't continue, consultations with other Treaty 8 First Nations can't continue, etc. [Since I came in late I missed the beginning of this Form of Order point]
BC govt lawyer trying again to undermine Harry Swain's expert opinion because it was "argument" not evidence. This was struck in earlier phase of this case by Justice Choy. Both BC & Canada seem unnerved by Harry Swain's work in Joint Review Panel
Thanks to you all for these reminders - I'll be including many of them in this thread #bcpoli Sitec #sitecinjunction
BC govt lawyer defending evidence by provincial employee Mr. Addison whose work the plaintiffs have questioned - I'm sorry not to have background on this portion of the case but province here seems to be discounting Swain's evidence & promoting that of others.
Switching lawyers now. I'll take this moment to point you to @WitnessthePeace's supplement to their summary of Tuesday's proceedings with some of the more offensive quotes from BC Hydro's lawyer. Key reading on #SiteCInjunction #sitec #bcpoli witnessforthepeace.ca/updates-from-t…
@WitnessthePeace Now hearing from Sarah Bird, counsel for the Attorney-General of Canada @Puglaas, wanting to strike the affidavit of Harry Swain (who chaired the Fed-Prov Joint Review Panel on #SiteC). Do BC & Canada have a legitimate argument against that affidavit? #SiteCInjunction #bcpoli
@WitnessthePeace I'm trying to sort this out.
@WitnessthePeace Recall that Canada appointed as chair of the Joint Review Panel on #SiteC in 2013. The arguments of Canada and BC against Harry Swain's testimony are explained at bottom here: amnesty.ca/news/governmen…’s-commitments-respect-indigenous #sitec #SiteCInjunction #bcpoli #cdnpoli
@WitnessthePeace Colleague also just summarized the argument of Canada - "breach of privilege (ie he's supposed to keep silent and he hasn't)
@WitnessthePeace Canada lawyer: 4 points. 1. (referring to court documents we don't have access to) Independence of the judiciary protects the how and why of how a decision is made. Applies to administrative panels not just judiciary. #SiteCInjunction #SiteC
@WitnessthePeace ..Lawyer is citing legal precedents for this point #1 now. Too detailed for me to catch. Judge asks "whose privilege is it and who can waiver it?" Counsel is stumped. Whispers to colleague. #SiteCInjunction #sitec #bcpoli #canada
@WitnessthePeace Lawyer says it's constitutional and SCC can waive it. Continues that privilege promotes consistency and finality within decisions. Failing to protect it could have a chilling effect on institutional deliberations. #SiteCInjunction
@WitnessthePeace Canada lawyer: Point #2. West Moberly argues that deliiberative secrecy doesn't apply to Site C JRP. Canada says it's a novel argument not supported by facts and current case law. #bcpoli #cdnpoli #sitec
@WitnessthePeace Cont'd on deliberative secrecy applied to that JRP, a past Federal Court decision looking at the purpose of an environmental assessment on Taseko case. In that case Taseko seeks to pierce the privilege. FC says purpose of EA is as a planning tool, info gathering and decision...
@WitnessthePeace making component and the purpose in that case is descriptive only. The EA process the JRP is involved in is part of the larger decision GFC. Plaintiffs argue that because JRP is not final decision that deliberative secrecy does not apply. #SiteCInjunction #SiteC #bcpoli #cdnpli
@WitnessthePeace Canada lawyer saying the time and place for West Moberly to challenge was in earlier cases. She's now reviewing a number of earlier precedents - it's going too fast for me to report. Will try to switch to figuring out the larger thrust of this argument.
@WitnessthePeace There seem to be two predominant complaints from the A-G of Canada: Swain breaching "deliberative secrecy" and the actual function (i.e. status) of environmental assessment (EA). Is Canada's lawyer trying to reduce EA's status? i.e. it's descriptive and non-binding? #cdnpoli
@WitnessthePeace @rrrwong Many friends from the fight against #SiteC in the courtroom today. Most notably Chief Roland Willson of West Moberly First Nation @dunnezaman is here. #bcpoli #SiteCInjunction
@WitnessthePeace @rrrwong Context:
@WitnessthePeace @rrrwong Canada's lawyer referring to JRP, when panel said something nice about BC Hydro's competence. Originally we had heard that Canada would not contest this injunction; then that they'd only contest Swain's affidavit; but this sounds much more like argument against #SiteCInjunction
@WitnessthePeace @rrrwong @rrrwong Yes but it seems she's cherry-picking here, under the guise of concern about deliberative secrecy. No?
@WitnessthePeace @rrrwong Jinx @SusanFDe. See my last tweet #SiteCInjunction #sitec #cdnpoli #bcpoli
@WitnessthePeace @rrrwong @SusanFDe Ha ha. Nearly tweeted the same. (Sorry to those following but it's impossible not to get punchy in here.)
@WitnessthePeace @rrrwong @SusanFDe ..Agreed. This is not an acceptable performance by either Canada (which had announced it would not oppose this injunction & got credit for that, but now effectively is) or the Province of BC. #SiteCInjunction #SiteC #bcpoli #cdnpoli
@WitnessthePeace @rrrwong @SusanFDe Lawyer Reidar Mogerman of @sage_legal for West Moberly First Nation now up, finally. Today we will be hearing from the First Nations who are asking for this stop work #SiteCInjunction #bcpoli #cdnpoli #SiteC sagelegal.ca/new-page-1/
@WitnessthePeace @rrrwong @SusanFDe @sage_legal Mogerman is starting with the question about the admissibility of Harry Swain's affidavit in this #SiteCInjunction case. Judge saying that when Judge Choy struck Swain's affidavit for "bias" it missed the point that the affidavit still valid as expert opinion #bcpoli #SiteC
@WitnessthePeace @rrrwong @SusanFDe @sage_legal Mogerman agrees. Then moves to the question of the govts' and BC Hydro's argument that the #SiteCInjunction will stop a flow of needed energy. [Now this is the nub of this case, because the only excuse for infringing treaty is public interest, & #SiteC energy is unneeded. #bcpoli
@WitnessthePeace @rrrwong @SusanFDe @sage_legal Harry Swain's affidavit includes point that not only is the energy provided by #SiteC unneeded, but if it *were* needed, it can be had for cheaper by other means as shown by BCUC SiteC Review report. Mogerman is defending Swain's affidavit as key evidence #bcpoli #SiteCInjunction
@WitnessthePeace @rrrwong @SusanFDe @sage_legal BC Hydro argued during JRP process that BC Hydro would supply benefits to public interest but it was argued that those benefits were just displaced from elsewhere considering the then $7bn was being spent and could have been spent elsewhere
@WitnessthePeace @rrrwong @SusanFDe @sage_legal Still going through Swain's affidavit... which pointed out that the JRP was assuming an earlier and much lower estimate of final cost of #SiteC, and same with BCUC - which assessed the project's business case based on a cost $2bn less than it is now #SiteCInjunction #bcpoli
@WitnessthePeace @rrrwong @SusanFDe @sage_legal Mogerman's focus on #SiteC cost is, again, key to this #Sitecinjunction. The fact that #SiteC now so radically overbudget obliterates opposition's argument that dam's treaty infringement is justified in the public interest, as cheaper alternatives to #SiteC are in public interest
@WitnessthePeace @rrrwong @SusanFDe @sage_legal Now Ms. Duke, counsel for @sage_legal discussing the issue of deliberative secrecy and supposed breach of privilege why it's not relevant to the admissibility of Harry Swain's affidavit. #SiteCInjunction #bcpoli
@WitnessthePeace @rrrwong @SusanFDe @sage_legal Judge asking whose privilege is it? Project proponents often try to pierce the veil. Here it's different when you have a decision maker piercing the veil of secrecy.
@WitnessthePeace @rrrwong @SusanFDe @sage_legal saying that deliberative secrecy only holds when person holds adjudicative role. #bcpoli #cdnpoli #SiteCInjunction #siteC
@WitnessthePeace @rrrwong @SusanFDe @sage_legal First Nations' lawyer Ms. Duke going through a set of precedent-setting cases regarding deliberative secrecy, going to the argument that Harry Swain's affidavit for this Treaty8 iInfringement case is admissible because his role not adjudicative. #bcpoli #SiteC #SiteCInjunction
@WitnessthePeace @rrrwong @SusanFDe @sage_legal "Panels are advisory not decision-making bodies." Not required to abide by the entire guide (regarding confidentiality of panel deliberations). - Ms Duke, @sage_legal. Nothing in the guide says he must refrain from providing this evidence. #SiteCInjunction #sitec #bcpoli #cdnpoli
@WitnessthePeace @rrrwong @SusanFDe @sage_legal One of the first mentions of the recent decision in Federal Court of Appeal against #KinderMorgan brought by Tsleil-Waututh First Nation - a slightly different but still relevant case, in which similar point was made about decisions that are not adjudicative but still decisions
@WitnessthePeace @rrrwong @SusanFDe @sage_legal The #SiteC Joint Review Panel (JRP) produced a set of recommendations, not binding decisions. #SiteCInjunction #bcpoli
@WitnessthePeace @rrrwong @SusanFDe @sage_legal What Ms. Duke is arguing now is effectively challenging Canada's argument that Swain's affidavit is inadmissible, saying that where Swain points out the JRP's terms of reference constrained it from fully analysing #SiteC are important context. #SiteCInjunction #bcpoli #cdnpoli
@WitnessthePeace @rrrwong @SusanFDe @sage_legal End of point on Swain/deliberative secrecy. Now back to FN's lawyer Reidar Mogerman. Responding to BC Hydro lawyer Willms on the question of "irreparable harm" on hunting, harvest etc. Making point about diff between "traditional territory" & "Treaty 8 territory" #SiteCInjunction
@WitnessthePeace @rrrwong @SusanFDe @sage_legal Complex point being made by FN's lawyer Mogerman about the fact it's been legally established that oral testimony/history runs parallel to written documents. We're talking about treaty interpretation. Treaties did not always record the full oral submission. (Trying to paraphrase)
@WitnessthePeace @rrrwong @SusanFDe @sage_legal Mogerman talking about whether the removal of the Peace, as as specific area in Treaty 8, constitutes a removal of treaty rights. "We've talked about taking up land, about your right to live as you're currently living.... cont'd #bcpoli #SiteCInjunction #Sitec ...
... cont'd ' If someone had asked treaty signers if it would be okay if they removed the Peace River from the treaty, would that be OK? They'd have looked at you as if you're crazy' #bcpoli #cdnpoli #sitec #SiteCInjunction
."What is the right that you're talking about that needs to be meaningfully exercised? Is it just to harvest? If the right has an overly of culture & spirituality & governance & ecological preservation, then its meaningful exercise involves much more territory." #SiteCInjunction
Mogerman: the area is called PMT for a reason: the Peace Moberly Tract. You can't remove the Peace River from the equation. Further diminishment of the area constitutes treaty infringement. #SiteCInjunction #siteC #bcpoli #cdnpoli
Mogerman: It comes in the context of Williston (the reservoir for WAC Bennett dam) and the other dam on the peace, Bennet dam. Most of the Peace River is gone - #SiteC valley is all that is left. You build #SiteC, there is no Peace River left. #bcpoli #sitec #SiteCInjunction
Mogerman: the infringement on the treaty right occurs when inundation occurs. This harm can't be repaired. Impact on treaty right is what flows from this important piece of land
Mogerman: Hydro and BC saying there is a big plan for #SiteC with a lot of moving parts and we can't stop. But that plan is already dealing with that no. of moving parts & is designed to deal with the unforeseen. The #SiteCInjunction won't significantly harm plan #Sitec #bcpoli
Interestingly Judge Milman then says "I don't understand BC Hydro's point about this, regarding construction in those areas." Now BC Hydro's lawyer jumps in to say he's not going to make objections. Jokes ensure about objecting to each other
Mogerman now talking about logging activity in some of the construction areas - saying there's actually very little going on in some of these areas that are used for spiritual purposes (you go there to get quiet) - Judge says "how is that irreparable."
Mogerman - Because I don't get that time back. Where you have a site that has spiritual value then you have a different way. At Rocky Mountain camp area, Dancing Rock & the spiritual value of the area on the south bank where trees will be coming down..
The value to BC Hydro of taking down those trees vs the countervailing impact to a critical site of high spiritual value to West Moberly, one would issue an injunction to stop that pending a trial to determine if #SiteC will happen at all #bcpoli #SiteCInjunction
Judge: 1. you're asking them to a piecemeal job 2. this tree material could get stuck in tunnels etc. Mogerman: yes, I'm asking for it to be balanced off. BC Hydro is dramatically overstating that threat. It's taking trees that have commercial value. #bcpoli #SiteCInjunction
SCC in Mikisew case (Judge McLachlan) talking about ceding some traditional harvesting rights but don't cede all other cultural uses. They have a package of rights and they ceded some rights to the land in return for certain promises. Are they other rights beyond treaty rights?
This thread too
Bit of an outburst from BCHdro lawyer Willms just now after Mogerman characterized what Hydro said as 'everything is gone" - and now we are breaking for a shorter lunch as we are running behind.
Losing control like that (BC Hydro lawyer) never impresses a judge much, or so I’m told; they don’t really like..surprises. I’d also say that the judge’s many in-depth questions to First Nations plaintiffs’ lawyer Mogerman not necessarily bad sign #sitec #SiteCInjunction #bcpoli
FN lawyer Mogerman talking about where temporary interruptions to cultural/spiritual uses in certain locations and whether they constitute "irreparable harm" - citing legal precedent, Justice Branch ruling that tree cutting etc. is such harm. #SiteCInjunction #sitec #bcpoli
Q about whether "harvesting rights" in Mikisew and Grass Narrows cases is just a numerical assessment. A meaningful right isn't just access to an area that has been clearcut - must take into circumstances around original signing of treaty, how the FN members carried out hunting
Lawyer for FN, Reidar Mogerman continues to review precedents re: how treaties are interpreted re: rights to carry out traditional harvesting and other activities. In effect, BC Hydro's view is narrow re what can be done on land that's been clearcut/inundated #sitecinjunction
How does the court deal with oral history evidence? Referring to Delgamukw: the court repeated its findings that court must be sensitive to the special nature of aboriginal claims & rights. Court should interpret the evidence with sensitivity to original context #SiteCInjunction
*Delgamuukw (always forget one u)
Adding in point made by Peace River resident: #SiteCInjunction
Now lawyer for First Nations Mogerman talking about Nisga'a case precedent (a fishing question) and its relationship to the meaningful interference in treaty rights test of the Mikisew case
There is a big discussion going on between BC and First Nations now re: whether the Haida case changed the Sparrow test - did anyone properly catch this point - I truncated that last phrase I believe #SiteCInjunction
Glad one journalist is here! There has been a noticeable and surprising absence of media in this courtroom. #sitec #SiteCInjunction
Moberman: a point, based on reference to multiple precedent cases (Chippewa of Sarnia, others) permanent injunction is a possible outcome which means temporary injunction is likewise possible outcome. #SiteCInjunction
Additional to earlier: #SiteCInjunction
Mogerman: hard to follow (speed!) but Q is has the crown's conduct over many years infringed on PRFN (Prophet River First Nations)'s activities. Each new incursion serves to further narrow habitat - each more signif than the last & should be characterized as "irreparable harm"
Mogerman: PRFN says irreparable harm is a cumulative effect of incremental steps each more significant than the last - as an analogy let's say it's a geometric rather than linear increase in disturbance to ecology/wildilfe #SiteCInjunction #sitec #BCpoli
Mogerman: the construction of this mega-project on the last undisturbed part of the Peace River/valley is, then, irreparable harm
#SiteC #SiteCInjunction #bcpoli
#SiteC #SiteCInjunction #bcpoli
Aside:
And
Continuing with #sitecinjunction - Judge asking Mogerman, FN lawyer, whether the impacts of previous dams on the Peace River (WAC Bennett and Peace Canyon dams) are part of this case. Mogerman: yes. Combined make cumulative impacts more serious #sitec #sitecinjunction #bcpoli
Mogerman: going into just how much impact on the area #Sitec represents - not just the massive reservoir outline but all the safety margins around the infrastructure #sitecinjunction #bcpoli
Mogerman, referring to Blueberry River case, in which the crown's conduct over many years allowing industrial development around Blueberry River FN representing curtailment of their ability to retain their treaty rights #sitecinjunction #sitec #bcpoli
FN's lawyer talking about Treaty 8 Blueberry River FN & degree to which they are under-resourced yet have managed to collect substantial evidence of cumulative impacts to Treaty 8 territory by industrial activity. (For those who haven't visited NE BC, impacts are extreme #bcpoli
Everywhere you look in that upper right corner of BC- drilling, wells, gas wells flaring - you can see them, you can hear them. This is what people mean when they call the Peace area a "sacrifice zone." It's out of sight & mind of larger BC cities but impacts are extreme. #bcpoli
..Because impacts of industrial development are so extreme on nearly every square inch of NE BC, the loss of the last unimpacted area - #SiteC - represents a critical impact on Treaty 8 & the rights & activities it guarantees. #bcpoli #sitecinjunction
We are adjourned for today, starting again at 9 am. I cannot be in court tomorrow but I will pick up this thread when the video becomes available for the final day! In my absence please follow the hashtags #SiteC #SiteCInjunction #bcpoli & @WitnessthePeace @FightSiteC Bye!
..West Moberly and Prophet River First Nations with the @sage_legal team at the end of the penultimate day of the #SiteCInjunction in BC@Supreme Court #SiteC #bcpoli. Good luck tomorrow!
@sage_legal For those who missed this yesterday, here is the First Nations' (plaintiffs) written arguments to the court for this #SiteCInjunction. If you're following this case, it will help you. sagelegal.ca/plaintiffs-wri… #SiteC #bcpoli #cdnpoli #bchydro #UNDRIP #treaty8 #Reconciliation #FPIC
@sage_legal ..It's too bad that media seems to feel the #SiteCInjunction hearing in BC Supreme Court is like any other civil case that they don't have to cover until the decision. Case is of constitutional importance. Glad to see CBC did produce 1 story cbc.ca/news/canada/br… #bcpoli #SiteC
@sage_legal ..Here's a short video on the #SiteC dam project in the Peace River Valley. One of the interviewees is standing next to the site, showing that nothing been built yet and the project can still be stopped. A good idea, since there's no bedrock. vimeo.com/288291268 #bcpoli
It's good to see that CBC - alone out of all BC media - has a reporter in the courtroom for the #SiteCInjunction. Thanks Chantelle #sitec #bcpoli
For those following the #SiteCInjunction and #SiteC dam issue, see this article in @cascadiamag #bcpoli
Correct. The massive delays at #SiteC are caused by near-insurmountable geotechnical problems and long predate the #Sitecinjunction sought by First Nations. That injunction is not the problem. Dam is unsafe & remedies costing billions. #bcpoli #site c
Ha! Great sketch of the courtroom for the #SiteCInjunction brought by First Nations in BC Supreme Court by CBC reporter @pieglue #sitec #bcpoli
@pieglue ..Wow, interesting timing for the First Nations #SiteCInjunction: article in @AHNnewspaper about the serious geotechnical instability (read: mud, mudslides) at #SiteC. They're trying to build a mega-dam without any bedrock. alaskahighwaynews.ca/opinion/column… #bcpoli #UNDRIP
@AHNnewspaper ..So, we're building #SiteC when: we don't remotely need it; when if we did need it we could acquire same power for far less; when its price tag is skyrocketing due to lack of bedrock; & when it destroys last undisturbed section of BC Treaty 8, infringes treaty & UNDRIP. #bcpoli
@AHNnewspaper ..Well done, John Horgan @jjhorgan. #SiteC is what you'll be remembered for - not having the courage to stop this oversight-less, rights-violating, overly expensive mega-project when you had the chance. Remember when you said this? #SiteCInjunction #bcpoli @pieglue #UNDRIP
I’ll be live tweeting the final afternoon of the #SiteCInjunction after all - it resumes after lunch. See you then. Unfortunately had to miss the morning with the summation from First Nations’ lawyer but will catch up on that later. See website at @WitnessthePeace for summaries
..interesting timing on this StarMetro front page - on the final day of the First Nations #SiteCinjunction hearing in BC Supreme Court, challenging BC Hydro & #SiteC ‘s infringement of Treaty 8. “The Mess That Is BC Hydro” #bcpoli
..We are in the final hours of #SiteCInjunction against #SiteC. This morning, BC Hydro and BC govt lawyers tried to object that First Nations' lawyers points on treaty & aboriginal law were not relevant; judge stated they're relevant. #bcpoli #SiteC
CORRECTION cc @SusanFDe Since I wasn't here I didn't understand the substance of that objection - it was a more procedural/timing thing than details of law. Just FYI. #SiteCInjunction
#SiteCInjunction resumes. BC Hydro lawyer Mark Andrews talking about role of the river in protecting animal populations from predators - saying animals will still use reservoir for that. (But there will be no ice crossing bec reservoir won't freeze & can't cross in summer) #sitec
As we listen to BC Hydro lawyer, it's hard not to be thinking about today's front page story on statements by former civil servants involved with BC Hydro - exposing Hydro's serious mismanagement #siteC #Sitecinjunction #bcpoli
BC Hydro lawyer Mark Andrews now venturing into animal biology and the impact on that of a dam reservoir filling a 100K long valley - trying to argue it won't affect subsistence hunting and other traditional activities. #Sitec #Sitecinjunction
Regarding the way BC Hydro lawyers (& to lesser extent BC & Canada's lawyers) speak about First Nations: selection of more egregious quotes here. In general the conduct of the govt/Hydro lawyers seems openly disrespectful, incl eye-rolling #SiteC #bcpoli witnessforthepeace.ca/updates-from-t…
..The conduct of BC Hydro's lawyers during #SiteCInjunction has been disrespectful enough to spark open letter from Union of BC Indian Chiefs @ubcic ubcic.bc.ca/upholding_comm… & in response a complaint from Amnesty International to AG @Dave_Eby amnesty.ca/news/open-lett… #SiteC #bcpoli
@UBCIC @Dave_Eby cont'd... "Consistent with the UN Declaration, the dam simply should not proceed when free, prior and informed consent has not been given." - @UBCUC #bcpoli #sitec #SiteCInjunction
@UBCIC @Dave_Eby ..And in response to the @UBCIC letter on the highly disrespectful conduct of BC Hydro's lawyers in court for the #Sitecinjunction, Amnesty International Canada @AmnestyNow writes: amnesty.ca/news/open-lett… #bcpoli #SiteC #FPIC #UNDRIP #Reconciliation
@UBCIC @Dave_Eby @AmnestyNow BC Hydro lawyer saying BC Hydro has more than enough ability to deal with impacts. Really? Official enviro assessment has already warned the #SiteC project will bring the highest number of adverse environmental impacts of any project in Canadian history! #bcpoli #Sitecinjunction
@UBCIC @Dave_Eby @AmnestyNow Jokes as we left courtroom for break in #Sitecinjunction. "Is this case about deciding who's doing "irreparable harm" to whom, BC Hydro vs First Nations?!" (Treaty terminology) 2. "If Hydro is talking about irreparable harm to itself, blame the BC Liberals for indebting Hydro!"
@UBCIC @Dave_Eby @AmnestyNow ..BC First Nations watching this #Sitecinjunction case very, very closely #bcpoli #SiteC
@UBCIC @Dave_Eby @AmnestyNow .The #Sitecinjunction hearings are now ended. We await Judge Milman's decision, which it seems will come before end of October. Remember: the injunction is only early phase of larger Treaty 8 infringement case brought by FN against #SiteC, BC Hydro, BC & Canada. #bcpoli #cdnpoli
@UBCIC @Dave_Eby @AmnestyNow Because I missed this morning's final presentation by Reidar Mogerman, @sage_legal counsel for West Moberly & Prophet River First Nations, I'll add to this thread over the weekend once I've reviewed the court video. Thanks for following along this week! #Sitecinjunction #SiteC
