Accusations that the provincially owned utility did not properly consult First Nations may slow down the projects, especially if the matter ends up in court.
Introduction
BC is attempting to procure new, clean energy from the private sector to plug its electricity deficit. BC Hydro, the province’s largest electric utility, ran a Call for Power in 2024 that resulted in awarding ten contracts, nine for wind farm projects, the other for solar facilities.
The BC government, which owns BC Hydro, has tried to speed up the process, for example by exempting the nine wind projects from review under the Environmental Assessment Act. Despite this, the projects are already behind schedule. Far from plugging the deficit that starts in fiscal year 2029 (F2029), they won’t deliver any energy before F2031, and 60 percent of the energy won’t come on stream until F2032.
To avoid potential opposition to the projects from First Nations, BC Hydro insisted that bidders in the 2024 Call for Power should have at least 25 percent indigenous ownership. In fact, all but one of the successful bidders are 51 percent owned by First Nations. Despite this concession, several First Nations have raised concerns with the procurement process, which could delay the projects further.
The matter is before the BC Utilities Commission (BCUC), and things are not going well for BC Hydro.
BCUC review
The BCUC usually reviews energy projects before construction starts to ensure the project is in the public interest, in which case it grants a Certificate of Public Convenience and Necessity (CPCN). Among other matters, the BCUC considers whether the company proposing the project has done sufficient consultation with any First Nations that might be adversely affected by the project.
But in addition to skipping the environmental assessment, the 2024 Call for Power projects are also exempt from the need for a CPCN, as a result of a loophole created by a 2002 ministerial order. The usual opportunity for the BCUC to assess whether BC Hydro had done sufficient consultation with potentially-affected First Nations prior to project construction was lost.
The Utilities Commission Act does, however, require the BCUC to review BC Hydro’s contracts to buy electricity from the 2024 Call for Power projects. This is a requirement of the Act from which BC Hydro has not been exempted (so far, anyway). The BCUC has the power to declare the contracts unenforceable if they are not in the public interest, which would stop the projects in their tracks.
Progress to date
The BCUC also has the power to approve the contracts without a public hearing, denying any opportunity for interested parties to have a say. In this case, to its credit, it decided to hold a hearing. However, perhaps for reasons of “efficiency” (or perhaps sensing the government’s desire to accelerate these projects), the BCUC limited the regulatory process.
As is increasing common at the BCUC these days, no interested party was permitted to participate as an intervener. This means only BC Hydro is able to submit evidence and make a legal argument. Anyone may submit a letter of comment, but these do not have the same legal weight as BC Hydro’s evidence. Other parties have no right to question BC Hydro or respond to its legal argument.
Despite the scales being firmly tipped in BC Hydro’s favour, two First Nations who claim interests in land on which some of the projects will be located are using the BCUC hearing to raise concerns about their treatment by BC Hydro.
K’omoks First Nation
The K’omoks First Nation alleges that one of BC Hydro’s projects, the Brewster Wind Project, would result in an infringement of the treaty it is negotiating with the province of BC, and that BC Hydro followed a process that was “deficient, unlawful and does not accord with the honour of the Crown.” K’omoks claims that “BC Hydro made no effort” to consult it about the Brewster Wind Project.
K’omoks had previously written to the Brewster Wind Project’s bidder to complain that they had not been consulted and that there were potential impacts to the local population of Roosevelt Elk. Despite this complaint, BC Hydro approved the Brewster Wind Project.
BC Hydro acknowledged that it had not consulted with K’omoks directly, but had delegated that task to the owners of the Brewster Wind Project (Capstone Infrastructure Corporation from Toronto and the Wei Wai Kum Nation). In fact, BC Hydro didn’t consult directly with First Nations on any of the ten projects.
Still, BC Hydro claimed that it has met its legal obligations, adding that a project like Brewster Wind Power would require “approximately eight to 12 federal permits and 20 to 25 provincial ones”, and that First Nations consultation should be required for each permit. The agencies doing the permitting were not identified, although a letter from the Ministry of Energy says that the provincial permits will be issued by the BC Energy Regulator, or BCER.
K’omoks didn’t give up. In a further letter of comment, it argued that the BCUC “cannot determine whether the duty to K’ómoks has been fulfilled on the basis of the information presently before [it]” and that further consultation between BC Hydro and K’omoks was required. The BCUC denied K’omoks’s request, saying that it would have enough evidence to “explore issues related to First Nations consultation.”
Doig River First Nation
While all this was going on, the BCUC received a letter of comment from Doig River First Nation, complaining about the “lack of consultation by BC Hydro” regarding the Stewart Creek Wind Project and the Taylor Wind Project, both in north eastern BC. These projects are within Doig River’s “planning area,” a concept apparently recognized in agreements signed with the provincial government.
In one of several examples, Doig River alleges that both the Ministry of Water, Land and Resource Stewardship and BC Hydro failed to consult with them on the “wind investigative licence” for the Stewart Creek Wind Project. The permits were approved, and Doig River claims it still has not had a response from the Ministry to its comments during the permit application process.
Potential effect on Call for Power
BC Hydro has also revealed letters of opposition to three other projects: Nlaka’pamux Nation (Highland Valley and Mount Mabel projects) and Saulteau First Nation (Stewart Creek Wind Project).
This means the BCUC is aware of complaints regarding five of the ten proposed projects. The table in Attachment 1 shows that this represents 52 percent of the total energy from the 2024 Call for Power, which could be at risk of delays if the complaints are not resolved.
Further delays in the projects will mean the province’s electricity deficit will continue for longer, and BC will be more reliant then ever on electricity imports.
The BCUC’s decision
To assess whether the contracts are in the public interest, the BCUC must be satisfied that BC Hydro’s consultation with potentially affected First Nations has been sufficient, given how far developed the projects are to date. The consultation does not need to be complete, and any accommodation to a First Nation affected by a project does not need to be finalized, for the BCUC to approve the contracts.
Despite this relatively low bar, the BCUC faces a tricky decision. As the Supreme Court of Canada’s Clyde River decision made clear, First Nations consultation is not just one aspect of the public interest that can be balanced against others:
“The duty to consult, being a constitutional imperative, gives rise to a special public interest that supersedes other concerns typically considered by tribunals tasked with assessing the public interest.”
BC Hydro’s decision not to consult directly with any First Nation about individual projects, but to leave this to bidders, should give the BCUC pause for thought. The Crown is ultimately responsible for ensuring consultation is adequate, and may rely on a regulatory agency such as the BCUC (see Clyde River) to fulfill this duty – it’s far less clear that the consultation can be delegated to private sector bidders on projects or their First Nations partners.
BC Hydro’s position
While BC Hydro has not yet submitted its final argument (due June 24), its submissions to date suggest it will rely on two arguments: that the projects are “in the very early stages of a multi-staged development” so there’s insufficient information available now for meaningful consultation to take place, and that other government agencies will in future conduct more First Nations consultation before issuing the permits each project will need.
It’s not clear how compelling BC Hydro’s first argument is. Its application to the BCUC contains little information about the projects themselves, which is normal enough for an electricity purchase agreement. But there’s nothing “normal” about these agreements – the government’s CPCN exemption means the usual BCUC scrutiny of the projects was denied, and yet the current BCUC review of the contracts still requires an equivalent examination of the First Nations consultation to date.
And surely there’s plenty of information available about these projects, at least known by the bidders, and some of it even in the public domain. The bidder for the Brewster Wind Project, for example, filed a document with Strathcona Regional District, showing it will build 30 wind turbines and a 35 km long, 230 kilovolt (kV) transmission line to connect to BC Hydro’s grid, and provided a handy map showing the route (you won’t find this information in BC Hydro’s application to the BCUC).
It also does not appear that BC Hydro even complied with the BCUC’s guidelines that set out the information a Crown corporation “must” file in support of any application. For example, it has not identified the Aboriginal or treaty rights that are potentially affected by each project, and whether those rights are treaty rights or are “asserted, established, or otherwise recognized by the Province of British Columbia.” Useful information for the BCUC at this point, you might think.
As for BC Hydro’s second argument, I’m sure other Crown agencies such as the BCER will review the projects before awarding permits. But the projects will be more advanced by that point, perhaps even under construction, and the agencies may feel under pressure to keep their momentum going. The BCUC’s review may be the last chance for BC Hydro to be required to listen seriously to the complaints of First Nations before the projects become faits accomplis.
Conclusion
The BCUC will probably do what the government wants, and approve BC Hydro’s contracts on the basis that other Crown agencies will do more consultation with First Nations in future. If it is feeling really brave, it might carve off the two most problematic contracts and insist BC Hydro do its own consultation, but I think this is unlikely.
This is a pity. BC Hydro was recently criticized over what it acknowledged were “shortcomings” with its First Nations consultation on non-integrated area resource planning (G’itga’at First Nation described BC Hydro’s actions as “cavalier and disingenuous”). A better showing on these projects might have gone some way to restoring BC Hydro’s claim to be moving towards “true and lasting reconciliation with BC First Nations.”
Regardless of what the BCUC does, the matter is unlikely to end here. First Nations rights are constitutionally protected, and if the Crown’s duty to consult is not fulfilled, the Supreme Court of Canada has said that a regulator’s decision to approve a project “should be quashed on judicial review.” The Court added:
“No one benefits – not project proponents, not Indigenous Peoples, and not non-Indigenous members of affected communities – when projects are prematurely approved only to be subjected to litigation.”
The government made it all sound so easy when the 2024 Call for Power winners were announced. BC Hydro had “engaged extensively” with First Nations, and all ten winning bids had First Nations co-owners. Environmental assessments would be skipped, and BC Hydro would soon “get those turbines spinning.”
Those turbines might not be spinning as soon as the government or BC Hydro would like.
Attachment 1
The following table shows BC Hydro’s ten 2024 Call for Power projects, and identifies the five for which complaints have been received from First Nations.
