"Aboriginal title confers on the group that holds it the exclusive right to decide how the land is used and the right to benefit from those uses, subject to one carve-out - the uses must be consistent with...the enjoyment of the land by future generations."
- Supreme Court of Canada, June 26, 2014
Shortly after the Supreme Court of Canada found in favour of the Tsilhqot'in First Nation's claim to Aboriginal title over Crown land within its territory, the Fraser Institute called it a "game changer" and well it might be.
The decision sets a precedent for any Canadian First Nation that can prove "regular and exclusive use" of its claimed territory "before the assertion of British Sovereignty in 1846." As an aside and purely to satisfy my curiosity, it would be interesting to know whether the issue of a statute of limitations was settled during the court's deliberations. Whatever the answer, I predict there will be an avalanche of Canadian and international court cases citing the Supreme Court decision.
Indeed, as News reporter Jeremy Shepherd noted on Nov. 23, the supreme court declaration of Aboriginal title for the Tsilhqot'in has already cooled Ministry of Forests' inclination to award controversial logging rights on Gambier Island. Logging cannot happen now without first consulting the Squamish Nation.
For now, though, the $8 billion question looming over the province is this: What effect might the supreme court decision have in the Peace River Valley where Treaty 8 and two Alberta First Nations have already filed suit against the Site C proposal?
West Vancouver Coun. Craig Cameron, a lawyer who specializes in aboriginal issues, said, "Other First Nations still have many legal, evidentiary and practical challenges ahead of them to prove their claims to title in court, especially in cases where two or more bands have overlapping claims to a territory."
From another perspective, what value might the Supreme Court place on the title to farmland that has been held in fee simple for almost 100 years by Renee Ardill and earlier generations of her family?
Ardill and her farming neighbours Ken and Arlene Boon are members of the Peace Valley Landowners' Association that has filed a B.C. Supreme Court petition to quash the Oct. 14 environmental assessment certificate that would allow BC Hydro to flood 13,000 hectares of farmland - nearly 4,000 hectares of which is in the Agricultural
Land Reserve - in order to build Site C.
The PVLA and First Nations have an unexpected ally in their opposition to the project - an ally who may wake up everyone in the province as to the consequences of the dam project. Saying BC Hydro has not made a sound business case for Site C, the Association of Major Power Customers of B.C. strongly opposes the project. Executive Director Richard Stout - formerly a chief regulatory officer with BC Hydro - said the association has "absolutely no confidence that (Site C) is the least-cost plan."
This suggests that, if/when the intensive power use by AMPCBC members results in significant increases in cost of production, those costs would be passed on to residential and commercial consumers who are already being hit with higher rates for the electricity they use in their homes and small businesses.
Now let's continue the discussion about the potential for geothermal energy as an alternative to Site C that I began two weeks ago.
The day before that column was published, the Canadian Geothermal Energy Association released its 58-page report: Geothermal Energy: The renewable and cost-effective alternative to Site C. That evening, CanGea chairwoman Alison Thompson emphasized, "Geothermal has the potential to provide firm energy at a lower cost than Site C in a manner that benefits ratepayers, taxpayers, the economy and the environment..."
Noting that geothermal power has a smaller carbon footprint than Site C, the report lists 10 key advantages over the dam, including:
- lower capital and per unit electricity costs, higher job creation
- costly BC Hydro transmission upgrades are avoided or minimized;
- geothermal plants can be built to meet demand and offer a means to "green" mining and oil and gas operations.
CanGea is urging the provincial government to defer any decision on Site C for at least a year to allow for a full evaluation of the alternatives - especially geothermal - and to allow the B.C. Utilities Commission to conduct a full appraisal of the Site C proposal.
In view of the current state of the provincial budget and debt, and bearing in mind other major infrastructure projects that are looming over us, the CanGea report and recommendations not only make eminent good sense, they deserve a full and fair evaluation.
Furthermore, a 12-month - or longer - moratorium on Site C would allow the B.C. Supreme Court time to decide the merits of the First Nations and PVLA cases. Better yet, the cases themselves might want to stand down until BCUC issues its verdict.
Together, CanGea and the Tsilhqot'in decision have given everyone involved time for sober second thought on Site C and offer reasons for hope to the hearts of the many British Columbians who oppose it.
