Thursday, February 19, 2009

Kwikwetlem First Nation v. British Columbia (Utilities Commission), 2009 BCCA 68

This decision was released yesterday, as was one in relation to the Carrier Sekani and Kemano. I reading them at the moment to see what the implications are for the BCTC ILM project and Alcan's Kemano powerplant.

The first and foremost thing I take from the decisions is that meaningful consultation with First Nations means inclusion at the start of the project with the ability to have significant input scope and scale of the project.

In Kwikwetlem First Nation v. British Columbia (Utilities Commission), 2009 BCCA 68, clearly the problem is not the consultation process with in the BC Environmental Assessment process, but with the certificate of public convenience and necessity issued by the Ultilities Commission. The CPCN sets an alignment for ILM that is to restrictive without consultation with First Nations.

Where do things go from here? Can BCTC proceed with the ILM EA process with the CPCN? Can the Utilities Commission issue a CPCN that fits with meaningful consultation?

NLAKA'PAMUX NATION TRIBAL COUNCIL
Court Halts $700 Million Transmission Line Project


VANCOUVER, BC, PRESS RELEASE--(Marketwire - Feb. 18, 2009) - The BC Court of Appeal today ruled that BC Hydro and the BC Transmission Corporation's proposed $700 million high-voltage transmission line from the Interior to the Lower Mainland cannot proceed until First Nations are properly consulted and accommodated for infringements to their Aboriginal title and rights.
The case involves a joint appeal of the Nlaka'pamux Nation Tribal Council, the Upper Nicola Indian Band, the Okanagan Nation Alliance and the Kwikwetlem First Nation of a Certificate of Public Convenience and Necessity issued by the BC Utilities Commission to BCTC for the transmission line in August, 2008. In allowing the appeal and suspending the Certificate the Court found that the "decision to certify a new line as necessary in the public interest has the potential to profoundly affect the appellants' Aboriginal interests. Like the existing line (installed without consent or consultation), the new line will pass over land to which the appellants claim stewardship rights and Aboriginal title." The Court found that the Commission must ensure that adequate consultation and accommodation occurs before it issues a Certificate that enables the transmission line to proceed and concluded that the Commission had failed to do so.
The Court ordered the Utilities Commission to ensure that the First Nations are fully consulted and accommodated regarding the decision to build the new line. Consultation must include a study of alternatives to the proposed project, including the development of alternative local power sources or reducing demand by increasing prices. The transmission project cannot proceed until those consultations are concluded.
"This is a huge victory for the Nlaka'pamux Nation and our neighbours," said Chief Bob Pasco, Chairman of the Nlaka'pamux Nation Tribal Council. "Our territory has been carved up by this and other transmission corridors. The existing line was put in with no regard for our title and rights and now they were trying to force the new line on us. For years we've been working hard to ensure we are properly consulted and accommodated. BC Hydro and the Province have been told by the Court of Appeal that it's no longer business as usual-they have to come to the table and seriously engage with us on the effects of the lines, other alternatives and how we'll be accommodated."
Grand Chief Stewart Philip of the Okanagan Nation Alliance said, "today's court decision makes clear yet again that the staus quo is neither respectful or workable. Real concrete change must occur immediately to the current environmental assessment and permitting processes. Shared decision-making through full recognition of Aboriginal Title and Rights and stewardship responsibilities is the path that must be followed."
Chief Tim Manuel of the Upper Nicola Band said, "based on our victory today at the Court of Appeal, BC Hydro and the Province must finally start to take us and our concerns seriously. For far too long they've been demanding that we jump to their timelines and objectives. The Court has clearly told them that if they want to do something in our territory they have to respect our Aboriginal title and our role as stewards of our land."
For a copy of the decision: http://www.courts.gov.bc.ca/jdb-txt/CA/09/00/2009BCCA0068.htm
/For further information: For further comment: Chief Bob Pasco, Chairman NNTC: (cell) (250) 371-0775; Chief Tim Manuel, Upper Nicola Band (cell) (250) 378-1986; Grand Chief Stewart Phillip, Okanagan Nation Alliance (604) 684-0231
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