BC Utilities Commission
in the matter of
British Columbia Transmission Corporation
Reconsideration of the Interior to Lower Mainland Transmission Project
February 3, 2011
On August 5, 2008 the British Columbia Utilities Commission (Commission) granted a Certificate of Public Convenience and Necessity (CPCN) to the British Columbia Transmission Corporation (BCTC) for the Interior to Lower Mainland Transmission Project (ILM Project). During that Proceeding, the Commission decided that it need not consider the adequacy of First Nations consultation and accommodation efforts on the ILM Project. Kwikwetlem First Nation appealed that decision to the British Columbia Court of Appeal. On February 18, 2009 the Court of Appeal issued its decision in Kwikwetlem First Nation v. British Columbia (Utilities Commission) 2009 BCCA 68. The Court suspended the CPCN and directed the Commission to reconsider First Nations consultation and to determine whether the Crown’s duty to consult and accommodate First Nations had been met up to August 5, 2008, the date the CPCN was granted. The Commission has completed this task with the issuance of this Decision.
The ILM Project is a new, 246 kilometre 500 kV alternating current transmission line (5L83) from the Nicola substation near Merritt to the Meridian substation in Coquitlam. 5L83 was planned by BCTC1 with an in]service date of October 2014. The line would deliver additional transmission capacity from the Interior of BC, where BC Hydro generates most of its hydro electric power to areas of greatest power consumption, the Lower Mainland and Vancouver Island. Of importance in this Proceeding is the fact that the transmission line would cross a number of traditional territories where First Nations have asserted Aboriginal rights and title.
Aboriginal rights and title are constitutionally protected by section 35 of the Constitution ActC1982. As such, the Crown has an obligation to consult meaningfully with First Nations when its action may adversely affect those rights. The ILM Project has this potential. BCTC, as the project proponent, delegated the consultation responsibility to British Columbia Hydro and Power Authority (BC Hydro) but remained involved in some consultation activities. Both BCTC and BC Hydro were Crown actors at all relevant times.
To assess the adequacy of consultation on the ILM Project, the Commission conducted a Proceeding that included written evidence and a thirteen day Oral Public Hearing. First Nations potentially affected by the ILM Project were provided an opportunity to participate. Of those, a number intervened in the Proceeding while many others chose not to do so. In this Decision, the Commission makes an assessment of the adequacy of Crown consultation for the First Nation Interveners’ complaints on the adequacy of the consultation.
The Proceeding originally had seven active First Nation Interveners, who intervened either as individual First Nations or as groups. During the course of the Proceeding, consultation between the proponent utilities and First Nations continued and as a result, two of the First Nation Interveners, Kwikwetlem First Nation and Stó:lo Hydro Ad Hoc Committee withdrew from the Proceeding, advising the Commission that they had been adequately consulted and were now in support of the ILM Project. The remaining First Nation Interveners in this Proceeding are:
• Okanagan Nation Alliance and Upper Nicola Indian Band;
• Coldwater et al. ‐ Coldwater, Cook’s Ferry, Siska, and Ashcroft Indian Bands;
• Nlaka’pamux Nation Tribal Council – Spuzzum and Lytton First Nations and Boothroyd, Kanaka Bar, Skuppah and Oregon Jack Creek Indian Bands;
• Stó:lō Tribal Council – Cheam, Kwaw‐kwaw‐a‐pilt, Shxw’ow’hamel, Soowahlie, Sumas and Seabird Island First Nations; and
• Hwlitsum First Nation.
The Commission Panel has reviewed the extensive written evidence and oral testimony from the proponent utilities and the First Nation Interveners. The task of the Commission Panel in adjudicating the issue of adequacy is made more complex by certain factors:
• the analysis is retrospective with reference to factual situations, meetings, and
discourse that are now over two years in the past;
• the First Nations represented themselves both individually and as members of Tribal Councils and collectives during consultation and the Commission Proceeding;
• there was disparity in terms of cultural background, personnel resources, education and financial capacity between the utilities and First Nations, and among the First Nation groups themselves; and
• a primary issue during consultation and in the First Nation Intervenersf evidence and submissions before the Commission was the assertion that BCTC/BC Hydro failed to consult on Existing Assets (transmission lines, rights]of]way, and other assets associated with lines built in the 1960s and 1970s). The historical infringement of asserted Aboriginal rights permeated the discussions between BCTC/BC Hydro and First Nations and, in some cases, led to hard positions being taken on both sides of the issue. On October 28, 2010, the Supreme Court of Canada released its decision in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council 2010 SCC 43 wherein it addressed the issue of the required consultation in respect of Existing Assets. In response to this decision, the First Nation Interveners withdrew their submissions on Existing Assets.
In making its assessment of adequacy, the Commission Panel explored the issue of when the duty to consult arose and determined the date as December 2005. The Commission Panel also determined that its task was to assess the adequacy of the consultation with the First Nation Interveners up to August 5, 2008 in respect of the Options Decision – the decision by the BCTC Board of Directors on May 23, 2007 to select a Preferred Alternative, from the various options it was considering, for additional definitional funding and filing of a CPCN Application with the Commission. The Commission Panel also determined that consultation did not have to be complete for the ILM Project as a whole by August 5, 2008, but that it had to be adequate.
The Commission Panel then examined the consultation process carried out by BCTC and BC Hydro prior to the Options Decision. In general, BC Hydro began consultation with First Nations in August 2006. The consultation focused on two transmission alternatives that had been examined by BCTC as means of providing additional transmission capacity from the Interior to the Lower Mainland. The extent to which First Nations were made aware of the various options under study and their ability to comment on and influence the Options Decision, became a central issue in this Proceeding. After the Options Decision, BC Hydro and BCTC continued to consult with First Nations on 5L83.
The First Nation Interveners submitted that the consultation that took place was inadequate for many reasons. The common complaints were:
• BC Hydro/BCTC failed to consult on all the seven options it considered before the Options Decision;
• reconciliation was not achieved between First Nations and the Crown;
• accommodation was not complete prior to the CPCN Decision;
• there was a lack of consultation in respect of asserted Aboriginal title;
• the Options Decision was made before the Crown had sufficient information on First Nations interests and potential adverse impacts;
• capacity funding was insufficient;
• the consultation process was driven by the strict schedule of BCTC;
• BC Hydro/BCTC refused to discuss revenue sharing;
• BC Hydro’s strength of claim assessments were flawed; and
• BC Hydro/BCTC failed to consult on Existing Assets.
The Commission Panel considered the evidence and found the Crown’s consultation was not adequate for certain First Nations. Specifically, the Commission Panel found the following deficiencies in consultation:
• Regarding the complaint that BCTC/BC Hydro did not consult with First Nations on the seven options it considered, the Commission Panel found that BCTC screened out various alternatives at an early stage which relieved them of the obligation to consult on those options. Of the seven options, BC Hydro presented four to the First Nations for consultation but, for certain First Nations, did not adequately explain why three of these options were removed from consideration and why 5L83 had been selected over the others. The Commission Panel also found that BCTC seriously contemplated anotherof the seven options, a High Voltage Direct Current (HVDC) transmission line, but found that it did not adequately consult with the potentially affected First Nations on this alternative; and
• BCTC/BC Hydro failed to adequately respond to the issue of revenue sharing raised by many of the First Nations.
The Commission Panel examined the specific facts relating to each individual First Nation Intervener and found consultation with the following First Nation Interveners was inadequate to August 5, 2008: Upper Nicola Indian Band; Coldwater Indian Band; Cookfs Ferry Indian Band; Nlakafpamux Nation Tribal Council; Spuzzum First Nation; Boothroyd Indian Band; Skuppah Indian Band; Lytton First Nation; Oregon Jack Creek Band; Sto:l. Tribal Council; Shxwfowfhamel First Nation; Cheam First Nation; and Seabird Island First Nation.
The Commission Panel found BC Hydro/BCTCfs consultation with the following First Nation Interveners was adequate to August 5, 2008: Okanagan Nation Alliance; Kanaka Bar Indian Band; Kwaw]kwaw]a]pilt First Nation; Soowahlie First Nation; Sumas First Nation; and the Hwlitsum First Nation.
The Commission examined the relief sought by the Interveners, BCTC and BC Hydro and determined that maintaining the suspension of the CPCN would allow BC Hydro an opportunity to remedy the deficiencies identified. Accordingly, the CPCN remains suspended.
The Commission Panel directs BC Hydro to remedy the specific deficiencies identified and report back to the Commission within 120 days. The First Nation Interveners for whom consultation was found to be inadequate will have 21 days from the date of the filing of the report to file a written response to the report. BC Hydro will have 7 days from the date of filing of the First Nation Intervener responses to file a written reply to the responses. The Commission will review the submissions and, if the deficiencies in consultation have been remedied to the Commission’s satisfaction, will lift the suspension of the CPCN.