“Here we are, well into the fourth year after the project application was filed, and two and a half years after its original approval. Millions of dollars collected from Hydro customers squandered on a hopeless legal battle against the First Nations, which could have been devoted to working toward solutions. And still not an electron flowing along the route from Merritt to Coquitlam.”
In 2007, the BC Transmission Corporation (a spin-off from BC Hydro, recently spun back into the corporate Mother Ship) applied to the Utilities Commission for the approval of a new 247-kilometer high-voltage transmission line, running from the southern interior (near Merritt) to the Vancouver suburb of Coquitlam. This was to be the “ILM Line” — Interior/Lower Mainland.
Its stated purpose was to improve the supply of power to the Lower Mainland, generated in the southeastern corner of the province. Thanks to an improved link to the US grid near Abbotsford, it would also facilitate exports to the U.S. The price-tag: a cool $700 million.
In a meeting several months before the application, BCTC officials said that although the new line would cross the territories of more than 40 First Nations, they had consulted with those communities and they were confident that there were no objections to the project from that quarter.
When the project came before the Commission for approval, five First Nations registered as intervenors and opposed the project. They insisted that they had not been properly consulted by BCTC or its parent company, BC Hydro. The Commission ruled that it was not its role to pass judgment on the performance of Crown corporations in relation to the constitutional duties of the government to First Nations. When the First Nations appealed to the BC Court of Appeal, we brought a motion on behalf of Hydro’s residential customers for the proceeding to be adjourned until the court made its decision.
The Commission ignored our arguments and sailed ahead with a cursory written review of the application, and gave it rubber-stamp approval in August 2008.
The appeal was heard coupled with a companion case, involving First Nations objections to a massive power-purchase deal between BC Hydro and Rio Tinto (a.k.a. Alcan) concerning electricity generated by the Alcan Kemano hydroelectric facility. The Court of Appeal ruled that the Utilities Commission was wrong: its duty to enforce the “public interest” included the duty to ensure that the Crown lived up to its constitutional duties to First Nations.
Rio Tinto appealed its own case up the final step to the Supreme Court of Canada, which confirmed the reasoning of the Court of Appeal but found that the power deal at Kemano did not physically change the land or the water flows and therefore did not spark a renewed round of consultations. On the other hand, for new projects like the ILM transmission line, regulators like the BC Utilities Commission must ensure that Canada’s constitution is obeyed before issuing approvals.
Meanwhile, upon reading the Court of Appeal decision on the ILM transmission line, I wouild have hoped that BC Hydro would go back to the communities and do a more thorough job of meeting with elders and band councils, exchanging information and suggestions, and made whatever modifications to the plan were needed to accommodate First Nations entitlements.
Instead, they ground through a re-hearing of the original application, and tried to convince the Commission that they had in fact done the job properly in the first place.
As I stated in my final submission to the Commission, after weeks of testimony from ten actively-participating First Nation intervenors at the re-hearing,
Stepping for a moment out of the usual role of legal counsel in a Commission proceeding and speaking to what I heard and perceived in the hearing room, I feel compelled to say that at times I felt a sense of palpable shame at the way these companies, representing as they do the government and people of British Columbia, dealt with the affected First Nations communities. At times the tone of those dealings smacked of much that is truly wrong and ugly about the way we have dealt with our province’s original inhabitants. I do not suggest that they behaved in a deliberately dishonourable way. Rather, the picture that emerges is one of insensitivity to the communities they were dealing with, and indifference to the way the situation was perceived by those communities.
We argued that Hydro customers and First Nations have a common interest in ensuring that aboriginal title issues are fairly and fully resolved before energy projects are approved — so that unresolved issues and claims do not lurk like financial time-bombs, waiting to go off and knock the economics of projects sideways after they have been approved and built and it’s too late. And also because First Nations people are Hydro customers too. And also because it is the right thing.
Final arguments were filed back in March 2010. Finally, last week, we received the Commission’s decision. It recognized the obvious — that BC Hydro had flubbed the task of consultation, and the approval would remain suspended.
Here we are, well into the fourth year after the project application was filed, and two and a half years after its original approval. Millions of dollars collected from Hydro customers squandered on a hopeless legal battle against the First Nations, which could have been devoted to working toward solutions. And still not an electron flowing along the route from Merritt to Coquitlam.
One thing will never be the same, though: First Nations issues have gone from invisibility to the very top of the agenda when it comes to energy project approvals in British Columbia.