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Peterson Stark Scott

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Columbia River Treaty expropriation survives validity challenge
March 25, 2001

Memories of the 1964 Columbia River Treaty between Canada and the United States were revived recently with a decision of the B.C. Court of Appeal in Morton v. British Columbia Hydro and Power Authority, [2001] EXLAW 311.

The court was hearing an appeal brought by Valentine Morton, the son of former property owners, now deceased. The Mortons once owned 400 acres along the shores of the former Upper Arrow Lake in British Columbia. A substantial portion of the Morton property was expropriated in 1968 by B.C. Hydro to accommodate the reservoir that later formed behind the Keenleyside Dam, near Castlegar. The dam was one of four constructed to achieve the objectives of the Treaty which was to provide water storage for downstream flood control and enhanced power generation opportunites.

By 1970, B.C. Hydro reached a settlement with the Mortons. The settlement provided for a payment of $170,000 in return for a full release of all claims for compensation. The Mortons were represented by legal counsel at the time.

Morton brought his initial judicial review challenge to B.C. Hydro's actions in 1997, twenty-nine years after the expropriation. He alleged that Hydro had taken far more land than was required for the reservoir. This was supported by the fact that a portion of the land taken was later turned into a provincial park. However, the B.C. Supreme Court rejected this challenge. The Court of Appeal found no error in the Supreme Court decision.

Valentine Morton's explanation for raising the challenge so long after the original taking was that he became aware of certain information in 1996 as a result of a Freedom of Information and Privacy Act inquiry. However, the court concluded that nothing turned on the information which came to his attention as a result.

Mr. Morton's pursuit of this issue has included an appeal to the public. ExLaw notes that he currently maintains an Internet website at www.dam-lies.com which deals with this case.

Rose-Mary Liu Basham, Q.C. appeared for Mr. Morton. B.C. Hydro was represented by Rob McDonell and the Minister of Environment Lands and Parks was represented by Sarah MacDonald.

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