EXAMINING THE FACTS

Court vindications of Site C set the record straight, Caroline Elliott writes.

A war of words is being waged in the media about the Site C dam. Again and again, selective information that purports to tell the ‘real story’ about the project is put forward, often with misleading results. For readers who don’t have time to delve into the details about Site C, it’s understandably difficult to separate fact from fiction.

Luckily, there is a reliable source of information about the project, a rare case of veritable facts about a controversial issue in a world of ‘fake news,’ means-justifies-the-ends activism and socialmedia-induced ideological isolationism.

That source is the courts, where time and again the evidentiary record of the Site C project has been examined in detail. With the B.C. Court of Appeal’s decision earlier this month, a total of nine provincial or federal judicial reviews related to Site C have been discontinued or decided in favour of the project, and three appeals have likewise been dismissed, allowing construction to continue.

The repeated dismissals of challenges to the project are no coincidence. At issue in these proceedings have been substantive questions about whether or not the consultation undertaken in relation to Site C was adequate and in good faith, and whether or not the decisions approving the project were justified.

And in every judicial decision, the same conclusion has been reached: Site C’s record of diligence is substantive, the federal and provincial decisions to proceed were reasonable, and no evidence has been presented by project critics to date that would justify a change in course.

The Site C case has now been heard by multiple different judges in multiple different courts at multiple different levels. The decisions issued were made based on the impartial consider- ation of evidence presented by both sides of the Site C debate, a compelling testament to the rigour of the Site C decision process.

Still, this column itself could be seen as just one more voice in the Site C media debate. It’s therefore worth letting a few of the judgments speak for themselves.

From the B.C. Supreme Court:

• “The decision of the ministers was a reasonable one given the legal and factual framework within which it was made” (Peace Valley Landowner Association v. British Columbia, July 2015).

• “In this case the petitioners have failed to demonstrate that the ministers proceeded without a reasonable basis for their conclusions” (Prophet River First Nation v. British Columbia, September 2015). From the Federal Court:

• “In my view, B.C. Hydro’s consultation has been extensive and conducted in good faith” (Prophet River First Nation v. Canada, August 2015)

And from this month’s unanimous, three-judge decision from the B.C. Court of Appeal (Prophet River First Nation v. British Columbia):

• “The consultation with the appellants was by any account deep and extensive. It could not be characterized as anything less … It suffices to say that, on its face, the record reflects the extent of consultation and accommodation that appears reasonable in the circumstances.”

• “B.C. Hydro did consult meaningfully on the issues identified by the appellants; in particular, First Nations were provided a meaningful opportunity to make submissions, have those submissions considered and engage in discussions concerning alternatives. On the record, it simply cannot be said the Crown failed to discharge the duty of consultation and accommodation it owed.”

So, while commentary in the media by project critics continually questions the review process for Site C, it’s worth bearing in mind that this matter has been tested vigorously and repeatedly by the courts, with findings in every case allowing the project to move forward.

It’s time, then, to correct the notion that Site C is somehow lacking in diligence and thus ‘plagued’ by legal controversy. To be sure, an active few have been persistent in their criticisms, and have pursued their concerns through legal means. And in a liberal democracy, the ability to express those views publicly, in the media and through litigation, is an important right enjoyed by everyone regardless of their stance.

The media battle around Site C will therefore endure, even as the issue continues to be considered in judicial reviews, in appeals and in appeals of appeals. But by and large, the decade of good practice undertaken during the development stage for Site C is serving it well when it comes to the courts.

The considered legal judgments that have allowed this thoroughly vetted project to proceed are an island of clarity in an overwhelming sea of confusion and misinformation.

The Site C case has now been heard by multiple different judges in multiple different courts at multiple different levels.