DOOR OF SECRECY AJAR
West Moberly's new court-ordered access to Site C material puts New Democrats on heels
The West Moberly First Nations have obtained court-ordered access to much of the material that the New Democrats have withheld from the public on the safety and cost overruns at the troubled Site C project.
B.C. Supreme Court Justice Warren Milman made the ruling last week in response to an application from West Moberly Chief Roland Willson. They sought the information as part of their legal action that tries to halt construction on B.C. Hydro's Site C dam on grounds that it violates their treaty rights and poses a threat to their traditional territories along the Peace River in northeastern B.C.
The judgment gives West Moberly access to the complete Peter Milburn report. He's the former deputy minister who the New Democrats appointed late last summer to review Site C after a substantial geotechnical instability turned up under the foundations for the generating station, spillway and the earth-fill dam itself.
Milburn and an eight-member team spent several months reviewing the project, interviewing some 50 key players and assembling more than 5,000 documents, some of them “especially generated to assist us in understanding complex issues.” Milburn submitted a final report with ample supporting documentation and 17 recommendations to the NDP cabinet on Dec. 12, two weeks after the postelection reorganization of the government.
The New Democrats then asked Milburn to reduce the findings to a summary report, stripping out the most telling material including commercial information, cabinet confidences and the other sensitive documents that went into shaping the conclusions. The bare bones summary was released to the public in February, at the same time as Premier John Horgan announced that Site C would be completed — albeit a year behind schedule and at a cost of $16 billion, up $5.3 billion from when the New Democrats decided to continue construction in 2017.
West Moberly applied to the court for disclosure of the full Milburn report on grounds that dam safety was central to their effort to halt the project. The projected final cost of Site C could presumably relate to claims of restitution for damage to Indigenous rights and territory.
B.C. Hydro and the provincial government fought the action with their usual penchant for secrecy regarding Site C. The province argued that the material sought by West Moberly was already on the public record or irrelevant. Hydro put forward the novel argument that at no stage in the proceedings would the court be called on to determine whether the dam is being built in a manner that is safe or cost effective.
Justice Millman sided with West Moberly, ruling that the safety and cost factors were relevant. If the dam were indeed unsafe, that could constitute a violation of treaty rights. The court might also have to balance the risk of catastrophic dam failure against the project cost of completing the project.
“It would be premature for me to decide at this stage whether those will indeed be found to be relevant conclusions,” he added. “That is an issue for trial. For the present, it is sufficient that they are raised by the (West Moberly) pleadings and therefore at least potentially relevant.”
The judge did not grant access to all the material sought by West Moberly, such as documents dealing with the failure of oversight or the NDP government's internal responses as the latest problem with Site C unfolded.
“The answers to such questions are unlikely to shed very much light on the matters that are truly at issue in this litigation,” he wrote. “The potentially relevant issues concern the long-term safety of the dam when it is completed and the final cost of completing it.”
To that end, he ordered the government to hand over the full Milburn report, including Treasury Board documents and commercial confidential information as well as appendices. He left it to West Moberly and Chief Willson to specify any other documents they are seeking. But for clarity's sake “any other reports or studies that speak to the safety of the dam once completed should be produced as and when they are prepared.”
While the decision represents a breakthrough for West Moberly in preparing its case — which is set to go to full-blown trial a year from now — it is not clear if any of this material will be made public.
The New Democrats, as a fallback position, claimed that much of the sought-after material was protected by the principle of “public interest immunity,” being confidential material prepared for decision-making by the cabinet.
Millman noted that the relevant consideration is whether the court can be persuaded that “the public interest in keeping the document confidential outweighs the public interest in its disclosure.”
But rather than rule on a document-by-document basis, he directed the parties to try to reach agreement on a way to vet the claim of public interest immunity while preserving cabinet confidentiality. “If the parties are unable to agree on the precise language to be used in the proposed agreement, they may seek a further ruling from me to resolve the dispute.”
Alternatively, the New Democrats could reverse themselves, release much of what they have been hiding, and do so in the interest of a better informed public. But silly me — that is as likely as Site C being finished on time and on budget.