Siksika pursues litigation against province for Ghost Dam decision

Siksika is pursuing legal action against a provincial government decision to relocate the Ghost Dam downstream after it says the province failed to consult with the southern Alberta First Nation. 

It comes after the province announced in September that it would be expanding the Ghost Reservoir — which is about 50 kilometres west of Calgary — and that it had chosen a new site along the Bow River for the dam as part of an extreme-weather mitigation plan.

That same week, Chief Ouray Crowfoot sent an open letter to Alberta Premier Danielle Smith saying the Siksika Nation was "deeply disappointed" by the government's announcement, as the Bow River Reservoir project would impact Siksika's treaty right to use and benefit from the water supply. 

"The Siksika Nation will strenuously oppose this project with all resources and means available to us," the September letter from Crowfoot reads. 

"This will only change if and when the Government of Alberta clearly demonstrates that it is fully committed to work with Siksika to understand the potential impacts of the new Ghost Reservoir project on our treaty right to our reserve lands and water supply, before taking any further steps to advance the project."

Now, the First Nation says the province's decision is "both unconstitutional and unreasonable," according to a judicial review application filed last week.

It says that, despite the "serious potential effects of the decision on Siksika's reserve lands, rights and interests," the Alberta government broke its promises to take Siksika's concerns into account during the decision-making process.

Clayton Leonard, senior counsel with B.C.-based firm JFK Law and counsel for Siksika Nation, said the goal is to have the court overturn the government's decision and direct Alberta to engage in meaningful consultation with Siksika Nation about the project.

"[Siksika] looked at their options after three years of trying to work with Alberta and said it looks like litigation is the only thing that's going to get their attention. So that's why they've decided to proceed with this," Leonard told CBC News on Monday.

"It's really actually out of character for a nation like Siksika because it's been a top priority of, particularly this chief and council, to develop positive relationships with Calgary, Strathmore, the counties around them."

According to Leonard, a feasibility study was conducted on how water management would impact the region, and the Siksika Nation was told it was outside the scope of the study. 

Leonard says Jason Nixon, then the minister of Environment and Protected Areas, made an agreement with the chief, including quarterly meetings about the dam, but the government never followed through on any of the commitments under that agreement.

"Not a single meeting was held despite a number of requests by Siksika for them to do that," Leonard said.

A seat at the table

The lawyer also noted that the First Nation isn't necessarily even opposed to water management activities along the Bow River, but that overall, it just needs to be part of these discussions. 

"Up until having to file a litigation — which they thought was their only remaining option — they have not taken the position opposing this project, they just want to understand what it means for them," he said.

Should the litigation hold up the project, Leonard says it could impact Calgary and other stakeholders along the Bow River.

CBC News reached out to the Ministry of Environment and Protected Areas — the governing body named in the judicial review application — for comment. 

Environment and Protected Areas press secretary Ryan Fournier said in an email that increasing water storage capacity is critical to protecting communities along the Bow River from future drought and floods, and that the province is planning the next phase of the relocated Ghost Dam project.

"We are moving forward with the evaluation of the relocated Ghost Dam because it is the best option available. It's also more cost effective than the Glenbow East Option and has fewer social and environmental impacts," reads the statement. 

"We are grateful to Siksika Nation for sharing their time and knowledge.… We will continue to engage with Siksika Nation and other impacted communities to help inform a future decision by government on whether to move forward to the construction phase."

Siksika is the only First Nation downstream from the proposed dam. 

While distant from the proposed dam's site, the First Nation does have a major stake in the Bow River. Its homes depend on wells recharged by the river's flow, and 70 per cent of its water use is for Indigenous-owned farms and ranches.

What's more, Crowfoot's letter outlines that flooding in 2013 displaced about one-quarter of Siksika Nation residents and destroyed the homes of nearly 800 members.

Over 60 per cent of those living on the reserve lost their water supply, and large parts of the reserve remain unusable due to flood risk.