Following appeal, lawsuit over proposed hydropower project near Squamish will proceed

A company that proposed to build a river hydropower project near Squamish is being allowed to proceed with its lawsuit against the provincial government, according to a court document.

The Court of Appeal for B.C. has given Greengen Holdings Ltd. the go-ahead to sue the province after the company was denied an application to build a hydropower project in Fries Creek, says a written decision made on June 1 by Justice Barbara Fisher.

Fries Creek is a stream that enters into the Squamish River near Waiwakum Indian Reserve 14 and Yekwaupsum Indian Reserve 19. It is about two kilometres north of Judd Slough.

“I have concluded that Greengen has pleaded a valid civil cause of action that should be allowed to proceed,” Fisher wrote. “I would therefore allow the appeal.”

In August 2009, the province turned down Greengen’s project proposal, citing that a land use agreement it had with the Squamish Nation was an important consideration in its decision.

Two years before the denial, the province and the Nation entered into a land use agreement that would protect 22 cultural sites in Nation territory, with Fries Creek being among them.

In its decision, the province said the Nation was concerned the project would impact the practice of spiritual bathing and negatively affect the Nation’s Aboriginal rights.

Greengen challenged the province, saying that the Nation’s assertion of spiritual bathing practices in the Fries Creek area was “completely unsubstantiated,” the court document says.

Previously in 2006, the company obtained an archaeological assessment of Fries Creek, which said the area had not been heavily used by First Nations and that the project wouldn’t have a major impact, Fisher wrote.

The company later tried unsuccessfully to secure the Nation’s agreement.

In March 2016, Greengen filed a lawsuit where it alleged the province’s rejection of the project was made “for collateral political or otherwise improper reasons having no relation to the merits or legality of the project,” said Fisher.

Months before, Greengen filed a petition for judicial review of the province’s denial of the project. In 2017, a B.C. Supreme Court judge ruled that Greengen’s lawsuit should be stayed, pending the result of the judicial review. There was concern that the judicial review and a lawsuit were being processed at the same time. The judge called the suit a “collateral attack, and therefore an abuse of process,” according Fisher. Collateral attack happens when a party can avoid the consequences of an order issued against it by attacking in an alternate unrelated forum. The concern is that this could undermine the integrity of the justice system. However, after reviewing the decision, Fisher suggested this was not the case and that the 2017 ruling was mistaken.

“The appellant’s civil claim does not seek to avoid the consequences of the decisions or to set them aside, and pleads a valid private law cause of action for damages,” she wrote. “Accordingly, the civil claim should be allowed to proceed.”