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OPINION: Trudeau's not going to stop Site C. Here's why

One of the more intriguing demands by those opposing the Site C dam is that Prime Minister Justin Trudeau step in and block its construction, using the argument that the dam infringes First Nations' rights and poses environmental risk.

One of the more intriguing demands by those opposing the Site C dam is that Prime Minister Justin Trudeau step in and block its construction, using the argument that the dam infringes First Nations' rights and poses environmental risk.

The odds of the Trudeau government taking such an extraordinary action are, of course, fairly remote. But the root of the argument -- that the dam tramples on First Nations' rights -- remains very much alive even while the dam's construction proceeds every day.

Grand Chief Stewart Phillip, a leading First Nations leader in B.C., has tried to make the case that only by killing the dam will the Trudeau government show it cares about First Nations. Other dam opponents -- notably environmental and aboriginal activists -- have echoed his demand.

But politically, the argument is a non-starter. There is no way a federal government will override a provincial government decision that is constitutionally protected (provinces have power over non-renewable natural resources, and section 92(a) of the Constitution Act specifically gives provinces power over electrical energy projects, which is precisely what the Site C dam is).

If Trudeau were to indeed try to shut down the dam's construction, he would create a constitutional firestorm that would mortify all provincial governments. Provinces always look askance (or worse) when a federal government tries to stick its nose in their constitutionally-protected business, whatever it might be.

Nevertheless, the issue of whether the dam does indeed infringe on some First Nations' constitutionally-protected rights remains unresolved, as various court challenges work their way through the legal system.

Other arguments against the dam's construction -- that there is no need for the electricity generated by the dam in the foreseeable future, that it's too expensive (forget the projected $8.8 billion cost estimate; the final figure will inevitably be much higher), or that it is flooding preciously needed farmland -- have been voiced endlessly, yet have had no impact on the government's decision to green light the project.

The dam project is shaping up to be dominant issue in the coming year, as the prospect of mass protests (and arrests) at the construction site are becoming clearer every day (when the weather improves in the summer, don't be surprised to see a protest camp become etched into the landscape along the Peace River).

It's likely to a dominant issue in the next provincial election, in May 2017. The NDP opposes the dam, although its position remains somewhat murky (party leader John Horgan doesn't seem as opposed to it as many in his own caucus and party).

But politics and protests aside, the question of whether First Nations' constitutionally-defined rights are being violated remain beyond a government's control.

Still, based on court rulings so far, B.C. Hydro must be very pleased with the results. The fact that high courts (B.C. Supreme Court and Federal Court of Canada) have so far dismissed four petitions from First Nations bands and local residents may explain why Phillips and other dam opponents are  suddenly demanding the prime minister intervene.

Perhaps he, and other dam opponents, have concluded that relying on the courts to shut down the project may not be the safest of assumptions.

For example, the Federal Court of Canada's dismissal in August of a petition brought by two First Nations bands clearly concluded that B.C. Hydro's consultation with First Nations (a key requirement based on major court decisions) has "been extensive and conducted in good faith."

In fact, the court noted B.C. Hydro met with Treaty 8 First Nations 177 times and spent almost $6 million over seven years. In other words, the dam's builder has met a key test of whether the dam can proceed, even if means the project may indeed impact local First Nations' interests.

That conclusion may ultimately pave the way for Site C becoming a reality, no matter how loud the protests (assuming the Supreme Court of Canada agrees with the lower court's interpretations and conclusions).

The court decisions may indeed explain the sudden switch in the messaging of the dam's opponents. But asking the prime minister to take such extraordinary action smacks more of desperation, rather than political reality.

Keith Baldrey is chief political reporter for Global B.C.

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