Albert C. Peeling, Law Corporation 411- 950 Rockland Ave., Victoria, B.C. V8V 3H4

Phone: (250) 384 9550 Fax: (250) 384 9590 acpeelinK@gmail.com

Analise Saely Senior Advisor, Operational Policy Canadian Environmental Assessment Agency Pacific and Yukon Regional Office Suite 320, Sinclair Centre 757 Hastings Street West Vancouver, BC V6C 1A1 Fax: 604-666-3493 Email: analise.saely@ceaa-acee.gc.ca

Mr. Brian Murphy Project Assessment Director British Columbia Environmental Assessment Office P.O. Box 9426 STN Prov Govt Victoria, BC V8W 9V1 Fax: 250 387-2208 Email: Brian.Murphy@gov.bc.ca

By Email

December 2, 2011

Dear Ms Saely and Mr Murphy,

On behalf of the people of the Mcleod Lake Indian Band we write to present their profound concerns respecting the Joint Panel Agreement and Terms of Reference on the proposed Site C Project. The process as envisaged is inadequate to evaluate the dam in any fair way and will not protect aboriginal and treaty rights. In fact the Agreement and Terms of Reference appear designed to avoid those issues entirely {e.g. Article 2.5 of the Terms of Reference} and appear so biased that the conclusions of the Joint Panel and the federal government seem inevitable, just as, we know already, the conclusions of the provincial government already are, as the tendentious Clean Energy Act of B.C. makes clear. We are of the view that the procedure envisaged will infringe the procedural section 35 rights of the Mcleod Lake Indian Band, and the construction of the dam will infringe their substantive rights (R. v. Gladstone, [1996] 2 S.C.R. 723 at para. 62, discussed below}. Without a proper process the infringements could never be justified.

Mcleod Lake's concerns at broad brush strokes fall into different categories which may be described as follows:

a. Institutional concerns; b. Constitutional concerns; and c. Design Concerns

Each of these categories of concern will be addressed below.

Institutional Concerns

We question the propriety of cooperative agreements between the federal government and the province where the province is, apart from the question of its governmental functions, the actual proponent of a Project. No one, according to the maxim Nemo iudex in sua causa, should be judge in their own cause, yet here:

a. BC Hydro is created by subsection 3{1) of the Hydro and Power Authority Act "for all its purposes an agent of the government and its powers may be exercised only as an agent of the [provincial] government." Therefore the real proponent in this instance is the province;

b. The province's role as proponent was made publicly clear when Premier Gordon Campbell on April19, 2010 endorsed the Site C Project and conveyed the impression that the Project for all intents and purposes was approved; and

c. The open and notorious involvement of the Executive Director of the Environmental Assessment Office in the production of the province's Clean Energy Act and pro Site C policy which in this case certainly conveys the impression that the EAO is not an impartial regulatory body. As the EAO has never denied certification to a Project, how can we accept it will perform its functions in an unbiased way here. We think that the maxim "justice should not only be done, but should manifestly and undoubtedly be seen to be done" (Rex v. Sussex Justices, Ex parte McCarthy [1924] K.B. 256 at page 259) is applicable here, especially in light of our constitutionally protected rights, both procedural and substantive, which are at stake in this situation.

In light of the procedural rights of aboriginal people under s. 35 and the provincial role as proponent, any process of adjudication of the Site C process where the province has input into the design of the process and the selection of adjudicators must be put under the microscope. Aboriginal peoples must have a much larger say in the process than they are being offered here.

We note in passing that the naming of the project as the Site C Clean Energy Project and the legislative valorization of the damming of the Peace River as clean energy is nothing short of Orwellian propaganda. Legally the legislation sets out energy objectives which are contrary to legislative objectives acceptable under section 35 (R. v. Sparrow, [1990] 1 S.C.R. 1075 and R. v. Adams, [1996] 3 S.C.R. 101). Particularly, the Two-Rivers Policy which promotes power projects

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on the Peace and Columbia Rivers over other possible energy sources is highly prejudicial to aboriginal peoples on those rivers, which is all the more troubling since those First Nations have already carried a disproportionate burden with respect to the generation of electricity in the province. The policies in the legislation are evidence of bias. The destruction of rivers and the flooding of lands can only by a profanation of language be called 11clean". It is an insult to the Mcleod Lake people, and clearly propaganda of the most blatant sort for the Project to claim itself clean. What is at issue is not clean but the despoiling of an area which is clearly a special place (see e.g. Westar Timber Ltd. v. Gitksan Wet'suwet'en Tribal Council (1989} 37 BCLR (2d) 352 (B.C.C.A.)) and has been recognized as such even by non aboriginal people since the time of contact. Alexander Mackenzie laid eyes on it in 1793 and recognized at once its superlative beauty and natural bounty, passing his ability to describe:

From the place which we quitted this morning, the West side of the river displayed a succession of the most beautiful scenery I had ever beheld. The ground rises at intervals to a considerable height, and stretching inwards to a considerable distance: at every interval or pause in the rise, there is a very gently-ascending space or lawn, which is alternate with abrupt precipices to the summit of the whole, or, at least as far as the eye could distinguish. This magnificent theatre of nature has all the decorations which the trees and animals of the country call afford it: groves of poplars in every shape vary the scene; and their intervals are enlivened with vast herds of elks and buffaloes: the former choosing the steeps and uplands, and the latter preferring the plains. At this time the buffaloes were attended with their young ones who were frisking about them: and it appeared that the elks would soon exhibit the same enlivening circumstance. The whole country displayed an exuberant verdure; the trees that bear a blossom were advancing fast to that delightful appearance, and the velvet rind of their branches reflecting the oblique rays of a rising or setting sun, added a splendid gaiety to the scene, which no expressions of mine are qualified to describe. The East side of the river consists of a range of high land covered with the white spruce and the soft birch, while the banks abound with the alder and the willow. The water continued to rise, and the current being proportionately strong, we made a greater use of setting poles than paddles.

Desecration is the very definition of the unclean.

The core of Mcleod Lake's concerns in this area may be put as follows. Since there is ample reason to question the impartiality of the provincial government and its agents here, we do not think it at all proper that Canada should be signing a cooperative agreement in this case. No cooperation is possible without infecting Canada with the provincial bias. Furthermore the promotion of the Two Rivers Policy by the province, coupled with the dismissal out of hand of other forms of energy, is not a valid legislative objective.

Constitutional Concerns

We have of course already raised one kind of constitutional concern in addressing bias, because of the relationship between bias and unacceptable legislative objectives under section 35 of the

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Constitution Act, 1982. Under this heading we wish to set out clearly Mcleod Lake's position with respect to treaty rights.

Mcleod Lake's position is that the desecration of the Peace River necessarily is an infringement of aboriginal and Treaty Rights. In R. v. Morris and Olsen, [2006] 2 S.C.R. 915, the Supreme Court said at paras. 53 and 54:

a prima facie infringement requires a "meaningful diminut ion" of a treaty right. This includes anything but an insignificant interference with that right. If provincial laws or regulations interfere insignificantly with the exercise of treaty rights, they will not be found to infringe them and can apply ex proprio vigore or by incorporation under s. 88.

The protection of treaty rights in s. 88 of the Indian Act applies where a conflict between a provincial law of general application and a treaty is such that it amounts to a prima facie infringement. Where a provincial law of general application is found to conflict with a treaty in a way that constitutes a prima facie infringement, the protection of treaty rights prevails and the provincial law cannot be incorporated under s. 88.

The meaningful diminution concept is an elaboration of the test in Mikisew v. Canada, 2005 sec 69:

If the time comes that in the case of a particular Treaty 8 First Nation "no meaningful right to hunt" remains over its traditional territories, the significance of the oral promise that "the same means of earning a livelihood would continue after the treaty as existed before it" would clearly be in question, and a potential action for treaty infringement, including the demand for a Sparrow justification, would be a legitimate First Nation response.

Particularly where treaty territory is being taken up at an alarming rate, as is the case in B.C. Treaty 8 territory, meaningful diminutions of treaty rights impair the ability of the Mcleod Lake people their preferred means of earning a livelihood. Clearly in this case there is a meaningful diminution of treaty rights, especially when the previous damming of the Peace and the industrial development of our traditional territory is considered .

In Canadian federalism, as the Morris and Olsen case makes clear, the province has no power to infringe Mcleod Lake's treaty rights, or to take up lands under Treaty 8. Therefore the province ought not to sit in judgment as of right over the question of the damming of the Peace. In such a case the Mcleod Lake Indian Band doubts the propriety of a cooperative assessment. Concerns about duplication and speed of process must take a back seat to the rule of law and due process. We remind you that Mcleod Lake's rights are "both procedural and substantive" as was noted in R. v. Gladstone, [1996] 2 S.C.R. 723 at para. 62. They ought to have been asked about the appropriate form of assessment in this case, not presented with a complete agreement and asked to rubber stamp it. The province has prejudged the issue, and already set priorities in terms of energy policy at odds with the aboriginal and treaty rights of the First

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Nations of the Peace River system. For example the two rivers policy imposes an unfair burden on the First Nations of the Peace and Columbia, and which is compounded by the preference for catastrophic hydro power over other forms of energy. The federal government ought to have consulted with Mcleod Lake before negotiating any agreement which potentially concedes unlawful authority over treaty rights to the province.

Design Concerns

The Agreement and Terms of Reference envisage a process to be completed in two years. This is an impossible time line, and demonstrates that the primary concern here is the facilitation of an unconstitutional project rather than designing a process which safeguards and gives due priority to our rights. Furthermore the clock ought not to be running until all the issues of aboriginal people, such as funding our participation in the process, and aboriginal participation through representation on the panel are addressed. We note there are many qualified aboriginal people who could be appointed, including Mcleod Lake's own Band Member Rose Boyko, who has been a superior court judge in Ontario, and more recently a judge on the United Nations Appeals Tribunal and Elmer Derek, hereditary chief of The Gitxsan people and former Director on the Board of BC Hydro.

With respect to the Terms of Reference, we do not understand what is intended by the exclusion of aboriginal and treaty rights from the purview of the panel. Section 2.4 reads:

The Joint Review Panel will use the information collected pursuant to section 2.3 of this Terms of Reference to make recommendations which if implemented would avoid or minimize potential adverse effects of the Project on Aboriginal and treaty rights and to inform its assessment of the potential environmental, economic, social, health or heritage effects of the Project.

In order to exercise this power, however, the Panel must understand the nature and scope of section 35 rights, and interpretation of treaty rights. They seem however to be handcuffed in that regard. Clause 2.5 provides:

The Joint Review Panel will not make any conclusions or recommendations as to:

a) the nature and scope of asserted Aboriginal rights or the strength of those asserted rights;

b) the scope of the Crown's duty to consult Aborigina l groups; c) whether the Crown has met its duty to consult Aboriginal groups and, where

appropriate, accommodate their interests in respect of the potential adverse effects of the Project on asserted or established Aboriginal rights or treaty rights;

d) whether the Project is an infringement of Treaty No. 8; and e) any matter of treaty interpretation.

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It is clear as a matter of law that any panel must be correct in exercising any judgment on these issue, or would be subject to review. But that is no reason to prevent their consideration of these issues. As it stands, these sections will ultimately prevent Mcleod Lake from presenting its issues fully before the Panel. While we understand that tribunals need not be given authority to consider section 35 issues, we believe that given section 35 procedural rights, the bifurcation of aboriginal issues is unacceptable. At very least until the Panel reaches a conclusion on the nature and scope of aboriginal and treaty rights it cannot meaningfully perform any function it has with respect to those rights under section 2.4. Before this Joint Review Panel Agreement could be acceptable, Mcleod Lake would have to work out with you a clear process to deal with their rights. Section 2.5 seems only to operate to their prejudice.

In closing we would like to draw to your attention that the New Relationship Vision Statement

put forward by the province includes a commitment to shared decision making. The UN's Declaration of the Rights of Indigenous Peoples, to which Canada has adhered, includes provisions enshrining the principle of free and informed consent. For instance, Article 32 (2) of the Declaration states:

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of

mineral, water or other resources.

We don't see that either B.C. or Canada has borne these commitments in mind in drafting these

documents.

Yours very truly,

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