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OF BRITISH COLUMBIA VANCOUVER REGISTRY
No•~·========~-S~l~9~50~7~0 Victoria Vancouver Registry
SEP 2 5 2019
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THE SUPREME COURT OF BRITISH COLUMBIA
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WEST MOBERLY FIRST NATIONS, and ROLAND WILLSON ON HIS OWN BEHALF AND ON BEHALF OF ALL OTHER WEST MOBERLY FIRST NATIONS BENEFICIARIES OF TREATY NO. 8 PLAINTIFFS AND: HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF BRITISH COLUMBIA, THE ATTORNEY GENERAL OF CANADA, and BRITISH COLUMBIA HYDRO AND POWER AUTHORITY DEFENDANTS
AMENDED NOTICE OF CIVIL CLAIM This action has been started by the plaintiff(s) for the relief set out in Part 2 below. If you intend to respond to this action, you or your lawyer must (a)
file a response to civil claim in Form 2 in the above-named registry of this court within the time for response to civil claim described below, and
(b)
serve a copy of the filed response to civil claim on the plaintiff(s).
If you intend to make a counterclaim, you or your lawyer must (a)
file a response to civil claim in Form 2 and a counterclaim in Form 3 in the abovenamed registry of this court within the time for response to civil claim described below, and
(b)
serve a copy of the filed response to civil claim and counterclaim on the plaintiff(s) and on any new parties named in the counterclaim.
JUDGMENT MAY BE PRONOUNCED AGAINST YOU IF YOU FAIL to file the response to civil claim within the time for response to civil claim described below.
Time for response to civil claim A response to civil claim must be filed and served on the plaintiff(s), (a)
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if you were served with the notice of civil claim anywhere in Canada, within 21 days after that service,
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(b)
if you were served with the notice of civil claim anywhere in the United States of America, within 35 days after that service,
(c)
if you were served with the notice of civil claim anywhere else, within 49 days after that service,
(d)
if the time for response to civil claim has been set by order of the court, within that time. CLAIM OF THE PLAINTIFFS
Part 1: STATEMENT OF FACTS The Parties The Plaintiffs 1.
The plaintiff West Moberly First Nations ("West Moberly") is a "band" as defined in the
Indian Act, RSC 1985, c I-5, and is an "Aboriginal people" within the meaning of section 35 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. West Moberly is one of the successor First Nations to the Hudson's Hope Band of Indians, (the “Hudson’s Hope Band”), who adhered to Treaty No. 8 in 1914. 2.
The plaintiff RonaldRoland Willson is the duly elected Chief of West Moberly, a
registered Indian, and a member of West Moberly. He brings this action on his own behalf and as a representative on behalf of all other West Moberly beneficiaries of Treaty No. 8. The Defendants 3.
The defendant Her Majesty the Queen in Right of the Province of British Columbia
("British ColumbiaProvince") is named in this proceeding pursuant to s. 7 of the Crown Proceedings Act, RSBC 1996, c 89, and is that emanation of the Crown that holds the beneficial interest to the lands and waters material to the issues in this proceeding, subject to the interests of the Plaintiffs. 4.
British ColumbiaThe Province has power to manage and regulate the lands and waters
material to the issues in this proceeding pursuant to ss. 109, 92(5) and 92A of the Constitution Act, 1867, and subject to s. 35 of the Constitution Act, 1982 and Treaty No. 8.
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5.
The defendant British Columbia Hydro and Power Authority ("BC Hydro") is a British
Columbia Crown corporation, continued pursuant to s. 2 of the Hydro and Power Authority Act, RSBC 1996, c 212, and is for all its purposes an agent of the government of British Columbia in accordance with s. 3 of the Hydro and Power Authority Act, RSBC 1996, c 212. British ColumbiaThe Province is responsible for the actions of BC Hydro undertaken as British Columbia's agent. 6.
The defendant Attorney General of Canada is the representative of Her Majesty the
Queen in right of Canada ("Canada"), and is named as a defendant in this proceeding pursuant to section 23(1) of the Crown Liability and Proceedings Act, RSC 1985, c C-50. Canada is that emanation of the Crown that has power to manage and regulate the lands and waters material to the issues in this proceeding pursuant to s. 91 of the Constitution Act, 1867, including its jurisdiction over navigation and shipping, sea coast and inland fisheries, and "Indians, and Lands reserved for the Indians", subject to s. 35 of the Constitution Act, 1982 and Treaty No. 8. Treaty No. 8 7.
Treaty 8 (or the "Treaty")No. 8 is a treaty within the meaning of s. 35 of the Constitution
Act, 1982. 8.
In 1889 the Crown, by Order-in-Council, appointed commissioners empowered to
negotiate Treaty No. 8 (the “Commissioners”). 9.
Treaty No. 8 was originally made and concluded in 1899 at Lesser Slave Lake between
Her most Gracious Majesty the Queen of Great Britain and Ireland ("the Crown")the Crown and the Chief and Headmen of the Indians of Lesser Slave Lake and adjacent country. The (the “Original Aboriginal Treaty wasSignatories”). 10.
The Original Aboriginal Treaty Signatories had no authority to bind other Aboriginal
peoples within the geographical boundary of Treaty No. 8 to that treaty, or to otherwise affect or limit their rights. 7.11.
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Canada ratified Treaty No. 8 by Order in Council 363 on February 2, 1900.
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12.
At the time the Crown and the Original Aboriginal Treaty Signatories negotiated Treaty
No. 8, the Crown had claimed sovereignty over the lands covered by Treaty No. 8, despite the pre-existing occupation of the lands by Aboriginal peoples. The Honour of the Crown bound the Crown’s servants, including the Commissioners, to negotiate Treaty No. 8 in a manner that upheld the Honour of the Crown. 13.
The Honour of the Crown and the fiduciary relationship between the Crown and the
Original Aboriginal Treaty Signatories created enforceable obligations on the Crown in respect of the negotiation of Treaty No. 8, including but not limited to obligations to negotiate in good faith and to refrain from any sharp dealing, or the appearance thereof. 14.
The Crown and the Original Aboriginal Treaty Signatories negotiated and concluded
Treaty No. 8 orally, before it was reduced to writing. 15.
In exchange for the rights granted to the Crown under Treaty No. 8, the Commissioners
made the following oral representations to the Original Aboriginal Treaty Signatories (the “Oral Terms): a) the same means of earning a livelihood would continue after Treaty No. 8 as existed before it; b)
only such laws as to hunting and fishing as were in their interest and were found necessary in order to protect the fish and fur-bearing animals would be made;
c) they would be as free to hunt and fish after Treaty No. 8 as they would be if they never entered into it; d)
Treaty No. 8 would not lead to any forced interference with their mode of life.
16.
The Oral Terms form part of Treaty No. 8.
17.
Treaty No. 8 also guaranteed the Original Aboriginal Signatories continuing rights “to
pursue their usual vocations of hunting, trapping and fishing throughout the tract surrendered” (the “Harvesting Right”).
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18.
The rights provided under Treaty No. 8 include such ancillary and incidental rights as are
reasonably or meaningfully related to the Harvesting Right and Oral Terms (the “Incidental Rights”). 19.
Under Treaty No. 8 the Crown acquired a discretionary power to exclude from the land
available for exercise of the Harvesting Right and Incidental Rights such land as “may be required or taken up from time to time for settlement, mining, lumbering, trading or other purposes” (the “Taking Up Power”). 20.
The parties to Treaty No. 8 did not understand or intend that the Crown could exercise
the Taking Up Power in a manner inconsistent with the Harvesting Right, Incidental Rights and the Oral Terms. 21.
The Crown never represented to the Original Aboriginal Treaty Signatories that it could
use the Taking Up Power to dam the Peace River to interfere with navigation on the Peace River or its tributaries. 22.
At the time of the signing of Treaty No. 8, the Crown and the Original Aboriginal Treaty
Signatories never formed the common intention that the Crown could use the Taking Up Power in this way. 23.
Instead, the Commissioners represented that the rivers and lakes of the country covered
by Treaty No. 8 would be the principal highways of the region, and that the treaty would “last as long as the grass grew, the river ran, and the sun shone”. 24.
The Crown also never represented to the Original Aboriginal Treaty Signatories that it
could use the Taking Up Power to construct a dam and subsequently flood large tracts of land which the Original Aboriginal Treaty Signatories had traditionally used for hunting, trapping, fishing, gathering, travel, ceremonial, teaching, commercial, religious/spiritual, purposes related to a traditional economy, or other purposes. 25.
At the time of the signing of Treaty No. 8, the Crown and the Original Aboriginal Treaty
Signatories never formed the common intention that the Crown could use the Taking Up Power in this way.
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The Hudson Hope Adherence 26.
Subsequent to the signing of Treaty No. 8 at Lesser Slave Lake, the Commissioners,
collectively or individually, and other representatives of Canada met with certain other First Nations in Treaty No. 8 lands who signed or took the benefit of Treaty No. 8 (First Nations who signed or took the benefit of Treaty No. 8 are referred to as “Treaty No. 8 First Nations”). 8.27.
In 1914, members of the Hudson's Hope Band of Indians, Dunne-za ancestors of the
present-day West Moberly, adhered to Treaty 8 (the “West Moberly Hudson’s Hope Ancestors”) were added to the Treaty No. 8 paylist (the “Hudson’s Hope Adherence”) as members of the Hudson’s Hope Band. 28.
Treaty 8 created In inviting the West Moberly Hudson’s Hope Ancestors to adhere to
Treaty No. 8, and accepting such adherence, the Crown and its servants were in a fiduciary relationship with the West Moberly’s Hudson’s Hope Ancestors and were bound to act in a manner that upheld the Honour of the Crown. 29.
The Crown required and sought the consent of the West Moberly Hudson’s Hope
Ancestors to open those tracts of land within Treaty No. 8 that the Crown wished to use for the purposes permitted under the Taking Up Power. 30.
The West Moberly Hudson’s Hope Ancestors agreed to the opening of tracts of land, but
only as permitted by Treaty No. 8 and only in exchange for the full benefit of the treaty, including all the Oral Terms. 9.31.
As a result of the Hudson’s Hope Adherence, Treaty No. 8 is a source of reciprocal rights
and obligations on the part of West Moberly and the Crown. 10.
The Crown required and sought the consent of West Moberly's ancestors to open the tract
of land which the Crown wished to use and inhabit for settlement and other activities. 11.
The Plaintiffs' ancestors gave this consent in exchange for the solemn promises made by
the Crown, including that:
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a) entrance into Treaty 8 would not lead to forced interference with the Plaintiffs' mode of life; b) the same patterns of activity would continue for the Plaintiffs' ancestors and their descendants after the Treaty as existed before it; and c) the Plaintiffs would be as free to hunt, trap, and fish as they had been before entering the Treaty. Centrality of the Peace at the time of Treaty 12.
At the time of their adherence to Treaty 8, the Peace River was the central river in the
region, navigated by the Dunne-za, other Indigenous peoples, settlers, and trappers. For West Moberly's ancestors, the Peace River was not merely a "river highway" or resource from which they drew. The Peace River, its islands, surrounding lands, and confluences with certain tributaries, including the Finlay, Parsnip, and Moberly Rivers (collectively the "Peace"), was unique and central to the mode of life and cultural landscape of the Plaintiff's ancestors, which defined their history, knowledge, and traditional practices. The Plaintiffs' ancestors used and relied upon the Peace for their hunting, trapping, fishing, gathering, navigation, habitation, teaching, and ceremonial, spiritual, cultural and other traditional practices. 13.
In entering into Treaty 8, the Plaintiffs' ancestors would not and could not have
understood that the Crown could "take up" or destroy the Peace. Such activity was not contemplated by the terms of the Treaty, nor did the Crown ever communicate this as part of negotiations or otherwise. Treaty Rights 14.
The Crown's solemn promises, in the context in which they were provided, guarantee the
Plaintiffs' rights to meaningfully: a) continue their mode of life, including patterns of activity and occupation, without forced interference;
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b) maintain and access teaching, cultural, spiritual, and community gathering sites in order to pass on the Plaintiffs' mode of life; 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; d) hunt, fish, gather, and trap within their traditional territory, which includes travel on and access to the lands, habitat, ecosystems, trails, waters, and other infrastructure of the Peace; e) maintain their practical, cultural, and spiritual connection to the Peace; and f)
conduct traditional, cultural, and spiritual activities at or in connection with the Peace (the "Treaty Rights").
15.
Pursuant to Treaty 8, the Defendants' obligations include the obligation: a) to act honourably, ensuring that the enactment of regulations and the taking up of land do not interfere with the Plaintiffs' continued meaningful exercise of Treaty Rights; b) to manage and protect the lands designated under the Treaty, and adjacent lands, including the waters and ecosystems within those lands, in such a way as to: i. minimize impacts on Treaty Rights, and ii. ensure the continued meaningful exercise of Treaty Rights by the Plaintiffs; c) not to displace the Plaintiffs, forcibly interfere with their mode of life, or permit the doing of these things; d) not to interfere with the Plaintiffs' traditional patterns of activities; and e) not to interfere, or allow others to interfere, with the Plaintiffs' meaningful exercise of Treaty Rights.
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West Moberly and the Peace 16.
After adherence to Treaty 8, the Peace continued to have a unique and central
significance to the practices and mode of life of the West Moberly and their Dunne-za ancestors. The Plaintiffs and their ancestors maintained a physical, practical, cultural, and spiritual connection to the Peace. The Peace is necessary for the meaningful exercise of some or all of the Plaintiffs' Treaty Rights. 32.
At the time of the Hudson’s Hope Adherence, the Crown never represented to West
Moberly Hudson’s Hope Ancestors that they would be entitled to terms of Treaty No. 8 less favourable than those enjoyed by the Original Aboriginal Treaty Signatories or by any First Nation that had subsequently signed or taken the benefit of Treaty No. 8. 33.
In particular, and without limiting the generality of the foregoing, the Crown did not
represent to the West Moberly Hudson’s Hope Ancestors that the phrase “or other purposes” within the Taking Up Power would be given a broader interpretation conferring more power on the Crown than was agreed to as between the Crown the Original Aboriginal Treaty Signatories or any First Nation that subsequently signed or took the benefit of Treaty No. 8, and the Crown never represented that the Oral Terms would not apply to the West Moberly Hudson’s Hope Ancestors. 34.
The Crown never represented to the Treaty No. 8 First Nations, including the West
Moberly Hudson’s Hope Ancestors, that it could use the Taking Up Power to dam the Peace River and interfere with navigation on that waterway or its tributaries. 35.
At the time of the Hudson’s Hope Adherence, the Crown and West Moberly’s Hudson’s
Hope Ancestors never formed the common intention that the Crown could use the Taking Up Power in this way. 36.
Nor did the Crown ever represent to the Treaty No. 8 First Nations, including the West
Moberly Hudson’s Hope Ancestors, that it could use the Taking Up Power to construct a dam and subsequently flood large tracts of land that Treaty No. 8 First Nations had traditionally used for hunting, trapping, fishing, gathering, travel, ceremonial, teaching, religion/spirituality, purposes related to a traditional economy, or other purposes.
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37.
At the time of the Hudson’s Hope Adherence, the Crown and West Moberly Hudson’s
Hope Ancestors never formed the common intention that the Crown could use the Taking Up Power in this way. 38.
Pursuant to the Harvesting Right and Incidental Rights, the plaintiffs have specific and
cognizable interests in the Treaty No. 8 lands over which they exercise these rights. Under Treaty No. 8, the Crown assumed discretionary control over these lands and interests, to the extent permitted by the Taking Up Power. 39.
Treaty No. 8 First Nations, including the West Moberly, are peculiarly vulnerable to
Crown exercises of discretion under the Taking Up Power. 40.
The Taking Up Power provides the Crown with a limited discretion to affect the exercise
of the traditional mode of life of First Nations who have signed or adhered to Treaty No. 8. 41.
The Crown is under a fiduciary obligation to exercise its power and/or discretion under
the Taking Up Power with loyalty and care to Treaty No. 8 First Nations, including the plaintiffs. 42.
The Honour of the Crown and the Crown’s fiduciary duty towards Treaty No. 8 Nations
oblige the Crown to abide by Treaty No. 8’s Oral Terms. 17.43. In 1916, the Crown in right of Canada designated and approved a reserve on the west side of Moberly Lake for the use and benefit of the Hudson's Hope Band of Indians, following their adherence to the Treaty No. 8 (the "Reserve"). Moberly Lake is linked to the Peace River via the Moberly River. 18.44. In 1971, when the Hudson's Hope Band of Indians split into the West Moberly and the Halfway River First Nation, the Crown retained the Reserve for the use and benefit of West Moberly.
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The Seasonal Round Since time immemorial, and at all material times before and after, West Moberly’s seasonal round, as described in paragraphs 46-69Damming of the Peace River 45.
British Columbia, has always been a vital and central part of their mode of life (the
“Seasonal Round”). The Seasonal Round is essential to West Moberly preserving and continuing the mode of life and the traditions, customs, and practices of their ancestors. 46.
The Seasonal Round is the means by which, or through which, West Moberly managed
their territory, lived on the land, and gathered resources from different areas of their territory based on their traditional knowledge of the land and waters, wildlife and fish. 47.
This traditional knowledge encompasses: a) Dreams; b) Traditional land governance and management; and, c) Ecological knowledge.
48.
Hunting, fishing, trapping, gathering, healing, spiritual, and religious practices are
integral to the Seasonal Round. 49.
As part of the Seasonal Round, West Moberly members traditionally travelled to
preferred areas of their territory, individually or in family groups, during certain times of the year based on their traditional knowledge of, among other things, behaviour and habitat of species. Location, seasons, and species matter in the Seasonal Round; hunting for one species in one location at one time may not be interchangeable with hunting for another species at another place at another time. 50.
West Moberly’s traditional systems of managing the land and resources guided when,
where, why, and what hunting, fishing, trapping, and gathering occurred during the Seasonal Round. Pursuant to these traditional systems, community hunters adjusted hunting patterns in order to conserve populations. In that way, the Seasonal Round can be practiced in a manner that
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conserves the resources for future generations, and practices can be adjusted in a manner that is led by, and consistent with, traditional knowledge. Hunting, Fishing, Trapping and Gathering and the Seasonal Round 51.
Through practice of the Seasonal Round, West Moberly continued the traditions,
customs, and practices of their ancestors associated with hunting, fishing, trapping, and gathering, including teaching of oral history, including notably through storytelling. 52.
In order to continue the traditional practices of the Seasonal Round, the maintenance of
all species of plants and animals traditionally living in the area is important. This is both because West Moberly has a spiritual connection to all things native to their territory, and because all native species play a role in balancing and maintaining the delicate ecosystem of the area. 53.
As part of the Seasonal Round, West Moberly traditionally hunted for wildlife species,
including caribou, elk, moose, goat, big horn sheep, cougar, bison and bear. 54.
As part of the Seasonal Round, West Moberly traditionally fished for fish species,
including arctic grayling, rainbow trout, bull trout, dolly varden and mountain whitefish. 55.
As part of the Seasonal Round, West Moberly traditionally engaged in trapping,
including for muskrat, beaver, fisher, wolverine and otter. 56.
As part of the Seasonal Round, West Moberly traditionally gathered medicines.
Traditional knowledge concerning medicine was passed along as a component of the Seasonal Round, including through ceremonies and dreams. West Moberly traditional protocols require that medicine be collected in areas free of disturbance, such as elevated noise and dust levels. 57.
As part of the Seasonal Round, West Moberly traditionally gathered plants including
blueberries, saskatoon berries, spruce, birch, horsetail and wild onions. 58.
As part of the Seasonal Round, West Moberly traditionally gathered wildlife (e.g., antlers
sheds, bones), vegetation (e.g., trees for cabins, branches and limbs for trapping and camping), and other resources (e.g., stones for ceremony, and rocks for traditional tools).
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The Peace and the Seasonal Round 59.
The Seasonal Round is fundamentally connected the Peace River, and to its islands,
banks, and confluences with certain tributaries, including the Finlay, Parsnip, Halfway, and Moberly rivers (collectively, the “Peace”). Since time immemorial, the Seasonal Round has been conducted on and over the lands along the Peace. The Peace was the main river highway through West Moberly’s territory, and was used as such as by West Moberly and their ancestors as part of the Seasonal Round. 60.
At the time of the Hudson’s Hope Adherence to Treaty No. 8, the Peace River was the
central river in the region, navigated by the West Moberly Hudson’s Hope Ancestors, other Aboriginal peoples, settlers, and trappers. For West Moberly's ancestors, the Peace was unique and central to the Seasonal Round and their mode of life. The Peace was critical to their history, knowledge, and identity, to their dreams, prophecies, and other spiritual and ceremonial practices, and to their hunting, trapping, fishing, gathering, navigation, habitation, teaching, and traditional land management practices. 61.
Since adherence to Treaty No. 8, the Peace has continued to have a unique and central
significance to the Seasonal Round and mode of life of West Moberly. West Moberly and their ancestors maintained, and to the extent possible, in light of the many impacts discussed below, West Moberly continues to maintain, a physical, cultural, and spiritual connection to the Peace. Knowledge Transfer and the Seasonal Round 62.
The Seasonal Round was the primary means through which traditional hunting, trapping,
gathering, and fishing practices were taught by older generations to younger generations. 63.
The passage of knowledge between members of West Moberly and from one generation
to another through the Seasonal Round is critically important to West Moberly’s ability to continue to practice the Seasonal Round and to exercise the Harvesting Right. 64.
The Seasonal Round enabled meaning fundamental to West Moberly identity to be
conveyed from one generation to the next through the passing down of knowledge, traditions, customs, and practices.
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65.
The Seasonal Round has always been an integral part of the conveyance of oral history
amongst members of West Moberly. The oral history of West Moberly is fundamentally tied to the geography, with many places being identified by the stories that are told about and in relation to those places. When places where the Seasonal Round was previously practiced are flooded or otherwise made unavailable to West Moberly, or when species traditionally harvested by West Moberly are no longer available to them, the transfer of oral history, traditional knowledge and management practices connected to those places and species amongst members of West Moberly and between generations is disrupted and oral history is lost. Spiritual / Religious Practice and the Seasonal Round 66.
Traditional spiritual and religious beliefs of West Moberly have been practiced and
transmitted as between generations as a component of the Seasonal Round. 67.
West Moberly, including individual West Moberly beneficiaries of Treaty No. 8,
sincerely believe that the spiritual practices conducted during, and the beliefs which guide and are transmitted through, the Seasonal Round are based on their sacred connection with the land, all its inhabitants, and the Creator, and that these beliefs and practices have a nexus with religion. 68.
West Moberly practiced and acted in accordance with these beliefs at sites throughout the
Seasonal Round. Sacred sites where beliefs are or have been traditionally practiced include burial sites, graveyards, birthplaces, eagles’ nests, sites of vision quests and spiritual journeys, and battle sites. 69.
The sites where spiritual, religious and healing practices are or have been conducted must
maintain a culturally appropriate setting and a culturally appropriate condition in order to remain effective and meaningful. The Seasonal Round Currently 70.
West Moberly endeavours to maintain the ability to continue to lead a traditional mode of
life, including the ability to continue the Seasonal Round. However, West Moberly’s ability to continue the practices that make up the Seasonal Round has been significantly limited by disturbances in their territory since the Hudson Hope Adherence, including the Bennett Dam,
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Peace Canyon Dam, construction of the Site C Dam, and the Other Disturbances (each defined below in this claim). The Plaintiffs’ Rights Under Treaty No. 8 71.
The Honour of the Crown and the Crown’s fiduciary relationship with Treaty No. 8 First
Nations require that the Crown act in a way that accomplishes the common intended purpose of Treaty No. 8. 72.
The Harvesting Right, the Oral Terms, and the Incidental Rights relevant to this
proceeding guarantee the Plaintiffs continuing rights to meaningfully: a) continue the Seasonal Round, so as to continue the mode of life of their ancestors; b) hunt, fish, trap, and gather in a manner guided by and consistent with traditional knowledge as part of the Seasonal Round; c) travel on and along the banks of the Peace as part of the Seasonal Round, including to visit and share knowledge of hunting, fishing, trapping and spiritual and religious practices with other members of West Moberly and other neighbouring Dunne-za peoples; d) travel throughout West Moberly’s traditional territory by way of the Peace; e) exercise a riparian right of access and navigation to and over the Peace; f)
continue the spiritual and religious practices that form part of the Seasonal Round;
g) convey knowledge among members and between generations through the Seasonal Round; h) hunt, fish and trap each of the species traditionally harvested by West Moberly and its ancestors; i)
gather food and medicine traditionally harvested by West Moberly and its ancestors;
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j)
manage wildlife resources according to traditional conservation principles;
k) earn a livelihood from traditionally harvested resources; and l)
maintain access to and use of the ecosystems that are traditionally part of West Moberly’s territory (collectively, the “Treaty Rights”).
73.
In the alternative, if Treaty No. 8 does not guarantee the plaintiffs rights to continue
spiritual and religious practices and/or convey knowledge among members, the plaintiffs have existing aboriginal rights to continue these activities that have not been extinguished by Treaty No. 8, and cannot be infringed by the Crown’s exercise of the Taking Up Power. 74.
The Treaty Rights include the right of the plaintiffs to occupy lands within the territory
covered by Treaty No. 8 for the purpose of exercising their Treaty Rights, including a right of exclusive occupation over campsites constructed and/or used in a manner reasonably incidental to the exercise of the Treaty Rights. 75.
The Treaty Rights include a profit à prendre exercisable by the plaintiffs within the
territory covered by Treaty No. 8 for the purpose of exercising their Treaty Rights. 76.
Pursuant to Treaty No. 8, the Crown has an obligation to manage and protect the lands
designated under the treaty, and adjacent lands, including the waters and ecosystems within those lands, in such as a way as to minimize impacts on West Moberly’s Treaty Rights, and ensure that the plaintiffs are able to continue meaningfully exercising the Treaty Rights. 77.
The Peace was and (for those portions that remain) continues to be of unique and central
significance to the plaintiff’s Treaty Rights because it is the core river system running through West Moberly’s territory and, as such, is integral to everything around it: wildlife corridors, wildlife habitat, old growth forest and associated habitat, fish habitat, transportation, cultural and spiritual sites, community gatherings, and for the Seasonal Round. As such, the Peace is necessary to the meaningful exercise of the plaintiffs’ Treaty Rights. The Bennett Dam
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19.78. The Province has enacted and enactsimplemented, and does enact and implement, legislation governing the production, transmission, distribution, and regulation of electricity in British Columbia. 20.79. In or around 1962, British Columbiathe Province created BC Hydro as a Crown corporation, in part to enable the development of hydroelectric construction projects on the Peace River. 21.80. In or around 1968, BC Hydro completed the W.A.C. Bennett Dam at the head of the Peace River Canyon ("Bennett Dam"), approximately 50 km northwest of the Reserve. 22.81. The Bennett Dam flooded the Peace River to the north and west of the dam, as well as large portions of the Parsnip and Finlay Rivers, as well as numerous tributaries (the “Three Rivers and Tributaries”), to create British Columbia'sColumbia’s largest reservoir, the Williston Reservoir. The Bennett Dam and Williston Reservoir caused extensive changes to the environment and landscape in and around the Peace River systemThree Rivers and Tributaries, flooding lands previously used by wildlife and the West Moberly, and resulting in a fundamental change to the aquatic ecosystem. The construction of the Bennett Dam and the creation of the Williston Reservoir significantly impacted, and continuecontinues to significantly impact West Moberly's, the plaintiffs’ ability to meaningfully exercise their Treaty Rights. 23.82. British ColumbiaThe Province and Canada granted the necessary, or were required to grant, approvals for BC Hydro to construct the Bennett Dam, but failed to adequately consult with or accommodate West Moberly. or West Moberly’s predecessor, the Hudson’s Hope Band. 83.
BC Hydro’s construction of the Bennett Dam and consequential flooding and other
disturbances, including but not limited to the construction of the dam and associated works, the building of roads, and the ongoing operation and maintenance of the facilities, infrastructure, and land holdings, has interfered and continues to interfere with the ability of the plaintiffs to exercise their Treaty Rights. 84.
The construction of the Bennett Dam, and the flooding to create the Williston Reservoir,
significantly contributed to a drastic reduction in caribou populations within the lands over which West Moberly conducted the Seasonal Round. As a result of this reduction in the caribou {}
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population and changes to the species’ distribution, and in accordance with a decision by West Moberly elders, West Moberly is no longer able to hunt caribou as part of the Seasonal Round. 85.
The construction of the Bennett Dam, and the flooding to create the Williston Reservoir,
has destroyed trails and waterways West Moberly and their ancestors used for travel through the area as part of the Seasonal Round and to exercise their Treaty Rights. 86.
The construction of the Bennett Dam, and the flooding to create the Williston Reservoir,
has caused fish that are fished within West Moberly’s territory to become less safe or unsafe to eat, as a result of, inter alia, increased levels of methylmercury. 87.
The construction of the Bennett Dam, and the flooding to create the Williston Reservoir,
has created a risk, or materially contributed to a risk, of dam failure or earthquake, which, if it materialized, would lead to catastrophic damage to lands West Moberly exercises Treaty Rights upon. 88.
The Bennett Dam, including related components and the Williston Reservoir, destroyed
West Moberly traplines. 89.
As a result of the operation of the Bennett Dam, the flooding of the Three Rivers and
Tributaries and surrounding lands, and the existence of the associated reservoir, the defendants have been enriched through the receipt of revenue in the form of, inter alia, proceeds of sale of electricity and tax receipts. 90.
As a result of the operation of the Bennett Dam and the existence of the Williston
Reservoir, the plaintiffs have suffered the loss of the ability to meaningfully exercise some or all of their Treaty Rights in areas affected by the Bennett Dam and the Williston Reservoir. The Peace Canyon Dam 24.91. In or around 1980, BC Hydro completed the Peace Canyon Dam on the Peace River, approximately 21 km downstream from the Bennett Dam near the foot of the Peace River Canyon. The Peace Canyon Dam is approximately 25 km north of the Reserve.
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25.92. The Peace Canyon Dam flooded the section of the Peace River between the Peace Canyon Dam and the Bennett Dam, forming the Dinosaur Lake Reservoir over lands previously used by wildlife and the West Moberly, and resulting in a fundamental change to the aquatic ecosystem. Construction of the Peace Canyon Dam and creation of the Dinosaur Reservoir significantly impacted and continuecontinues to significantly impact West Moberly'sthe plaintiffs’ ability to meaningfully exercise their Treaty Rights. 26.93. British ColumbiaThe Province and Canada granted the necessary, or were required to grant, approvals for BC Hydro to construct the Peace Canyon Dam, but failed to adequately consult with or accommodate West Moberly. 94.
The construction of the Peace Canyon Dam and consequential flooding and other
disturbances, including but not limited to the construction of the dam and associated works, the building of roads, and the ongoing operation and maintenance of the facility, has interfered and continues to interfere with the ability of the plaintiffs’ to exercise their Treaty Rights in that area. 95.
The construction of the Peace Canyon Dam, and the flooding to create the Dinosaur
Reservoir, has caused fish that are fished within West Moberly’s territory to become less safe or unsafe to eat, as a result of, inter alia, increased levels of methylmercury. 96.
The construction of the Peace Canyon Dam, and the flooding to create the Dinosaur
Reservoir, has destroyed trails and waterways West Moberly and their ancestors used for travel through the area as part of the Seasonal Round and to exercise their Treaty Rights. 97.
The construction of the Peace Canyon Dam, and the flooding to create the Dinosaur
Reservoir, has created a risk, or materially contributed to a risk, that a dam failure or earthquake which, if it materialized, would lead to catastrophic damage to lands West Moberly exercise Treaty Rights upon. 98.
The Peace Canyon Dam, including related components and the Dinosaur Reservoir,
destroyed caribou habitat. 99.
The Peace Canyon Dam, including related components and the Dinosaur Reservoir,
destroyed West Moberly traplines.
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100.
As a result of the operation of the Peace Canyon Dam and the existence of the associated
reservoirs, the defendants have been enriched through the receipt revenue in the form of, inter alia, proceeds of sale of electricity and tax receipts. 101.
As a result of the operation of the Peace Canyon Dam and the existence of the Dinosaur
Reservoir, the plaintiffs have suffered the loss of the ability to meaningfully exercise some or all of their Treaty Rights in areas affected by the Peace Canyon Dam and the Dinosaur Reservoir. Other Disturbances in the Plaintiff’s Territory 102.
In addition to the dams, there exist a broad array of other land uses and activities in West
Moberly’s territory. These include, but are not limited to: a) Thousands of kilometers of pipelines; b) Thousands of oil and gas wells; c) Thousands of kilometers of roads; d) Thousands of kilometres of seismic lines; e)
Thousands of hectares of clear cuts;
f)
Non-aboriginal hunting;
g) Non-aboriginal fishing; h) Private lands and settlement; i)
Railway lines and infrastructure;
j)
Transmission and power lines;
k) Agricultural land uses and activities development; l)
Windfarms and development activities;
m) Hydraulic fracturing;
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n) Mines and mining development; and o) Activity related to and incidental to industrial development, human settlement, and other anthropogenic activities (collectively, the “Other Disturbances”). The Site C Dam 27.103.
By 1978, BC Hydro had identified the Site C, hydroelectric dam (“Site C Dam”),
approximately 7 km southwest of Fort St. John, as a potential location for a third dam on the Peace River. In 1980, BC Hydro applied for an Energy Project Certificate to initiate Site C Dam construction. BC Hydro's application was referred to the British Columbia Utilities Commission ("BCUC"), the independent agency responsible for regulating electric utilities pursuant to the Utilities Commission Act, SBC 1980, c. 351. In 1983, the BCUC recommended against issuance of an Energy Project Certificate until future demand forecasts could justify an immediate start to construction, and only after consideration of energy supply alternatives demonstrated that Site C Dam would be the best project to meet anticipated shortfalls. The BCUC was also “concerned about the cumulative impacts of hydro development on a particular river basin”. The BCUC recommended that any determination of these matters be referred to the BCUC for further consideration. 28.104.
BC Hydro did not receive authorization to initiateconstruct the Site C Dam
construction at that time. 105.
BC Hydro continued to consider the Site C projectDam internally in subsequent decades.
In or around the late 2000sapproximately 1989, BC Hydro began meetingcommenced preparations for a possible new application for conditional approval of an Energy Project Certificate for Site C. However, in 1992, the BC Hydro Board of Directors decided not to include Site C in its 20-year Electricity Plan. The BC Hydro Board of Directors rejected Site C because of business and economic considerations, as well as the expected impacts on the environment and aboriginal and treaty rights. 106.
In 2007, BC Hydro completed a Stage 1, Review of Project Feasibility, which involved
reviewing existing studies and historical information about the proposal for the Site C Dam.
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29.107.
In the fall of 2007, BC Hydro moved to Stage 2, Consultation and Technical
Review, which involved some consultations with interested or affected individuals, including the general public and some First Nations about Site C.. 30.108.
In 2010, through s. 7(1)(d) of the Clean Energy Act, SBC 2010, c 22, British
Columbiathe Province exempted the Site C Dam from requiring a certificate of public convenience and necessity from the BCUC under the Utilities Commission Act. 31.109.
In 2010, BC Hydro moved to Stage 3, the Environmental and Regulatory Review
stage, where it began submitting itsthe Site C Dam project plans for regulatory and environmental reviews, including under the British ColumbiaColumbia’s Environmental Assessment Act, SBC 2002, c 43, and the Canadian Environmental Assessment Act, SC 1992, c 37. A Federal-Provincial Joint Review Panel was established in August 2013 but was not mandated to consider whether the electricity to be produced at Site C was required, whether other means were available to meet British Columbia's energy needs, or whether Site CDam would infringe West Moberly'sthe plaintiffs’ Treaty Rights. 32.110.
In May 2014, the Joint Review Panel concluded that the Site C Dam would have
significant adverse environmental effects and significant adverse effects on West Moberly that could not be mitigated. 33.111.
In October 2014, Canada issued its Environmental Assessment Decision
Statement, revised and re-issued on November 25, 2014 under s. 54 of the Canadian Environmental Assessment Act, 2012, SC 2012, c 19, approvingauthorizing the Site C Dam with conditions. Canada has issued, or is expected to issue, further approvals to permit the construction of the Site C Dam. 34.112.
On October 14, 2014, British Columbiathe Province issued an Environmental
Assessment Certificate for the Site C Dam. 35.113.
In December 2014, British ColumbiaBC Hydro moved through Stage 4, when BC
Hydro and the Province made its final investment decision in favour of the Site C. British Columbia Dam. The Province has issued, or is expected to issue, further approvals to permit the construction of the Site C Dam. {}
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114.
At or around the time Canada and the Province issued these approvals, the plaintiffs’
Treaty Rights had been severely compromised by the accumulated impacts from the Bennett Dam and Williston Reservoir, the Peace Canyon Dam and the Dinosaur Reservoir, and the Other Disturbances (the “Existing Impacts”). 115.
Additional industrial development, settlement, and other human activities reasonably
foreseeable at the time of these approvals were expected to add to and compound the effect of the Existing Impacts (collectively, the “Cumulative Impacts”). 36.116.
In issuing their approvals for the Site C Dam, neither British Columbiathe
Province nor Canada assessed or made a determination of whether the Site C Dam, either on its own or in combination with the Cumulative Impacts, would infringe West Moberly'sthe plaintiffs’ Treaty Rights. 37.
On August 2, 2017, by way of Order in Council 244 ("OIC 244") pursuant to s. 5(1) of
the Utilities Commission Act, RSBC 1996, c 473, the Lieutenant Governor in Council requested the BCUC to advise in respect of Site C. OIC 244 did not permit the BCUC to consider: a) whether BC Hydro's demand forecast is accurate; b) the full range of energy supply alternatives; c) whether a certificate of public convenience and necessity should issue; or d) whether Site C infringes Treaty rights. 38.
On November 1, 2017, the BCUC reported in accordance with OIC 244 and advised that
BC Hydro's demand forecast could be satisfied through an alternative portfolio of assets and other mitigation strategies, and that the potential cost to ratepayers of this alternative portfolio would not necessarily be greater than the expected costs associated with Site C. 39.
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On December 11, 2017, British Columbia announced its decision to complete Site C.
24
117.
The defendants expect to receive revenue from the operation of hydroelectric facilities at
the Site C Dam in the form of, inter alia, the sale of electricity and tax receipts, including the export of electricity. 118.
Stage 5, construction of Site C, commenced in July 2015.
Specific impacts of the Site C Dam 40.119.
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:. 120.
Another reservoir will be created upstream of the Site C Dam, extending up to the Peace
Canyon Dam. Amongst other impacts, the Site C Dam, related components, and the associated reservoir will: a) destroy the existing aquatic ecosystem and result in an unnatural waterbody with a new aquatic ecosystem and different composition of fish communityand a nonnative fish species; b) destroy fish habitat; b) reduce fishcause a reduction in ungulate populations in West Moberly territory; c) allow further intrusion of sport hunters into West Moberly territory; d) negatively change fish species distribution and composition in around the Peace, Halfway, and Moberly rivers and tributaries; c)e) affect the density of fish harvested under the Treaty Rights, making it more difficult to find and catchharvest fish in the reservoir; d)f) increase mercury levels in the reservoir for at least 15 to 25 years, with bioaccumulationleading to increased bio-accumulation of methylmercury in fish;
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e)g) flood the lower reaches of several tributaries, including 11.6 km of the Moberly River, which will become methylating, resulting inintroducing fish moving upstream into Moberly Lake with the sameincreased methylmercury concentration levels as in the reservoir itself;into the Moberly River, Halfway River and their tributaries and lakes within West Moberly’s territory; f)h) pose a risk to human health through methylmercury contaminationbioaccumulation if fish are consumed in accordance with West Moberly's traditional practices; i)
cause a loss of value of commercial rights to the species of fish with increased methylmercury bio-accumulation;
g)j) extirpate multiple fish species preferred by West Moberly and introduce an invasive fish species into the Moberly River, Halfway River, and their tributaries; h)k) prevent West Moberly from harvesting preferred species of fish; l)
destroy traditional ecological knowledge of West Moberly related to harvesting and managing, and teaching how to harvest and manage, the fish species in the Seasonal Round to subsequent generations.
i)m) disrupt boat and shore-based river fishing and practices along the proposed reservoir and, Moberly River, Halfway River, and their tributaries; j)n) destroy at-risk and sensitive communities, including wetlands, riparian and floodplain forests, tufa seeps, and mark fen used by West Moberly as part of the Seasonal Round; k)o) destroy plants gathered by West Moberly for spiritual, medicinal, and food purposes; l)p) destroy critical habitat for caribou, weakening the prospects for the recovery of caribou already facing extirpation as a result of the cumulative impacts of the Bennett Dam, Peace Canyon Dam, and other development in the region;
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26
m) pose significant risk to the survival of other at-risk species; n)q) inundatedestroy or restrict access to habitation sites associated with the exercise of the plaintiffs’ Treaty Rights; o)r) destroy spiritual and cultural sites, including those used for harvesting, gatherings, and teachings; p)s) inundate traditional trails, navigation routes, and spring water sources important to West Moberly when using the land to exercise Treaty Rights; andand the Seasonal Round; t)
destroy culturally modified trees;
q)u) exclude or undermine West Moberly's ability to hunt and trap preferred species in a unique and centrally significant areain flooded areas, and require members to travel to more distant or less suitable lands and waters to pursue hunting and trapping.; v) destroy sites, locations, and areas with place names; w) cause an increase in other development in the area, including increased hydraulic fracturing with associated environmental and seismic risks; x) cause the destruction or loss of ancestral belongings and places of rest; and y) create a risk, or materially contribute to a risk, of dam failure or earthquake, which if it materialized , would lead to catastrophic damage to lands West Moberly exercises Treaty Rights upon. 121.
Without limiting the generality of the foregoing, the Site C Dam will result in the
destruction or otherwise interfere with a number of sites of religious significance to West Moberly, and interfere with the ability of members of West Moberly to act in accordance with religious practices or beliefs at and in connection with these sites, including: a) Canoe in Bush (confluence of the Halfway River and Peace River);
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27
b) Bear Flat; c) Vision Quest Island; d) Dancing Rock e) Dreamer’s Island; f)
Inner islands of the Peace;
g) Various eagles’ nests; and h) Sites containing ancestral belongings (archaeological sites). 122.
Without limiting the generality of the foregoing, the Site C Dam will result in the
destruction or otherwise interfere with many sites that form part of West Moberly oral history, resulting in the loss or significant impairment of the ability of West Moberly to maintain and transmit that history to new generations. 123.
The defendants each individually expect to profit from the operation of the Site C Dam.
124.
The cumulative impact of the Bennett Dam, Peace Canyon Dam, and Site C Dam is to
turn the Peace into a series of reservoirs, destroying the unique cultural and ecological character of the Peace and severing the physical, practical, cultural and spiritual connection West Moberly has with the Peace. Infringement of Treaty Rights 125.
The defendants have infringed Treaty No. 8 by constructing, operating, authorizing
and/or acquiescing to the construction of the Bennett Dam, Peace Canyon Dam and Site C Dam, as the treaty does not allow the Crown to use the Taking Up Power to construct large hydroelectric dams on the Peace, with their associated flooding and permanent damage to affected areas. 126.
In the alternative, if Treaty No. 8 provides the Crown with discretion to use the Taking
Up Power to construct, operate, authorize and/or acquiesce to, large hydroelectric dams on the
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Peace, which is denied, the defendants breached their fiduciary duty towards West Moberly by exercising this discretion in the circumstances so as to allow the interferences with the plaintiffs’ Treaty Rights that the Bennett Dam, Peace Canyon Dam and Site C Dam have caused or will cause. 127.
In particular, if Treaty No. 8 provides the Crown with discretion to use the Taking Up
Power to construct, operate, authorize and/or acquiesce to large hydroelectric dams on the Peace, which is denied, in authorizing and constructing the Bennett Dam and Peace Canyon Dam, the defendants failed to exercise the discretion afforded by the Taking Up Power with the loyalty and care required of a fiduciary by: a) Failing to consult with West Moberly prior to the approval and construction of the Bennett Dam and Peace Canyon Dam; b) Failing to accommodate the rights of West Moberly prior to the approval and construction of the Bennett Dam and Peace Canyon Dam; c) Failing to consider alternative options that would have avoided or reduced the impacts of the Bennett Dam and Peace Canyon Dam, including but not limited to not constructing the Bennett Dam and/or Peace Canyon Dam; d) Failing to pay compensation for the effects of the Bennett Dam and Peace Canyon Dam on West Moberly; and e) Authorizing the interference with the Treaty Rights, the Seasonal Round and West Moberly’s mode of life that has been or will be caused by the Bennett Dam and Peace Canyon Dam and the associated reservoirs. 128.
In the further alternative, if Treaty No. 8 provides the Crown with discretion to use the
Taking Up Power to construct, operate, grant approvals for and/or acquiesce to large hydroelectric dams on the Peace, which is denied, in authorizing and constructing the Site C Dam, the defendants failed to exercise the discretion afforded by the Taking Up Power with loyalty and care in all the circumstances, including the existence of the Cumulative Impacts, so
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29
as to allow the interference with Treaty Rights, the Seasonal Round and West Moberly’s mode of life that has been or will be caused by the construction and operation of the Site C Dam. 41.129.
The defendants’ authorization and construction of the Site C Dam, both on its
own and in conjunction with the ongoing impacts from the Bennett and Peace Canyon Dams, will result in:Cumulative Impacts has infringed or will infringe Treaty No. 8 by preventing the plaintiffs from meaningfully exercising some or all of their Treaty Rights. a) no meaningful ability of West Moberly to exercise some or all of their Treaty Rights; 130.
In particular and without limiting the foregoing, West Moberly’s ability to continue the
Seasonal Round, and consequently their mode of life, will be fundamentally and forcibly interfered with both individually and cumulatively by: a) Preventing West Moberly from travelling, or limiting West Moberly’s ability to travel, on and along the banks of the Peace, Moberly River, Halfway River, and their tributaries, as part of the Seasonal Round; b) Preventing West Moberly from continuing, or limiting West Moberly’s ability to continue, the spiritual and religious practices that form part of the Seasonal Round; c) Preventing West Moberly from conveying, or limiting West Moberly’s ability to convey, knowledge among members and between generations through the Seasonal Round; d) Preventing West Moberly from, or limiting West Moberly’s ability to engage in, hunting, fishing, and trapping the species traditionally harvested by West Moberly and their ancestors; e) Preventing West Moberly from, or limiting West Moberly’s ability to engage in gathering activities traditionally practiced by West Moberly and their ancestors; f)
Preventing West Moberly from, or limiting West Moberly’s ability to engage in, medicine gathering and healing activities traditionally practiced by West Moberly and their ancestors;
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30
g) Preventing West Moberly from managing, or limiting West Moberly’s ability to manage, wildlife resources according to traditional conservation principles; h) Preventing West Moberly from maintaining, or limiting West Moberly’s ability to maintain, access to and use of the ecosystems that are traditionally part of West Moberly’s territory; b)i) Causing loss of West Moberly's use and enjoyment of lands and waters (including the Peace), which are of central significance to their traditional territory and Seasonal Round; c)j) Causing displacement of West Moberly'shuntersMoberly's hunters, trappers, and fishers; and d)k) Causing loss, disruption, and curtailment offundamental shifts to the continuity of West Moberly's patterns of activities;Seasonal Round. e) loss of West Moberly's preferred means of exercising their Treaty Rights; and f) 131.
forcible interference with West Moberly's mode of life.
The cumulative impactFurther, there is a chance that the construction of the Bennett
Dam, Peace Canyon, Dam and/or the Site C Dams is to turn the Peace River into a series of reservoirs, destroying the unique culturalDam will permanently and ecological character of catastrophically alter the Peace, severingland over which West Moberly exercises Treaty Rights and has available for the physical, practical, culturalpractice of the Seasonal Round through an ecological disaster, including a dam failure or a major earthquake. 132.
The plaintiffs, including individual West Moberly beneficiaries of Treaty No. 8, have a
right to continue their religious and spiritual connection the practices that is protected by ss. 2(a) and 2(b) of the Canadian Charter of Rights and Freedoms (the “Charter”). 133.
The Bennett Dam, Peace Canyon Dam and Site C Dam, and the associated reservoirs,
and the conduct of the Crown in relation to authorizing and constructing these projects, cumulatively interfere or will interfere in a non-trivial and/or not insubstantial way with the
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31
ability of the plaintiffs, including individual West Moberly have beneficiaries of Treaty No. 8, to hold and act in accordance with their religious beliefs by causing the permanent loss of sites where spiritual and religious beliefs are taught and practiced. 134.
Section 2 (b) of the Charter protects the right of the plaintiffs, including the individual
West Moberly beneficiaries of Treaty No. 8, to express themselves by conveying meaning and pursuing self-fulfilment through engaging in traditional practices and participation in intergenerational transfer of traditional knowledge. 135.
The Bennett Dam, Peace Canyon Dam and Site C Dam and associated reservoirs, and the
conduct of the Crown in relation to authorizing, constructing and operating these projects, cumulatively interfere or will interfere with the ability the plaintiffs, including the individual West Moberly beneficiaries of Treaty No. 8, to express and convey meaning through engaging in traditional practices and through participation in inter-generational transfer of knowledge. 136.
The construction and operation of the Bennett Dam and the Peace Canyon Dam, and the
flooding to create the Williston and Dinosaur Reservoirs, constitute a continuing nuisance, in that they have prevented and continue to prevent and substantially interfere with the plaintiffs’ profits à prendre guaranteed under Treaty No. 8 and their right to occupy lands in order to exercise their Treaty Rights. 137.
By reason of this nuisance, the plaintiffs have suffered great annoyance, discomfort and
loss of enjoyment of land, land which the plaintiffs have a right to occupy, and which has been permanently altered or destroyed and rendered unfit for ordinary use. The plaintiffs have suffered loss and damage as a result of this nuisance. 138.
The defendants’ authorization, construction and operation of the Bennett Dam and the
Peace Canyon Dam, and the flooding to create the Williston and Dinosaur Reservoirs, constitute a wrongful and continuing entry to land which the plaintiffs have a treaty right to occupy in order to exercise their Treaty Rights. 139.
As a result of the defendants’ continuing trespass to lands occasioned by the Bennett
Dam and the Peace Canyon Dam, and the flooding to create the Williston and Dinosaur
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Reservoirs, along with the consequential permanent damage, the plaintiffs suffered and continue to suffer loss and damage. 140.
The defendants’ authorization, construction and operation of the Bennett Dam and the
Peace Canyon Dam, and the flooding to create the Williston and Dinosaur Reservoirs, constitute an ongoing interference with the plaintiffs’ riparian rights. 141.
As a result of the defendants’ continuing interference with the plaintiffs’ riparian rights
occasioned by the Bennett Dam and the Peace Canyon Dam, and the flooding to create the Williston and Dinosaur Reservoirs, along with the consequential permanent damage, the plaintiffs have suffered and continue to suffer loss and damage. 142.
Senior executives and employees of BC Hydro together with employees and senior
government officials of Canada and the Province, acting in their capacities as agents for the defendants, engaged in communications, conversations and attended meetings with each other at times and places, some of which are unknown to the plaintiffs, and as a result of the communications and meetings, the defendants unlawfully conspired or agreed to allow for or accomplish the construction and operation of the Bennett Dam, Peace Canyon Dam and/or the Site C Dam in violation of the plaintiffs’ Treaty Rights. 143.
In furtherance of the conspiracy, the following acts were done by the defendants and their
servants and agents: a) BC Hydro, constructed and/or operated the Bennett Dam, Peace Canyon Dam and Site C Dam and associated reservoirs; b) the Province and/or Canada, issued authorizations for the Bennett Dam, Peace Canyon Dam and Site C Dam and associated reservoirs; and c) the defendants decided not to consult or accommodate West Moberly or its predecessor the Hudson Hope Band before constructing, operating and/or authorizing the construction of the Bennett Dam, Peace Canyon Dam and associated reservoirs.
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144.
The acts particularized in paragraph 143 were unlawful acts directed towards the
plaintiffs as described in paragraphs 125-1.a),133,135-141, which unlawful acts the defendants knew in the circumstances would likely cause injury to the plaintiffs and the plaintiffs suffered injury as a result, as particularized in paragraph 145. Loss 145.
The actions of the defendants in using and conspiring to unlawfully use the Taking Up
Power to authorize the Bennett Dam, the Peace Canyon Dam, and the Site C Dam, and associated reservoirs, infrastructure, land holdings, have caused, and will cause ongoing, pecuniary and non-pecuniary loss to the plaintiffs, including but not limited to: a) Loss of the ability to maintain a traditional mode of life; b) Loss of the ability to transfer knowledge between generations; c) Loss of the ability to engage in religious and spiritual traditions, customs, and practices; d) Loss of the ability to provide medicine and healing; e) Loss of mobility rights; f)
Loss of hunting rights;
g) Loss of fishing rights; h) Loss of trapping rights; i)
Loss of gathering rights;
j)
Loss of food, clothing, shelter, medicine and other goods or manufactured items acquired through the exercise of mobility, hunting, fishing, trapping, and gathering rights; and
k) Such further and other loss as the plaintiffs may advise.
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146.
The defendants’ conduct as particularized in paragraphs 125-1.a),133,135-143, and
infringing West Moberly's Treaty Rights was high-handed, outrageous, reckless, wanton, entirely without care, deliberate, callous, disgraceful, wilful, in contumelious disregard of the rights of the plaintiffs, indifferent to the consequences and, as such, renders the defendants liable to pay punitive damages. 42.147.
The defendants are jointly and severally liable for the actions of, and damages
allocable to, their co-conspirators in relation to the Bennett Dam, Peace Canyon Dam and Site C Dam. Part 2: RELIEF SOUGHT WHEREFORE the Plaintiffs claim as follows: 43.148.
A declaration that, in causing and/or permitting the cumulative impacts of the
Bennett Dam, Peace Canyon Dam, and the Site C DamsDam, the associated reservoirs, and related components on the Plaintiffs'plaintiffs’ Treaty Rights, the Crown defendants have: a) failed to uphold the Honour of the Crown; b) breached fiduciary obligations owed to West Moberly; b)c) breached their obligations to West Moberlythe plaintiffs under the Treaty No. 8; and c)d) unjustifiably infringed West Moberly'sthe plaintiffs’ Treaty Rights. 44.149.
A declaration that any Crown action, decision, or approval permitting the
construction or operation of the Site C Dam is unconstitutional, void, and of no force and effect on the grounds that it: a) fails to uphold the Honour of the Crown; b) breaches the Crown's obligations to West Moberlythe plaintiffs under the Treaty, and No. 8; c) breaches fiduciary duties the Crown owes to West Moberly; and
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c)d) unjustifiably infringes West Moberly'sthe plaintiffs’ Treaty Rights. 150.
A declaration that the defendants have been unjustly enriched at the expense of the
plaintiffs by taking up lands and waters for the creation and operation of the Bennett Dam, Peace Canyon Dam, and the Site C Dam. 45.151.
An interim, interlocutory and/or permanent injunction prohibiting Canada and
British Columbiathe Province from issuing any approvals required for the construction, completion, or operation of the Site C Dam. 46.152.
An interim, interlocutory and/or permanent injunction prohibiting BC Hydro from
continuing or completing construction of the Site C Dam and flooding the Peace River, Moberly River, Halfway River, and tributaries. 153.
A mandatory injunction requiring the defendants to remove the Site C Dam, related
components, and associated reservoir and remediate the portion of the Peace within West Moberly’s territory that is downstream of the Peace Canyon Dam so that it is restored to its natural state. 154.
In the alternative, prospective damages in lieu of an injunction.
155.
Damages for breach of treaty, breach of fiduciary duty, civil conspiracy, nuisance,
trespass, and breach of riparian rights. 156.
An order that the defendants account for and make restitution to the plaintiffs in an
amount equal to the revenue received by the defendants from or as a result of the operation of the Bennett, Peace Canyon, and Site C Dams, and the associated reservoirs, associated infrastructure, and land holdings. 157.
Judgement in the amount of the revenue received by the defendants from or as a result of
the operation of the Bennett Dam, the Peace Canyon Dam, and the Site C Dam. 158.
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Damages, including aggravated, exemplary and punitive damages.
36
159.
Pre-judgment and post-judgment interest pursuant to the Court Order Interest Act, RSBC
1996, c 78, s 128. 47.160.
Costs.
48.161.
Such further and other relief as this Honourable Court may deem appropriate.
Part 3: LEGAL BASIS 49.162.
The Constitution Act, 1982, recognizes and affirms the existing aboriginal and
treaty rights of the Aboriginal peoples ofin Canada. 50.163.
The defendants are bound by Treaty No. 8, as both levels of government are
responsible for fulfilling the promises in the Treaty No. 8, in accordance with the division of powers under the Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, App II, No 5. 51.
The Plaintiffs have rights under the Treaty against the curtailment by the Crown of the
mode of life that the Plaintiffs enjoyed before entering the Treaty. 52.164.
The exercise of the defendants' rightspowers under the Treaty No. 8, including
any rightspowers to make regulations or to take up lands, are subject to and burdened by the defendants' obligations to the plaintiffs under the Treaty No. 8, the Constitution, and the Honour of the Crown., as well as by Canada’s international obligations. The defendants must act in a way that seeks to preserve and accomplish the intended purposes of the Treaty No. 8 and to ensure the continuing meaningful exercise of thethat the plaintiffs are able to continue meaningfully exercising their Treaty Rights by the Plaintiffs. 165.
The damming of the Peace The Crown’s interpretation and application of Treaty No. 8,
including the Taking Up Power, must not be less favourable to the plaintiffs than was the common intentions of the Crown and the Original Aboriginal Treaty Signatories at the time Treaty No. 8 was entered into. 166.
Further, and in addition to the foregoing, the Crown’s interpretation and application of
Treaty No. 8, including the Taking Up Power, must not be less favourable to the plaintiffs than
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was the common intentions of the Crown and West Moberly Hudson’s Hope Ancestors at the time of the Hudson’s Hope Adherence. 167.
The Crown’s interpretation and application of Treaty No. 8, including the Taking Up
Power, must be consistent with and uphold the Honour of the Crown. 168.
The Honour of the Crown demands that legislation and the Taking Up Power be
interpreted and applied in a manner that does not frustrate the ability of the plaintiffs to meaningfully exercise their Treaty Rights. 169.
Treaty No. 8, and the Taking Up Power, do not act to abolish, extinguish, or otherwise
limit the Charter protected rights of the plaintiffs. 170.
The Taking Up Power cannot be constitutionally invoked in a manner that is inconsistent
with Charter protected rights of the plaintiffs, or that deprives the plaintiffs of their ability to enjoy or exercise Charter protected rights, including: a) The right to manifest, express, and teach religious beliefs; b) The right to engage in intergenerational transfer of traditional knowledge; and c) The right to convey meaning, pursue self-realization and pursue self fulfillment through acting in accordance with traditional ecological knowledge and engaging in a traditional mode of life. 171.
Further, the discretion afforded to the Crown under the Taking Up Power must be
interpreted and exercised in a manner that is consistent with Charter values, including the values of upholding religious freedom, freedom of expression and equality. 172.
Further, the discretion afforded to the Crown under the Taking Up Power must be
interpreted and exercised in a manner that is consistent with the values underlying s. 35 of the Constitution Act, 1982, including the pursuit of reconciliation and the protection and respect of aboriginal and treaty rights and avoiding unnecessary interference with Aboriginal peoples in the exercise of their rights.
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53.173.
The construction of a large hydroelectrical dam on the Peace is outside the scope
of Crown actions permitted by the "taking up" clause contained in Treaty 8Taking Up Power, and constitutes a breach and infringement of the Treaty No. 8 and the Plaintiffs'plaintiffs’ Treaty Rights, contrary to the defendants' constitutional and international obligations, the fiduciary duty owed to the plaintiffs, and the Honour of the Crown. 174.
In the alternative, if the Taking Up Power does provide the Crown with a power to
interfere with the plaintiffs’ Treaty Rights through the construction of a large hydroelectrical dam, which is denied, the defendants breached a fiduciary duty owed to the plaintiffs by invoking that power to authorize and construct the Bennett and Peace Canyon Dams. 175.
Further, and in the alternative, if the Taking Up Power does provide the Crown with a
power to interfere with the plaintiffs’ Treaty Rights through the construction of a large hydroelectrical dam, which is denied, the defendants breached a fiduciary duty owed to the plaintiffs by invoking that power to authorize and begin construction on the Site C Dam. 54.176.
In the further alternative, the cumulative impacts of the Bennett, Peace Canyon,
and Site C Dams constitute the taking up of land to such an extent as to Dam, Peace Canyon Dam, and the Site C Dam, and the associated reservoirs, on their own and in conjunction with the Other Disturbances deprive the plaintiffs of the ability to meaningfully exercise some or all of their Treaty Rights throughout their territory, and result in a breach and infringe theinfringement of Treaty and the Plaintiffs' Treaty Rights,No. 8 contrary to the Defendants'defendants’ constitutional and international obligations and the Honour of the Crown. 177.
In the alternative, if Treaty No. 8 does not guarantee the plaintiffs’ rights to continue
spiritual and religious practices and/or convey knowledge among members, the damming of the Peace and the construction and operation of the Site C Dam infringes West Moberly’s existing aboriginal rights to continue these activities. 178.
The damming of the Peace is inconsistent with Canada’s international obligations,
including, but not limited, to obligations arising under customary international law, including but not limited to the precautionary principle.
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179.
The damming of the Peace is inconsistent with obligations on Canada arising pursuant to
the United Nations Declaration on the Rights of Indigenous Peoples, including but not limited to Articles 10, 11, 12, 24, 25, 26, 28, 29, 32, and 37. 180.
The damming of the Peace unjustifiably infringes the plaintiffs’ rights protected under ss.
2(a) and 2(b) of the Charter of Rights and Freedoms. 181.
Further, or alternatively, the defendants’ actions in furtherance of the conspiracy to allow
for or accomplish the construction and operation of the Bennett Dam, Peace Canyon Dam and/or the Site C Dam in violation of the plaintiffs’ Treaty Rights were unlawful acts directed towards the plaintiffs, which unlawful acts the defendants knew in the circumstance would likely cause injury to the plaintiffs and, as such, the defendants are jointly and severally liable for the tort of civil conspiracy. 182.
The onus is on the Crown to show that any infringement of Treaty Rights or aboriginal
rights occasioned by the damming of the Peace is justified, and the Crown cannot discharge that onus in the circumstances. 183.
The defendants committed, and continue to commit, the tort of nuisance.
184.
The defendants committed, and continue to commit, the tort of trespass to land.
185.
The defendants breached, and continue to breach, the plaintiffs’ riparian rights.
186.
The plaintiffs have suffered loss as a result of the defendants’ unlawful acts.
187.
Further, and in the alternative, the plaintiffs are entitled to claim and recover based on
equitable and restitutionary principles. 188.
The defendants are required to make restitution to the plaintiffs for the entirety of the
revenue received from the Bennett Dam, Peace Canyon Dam, and the Site C Dam because, among other reasons: a) the defendants were unjustly enriched by taking up lands and waters for the creation of the Bennett Dam, Peace Canyon Dam, and the Site C Dam;
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40
b) The plaintiffs suffered a deprivation of rights from the loss of lands and waters used for operation of the Bennett Dam, Peace Canyon Dam, and the Site C Dam; c) the defendants engaged in inappropriate conduct and committed wrongful acts by taking up lands and waters in violation of Treaty No. 8, breaching their fiduciary duty, and engaging in the conspiracies alleged in this claim; d) the revenue from the Bennett Dam, Peace Canyon Dam, and the Site C Dam was or will be acquired in such circumstances that the defendants may not in good conscience retain it; e) justice and good conscience require restitution; f)
the Honour of the Crown would be undermined if the court did not order restitution; and
g) there are no factors that would render restitution unjust. 189.
Equity and good conscience require that the defendants make restitution to the plaintiffs
of all of the revenue from the Bennett Dam, Peace Canyon Dam, and the Site C Dam, or alternatively to disgorge that amount to the plaintiffs. 190.
Further, or alternatively, the plaintiffs waive the tort and elect to pursue restitutionary
remedies against the defendants as set out above. 191.
The defendants’ conduct was high-handed, outrageous, reckless, wanton, entirely without
care, deliberate, callous, disgraceful, wilful, in contumelious disregard of the plaintiffs’ rights and as such renders the defendants liable to pay aggravated, exemplary and punitive damages.
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41 Plaintiffs' address for service: Camp Fiorante Matthews Mogerman #400-856 Homer Street Vancouver, BC
Canada V6B 2W5 Attention: Reidar M. Mogerman,
Counsel for the Plaintiffs
Fax number address for service:
(604) 689-7554 Camp Fiorante Matthews Mogerman
Place of trial:
Vancouver
The address of the registry is:
Vancouver Law Courts
800 Smithe Street Vancouver, BC V6Z2E1
Dated January 15,2018: R&iHar M. Mogerman Camp Fiorante Matthews Mogerman Counsel for the Plaintiffs
Rule 7-1 (1) of the Supreme Court Civil Rules states: (1) Unless all parties of record consent or the court otherwise orders, each party of record to an action must, within 35 days after the end of the pleading period, (a) prepare a list of documents m Form 22 that lists (i) all documents that are or have been in the party's possession or control and that could, If available, be used by any party at trial to prove or disprove a material fact, and (ii) all other documents to which the party intends to refer at trial, and (b) serve the list on all parties of record.
42
Part 1:
CONCISE SUMMARY OF NATURE OF CLAIM:
A claim that Site C infringes the Plaintiffs' Treaty No. 8 rights. The Plaintiffs seek declaratory and injunctive relief. Part 2: THIS CLAIM ARISES FROM THE FOLLOWING: A personal injury arising out of: [ ] a motor vehicle accident [ ] medical malpractice [ ] another cause A dispute concerning: [ ] contaminated sites [ ] construction defects [ ] real property (real estate) [ ] personal property [ ] the provision of goods or services or other general commercial matters [ ] investment losses [ ] the lending of money [ ] an employment relationship [ ] a will or other issues concerning the probate of an estate [X] a matter not listed here Part 3: THIS CLAIM INVOLVES: [ ] a class action [ ] maritime law [X] aboriginal law [X] constitutional law [ ] conflict of laws [ ] none of the above [ ] do not know Part 4: Constitution Act, 1867 Constitution Act, 1982
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