Q&A with Professor Rebeca Macias Gimenez: The Site C Dam, Section 35, and Protecting Indigenous Ways of Life

In this expert Q&A, 2025 CCS Summer Student Nicole Ibalio talks to Professor Rebeca Macias Gimenez (University of Alberta) about her research on the Site C hydropower dam project (Peace River), the impacts it's having on First Nations in BC, and the role that treaty rights can play in challenging these impacts.

Q. Could you give an overview of the Site C hydropower dam project, including relevant parties and effects on the land?

A. There are a number of First Nations that are being affected by the Site C dam project right now. The dam is already completed: the construction on Peace River is finished and the area was inundated. On the BC side of the border, a number of First Nations are affected, including West Moberly and the Saulteau First Nation. The dam is part of a series of dams that were proposed by the BC government, one which dates all the way back to the 60s. It's called the WAC Bennett dam, and it was built without any environmental assessment and without consultation with Indigenous peoples. It caused huge devastation to animal habitats, and it cut the migration route for a number of animals, including caribou, which is a species that is really important for local First Nations.

So, since the 70s and 80s, there were discussions about Site C, including discussions about whether the dam was needed at all for energy production and about how it would affect the local communities, animals, and even the soil. It's one of the few areas in BC that has rich soil that is very beneficial for agriculture, and part of it was just completely inundated.

The province of BC started environmental assessments in the 80s, but was not able to move ahead with the project. Then, the province proposed the project again in the early 2000s. At the time, the premier of BC said that they would approve the project, and that it was something that was inevitable. That was before the results of consultation with First Nations, however.

The government of BC had made the commitment to review the project with the BC Utilities Commission, so the BC Utilities Commission reviewed the project again, focusing specifically on the need for energy in the province, how Site C would fulfill that need, and whether it was necessary at all. What I understand from the report is that this energy was not needed at the time — maybe in years ahead, but not right now. But even with that result, the Government of BC approved the project, and they went ahead with it.

Q. What did Treaty 8 require at different stages of that project and how did the provincial government fall short of these requirements?

A. Your question reminds me of a few things that are important during this process of assessment and approval of the project. This was a joint review that was conducted by Canada and BC. So, when you have a joint review, there’s a panel with representatives appointed by the province and by the federal government. For this particular panel, there were three specialists that were appointed. The reference for the assessment that this panel was supposed to conduct explicitly said that the panel was not to consider any impacts on Aboriginal or treaty rights. However, the joint review panel was the only body that actually reviewed the project, and the First Nations submitted their concerns regarding the project to that panel. This was the only opportunity that they had to express their concerns, other than through the courts. They made a number of submissions and some of those submissions clearly indicated that there was an infringement of treaty rights and Aboriginal rights because consultation was not done properly and accommodation was not done properly. They raised a number of concerns with animal habitats and impacts on water and water flows and watersheds.

Because of this lack of opportunity — other than through the joint review panel — for First Nations to submit their concerns, the West Moberly First Nation and the Prophet River First Nation went to court and they argued that consultation was not done properly because the project did not address the concerns that they had pointed out in their submissions. In their report, the joint review panel — although they were not supposed to look at treaty rights and Aboriginal rights infringements — made a very important note saying that they believed that there would be impacts on treaty rights and Aboriginal rights. The Impact Assessment Review Board prepared their final report and forwarded it to the Ministers of Environment of Canada and BC, who were then able to look at the report and decide whether they would approve the project or not. They were not bound by the report, however; with regulatory processes, the cabinet is not bound by any impact assessment. So, they went ahead and approved Site C.

Meanwhile in court with Prophet River and West Moberly, the judge said that this case is a judicial review of a regulatory process and, therefore, the review is of whether the decision was reasonable. So, the standard of review is reasonableness. And in this case, the Court held that the decision by the Ministers was reasonable and it cannot assess treaty and Aboriginal rights infringement because if you want the courts to decide on that, you will have to file a different claim, a treaty and Aboriginal right infringement claim. It's a different process.

West Moberly and Prophet River lost this case and they filed an infringement claim. And that process, as far as I know, was suspended because BC wanted to negotiate with West Moberly. That was all after the Blueberry River (Yahey) decision, which concerned a treaty rights infringement claim based on cumulative effects. But the dam is built; the area is flooded. And so, if something is granted by the Court, it will be compensation for damages.

A lot is going on there and all of that with the backdrop that there is this major dam, the Bennett Dam that was built back in the 60s, that just increases the harms that are being done now by Site C because it's all in the same watershed. The concerns that First Nations have are not just about Site C but also oil and gas approvals, fracking, all of that.

Just like Blueberry plaintiffs claimed, other Nations could claim the same, that the areas that they have to practice their treaty rights are very, very limited. What West Moberly said is, “We don’t have a forum to look at our concerns because we go to the joint review panel and then they say, well, we're not competent to look at treaty rights infringement because that’s excluded from our review, then we go to court and the court says well, consultation was done properly, it was reasonable.” If you have a treaty right infringement claim, you have to go to court again, and they did, and now there’s this negotiation going on, but the dam is built and completed. There’s nothing else that could be done to save the ecology of the place.

Another thing is that First Nations in that region are not always united in how they view the project, even within each First Nation. There are folks that want the project because they believe that it will bring development, jobs, and energy production that will reduce the cost of electricity, etc. There are other members of the communities that are more concerned with their traditional practices and the ecology of the place where they live. BC Hydro, in order to ensure that they had the First Nations on board, offered impact benefit agreements to First Nations. With those impact benefit agreements, sometimes there are a number of jobs that are assigned for that First Nation or even a lump sum of money that is given for the Nation to develop whatever project they would like or First Nations companies are hired for specific jobs like forestry. So it’s really hard to keep resisting a project like that: there’s a combination of a lack of any forum for First Nations to submit their concerns and also economic aspects and the needs of the people in that place.

Q. Since treaties are supposed to be Nation-to-Nation agreements, could you clarify the role of provincial governments in upholding treaty promises?

A. Provinces are also responsible for upholding Aboriginal and treaty rights; it's not just a responsibility of Canada. Provinces have jurisdiction over land and natural resources, and Canada has jurisdiction over First Nations, Inuit, and Metis people. However, every time that the provinces approve projects like this that affect the land and use natural resources and impact Indigenous peoples, they have to consult Indigenous peoples, and if there is any kind of infringement of Indigenous peoples’ rights, they have to justify that infringement. So, the same standard that Canada is bound by, the provinces are as well.  There's no two-tiered approach; it's not that you need an approval by the provinces for land and resources and then you need an approval by Canada for impacts on Indigenous peoples. But in the case of Site C, because it was a major project that affected a number of First Nations, affected water fisheries, fish habitats — which are under federal jurisdiction — the province and Canada decided to do a joint process. That happens in a lot of cases, especially when it's a major project.

Q. How should the principles that we get from Indigenous legal orders inform our understanding of Site C?

A. As a background, there are different legal orders in that area that I do research in, Northeast BC. The Dunne-Za, the Cree, the Sekani people, the Sauteaux people that came from the East. But of course, there are many different legal orders that interact in that same region. It’s not that one First Nation is formed only by one legal order. There are many different legal orders and different societies that interact with each other, even within one small First Nation like West Moberly, for example.

In a recent article, I looked at a Cree story of the Moose People in their interaction with the hunters, among others. So, the story is that there was this family of moose and while they were sleeping, this pipe came floating into their home. And the pipe was coming from the hunters that were smoking the pipe to ask for success in their hunt. The moose mom and dad were experienced, so they knew not to smoke the pipe, because they knew that it was coming from the hunters. But the young moose wanted to smoke the pipe, took the pipe and smoked it, and then the parents said, “Why did you do that? Because of that, the hunters will be able to catch us.” The hunters were then able to find the family of moose, who started running. But at some point the young moose just gave up, and let the hunters get him. So that was one story.

I wanted to understand this story and other stories, so I used Professors Hadley Friedland and Val Napoleon’s methodology — the Narrative Analysis Method — to look at principles behind it. I went to the community, asked them about the story, if they knew it, how they feel about it, what they know about it. As I said in the article, many people did not know about the stories I was asking about, but that’s okay; there are principles behind them that I was able to identify in many conversations.

My article looks at the principles that are important in treaty relationships. What was important for me was not to rely on Aboriginal law, but rather, if we think of a Nation-to-Nation relationship between Canada and Indigenous peoples, we also have to apply principles from Indigenous legal orders to this treaty relationship to make it a reciprocal relationship. So, at the same time that some Indigenous peoples recognize Canada as a state with legal orders, Canada also recognizes Indigenous peoples with their own legal orders.

That’s why the work of Napoleon and Friedland is so important, because if courts want to engage with Indigenous legal orders — and such engagement is a necessity that’s being shown by recent cases like Restoule, for example – then we have to identify those principles. That’s why I wrote that article, to show how treaty relationships need to happen with this engagement between legal orders.

Q. Are Canadian courts making any progress when it comes to ensuring that Indigenous legal orders are informing their approaches to treaties?

A. With cases like Restoule, Marshall, and Badger, to give just a few examples, I can see some kind of progression and evolution on how courts are looking at treaties, although that has happened more in treaties in the East of Canada than in the West. The Supreme Court has been able to say that what is written in those agreements is not the full story of what was agreed by Canada and Indigenous peoples when they came together to negotiate treaties. In Marshall, the Court said that you have to look at the historical context, what the intentions of the parties were, and what the best interpretation of the common intention of the parties is. So, that has been happening more with those treaties. Not so much with numbered treaties. Not so much here in the prairies.

Here in the prairies, and especially in Alberta, the “take up land” clause says that in Treaty 6, Treaty 7, and Treaty 8, the state can take land for specific purposes like for lumbering, for settlement, for mining. But today, that’s taken to mean any kind of resource development and settlement or infrastructure project. So, the province can take those lands and that is not an infringement of an Aboriginal or treaty right. But there is a provision in those treaties that says that those decisions made by the state have to observe the ways of life of Indigenous people; those ways of lives have to be maintained. The capacity for First Nations to continue with their traditions and their practices and to get their livelihood from those practices — from hunting, gathering, or fishing, etc. — is in the Treaty and has to be considered and maintained.

I’m currently working on a SSHRC funded project to open up different interpretations of numbered treaties, especially 6, 7, and 8. The project examines the “ways of life” clause as a way to facilitate Nation-to-Nation negotiations between First Nations and Canada or the province of Alberta — as an obligation upon state governments to negotiate and, as the court said in Yahey, to create frameworks where First Nations are not just consulted during the process of approving a project, but where they actually make decisions on how their lands have to be used or protected. So, maybe land use plans would be one way of doing that, or regional assessments, watershed agreements, government-to-government agreements. There's a variety of instruments that could be negotiated for that Nation-to-Nation approach to be actually implemented in practice.

That's the purpose of the project. To show there are Indigenous legal orders, and that there are legal principles from those Indigenous legal orders that have to be made explicit when the state governments are negotiating with those First Nations. And the state has to be open to not having the final decision in development or natural resources developments or land use.

Q. Where in the jurisprudence are we seeing some resistance to the application of Indigenous legal orders to treaty cases specifically? And then, by contrast, where are we seeing more openness?

A. I would say that there is some openness in British Columbia. Most of the British Columbian territory is not covered by treaties, so maybe because of that, the Government of BC is more willing to negotiate agreements with Indigenous peoples. But these are not treaties and they don't cover a lot of land. They're specific. Agreements about fisheries, for example, about forestry, or mining. And in BC, even some of those agreements are grounded in DRIPA [the Declaration on the Rights of Indigenous Peoples Act]. So, there is some openness in BC for that, even though there's a lot of room for critique too. Not all First Nations have the opportunity to negotiate agreements with the BC government. They only happen when the BC government is interested in approving development projects in certain areas. However, new things are happening: as we’ve seen, the Haida Nation were able to negotiate their title with BC and after that with Canada. So, a few hopeful things are happening.

The resistance part I would say is happening in Alberta. We’ve seen some landmark cases about treaty rights in Alberta, such as the 1996 Badger case, in which the Supreme Court re-articulated some of the principles that were already mentioned before, including the principle that the honour of the Crown is always at stake. But after that we don't see much. So, every time, for example, a First Nation is charged with operating an illegal fishery, to give one example, they have to go through this whole process of going to court and having to argue that this is one of their treaty rights. And then that long judicial process takes place.

I actually don't know of any agreement in Alberta between First Nations and the provincial government. I don't think there are any of those agreements that actually recognize Indigenous peoples as having legal orders, let alone those principles from Indigenous legal orders being able to inform agreements, or policy, or regulatory processes, or legislation. As far as I know, nothing of that sort is happening here in Alberta.

Q. My next question is to what extent is the Supreme Court of Canada the appropriate adjudicator when there are treaty claims? And can you think of any alternatives to make the judicial process more balanced when it comes to broken treaty promises?

A. With the Nations that I work with in British Columbia, in my conversations with Elders, they always say that the clause about Indigenous peoples ceding land to the Crown is a lie, that they never ceded land to Canada or to the provinces. Some of them say that the land did not belong to them to transfer to any other government. And some of them say that they (the people) belong to the land. They don't own the land. They belong to the land.

So, many Nations are strategic in how they choose to engage (or not engage) with courts, including the Supreme Court. If you think of the example of the Haida Nation, for example, they’ve used a number of strategies. They've used the courts, contestation (like blockades and protests against approvals of resource development in their territories), and negotiations, and they have a joint body that has representation of British Columbia and of the Haida people in managing the land, so they make decisions together, including on project approval.

In some cases, however, they just decide they don't want to engage with the state at all. They turn inwards to their own community and they choose to strengthen their own laws and their own traditions and focus on their own people with no engagement with the state whatsoever. And then sometimes they just choose to comply with what courts say, or with what the government says. Some nations use the Indian Act framework, but some use other frameworks like the Land Management framework to manage their reserve lands. They choose to use the instruments and the policies that Canada and the provinces offer for their own benefit.

I was listening to the Counsel for the Vuntut Gwitchin First Nation in the Yukon, who were a party in a case that was decided in 2024, the Dickson case decided by the Supreme Court. He is part of the Vuntut Gwitchin Nation and he was saying, “We never chose to be ruled by the Charter, we never agreed to be governed by the Charter, and now we have to comply. We are seen as a government for the purpose of the Charter application, but that was not our initial submission. Our initial submission was that the Charter does not apply to us at all because we did not consent to this application.”

So, court decisions may come with some level of success, but also, they come with so many limitations. And most of the time, they don't address the biggest concerns that Indigenous peoples have.

Q. Last question. What are your thoughts on new project bills being passed across the country? Especially Bills 14 and 15 in BC and the federal Bill C-5.

A. Those are laws now, and what they do is they create the possibility that some projects are exempt from certain regulatory processes, like impact assessments, for example. In the case of Bill C-5, if a project is considered to be in the “national interest,” the approval will be streamlined and the project will get an exemption. The law grants broad discretion to ministers and to Cabinet to make that kind of decision about exempting a project if it’s a project that is in the national interest.

We’re seeing something very similar in BC. If it’s a major project that has a “public interest” character or nature, then it can be fast tracked by the Cabinet. I don't know if this is part of the BC laws, but the Canadian law, for sure, says that they still have to comply with Aboriginal and treaty rights.

I don't know how they will fast track projects without doing proper consultation and complying with Aboriginal and treaty rights. The Ring of Fire in Ontario, for example, is one of the projects that it’s being said will be on the list of projects. There’s a regional assessment going on right now with a number of First Nations — I believe it's about ten First Nations who are part of that process. It's not just an impact assessment of one specific project, but a more holistic assessment, looking at an even broader area than Site C. And an engagement of those First Nations is supposed to be more than just consultation: it’s supposed to be an earlier engagement and with more say by the First Nations.

I don't know how a law like that would fast track a regulatory process given that it’s a huge project that has major impacts on First Nations. But then, Canada and the provinces always have the final say on the approval of projects.

I don't know what's going to happen, politically. The geopolitical situation with the US is going to change in the future but projects like this one are going to stay forever, and the impacts are going to stay forever, as is the retrocession in the “Nation-to-Nation” relationship between state governments and Indigenous peoples. The steps that are taken backwards make a huge difference in this “reconciliation project,” which is actually a very contested concept. Many First Nations would say that reconciliation is not happening at all, and they have laws like the ones you mentioned to prove that that's the case.

***

Nicole Ibalio is a 2L at the University of Alberta’s Faculty of Law and was a Centre for Constitutional Studies Summer Student (2025)