Canada: B.C. Utilities Commission Must “Grasp the Nettle” and Decide Aboriginal Consultation Disputes

Copyright 2009, Blake, Cassels & Graydon LLP

Originally published in Blakes Bulletin on Aboriginal Law/Energy, February 2009

On February 18, 2009, the B.C. Court of Appeal issued two decisions requiring the British Columbia Utilities Commission (the Commission), when making its decisions, to assess the adequacy of Crown consultation with First Nations. With the tremendous continuing growth in B.C.'s energy sector, including B.C. Hydro's purchase of electricity from independent power producers and the projected expansion of transmission infrastructure, these decisions mark a significant shift in the regulatory regime applicable to many businesses operating in this arena.

In the past, the Commission has typically deferred the issue of aboriginal consultation undertaken by B.C. Hydro (as a regulated utility and the Crown) to other regulators, such as the Environmental Assessment Office. In both decisions, the Court of Appeal clearly held that the Commission has an obligation to determine if the duty to consult arises, the scope of this duty, and whether it has been fulfilled. This puts the Commission squarely in the role of adjudicator of aboriginal consultation and accommodation related to matters before it. This is a role which the Court of Appeal considers integral to upholding the honour of the Crown.

We set out below a brief outline of the facts of each case, an overview of the Court's reasoning, and some thoughts on the potential ramifications of these decisions.

Carrier Sekani Tribal Council v. British Columbia (Utilities Commission)

The backdrop for this case revolves around the historical creation of the Kemano power station in the 1950s by Rio Tinto Alcan (Alcan) and a proposed expansion in the 1990s, often called the Kemano II project. In short, water is diverted from the Kemano River to produce electricity (originally for Alcan's aluminum smelter in Kitimat) and discharged into the Nechako River; water-flows in the river systems were altered, with implications for fish and wildlife. Alcan was granted a water licence to use the flow.

The Carrier Sekani Tribal Council (the Tribal Council) consider the diversion of the water for Alcan's use a historical and continuing infringement of their aboriginal rights and title – a claim also made by the Tribal Council in its pending aboriginal title litigation and within treaty negotiations.

In 2007, B.C. Hydro negotiated an Energy Purchase Agreement (EPA) with Alcan to buy surplus electricity from Alcan's Kemano power station near Kitimat. Before the EPA could be enforceable, B.C. Hydro was required under section 71 of the Utilities Commission Act to apply to the Commission for a determination that the EPA is in the public interest.

The Tribal Council sought to make submissions before the Commission in this section 71 hearing about B.C. Hydro's duty to consult, but the Commission rejected this request. In its motion to be heard before the Commission, the Tribal Council argued that in addition to new physical impacts, the EPA would affect their aboriginal interests in a number of ways, including that it authorizes sales of electricity resulting from diversions of water that causes existing impacts and infringements and makes management and operational decisions about this resource.

The Commission took the position that it had no role in assessing consultation issues. Further, the Commission reasoned that since the EPA had no new physical impacts on Tribal Council territory, any lack of Crown consultation regarding the historical (but continuing) impact was irrelevant to the Commission's assessment of whether the EPA was in the public interest. This was the basis of the Tribal Council's appeal and, as discussed below, these decisions were overturned by the Court of Appeal.

Kwikwetlem First Nation v. British Columbia (Utilities Commission)

In 2006, the British Columbia Transmission Corporation (BCTC) proposed to build a new 246-kilometre 500kV transmission line from Merritt to Coquitlam, called the "Interior to Lower Mainland Transmission Project". BCTC pursued two key approvals for this Project in two separate regulatory contexts. First, it applied for an environmental assessment certificate under applicable environmental assessment laws (the EA process). Second, it applied to the Commission for a certificate of public convenience and necessity (the Certificate) pursuant to s. 45 of the Utilities Commission Act. At the core of this case are two different understandings about these two separate regulatory processes and their interplay.

As part of the Project planning for the EA process, in August 2006 B.C. Hydro (on behalf of BCTC) undertook initial consultation with about 60 First Nations that were identified as potentially impacted by the Project.

In November 2007, BCTC filed its application with the Commission for the Certificate. As a preliminary matter, the Commission established a "scoping process" for deciding whether it should consider the adequacy of consultation and accommodation efforts as part of its determination to grant the Certificate. The Commission sought submissions from BCTC, B.C. Hydro and interested First Nations. Four days before an oral hearing was scheduled involving all of the parties, including about six First Nations registered as interveners, the Commission cancelled the oral hearing because it had decided that it should not address consultation as part of its Certificate decision. Consistent with two prior decisions the Commission had made for similar projects, the Commission reasoned that the EA process created a reliable regulatory scheme as the means for considering whether the Crown had fulfilled its duty to consult for the Project.

Four First Nations appealed this scoping decision to the Court of Appeal, which, as discussed below, overturned the Commission's ruling. In the interim, pending the Court of Appeal's decision, the Commission proceeded with its review of the Certificate and granted it to BCTC in August 2008. The Certificate has not been appealed.

The Court of Appeal's Reasons

While the cases are factually distinct, and consider applications under different parts of the Utilities Commission Act, the Court's approach and findings in each case are virtually identical. In each case, the Court first considered whether the Commission has the jurisdiction and competency to assess the adequacy of the Crown's consultation efforts before assessing whether the Commission's decision to decline to assess the adequacy of those efforts in each situation was justifiable.

Does the Commission have the jurisdiction and competency to assess consultation and accommodation?

The Court of Appeal answered this question with an unequivocal "yes". While observing that the Commission has previously demonstrated an "aversion" to assessing the adequacy of consultation and has a "disinclination to grapple with the issue", it stated that the Court should settle this point. The Court found that the Commission is a quasi-judicial tribunal with authority to decide questions of law on applications before it. As such, the Commission has the jurisdiction and capacity to decide the constitutional questions of whether the duty to consult exists and, if so, whether that duty has been met.

The Commission and B.C. Hydro and BCTC had argued that "Aboriginal law is not in the steady diet" of the Commission. The Court drew on the reconciliatory purpose behind the Crown's duty to consult, holding that there is no other forum that is more appropriate to decide consultation and accommodation issues in a timely and effective manner.

Did the Commission make the wrong decision in declining to assess the adequacy of consultation?

Again, the Court answered "yes".

In Carrier Sekani, the Court held that the Commission had erred by dismissing the Tribal Council's arguments around inadequate consultation as a preliminary matter without allowing those arguments to be heard on their merits. The Court did not hold that the Commission was bound to find that a duty to consult was triggered on these facts, but that the Commission had erred by refusing to entertain argument as to the duty to consult in the context of a section 71 hearing.

Likewise, in Kwikwetlem, the Court held that the Commission was not entitled to rely on the issue of consultation being dealt with in a parallel EA process. The Court observed that the granting of a Certificate under section 45 of the Act is the "first important decision in the process of constructing a power line" and has an effect on the character and scope of potential infringements of asserted First Nations' rights. Again, the Court held that the Commission was not bound to find that consultation efforts had been lacking but, up to that point, that it "is required to assess those efforts to determine whether the Crown's honour was maintained in its dealing with First Nations regarding the potential effects of the proposed project."

A critical point to each decision was the Court's finding that the "Crown's obligation to First Nations requires interactive consultation and, where necessary, accommodation, at every stage of a Crown activity that has the potential to affect their Aboriginal interests." As such, the Commission could not deny its jurisdiction nor rely on a parallel or future process to assess the adequacy of the Crown's efforts to consult and accommodate.

What is the appropriate remedy where the Commission fails to consider consultation?

In each case, the Court ordered the Commission to reopen its process and reconsider the adequacy of the Crown's consultation efforts with respect to the applications under sections 71 and 45 of the Act, respectively. These re-hearings will undoubtedly create some delay for these two specific projects.


These cases highlight the policy considerations around the appropriate role and responsibility of the Commission in dealing with the evolving dynamics of energy growth and diversification in B.C. and the participation of First Nations. In particular, the Court of Appeal sees the Commission as having an integral role to assessing the adequacy of aboriginal consultation and accommodation. The Commission cannot avoid this role by refusing to hear submissions from First Nations,

choose to limit its public interest mandate to exclude these considerations or rely on another regulatory process, such as the EA process, to address aboriginal consultation and accommodation.

The immediate effect of this decision is that – barring an appeal of this decision to the Supreme Court of Canada or a significant legislative amendment expressly limiting the Commission's jurisdiction to consider the adequacy of consultation – proceedings before the Commission will now necessarily involve a consideration of the Crown's duty to consult with First Nations in regards to the matter or project being considered by the Commission.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
27 Oct 2016, Seminar, Toronto, Canada

Please join members of the Blakes Commercial Real Estate group as they discuss five key provisions of a commercial real estate purchase agreement that are often the subject of much negotiation but are sometimes misunderstood.

1 Nov 2016, Seminar, Toronto, Canada

What is the emotional culture of your organization?

Every organization and workplace has an emotional culture that can have an impact on everything from employee performance to customer or client satisfaction.

3 Nov 2016, Seminar, Toronto, Canada

Join leading lawyers from the Blakes Pensions, Benefits & Executive Compensation group as they discuss recent updates and legal developments in pension and employee benefits law as well as strategies to identify and minimize common risks.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.