When what happens in the court room is more important right now, than what happens outside.

Posted on by Laila

spincycleForgive my late report on Monday mornings interesting points from BC Hydro’s lawyers in Supreme Court. After picking up a very sick youngster on the way home, I was hit like a ton of bricks Monday night by the same flu.Yesterday was spent on the couch and right now I’m dosed up on Advil while the fever is low to get this done.

The large amount of media attention given to David Suzuki & Grand Chief Stewart Phillip,did not carry over into the courtroom to hear BC Hydro’s statements in court.  Not surprisingly, Site C job fairs organized by BC Hydro for the same day garnered far more press than what happened inside that court room – job fairs that received criticism because they were nothing more than a resume drop off,with no actual hiring or interviews. There is little to no active hiring going on for work underway currently.

treaty82Held in courtroom 52 -a relatively small location that did not allow for the number of people interested in following the proceedings – it was standing room only at the door when I arrived.Much of what was presented was not news  if you have read the notice of claim or affidavits in the case. BC Hydro wants an injunction to remove the defendants and the camp from the Rocky Mountain Fort heritage site, one of the oldest fort sites in British Columbia –  even older than the historic Fort Langley National Historic site here in Metro Vancouver.

But I digress. Hydro wants the peaceful group of Treaty 8 members and local land owners off the site so they can continue clearing. And in amidst the show inherent to courtroom presentations – Andrews often pauses for dramatic effect,letting either his last words hang in the air for impact, or building tension for those to come – there were some very interesting points I want to share with you

  • The land stewards & First Nations at Rocky Mountain Fort camp are preventing  BC Hydros archaeological experts ( from Golder I believe) from coming in  and digging
  • BC Hydro wants to commence clearing of the site where Rocky Mountain Fort camp is located,as they must have it cleared of trees before bird nesting season begins, to save the birds. ( no work can occur during bird nesting season)
  • The site where the land stewards camp is, has been identified by BC Hydro, as the only location where potentially acid-generating waste rock must be dumped, and when covered by water will make good fish habitat. (??)
  • That BC Hydro does actually have a work-around solution for this and has identified an alternative site to dump the rock,but doesn’t wish to do so because of the costs involved.
  • BC Hydro acknowledges a point of contention are the changing justifications for the project ‘ as can and often does happen’ (paraphrased)
  • BC Hydro made a point of mentioning that the Clean Energy Act allows Site C to be built & that the project is in line with the portion of the act that states BC is “to be a net exporter of electricity from clean or renewable resources with the intention of benefiting all British Columbians” ( Part 1, #2 -n, here: ( http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_10022_01#section10 ) 

As Andrews made mention time and time again of all the contentious issues facing this project and why this courtroom was not the place for discussing or considering them,it struck both myself and others who attended, that he specifically addressed  an issue that I have raised several times on social media – BC Hydro’s prior claims in Supreme court,that have been negated by  Premier Clark and Energy Minister Bill Bennett:  ( https://storify.com/lailayuile/site-c-is-not-in-the-best-interests-of-british-col) 

I again, blogged about that issue early Monday morning before court. These prior claims in court largely evaded public scrutiny since it happened during the height of deep summer last August,when anything but court cases are on most peoples minds.  (  https://lailayuile.com/2016/02/22/will-bc-hydro-still-argue-that-the-energy-from-site-c-will-flow-to-british-columbians/ ) 

I remembered, because I wrote about how ridiculous their claims in court were last summer: https://lailayuile.com/2015/08/20/bc-hydro-says-halting-site-c-would-cost-taxpayers-500-million-not-building-it-at-all-will-save-us-over-8-billion-dollars/

Another point that received reaction from those in attendance, was point 2 above in regards to potentially acid generating/leaching rock making good fish habitat. I’m certainly no scientist,but there is a lot of scientific publications on that issue that are contradictory to that. It seemed as if Hydro were grasping at straws Monday, in trying to find reasons to remove the campers, having already acknowledged there was a work around, and that there are still more court cases that have not been ruled on- any which of could stop this project immediately.

The morning hearing ended and court did not resume Monday afternoon or Tuesday morning because the judge wasn’t feeling well. It resumed for two hours yesterday afternoon and continues today with the defense team representing the land stewards. Despite the loss of one afternoon and one morning, I am told the judge made it known he would like to give his ruling Thursday. To me, this seems rushed.

The Rocky Mountain Fort Land stewards have a very strong response to the injunction application, in my opinion. Their expert affidavits are on point as are their reasons for being on site. You can read that response here: http://www.scribd.com/doc/299710142/Defendant-response-to-BC-Hydro-Site-C-injunction

Since the notice of eviction was given to the land stewards under cover of New Years Eve ( https://lailayuile.com/2016/01/02/bc-hydro-issues-rocky-mountain-fort-campers-at-site-c-a-24-hour-eviction-notice-on-new-years-eve/) , I’ve written often and profusely about this saga. 

I feel strongly that the province of British Columbia has been negligent in exempting Site C from independent review of the BC Utilities Commission, the regulatory agency created to do so. Both the premier and duly elected Liberal MLA’s have failed in their inherent duty to act in the best interests of British Columbians on this project.

In addition,by commencing preliminary site preparation despite several outstanding lawsuits by local First Nations against Site C, the province has failed in its duty to consult and honour Treaty 8 and demonstrated a complete lack of regard for due process.

I’m reminded of a passage from a piece done early on by Daphne Bramham today, one that speaks to whats happened here:

“…First Nations people, local landowners and environmentalists pitted against private and public corporations in disputes over the use/misuse of public lands.

There ought to be a better way than this.

And there is. It’s supposed to be due process and the rule of law.

Yet when governments don’t wait for those processes to fully play out or when they rewrite the rules to their own advantage against the perceived public interest, it’s hard to condemn peaceful protests of frustrated citizens as long as they remain peaceful.”

 

19 thoughts on “When what happens in the court room is more important right now, than what happens outside.”

  1. Strange that BC Hydro’s lawyers would not mention time was of the essence since the Premier of the Province of British Columbia has publicly vowed (at a memorial service for a former premier no less) to quickly get the project past the point of no return despite several pending court cases opposing the project, and no demonstrated need for production.

    She seems to think it’s a compelling argument to the public, so why wouldn’t Hydro’s lawyers try it on the judge?

    Liked by 1 person

  2. Haha! It would be refreshing to see that kind of honesty for once. Because that’s the only thing this is about. It’s her vanity project – she wants to be able to say under her leadership, BC started the biggest,costliest project ever done.

    It really doesn’t matter it’s not needed and they went to extraordinary lengths to circumvent process. It’s her legacy.

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  3. The Site C jobs fairs were just a place to drop off resumes, could have been done on line at a substantial savings to workers and contractors alike. More of a sideshow than anything.
    As far as acid-generating rocks is concerned, that should be covered under the Mines Act of BC. Its serious stuff that has to be disposed of properly to prevent damage to fish bearing waters.
    Her legacy needs to be triple deleted along with her.

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  5. It would certainly be nice if we had a sensible person like Rafe Mair in position of Premier. Some one with some common sense. We currently have a plum full of herself dictator that needs to go.

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  6. In Alberta we faced a similar scenario with Altalink expecting
    Taxpayers and subscribers to pay for the construction of a major
    Transmission line to export power to US under the guise of benefiting us! Corporate greed is only exceeded by duped and inept
    governments.

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  7. You’re doing important reporting, Laila—Site-C is the weightiest issue in BC today—it would be no surprise if the journalistic exertion has got you somewhat tuckered, and I respect your level-headed diplomacy in describing the BC Liberals’ exemption of Site-C review as “negligent”—I myself wouldn’t have put it quite so mildly.

    There are numerous solid reasons why Site-C does not, will not, benefit all British Columbians as cited by BC Hydro lawyers who are seeking injunction against a blockading protest camp. But, as I’ve observed throughout Christy’s premiership, absurdity—such as this case where the rationale for spending huge public dollars on the dam has been irrefutably negated by a crashed LNG market which all credible experts expect to last for a long, long time—now substitutes for responsibility.

    It’s increasingly plain that Site-C is nothing more than an elaborate, expensive and economically damaging stage-prop with which this exhausted and ethically bereft government of charlatans intends to beat their NDP rivals over the head with during the next BC election. Christy’s crew has such a poor record—an indefensible one to most people—that nothing smaller than the biggest possible distraction stands a chance of hiding that record from voters; Site-C fits their perfidy to a “T”: a simple, one-note paean like the one Christy thinks won her the last election (I think she’ll find that win was actually by default due to the NDP’s impotent campaign, not to her preposterous LNG whoppers; they were impressive, yes, but nobody really believed them).

    BC Hydro’s case that you’ve outlined oozes disingenuousness: insincere concern for nesting birds—while proposing the eradication of this habitat for all time, for all fauna, including nesting birds; arguing first that protest camp occupies the only place to dump acid-rock spoils—but then admitting that’s not really true, there are alternatives, they just don’t make a case for injunction; That acid-rock-dumpsites are healthy habitats for fish is absurd magnanimity on BC Hydro’s part.

    It’s also inappropriate for BC Hydro’s agents to assess the archaeological
    features of a project about which they are obviously biased; that’s a perceivable opportunity to tamper with data to get what they want. Every assessment of the project should be made by independent third-parties. In short, BC Hydro’s complaint in this regard is as spurious as the others listed in court.

    The lawyer’s near- sotto voce dismissal of the central concern—the changed justification for the now-infeasible project—was a display of presumptuousness that I should think would gall the judge; but, being BC, it wouldn’t be surprising if the issue ends up in the SCoC. Yet it doesn’t really matter as far as the BC Liberal campaign is concerned: it’s satisfactory that every delay can be blamed on the “forces of NO”, the bogus “jobs-fairs” and “prosperity fund” setting the stage for as bitter an ideological war as the BC Liberals can make it.

    It remains to be seen if the electorate will be taken in by the BC Liberals’ self-serving charade, or if it will reject their twisted notion of “benefit”, that is, the loss of prime farmland (some of the highest-latitude agricultural soils in the world), the needless and expensive complication of treaty-negotiation with First Nations (the tone will be poisoned for as-yet-settled treaties in most other regions of BC even though this one, east of the Divide, is already covered by Treaty No.8), the prospect of huge electricity-rate increases to cover LNG revenue that’s simply not there and, of course, the addition of this boondoggle to the provincial debt, already more than tripled under the dys-management of these fiscal charlatans.

    While I’ve yet to meet personally anyone who will defend this project, I do refer interested people to your site here. It seems to me interest is growing—a hopeful sign this far ahead of the election—and I noted John Horgan’s radio address on CBC today did a pretty good job of exposing this breach of public trust too.

    Keep up the good work!

    Liked by 1 person

    1. Thanks Scotty. But why is this such a big issue now? Because after years of stories here and there, this flew under the radar of many in BC, south of the project. A small story here or there, but no big ones. And even when this camp first went up, it wasn’t a big huge news story. And then people really got together, became interested, started reading more and learning more about all the ways the BC and federal government screwed this province over. Yes, they screwed the people of BC over. BC Hydro was found to have mislead proceedings at the BCUC in another matter, and Jessica Campbell was forced to apologize for those lies. Why in the world would anything think that just because they are a crown corporation,they shouldn’t be held to account like the rest of government? That they shouldn’t have transparent and accountable bidding processes?

      Or that because hydro power is ‘ clean’ that suddenly means they shouldn’t have to undergo that review by the BCUC? It’s insane. It’s like saying just because the house you want to buy is eco-friendly, you shouldn’t have a building inspection done to see if that is accurate and if there are any hidden problems. No one would do that. Of course you would have an independent professional do an inspection.

      Same for these so-called clean energy projects. Govt smiles and says ” Its green! Yay!” and so you, the taxpayer loses all benefit of another agency ensuring everything is fine.

      The only reason this is such a big issue now, is because the people there and the people who support them, the groups and organizations and people working for truth and justice and whats bloody well just damn RIGHT…. made it a big issue.

      I have yet to see anyone question Bill Bennett on the veracity of anything he says in the press except at times, the NDP and Horgan. But we need some strong words here.There is stuff going on at that dam work site that is not only questionable, DFO no longer wants to talk about whats going on. Why is that?

      Where the hell is the oversight? The Fed environment minister has absolutely ZERO issue with the secrecy behind the Harper cabinets decision to approve the Environmentl Assessment Certificate, permits issues during the writ and hey, its all ok, we know the builder has to abide by federal rules? Hell no, they have been given a warning once already and there was mud flowing down the river yesterday again. No mitigation. It’s all BS. And because no one has the knowledge to say otherwise ,the story goes ignored here on my site.

      Or maybe its ignored because ” Im just an activist.” Who knows. But when press ignores that things are not as they should be in the very early stages of this project, thats a problem.

      Liked by 1 person

      1. Laila, you’re correct on all accounts, but the one that jars me the most is ” Why in the world would anyone think…they shouldn’t have transparent and accountable bidding processes?”
        They did in the ‘good old days’. Anyone could get hold of the bidding documents. Anyone could follow the bidding process. Anyone could get the bid results. There was a cadre of interested contractors who could and would monitor the successful bidder’s progress, and adherence to the contract documents.
        Not any more. These are all secret, and susceptible to massive manipulations by the ‘preferred’ contractor. Are these happening? You bet your biffy they are!

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  8. the judge works for the provincial government so I would not expect a positive decision. For some of us old enough to remember the land expropriations for other dams and the devastation they created, this is no different. WAC got his dam and so will Christy. Site C, the Clark dam or in this case, may Clark be dammed for building this dam.

    it will go ahead with TFWers and unless the Feds stop it, nothing else will.

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    1. Total agreement .
      A provincial Court judge appointed by the Bc Govt. will either take forever to render a decision while the construction continues to Christy’s “point of no return” . Or the judge will render a decesion that is in favour of the environmentalists and the construction will still continue unabated…………Which raises a question.
      1 or 2 years from now…….Assuming she wins next years’ election……
      If a Supreme Court of Canada decision says ‘Its illegal. Stop building.”
      Will she ignore THATand risk jail?

      As an aside.
      Its interesting that BC Hydro has suddenly “discovered” the archeological significance to the Rocky Mtn. Fort and need “their” people to dig for artifacts before they drown it under hundreds of feet of water never to be viewed by man again.
      Crocodile tears would be so salty……

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  9. They’re trying to tell us that supplying natural gas plants with clean BC Hydro power instead of using natural gas somehow makes them ‘green’.

    Which is total B.S. since all the natural gas gets pumped out and burned anyway. Replacing natural gas with BC Hydro power doesn’t reduce the total amount of GHG going into the air.

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  11. Thumbs up to you Laila for heading downtown to cover this story. One never knows the value of what might be learned in court hearings and too often, it’s not much.

    One continuing problem of citizen journalism: life intervenes. I’d say more but I need to start preparing dinner.

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    1. Well I was intending to be there every day, but like the judge and the defence lawyers, the flu hit our house & hit hard…. so yeah, life intervenes. But being there and having followed the story, I think I found things that were pertinent and highly questionable. More next week.

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  13. Excerpt – 2014 Tsilhqot’in Nation decision of the Supreme Court of Canada on Aboriginal Title. The court stated:

    “90 After Aboriginal title to land has been established by court declaration or agreement, the Crown must seek the consent of the title-holding Aboriginal group to developments on the land. Absent consent, development of title land cannot proceed unless the Crown has discharged its duty to consult and can justify the intrusion on title under s. 35 of the Constitution Act, 1982. The usual remedies that lie for breach of interests in land are available, adapted as may be necessary to reflect the special nature of Aboriginal title and the fiduciary obligation owed by the Crown to the holders of Aboriginal title.”

    This is an approach that reflects to a certain degree the decisions arising from the Pre-Confederation Treaties cases. It is important to point out the significance of the departure here from the Crown’s mere duty to consult prior to decision making. Does the Aboriginal Title decision go as far as ousting provincial jurisdiction as it has with Treaty cases? No – but it does massively constrain Crown decision making once Aboriginal Title is established. In particular, it says that projects that proceeded without consent, may have to be cancelled once Title is established:

    “92 Once title is established, it may be necessary for the Crown to reassess prior conduct in light of the new reality in order to faithfully discharge its fiduciary duty to the title-holding group going forward. For example, if the Crown begins a project without consent prior to Aboriginal title being established, it may be required to cancel the project upon establishment of the title if continuation of the project would be unjustifiably infringing. Similarly, if legislation was validly enacted before title was established, such legislation may be rendered inapplicable going forward to the extent that it unjustifiably infringes Aboriginal title.”

    The court provides the answer to this uncertainty in its direction to how governments and companies should proceed even prior to Aboriginal Title being established – get First Nations consent:

    “97 I add this. Governments and individuals proposing to use or exploit land, whether before or after a declaration of Aboriginal title, can avoid a charge of infringement or failure to adequately consult by obtaining the consent of the interested Aboriginal group.”

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