Late last month, in order for work to continue on BC Hydro’s Site-C Clean Energy Project in northeastern BC, federal Fisheries and Oceans Minister Dominic LeBlanc and Transport Minister Marc Garneau issued regulatory permits under the Fisheries, and Navigation Protection acts, respectively, in fulfillment of an earlier 2014 federal commitment.
I have fielded many phone calls on this matter and have heard much criticism, given the on-going First Nations court cases pertaining to Site-C, that with these permits the Prime Minister has failed in his promises to protect indigenous rights and to deal with First Nations on a nation-to-nation basis.
Some constituents have also voiced concerns about the loss of agricultural land, or that beyond the greenhouse gas benefits the environmental costs are too high, the energy isn’t needed, will be too expensive, or that there are better ways to produce it.
I’d like to take this opportunity to respond to these concerns.
Who’s in Charge?
It is a common perception that the federal government is “above” the provincial governments, and responsible for keeping them in line or to supervise them in some way. This is not the case.
In Canada, federal and provincial governments have constitutionally-defined separate powers (and some shared).
Within their respective exclusive areas, each government is sovereign and is neither responsible-for nor accountable-to any other government; in areas of provincial jurisdiction, the federal government simply cannot tell provincial governments what to do.
Federal vs Provincial Powers
The constitution establishes federal authority in terms of all that is NOT exclusively provincial, and exhaustively lists those exclusively-provincial things.
In particular, the provinces have exclusive jurisdiction over “development, conservation and management of electrical generating sites and facilities”: Site C, for example.
Within this non-provincial-powers envelope, “for greater certainty,” some federal powers are also explicitly stated, such as: “Indians, and Land reserved for the Indians,” “Navigation and Shipping,” and “Sea Coast and Inland Fisheries.” Other things, such as the environment — though not stated, but being not given to the provinces — become federal responsibilities as well.
I submit that these federal powers cannot override exclusive provincial powers — because the provincial powers define the federal powers and their scope.
In other words, if we were to get into a tractor pull between the provinces’ exclusive jurisdiction over “development, conservation and management of electrical generating sites and facilities,” vs federal jurisdiction over any or all of “Indians and Land reserved for the Indians,” “Navigation and Shipping,” “Sea Coast or Inland Fisheries,” or the environment, I’d put my money on the provinces every time.
In the end, the federal government has few levers regarding Site C. We can act on the environment, navigable waters, and fisheries, and even on indigenous matters, but only to such extent as we do not infringe exclusive provincial jurisdiction.
2014 Federal Approval
Within these constraints, federal environmental approval was given in 2014 by the previous government, which also committed to Fisheries and Navigation regulatory approvals subject to the Fisheries and Navigation Protection acts.
In our election platform we committed to honouring contracts and commitments of previous governments. This is because those who act in good faith according to one government’s commitments should have a reasonable expectation of continuity when governments change. It should be only in truly extraordinary circumstances that this does not happen.
Granting of Permits
Accordingly, the federal Department of Fisheries and Oceans (DFO) conducted a thorough science based review of all information available, as well as consulting with environmental experts on the potential impacts of fish habitats in the region. Also, per our commitment to engage with indigenous communities on natural resource projects, DFO consulted affected indigenous groups and key stakeholders. While “significant adverse effects to fish and fish habitat” were identified, it was determined that these can be managed with appropriate conditions.
Similarly, the federal Department of Transport conducted its review under the Navigation Protection Act, and also consulted affected indigenous groups. BC Hydro is required to conduct ongoing collaboration, dialogue, and information sharing with indigenous groups in the region, and to fund indigenous participation in this process. BC Hydro is further required to adhere to conditions that protect and preserve navigation on the waterways near the project, including traditional indigenous transportation routes.
In keeping with these analyses, the relevant legislation, and following-through on the 2014 federal commitment, these two regulatory permits were therefore issued, with conditions. The respective departments will be monitoring the project on an on-going basis to ensure compliance, and to ensure that impacts on fisheries and navigation are minimized.
Rule of Law
Yet, as mentioned, there are many who wanted the federal government to step in and stop the project based on our commitments to the environment, our commitments to a healthy nation-to-nation relationship with our first peoples, or for other reasons — who are disappointed or angered that these permits were issued. But in good faith, within the law, we could not do otherwise.
We are a country and a government committed to the rule of law. This means that the law must apply to each government as well as to everyone else.
Our governments must act in good faith, within the law, and must not deliberately conflate things in which they do have jurisdiction with others in which they do not. If they act otherwise, we rightfully complain of abuse of power, and call them corrupt.
This means that decisions in respect of fisheries and navigable waters jurisdictions must be decided in terms of fisheries and navigable waters — not in terms of agricultural land use, or whether we really need the energy, whether we think Site C is a good idea, whether we think the First Nations’ court cases have merit, or because we want to await the outcome of these cases — or for whatever other reason one might want to oppose or delay the project.
Ultimately, this is a BC provincial project under BC provincial authority.
Cost vs Benefit?
“Around the world, climate change is an existential threat…” — Ban Ki-moon
“Sea levels are rising… Longer, more intense droughts threaten crops, wildlife and freshwater supplies… our planet’s diversity of life is at risk…” — WWF
“Glaciers that feed our clear mountain streams and great rivers, bringing life to alpine forests and meadows, and watering our lush plains and valleys, are retreating… As verdant, fertile land turns to sere, barren desert, will our grandchildren see dust blowing through our empty farms and orchards, once bustling cities and towns empty and abandoned, topsoil drifting through gaping doors and empty windows?… Will they see our great highways, bridges and soaring interchanges run-down and overrun, leading nowhere… ?” — Ron McKinnon
It is clear that this project will bring significant benefits in terms of clean energy and future energy requirements, which requirements will only increase as our population grows and as we continue to shift away from fossil fuels.
It is also clear that it will entail significant costs, whether in terms of money, or in land-use, forestry, environmental, and First Nations impacts.
In the end it must be answered: will the benefits outweigh the costs?
This is the essential question, a value judgment — it’s a tough call but a call that was up to the BC government to make, which they did. They decided that, yes, from a BC public policy perspective, the benefits will indeed outweigh the costs.
In addition, making the call in favour of significant climate-change benefits, as this does, mitigates serious risks of greater future losses of coastal land, cities, and infrastructure due to rising seas, or harms to watercourses and agriculture or other land-uses due to loss of glaciation, a warmer dryer climate, and altered weather patterns.
You might disagree, or you might feel that there are other, better ways, to harvest this energy — and I urge you to address these concerns with the BC government; but for this project, they’re really not in the wheelhouse of the federal government or of the Prime Minister.
Beyond that, there remains great concern about whether the affected First Nations were meaningfully consulted in this process. The independent review panel and the BC and federal governments, say yes. First Nations groups, say no.
This is an important question, another essential question. Who is right? I don’t know, but in a civil society where no party to a dispute is superior to any other — such as in a healthy nation-to-nation relationship — when the parties can’t find agreement among themselves the place to deal with such matters is in court, where evidence can be presented, arguments made, respective law and precedent applied, and the question fairly adjudicated.
Since this is a provincial project under provincial authority, however, the primary duty of care, and the disputes themselves, are with the provincial Crown.
Letting such cases run their courses without the pot being further stirred by the federal government insinuating itself beyond its jurisdiction, such as by denying fisheries or navigable waters permits for non-fisheries or non-navigable-waters reasons, is the respectful, civil approach; a healthy, nation-to-nation approach.
Loud and Clear
Nevertheless, I have heard your concerns, loud and clear, both in regard to First Nations’ rights, and as to the financial and environmental cost. As your voice in Ottawa, I have communicated these concerns to Ministers LeBlanc and Garneau.
“The Site C Clean Energy Project (Site C) will be a third dam and hydroelectric generating station on the Peace River in northeast B.C.
“Site C will provide 1,100 megawatts (MW) of capacity, and produce about 5,100 gigawatt hours (GWh) of electricity each year — enough energy to power the equivalent of about 450,000 homes…
“The Site C project received environmental approvals from the federal and provincial governments in October 2014, then got the green light from the Province of B.C. in December, 2014.
“Construction of the project started in summer 2015 and will be completed in 2024.
“Site C will be a source of clean, reliable and affordable electricity for more than 100 years.” — BC Hydro
- “The realignment of six segments of Highway 29 over a total distance of 30 kilometres.
- “Two new 500 kilovolt AC transmission lines that will connect… along an existing right-of-way.
- “An 800-metre roller-compacted-concrete buttress to enhance seismic protection.
- “An earthfill dam, approximately 1,050 metres long and 60 metres high above the riverbed.
- “A generating station with six 183 MW generating units.
- “An 83-kilometre-long reservoir that will be, on average, two to three times the width of the current river.” — BC Hydro
Joint Review — Summary
“Despite high initial costs, and some uncertainty about when the power would be needed, the Project would provide a large and long-term increment of firm energy and capacity at a price that would benefit future generations…
“It would do this in a way that would produce a vastly smaller burden of greenhouse gases than any alternative save nuclear power…
“Significant adverse effects on fish and fish habitat, and a number of birds and bats, smaller vertebrate and invertebrate species, rare plants, and sensitive ecosystems…
“The Project would significantly affect the current use of land and resources for traditional purposes by Aboriginal peoples, and the effect of that on Aboriginal rights and treaty rights generally will have to be weighed by governments…
“It would end agriculture on the Peace Valley bottom lands, and while that would not be significant in the context of B.C. or western Canadian agricultural production, it would highly impact the farmers who would bear the loss…
“The Project would inundate a number of valuable paleontological, archaeological, and historic sites…” — Review Panel
Joint Review — Agricultural Land
“… the Project would permanently occupy 6,469 hectares (ha) of Classes 1-7 land, of which approximately 3,816 ha are Classes 1-5 (capable of cultivated use)… The loss of improved Classes 1-5 lands due to the Project would represent 18.7 percent of such lands within the Peace River valley, 0.1 percent within the Peace agricultural region, and effectively zero percent within the province. Considering higher capability Classes 1 and 2 (improved), the permanent land loss due to the Project would represent 20.5 percent of such lands within the Peace River valley, 2.4 percent within the Peace agricultural region, and 0.6 percent within the province.
“There is no Class 1 land in the Project activity zone. There are 2,601 ha of Class 2 (unimproved) capability in the Project activity zone of which 318 ha is privately owned and the rest is either Crown Land or owned by BC Hydro. Permanent losses would include an estimated 541 ha of currently cultivated land and 1,183 ha of land within current grazing licence or lease areas.
“Limited effects related to water table rise were anticipated because the majority of cultivated lands are located more than 1 metre above the reservoir levels.” — Review Panel
Joint Review — Farms
“A total of 34 farm operations of various sizes would be affected by the Project…
“The Proponent determined that 14 of these farms would permanently lose some cultivated land. BC Hydro was not able to calculate the permanent loss of cultivated land for five farms. Approximately 541 ha of currently cultivated lands are within the Project activity zone (PAZ). The three operations that would experience the greatest effect would have approximately 18, 58, and 62 percent of currently cultivated land remaining. A further three operations would have between 80 and 89 percent remaining, and three operations would have between 90 and 99 percent remaining. Nine operations would experience a permanent loss of grazing land. Losses would range from 0.003 to 72.5 percent of the total area. Five of those tenures would lose less than 5 percent of the total tenure area.” — Review Panel
Joint Review — Aboriginal Rights
“Site C would be constructed, and virtually all of the physical effects of the Project would occur, on land expressly included in Treaty 8. There are 21 First Nations who assert rights under Treaty 8 that may be affected by the Project. These 21 First Nations also assert Aboriginal rights under section 35(1) of the Constitution Act, 1982…
“T8FNs articulate several potential specific negative impacts to their Aboriginal or treaty rights from Site C, including,
- inundating land they currently use for traditional hunting and gathering medicinal plants,
- inundating islands that are important refuges for preferred species,
- severing access and migration routes that are important for preferred species,
- changing the mix of fish stocks from preferred river species to less desirable species that will inhabit the reservoir,
- causing mercury contamination of fish in the reservoir,
- causing drying of the Peace-Athabasca Delta, and
- creating access for others to compete with them on their traditional lands.
“First Nations downstream of the Project, in particular those with interests in the Peace Athabasca Delta (PAD), were critical of BC Hydro’s decision not to extend the spatial boundary for downstream assessment to include the PAD.” — Review Panel
Treaty 8 — Aboriginal Use
Treaty No. 8, 1899:
“… And Her Majesty the Queen HEREBY AGREES with the said Indians that they shall have right to pursue their usual vocations of hunting, trapping and fishing throughout the tract surrendered as heretofore described, subject to such regulations as may from time to time be made by the Government of the country, acting under the authority of Her Majesty, and saving and excepting such tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading or other purposes….”
Treaty 8 — Appropriation
Treaty No. 8, 1899:
“… It is further agreed between Her Majesty and Her said Indian subjects that such portions of the reserves and lands above indicated as may at any time be required for public works, buildings, railways, or roads of whatsoever nature may be appropriated for that purpose by Her Majesty’s Government of the Dominion of Canada, due compensation being made to the Indians for the value of any improvements thereon, and an equivalent in land, money or other consideration for the area of the reserve so appropriated…”
2014 Federal Decision
“The Site C project… underwent a thorough independent federal-provincial review by an independent panel. This process included extensive, meaningful and respectful consultations with the public and Aboriginal groups.
“The environmental assessment process provided the scientific and technical expertise and the effective engagement of the public and Aboriginal groups to enable an informed decision by both governments.
“The proposed Site C project is an important one for British Columbia and for Canada as it will support jobs and economic growth while providing clean, renewable energy over the next 100 years.
“The Site C Clean Energy Project will translate into about 10,000 direct person-years of employment from now until 2024 and when indirect and induced jobs are added in, that figure climbs to 29,000 person-years of employment.
“This decision will benefit future generations. Over the life of the project, Site C is expected to help mitigate the growth in greenhouse gas emissions in Canada by preventing the discharge of between 34 to 76 megatonnes of CO2 equivalent…
“There are over 80 legally binding conditions that must be fulfilled by the proponent, BC Hydro, throughout the life of the project in compliance with the Canadian Environmental Assessment Act, 2012. Failure to meet these conditions is a violation of federal law…
“The proponent will be required to seek out a variety of federal regulatory approvals from the Department of Fisheries and Oceans (Fisheries Act) and Transport Canada (Navigation Protection Act) and a variety of provincial regulatory approvals. These regulatory approvals will be required throughout various stages in the project.” — 2014 News Release