Judge rules against B.C. Hydro in its bid to force disclosure from First Nations in Site C dam injunction case

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      Many British Columbians are under the impression that there's no turning back on the $10.7-billion Site C dam.

      That seemed to be the message last December when NDP premier John Horgan announced "with a heavy heart" that the project would be completed.

      But the legal skirmishes haven't ended.

      There's still a lawsuit before the courts, which was filed by West Moberly First Nations and Chief Roland Willson against the B.C. government and B.C. Hydro.

      The First Nations plaintiffs have applied for an interlocutory injunction to halt construction of the Site C dam pending a trial hearing their claims.

      And on July 11, the plaintiffs won a procedural ruling in B.C. Supreme Court. 

      Justice Warren Milman dismissed B.C. Hydro's application to strike the following section of the notice of civil claim: "The Crown’s solemn promises, in the context in which they were provided, guarantee the Plaintiffs’ rights to meaningfully: (c)  maintain access to resources and places which have a unique and central significance to their hunting, fishing, and trapping, or other aspects of their mode of life."

      In addition, B.C. Hydro failed in its bid to strike down the following parts of sections 40 and 41 of the First Nations' notice of civil claim:

      * 40.  Completion of the Site C Dam will result in the flooding of an additional 83 km of the Peace River. Another Reservoir will be created west of the Site C Dam to Peace Canyon Dam. Amongst other impacts, Site C and the associated reservoir will: (i)  disrupt boat and shore-based fishing and practices along the proposed reservoir and Moberly river;

      * 41.  The Site C Dam, in conjunction with the ongoing impacts from the Bennett and Peace Canyon Dams, will result in: (d)  disruption and curtailment of the continuity of West Moberly’s patterns of activities; (e)  loss of West Moberly’s preferred means of exercising their Treaty Rights.

      B.C. Hydro argued without success that the plaintiffs failed to satisfy the requirements of an earlier court order by Justice Grace Choi, which required them to identify more specific locations.

      In this week's ruling, Milman acknowledged that Choi's order "appears to contemplate the plaintiffs’ identifying locations with greater specificity".

      "Nevertheless, it is open to the plaintiffs, as a matter of pleading, to identify the geographical scope of the allegation they make as broadly as they have, given how they have chosen to define the 'patterns of activities' to which they refer and the 'preferred means' of exercising their treaty rights," Milman added. "I also agree with the plaintiffs that if there is a discrepancy between the pleadings and the evidence and arguments that will be put forward on the injunction application, that is a factor that will have to be considered in assessing the merits of the injunction application."