doc_46257_2016_05_06_bch_rip_rap_arg

Tom A. Loski Chief Regulatory Officer Phone: 604-623-4046 Fax: 604-623-4407
[email protected]
Dear Ms. Ross:
RE: Project No. 3698854 British Columbia Utilities Commission (BCUC or Commission) British Columbia Hydro and Power Authority (BC Hydro) W.A.C. Bennett Riprap Upgrade Project (the Project) Final Written Argument
BC Hydro writes in compliance with Commission Order No. G-54-16 to provide its Final Written Argument.
Yours sincerely,
gh/ma
Enclosure
Copy to: BCUC Project No. 3698854 (W.A.C. Bennett Riprap Upgrade Project)
Registered Intervener Distribution List.
British Columbia Hydro and Power Authority, 333 Dunsmuir Street, Vancouver BC V6B 5R3
Counsel’s Final Writ ten Argument
on behalf of
May 6, 2016
8/16/2019 DOC_46257_2016_05_06_BCH_RIP_RAP_ARG
http://slidepdf.com/reader/full/doc4625720160506bchripraparg 3/829
Counsel’s Final Written Argument on behalf of British Columbia Hydro and Power Authorit y
May 6, 2016
Table of Contents
2.1 BCUC Jurisdiction ..................................................................................... 2
3 Project Justification ............................................................................................ 4
4 Cost Effectiveness .............................................................................................. 5
4.1 Cost Certainty ........................................................................................... 5
4.2 Expenditures Oversight ............................................................................. 7
5 First Nations Consultation .................................................................................. 7
5.1 Identification of First Nations Potentially Impacted by the Project ............. 9
5.2 Saulteau First Nations ............................................................................... 9
5.2.1 Scope of the Duty to Consult .................................................... 10
5.2.2 Consultation Process ................................................................ 20
5.2.4 Assessment of Adequacy of Consultation ................................ 31
5.3 McLeod Lake Indian Band ...................................................................... 35
5.3.1 Scope of the Duty to Consult .................................................... 35
5.3.2 Consultation Process ................................................................ 35
5.4 Other First Nations .................................................................................. 37
6 Public Engagement .......................................................................................... 38
W.A.C. Bennett Riprap Upgrade Project
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May 6, 2016
1 Introduction1
On November 13, 2015, BC Hydro and Power Authority (BC Hydro) filed a 2
Schedule of Expenditures (the Expenditures) with the British Columbia Utilities3
Commission (BCUC or the Commission) in connection with the expenditures it4
anticipates making for the W.A.C. Bennett Dam (the Dam) Riprap Upgrade Project5
(the Project). BC Hydro seeks the following Order from the BCUC in connection with6
the Filing:7
(a) It is in the public interest for BC Hydro pursuant to section 44.2(3)(a) of the8
Utilities Commission Act
the Project;10
(b) BC Hydro shall file semi-annual progress reports on the Project schedule, costs11
and any variances from the updated Project cost estimates following12
procurement activities and approved by the Board prior to implementation, and13
any difficulties the Project may be encountering; and14
(c) BC Hydro shall file with the Commission a final report within six months of15
substantial completion of the Project, including reclamation of the Sand Flat16
Quarry (SFQ), comparing Project costs, and to provide variance explanations17
for any material variance in costs or schedule.18
Based on the evidence in this proceeding, BC Hydro submits that the Expenditures19
for the Project are in the public interest and should be approved by the BCUC as20
such.21
1.1 Project Description22
The Project involves replacing failed riprap on approximately 1.3 km of the length of23
the Dam and approximately 25 meters of the upper portion of the Dam crest to24
improve Dam integrity and safety. The existing riprap has been in place since Dam25
1 R.S.B.C. 1996, c 473.
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May 6, 2016
construction was completed in 1967, and has become deficient after long-term1
exposure to wind, wave and freeze-thaw action. The risk of significant damage to the2
Dam in a high storm or wind event increases should the riprap deterioration3
continue. BC Hydro would be in a reactive response position, which could involve4
emergency reservoir drawdown should failure of the upstream face of the Dam occur5
during a high wind event.6
The Project involves short-term operation of the SFQ to source rock material for use7
as the replacement riprap and filter layer, transportation of the excavated rock8
material from the SFQ to a stockpile at the Dam, excavating existing areas of failed9
riprap at the Dam, and placement of the new riprap at the Dam. Transportation will10
be predominantly along existing forest service roads, with some road repairs and11
upgrades made as needed to facilitate safe transit. Depressions in Zone 5 of the12
Dam will be filled, and a new filter layer will be placed on top of Zone 5 and beneath13
the riprap layer for added protection. The SFQ will be reclaimed after use. The14
existing sandstone riprap will be replaced with limestone, a more durable and15
weather resistant material. The new limestone riprap is expected to meet16
performance expectations for 75 to 100 years, or longer. The Project Cost Range is17
$171.4 million and $109.7 million. BC Hydro will seek approval to proceed with the18
Project Implementation Phase from its Board of Directors on May 30, 2016.19
BC Hydro anticipates the Project will be complete July 2021.20
2 Utilities Commission Act21
2.1 BCUC Jurisdict ion22
BC Hydro filed the Application for acceptance of the Expenditures pursuant to23
section 44.2(1)(b) of the UCA. Section 44.2(3) of the UCA requires the BCUC to24
accept the Expenditures if the BCUC considers that making the Expenditures “would25
be in the public interest”, or to reject the Expenditures. Section 44.2(4) enables the26
commission to accept or reject the Expenditures in whole or in part.27
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May 6, 2016
Section 44.2(5.1) provides that in deciding whether to accept the Expenditures, the1
Commission, in addition to considering the interests of persons in British Columbia2
who receive or may receive service from BC Hydro, “must consider and be guided3
by”:4
(a) British Columbia’s applicable energy objectives;5
(b) an applicable integrated resource plan (IRP) approved under section 4 of the6
Clean Energy Act2 (CEA);7
(c) the extent to which the expenditure schedule is consistent with the8
requirements of section 19 of the CEA; and9
(d) if the schedule includes expenditures on demand-side measures, the extent to10
which the demand-side measures are cost-effective within the meaning11
prescribed by regulation, if any.12
Of relevance to this Application are the interest of persons in British Columbia who13
receive or may receive service from BC Hydro, B.C. energy objectives and the14
approved 2013 IRP.15
As set out in detail in sections 1.1.2 and 1.1.3 of the Application, the Project is16
clearly in the interest of persons in British Columbia who receive or may receive17
service from BC Hydro. The Dam is a critical part of BC Hydro’s largest generating18
facility and the Project will extend the life of the Dam, a key, cost-effective Heritage19
Asset.20
The Project is also consistent with and advances several of B.C.’s energy objectives.21
The Project will facilitate the development and continued use of BC Hydro’s Gordon22
Meritt Shrum Facility (the GMS Facil ity ), one of BC Hydro’s Heritage Assets. In23
extending the life of the Dam, the Project will help ensure an ongoing contribution of24
approximately 13,500 GWh/year to the electrical grid, which is equivalent to25
2 S.B.C. 2010, c. 22.
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May 6, 2016
approximately a quarter of BC Hydro’s overall integrated electric system load. The1
ongoing safe operation of this Dam is critical for BC Hydro to achieve CEA’s energy2
objective of electrical self-sufficiency. The electricity produced is clean, renewable,3
and cost-effective. The Project will create jobs and provide economic development4
opportunities for people in the area, including First Nations. Finally, the approved5
2013 IRP relied on the continued operation of the GMS Facility as an existing6
resource for both energy and capacity through its twenty year planning period (20147
to 2033).8
2.2 Rejection of the Project Expenditure Schedule9
BC Hydro submits that the BCUC has the power under section 44.2(3) of the UCA to10
accept or reject the Project expenditure schedule. While in some cases rejection of a11
part of a capital expenditure schedule may be appropriate, such is not the case12
where the capital expenditure schedule consists of a single project as in this case.13
Partial acceptance of the Expenditures would materially alter the scope, schedule,14
and cost of the Project. These decisions properly rest with BC Hydro and are not15
appropriate for a section 44.2 determination.16
3 Project Justification17
Ensuring the safety of the largest dam in the province is not only justified, but is a18
legal obligation and social responsibility.19
The Dam is a fundamental and required component of the GMS Facility. The GMS20
Facility is BC Hydro’s largest generating facility, providing energy to about a quarter21
of BC Hydro’s overall integrated electric system load. Williston Reservoir is the22
second largest reservoir in North America.23
The riprap layer of the Dam protects the underlying Dam zones from erosion. Since24
construction, wind generated waves, ice loading, and freeze thaw action have25
eroded the existing riprap protection and some of the underlying Dam fill, resulting in26
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May 6, 2016
inadequate long-term erosion protection on the upstream face of the Dam. Exposure1
of the Dam fill allows erosion of the Dam under wave action. If no intervention is2
taken, the erosion could eventually reach through the Dam fill to underlying zones,3
and could ultimately reach the Dam core. A breach of the Dam core could in turn4
lead to Dam failure, overtopping and uncontrolled release of the Reservoir.5
The Dam is categorized as an “Extreme Consequence” dam under B.C.’s Dam6
Safety Regulation3. The downstream impacts of a breach could include extremely7
high economic losses affecting critical infrastructure, public transportation, services8
or commercial facilities, some to severe damage to residential areas, significant9
environmental impacts, and loss of life. While BC Hydro considers the risk of Dam10
failure as low at this stage, the consequences of failure are extreme.11
The Project is an important dam safety project that stops the risks associated with12
continued erosion from increasing. Further, in 2012, an expert engineering panel13
advised BC Hydro that it considers the riprap a serious deficiency that should be14
remedied as soon as possible. BC Hydro’s legal duty under the Dam Safety15
Regulations requires it, as owner of the Dam, to properly inspect, maintain and16
repair the Dam and related works in a manner that keeps the Dam and works in17
good operating condition. In meeting these duties BC Hydro must exercise18
reasonable care to avoid the risk of significant harm resulting from a defect,19
insufficiency or failure of the Dam.4 Given this, BC Hydro submits that the evidence20
clearly supports the need for the Project at this time.21
4 Cost Effectiveness22
4.1 Cost Certainty23
The Project has a cost range of $171.4 million and $109.7 million (the Project Cost24
Range). The estimates have been developed through BC Hydro’s rigorous project25
3 B.C. Reg. 40/2016, at section 2 of Schedule 1.
4 Supra note 3 at s. 5.
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May 6, 2016
cost estimating practices.5 Further, a third party expert reviewed BC Hydro’s cost1
estimate, Project schedule and construction methodology and confirmed that the2
Project Cost Range is appropriate and consistent with a Class 3 degree of accuracy3
in the AACE International Recommended Practices (refer to Appendix E-3 of the4
Application)5
The Project Cost Range has an estimating accuracy range of6
+25 per cent/-20 per cent. This level of cost uncertainty is consistent with the Project7
risk and complexity. These complexities include the geotechnical nature of the8
Project, the technical design and quality requirements for construction activities, the9
requirement for the Dam to remain operational during construction, the geographical10
location of the Dam and the SFQ, and that construction activities could be impacted11
by a number of uncontrollable variables such as reservoir elevations, subsurface12
conditions and weather.6 13
BC Hydro has also included the appropriate contingencies in the Project Cost Range14
as a mitigation measure due to the complexity of the Project. The contingencies15
provide funding for schedule delays or for loss of up to two full construction seasons16
due to reservoir elevations and site conditions at the SFQ being different than17
expected.18
To further improve the overall cost certainty, BC Hydro has engaged in an Early19
Contractor Involvement (ECI) process. The ECI process is designed to result in20
improved scope, schedule, and cost certainty by enabling the joint development of21
the contract terms and conditions, pricing schedule, detailed construction planning22
and appropriate mechanisms for risk allocation between BC Hydro and the23
contractor. To date, the ECI process has not resulted in a variance from the Project24
5 Please refer to Exhibit B-1, Appendix B.
6 Please refer to Exhibit B-1, section 5.3 for further discussion of the key implementation phase risks that
could impact Project costs.
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May 6, 2016
Cost Estimate.7 No escalation factor has been applied to the Project beyond the1
B.C. Consumer Price Index.2
Given the above, BC Hydro is confident that its cost estimates for the Project, which3
include the cost risk management strategies discussed, provide a reasonable level4
of cost certainty for the acceptance of the Expenditures.5
4.2 Expenditures Oversight6
In light of the above, and in consideration of BC Hydro’s project estimating practices,7
BC Hydro’s proposes that filing semi-annual progress reports with the BCUC on the8
Project schedule, costs and material variances is the appropriate means of ensuring9
the BCUC has adequate oversight over Expenditures. BC Hydro recommends10
semi-annual reporting rather than more frequent reporting due to the short duration11
of the Project schedule, and the nature of its seasonal construction. The form and12
content will be consistent with other project reports8 filed with the BCUC, and13
BC Hydro will file a final report within six months of substantial completion of the14
Project. The BCUC has the jurisdiction under section 43 of the UCA to order such15
reporting, which strikes the appropriate balance between the BCUC’s oversight of16
the Expenditures and recognition that pursuant to the Hydro and Power Authority17
Act,9 it is BC Hydro that is responsible for the ongoing management of the Project.18
5 First Nations Consultation19
The Expenditures support a critical dam safety project at a dam that has been20
designated as an “Extreme Consequence” facility. The potential consequences of a21
dam breach are extremely high economic losses affecting critical infrastructure,22
public transportation, or services or commercial facilities, or some destruction of or23
sever damage to residential areas, significant environmental impacts, and loss of24
7 The ECI process is described in further detail in Exhibit B-1, section 3.6.2.1.
8 See for instance the reports filed by BC Hydro in respect of the John Hart Generating Station Replacement
Project. 9 R.S.B.C. 1996, c.212, sections 3 and 12(1).
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May 6, 2016
life.10 All parties with an interest in the lands and environment located around and1
downstream of the Dam, including potentially affected First Nations, directly benefit2
from the Project because of the resultant decrease in safety related risks, including3
environmental risks. The First Nations’ Independent Technical Review (FNITR)4
recognizes the importance of the Project, and none of the interveners, including5
Saulteau First Nations (Saulteau), oppose the Project.11 6
BC Hydro submits that it has engaged in adequate consultation, and where7
appropriate accommodation, with First Nations potentially affected by the Project.8
Further, BC Hydro has maintained the honour of the Crown by informing the9
decision-making process in respect of the Project with feedback received through10
the consultation process. The BCUC’s acceptance of the Expenditures is but one of11
several stages in the Project’s development. Consultation on the Project has already12
advanced through several stages including the Ministry of Forests, Lands and13
Natural Resources Operations (FLNRO) and the Ministry of Energy and Mines’14
(MEM) permitting processes. Ministry representatives undertook Crown consultation15
on the Project. Consultation on the Project was found to be adequate for the16
purposes of those regulatory processes and the requisite permits and authorizations17
were issued. Those permits and authorizations remain valid and unchallenged.18
Before the BCUC can decide whether the Expenditures are in the public interest, it19
must assess the adequacy of consultation in respect of the Project to the point of its20
decision.12 In this case, the consultation process has included direct engagement21
with BC Hydro and the opportunity to intervene in the BCUC process. These22
complementary venues have provided First Nations including Saulteau, the only23
First Nation that is challenging the approval of the Expenditures, a reasonable24
10 Exhibit B-1, at section 1.1.2.
11 See Exhibit C5-10, FNITR, page 100.
12 Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, [2010] 2 SCR 650, 2010 SCC 43 (CanLII),
paragraph 70. [Rio Tinto]
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May 6, 2016
consultation process. The honour of the Crown has been maintained and the1
Expenditures can be approved as being in the public interest.2
5.1 Identification of First Nations Potentially Impacted by the3
Project4
BC Hydro’s consultation process with Treaty 8 First Nations on the Project started5
when the Project was still in its infancy. BC Hydro identified and commenced6
consultation on the Project with all Treaty 8 First Nations in or about7
December 2011. BC Hydro also contacted the Treaty 8 Tribal Association, an8
association that “supports and provides advisory services to B.C.’s Treaty 8 First9
Nations.” 13
In addition, BC Hydro consulted a number of provincial and federal10
government public sources to verify whether any other First Nations were listed as11
have asserted interests in the area. No further First Nations were identified through12
that database.14 BC Hydro is confident that the process utilized to identify potentially13
affected First Nations was reasonable and appropriate.14
5.2 Saulteau First Nations15
Consultation with Saulteau commenced in December 2011 and is ongoing.16
BC Hydro approached the consultation process in good faith with the intent of17
substantially addressing Saulteau’s concerns. As part of the consultation process,18
BC Hydro provided capacity funding for Saulteau to undertake a Traditional Use19
Study (the Saulteau TUS) and participate in the FNITR. The FNITR provided an20
assessment as to the potential impacts of the Project on Saulteau’s treaty rights as21
set out in the TUS and requested that BC Hydro agree to a number of proposed22
further baseline studies and mitigation and accommodation measures (the23
Requested Mitigation Measures). BC Hydro carefully considered each of the24
Requested Mitigation Measures and as a direct result incorporated several25
mitigation measures into the Project. Where BC Hydro did not accept Requested26
13 Exhibit B-1, at page 4-9.
14 Exhibit B-1, at page 4-9.
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Mitigation Measures, it provided its rationale. As construction planning continues,1
BC Hydro continues to consult on the outstanding Requested Mitigation Measures.2
BC Hydro acknowledges that Saulteau disagrees with BC Hydro’s assessment of3
the seriousness of the potential impacts from the Project, and the adequacy of4
consultation conducted. In particular, Saulteau believes that BC Hydro’s current5
response to the Requested Mitigation Measures is inadequate. The fact that6
consultation is ongoing on many of the Requested Mitigation Measures is7
appropriate given the extraordinarily detailed nature of the Requested Mitigation8
Measures and the current stage of the Project. Specific details of construction9
planning are currently being negotiated as part of the ECI process and in the10
absence of these construction details, it is not practical for BC Hydro to provide11
definitive responses to the outstanding Requested Mitigation Measures at this time.12
The fact that consultation is ongoing does not mean it is inadequate. The question13
before the BCUC is whether consultation has been adequate up to the point of its14
decision.15 BC Hydro respectfully submits that, for the reasons that follow,15
consultation with Saulteau has been adequate to this stage.16
5.2.1 Scope of the Duty to Consul t17
The duty to consult arises when the Crown has knowledge, real or constructive, of18
the potential existence of an Aboriginal right and contemplates conduct that has the19
potential to adversely affect it.16 The Project triggers the duty to consult with20
Saulteau.21
Once the duty to consult is triggered, the Crown must determine the requisite level of22
consultation required. The scope of the duty to consult, and if necessary23
accommodate, varies with the circumstances and is “proportionate to a preliminary24
assessment of the strength of the case supporting the existence of the right or title,25
15 Kwikwetlem First Nation v. BCUC, 2009 BCCA 68 (CanLII), at paragraph 70. [Kwikwetlem]
16 Haida Nation v. British Columbia (Minister of Forests), [2004] 3 SCR 511, 2004 SCC 73 (CanLII),
paragraph 35. [Haida]
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May 6, 2016
and to the seriousness of the potentially adverse effect upon the right or title1
claimed”.17 In cases where the Aboriginal right in question is established, the history2
of dealing between the Crown and the First Nation is critical to the analysis. 18
3
As set out in Exhibit B-1 (section 4.2.4), BC Hydro concluded that the duty to consult4
Saulteau lies towards the low end of the consultation spectrum. In Exhibit B-145
(section 2.1.3), BC Hydro considered all of the information obtained through the6
consultation process to date (including the results of Saulteau’s TUS and the FNITR)7
and provided its updated scope of consultation assessment. BC Hydro continues to8
believe that the scope of consultation is at the lower end of the consultation9
spectrum. At the core of this assessment is a consideration of the framework set out10
in Treaty 8 and BC Hydro’s conclusion that the Project will have limited and11
temporary adverse impacts on Saulteau.12
5.2.1.1 Established Treaty Rights13
Saulteau has established Treaty 8 rights.19 As the rights in question are established,14
no strength of claim assessment is required. In Mikisew, a case also involving the15
duty to consult in respect of potential impacts to Treaty 8 rights, the Supreme Court16
of Canada held that in the case of treaty rights, a consideration of the historic17
relationship between the Crown and First Nation must be considered:18
Here, the most important contextual factor is that Treaty 819
provides a framework within which to manage the continuing20
changes in land use already foreseen in 1899 and expected,21
even now, to continue well into the future. In that context,22
consultation is key to the achievement of the overall objective of23
the modern law of treaty and aboriginal rights, namely24
reconciliation.20 25
17 Haida, paragraphs 39 to 44. 18
Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] 3 SCR 388, 2005 SCC 69 (CanLII), paragraph 63. [Mikisew]
19 Please refer to Exhibit B-1 (section 4.2.4.1) and Exhibit B-14 (section 2.1.1.3).
20 Mikisew, at paragraph 63.
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May 6, 2016
Signed in 1899, Treaty 8 was an agreement reached between the Crown and First1
Nations residing in northern Alberta, northeastern British Columbia, northwestern2
Saskatchewan and southern portions of the Northwest Territories. The agreement3
provided for the surrender to the Crown of over 840,000 square kilometres of land in4
exchange for reserves and other benefits, including the right to hunt, trap and fish5
over the surrendered lands subject to the Crown’s right to take up such lands from6
time to time for societal interests:7
And Her Majesty the Queen HEREBY AGREES with the said8
Indians that they shall have right to pursue their usual vocations9
of hunting, trapping and fishing throughout the tract surrendered10
as before described, subject to such regulations as may from11 time to time be made by the Government of the country, acting12
under the authority of Her Majesty, and saving and excepting13
such tracts as may be required or taken up from time to t ime for14
settlement, mining, lumbering, trading or other purposes.21 15
This important dam safety project is precisely the type of Crown action contemplated16
by the “taking up” clause in Treaty 8. Provided consultation, and where necessary17
accommodation, has been adequate, any potential impacts from the Project to the18
land base are addressed through the Treaty 8 framework.19
5.2.1.2 Low Project Impact20
In Mikisew, the Supreme Court of Canada found that the construction of a winter21
road occupying 23 square kilometres in part adjacent to the Mikisew’s reserve lands,22
through a national park and on surrendered lands triggered a duty to consult at the23
lower end of the spectrum:24
21 Treaty 8 (1899).
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May 6, 2016
In this case, given that the Crown is proposing to build a fairly1
minor winter road on surrendered lands where the Mikisew2
hunting, fishing and trapping rights are expressly subject to the3
“taking up” limitation, I believe the Crown’s duty lies at the lower4 end of the spectrum.22 5
Mikisew remains the leading Supreme Court of Canada authority on the duty to6
consult within the Treaty 8 context. Using Mikisew as a guide the evidence firmly7
establishes that the potential impacts of the Project on Saulteau’s interests are low:8
• All of the trucking activities and the majority of the mining activities will take9
place on previously disturbed lands. The SFQ was commercially logged in the10
1990s. The Utah and Table Roads are existing and operational service roads.11
The Spur Road was at one time an operational road; its current state is12
deactivated, but not reclaimed;13
• None of the Project lands will require a new permanent “taking up” of lands as14
contemplated in Treaty 8;15
• Trucking and quarrying, the activities of most concern to First Nations, are16
temporary, and expected to occur for two to three years as seasonably17
permitted;18
• The Project is not a reviewable project and therefore does not trigger an19
environmental assessment under either the Canadian Environmental20
Assessment Act (CEAA) or the BC Environmental Assessment Act (BCEAA).21
Even under an accelerated schedule the expected production capacity of the22
SFQ would require an increase of approximately 40% to trigger an23
environmental assessment under BCEAA23; 24
22 Mikisew, paragraph 64.
23 Exhibit B-18, BC Hydro response to SFN IR 3.24.1.
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May 6, 2016
• The primary water source for the Project is Williston Reservoir and water1
withdrawals from that source are not expected to have a residual impact to2
water quality or quantity;3
• The secondary water sources for the Project are three streams located4
throughout the Project footprint. All water withdrawal from these three streams5
must be undertaken in accordance with BC Hydro’s section 8 Water Act permit,6
which include strict provisions to ensure no residual impacts to stream flow;7
• The Project Environmental Assessment (EA) prepared by qualified and8
competent biologists found that all identified environmental impacts from the9
Project are mitigatable, and no residual impacts are anticipated with the10
implementation of appropriate environmental management plans, and11
adherence to federal and provincial permitting requirements, and environmental12
regulations and guidelines;13
• BC Hydro has developed an Environmental Management Plan (EMP) setting14
out an environmental standard that the Contractor must meet through its15
Environmental Protection Plan (EPP). The EPP will include a number of16
sections dealing with specific mitigation plans including a Caribou Mitigation17
and Monitoring Plan, Air Quality and Dust Control Plan, Archeological and18
Heritage Management Plan, Sediment and Erosion Control Plan, Vegetation19
Management Plan, and Water Quality Management Plan;20
• The SFQ will be reclaimed after use in accordance with standards set by the21
Ministry of Energy and Mines (MEM). In particular, MEM has directed that the22
surface of the land and watercourses shall be reclaimed to the following use:23
“Wildlife Habitat.” BC Hydro has also indicated that it is open to exploring with24
First Nations potential enhancements to the Project area to protect and promote25
traditional values following construction;.26
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May 6, 2016
• The Spur Road is the only road that will be reactivated for the Project and it will1
be deactivated once the Project is complete; and2
• No heritage or archaeological sites have been identified at either the SFQ or3
road sites.24 4
BC Hydro comes to the above conclusion having considered the feedback received5
from First Nations including the Saulteau TUS and the FNITR.25 The Saulteau TUS6
identified five Valued Components (VCs) that had the potential to be impacted from7
the Project. The potential Project effects to each of these VCs were reviewed in8
detail in Exhibit B-14 (section 2.1.2.1), a summary of which is provided below.9
• Hunting and Trapping: There will be some disruption to wildlife as it avoids the10
immediate area, but this is expected to be minimal and temporary as the11
trucking and quarry activities are short term and temporary displacement is12
mitigable by the abundance of similar habitat surrounding the Project footprint.13
No residual impacts on the quantity or quality of wildlife available are expected14
with appropriate mitigation measures.15
•
Gathering Food Plants and Medicines: Clearing for the Project is restricted to 16
the SFQ area and limited areas adjacent to the current road for necessary road17
upgrades. The SFQ will be reclaimed after use. The baseline studies18
undertaken support that none of the vegetation being cleared is considered rare19
by the B.C. Conservation Data Center. There is an abundance of similar20
vegetation surrounding the Project footprint available for gathering. A Dust21
Control Plan will be developed with input from First Nations to ensure potential22
impacts from dust on vegetation in the Project footprint are mitigated and23
monitored.24
24 Please refer to Exhibit B-1 (section 4.2.4.2) and Exhibit B-14 (section 2.1.2).
25 A summary of the results of these documents is set out in Exhibit B-14 (sections 2.1.1.1 and 2.1.2.1).
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May 6, 2016
• Fishing and Water : Aside from the placement of riprap into Williston Reservoir,1
no works are currently planned for fish bearing streams. The Project does not2
require a Fisheries Act authorization as the work does not pose serious harm to3
fish. A Sediment and Erosion Control Plan and site specific plans will be4
developed by a Certified Professional in Sediment and Erosion Control5
(CPESC). Water quality in all nine fish bearing streams located in the vicinity of6
the Project footprint will be regularly monitored.7
• Cultural Continuity: The Project will require a temporary closing of access to the8
SFQ site and temporary interruptions to access on the forestry roads to address9
safety issues. Mining of the SFQ will result in a notable change to the existing10
landscape, as the site will be reclaimed after use. The SFQ is located outside of11
Saulteau and West Moberly First Nations’ Area of Critical Community Interest12
( ACCI). Increased works are expected to be temporary and seasonal.13
BC Hydro has indicated a willingness to consider planned and targeted14
stoppage of Project related trucking to accommodate First Nations activities.15
BC Hydro has also indicated a willingness to explore potential enhancements to16
the Project area to protect and promote traditional values following construction.17
• Carbon Lake and Access to Traditional Territory: The closest part of the Project18
footprint to Carbon Lake is Table Road at approximately 15 km from the Project19
footprint. Temporary interruptions to Utah Road for safety reasons may result in20
disruptions to some First Nations access to Carbon Lake through Utah Road.21
Carbon Lake has other access routes that will not be affected by the Project,22
however some First Nations prefer to use the Utah Road access route. A Traffic23
Management Plan is being developed to ensure minimal disruptions to access24
and to facilitate safe use of the roads.25
BC Hydro’s assessment of the new impacts of the Project was undertaken having26
regard to the historical context appropriate to Treaty 8 as set out in Saulteau’s TUS27
Page 16
May 6, 2016
and the FNITR.26 BC Hydro’s approach was guided by the method previously1
articulated by the Commission in its previous decisions:2
These impacts are new, adverse impacts attributable to the3
Project and the Panel therefore finds that this case can be4
distinguished from Rio Tinto, as explained in West Moberly at5
paragraph 116. Accordingly, the principles set out in West6
Moberly apply, namely, “the historical context is essential to a7
proper understanding of the seriousness of the potential impacts8
on the petitioners’ treaty right to hunt.” (West Moberly,9
paragraph 117) The Commission understands cumulative10
impact to mean that whenever there are new impacts from a11
Project, the Crown must consider the historical context of past12
impacts, to put the new impacts in proper context and fully13
comprehend their magnitude.27 [Emphasis added.]14
BC Hydro has concluded that even when considered in the appropriate historical15
context, the magnitude of the potential Project impacts remains low. BC Hydro’s16
conclusion is supported by the following:17
• Even in the context of an area that has recently undergone rapid development,18
the Project will not have a further permanent impact on the availability of land19
on which Treaty 8 First Nations can practice their treaty rights;20
• The most significant change in landscape from the Project, the SFQ site, will be21
primarily developed on previously disturbed lands and is not located within the22
ACCI. The SFQ site will be reclaimed for Wildlife Habitat use prior to Project23
completion (within approximately four to five years) 28;24
• Potential impacts from the Project on the already depleted Moberly caribou25
herd are not anticipated as the Project is not in critical caribou habitat and26
caribou are unlikely to be observed in the area. The most recent telemetry data27
26 Please refer to Exhibit B-3; BC Hydro’s response to BCUC IR 1.20.2; and Exhibit B-14 (sections 2.1.2.1, at 15).
27 British Columbia Utilities Commission, Decision, Certificate of Public Convenience and Necessity for the
Dawson Creek/Chetwynd Area Transmission Project (October 10, 2012), at page 156. 28
Exhibit B-1, Appendix H, at page 11.
Page 17
May 6, 2016
(April 1, 2011 to October 31, 2015) did not identify any radio collared animals in1
the Project area. The closest identified caribou in that data was more than2
20 km from the SQ site. 29
Any potential impacts that do materialize are3
expected to be low as the Caribou Mitigation and Monitoring Plan requires the4
Contractor to stop work immediately should a caribou be identified in the5
Project area;6
• As to the potential for increased public access to Treaty 8 lands, the Table and7
Utah Roads are already publically accessible roads. The Project does not8
change this. As to the Spur Road, it will be activated for the Project, its use will9
be limited to Project use, and it will be deactivated after the Project. As such, it10
is currently not a public road and this will not change during the Project; and11
• Potential impacts to treaty rights from the Project, primarily from noise and dust,12
are temporary and largely mitigable.13
5.2.1.3 Mitigation Measures14
FLNRO and MEM, the authorities responsible for permitting Project activities,15
included a number of conditions in the Project authorizations and permits that16
address avoidance and mitigation. These include but are not limited to:17
• The Section 8 Water Act Permit includes strict conditions (including quantity18
and minimum flow) on the withdrawal of water from three permitted streams in19
the Project area; and20
• The MEM Notice of Work for the Project contains conditions as to Site Stability,21
Environmental Protection, Wildlife, Noise Abatement, Dust Control, Fuels and22
Lubricants, and Chance Find Plan. 30
23
In addition, BC Hydro has developed an EMP for the Project which was informed by24
the information received in the Project EA and the expertise of the qualified and25
29 Exhibit B-14, at pages 15-16.
30 Exhibit B-4, Appendix H, pages 10 – 18.
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May 6, 2016
competent biologists that undertook it. The EMP sets out the environmental standard1
that the Contractor must meet in constructing the Project. The EMP requires the2
Contractor to develop an EPP that will set out the specific mitigation and monitoring3
measures used to meet the standard in the EMP.4
The Contractor selected for the Early Contractor Involvement (ECI) process is5
currently developing its draft EPP, which will be finalized after that Contractor is6
retained for Project implementation. The EPP will include a number of specific7
mitigation plans including a Sediment and Erosion Control Plan, Traffic Management8
Plan, Caribou Mitigation and Monitoring Plan, Air Quality and Duty Control Plan,9
Archeological and Heritage Management Plan, Vegetation Management Plan and10
Water Quality Management Plan.11
The Project mitigation measures are also being informed by feedback from First12
Nations. The FNITR requested that BC Hydro undertake a number of further studies,13
adopt a number of further mitigation and monitoring measures and develop and14
implement a number of workplans included numerous requested mitigations.15
BC Hydro diligently considered each of the Requested Mitigation Measures and16
provided substantive individual responses to each and every one. BC Hydro’s17
responses are set out in the FNITR Recommended Mitigations/Studies and18
BC Hydro’s Responses (the Mitigations Table).31 As a direct result of the FNITR,19
BC Hydro adopted a number of further mitigation measures into the Project and is20
making amendments to its EMP. 32 21
Consultation on mitigation measures is ongoing. BC Hydro has reviewed the table22
provided by Saulteau in Exhibit C5-12 and will provide a response to the comments23
therein as part of the ongoing consultation process. BC Hydro has shared a copy of24
the FNITR and the Mitigations Table with the Contractor and directed it to ensure25
that the draft EPP is informed by the concerns raised therein, and where feasible26
31 A copy of the Mitigations Table is attached as Appendix A to Exhibit B 14.
32 Exhibit B-14 (section 2.1.2.1).
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May 6, 2016
that the Requested Mitigation Measures are incorporated into the draft EPP.1
BC Hydro holds final approval of the EPP and has committed to consulting with2
Saulteau directly on the draft EPP prior to it being finalized.3
In summary, BC Hydro respectfully submits that the filed evidence clearly supports4
that after BC Hydro’s extensive mitigation measures are implemented, the Project5
will have low impacts on Saulteau’s Treaty 8 rights.6
5.2.2 Consul tation Process7
5.2.2.1 BC Hydro/Saulteau Direct Consul tation8
BC Hydro began consulting with Saulteau on the Project in December 2011 when9
the Project was still in its infancy. The consultation process on the Project has10
spanned over five years and will continue throughout the life of the Project which is11
expected to be another four to five years if commenced this year as planned.12
Throughout the consultation process, BC Hydro has consistently provided Saulteau13
with all relevant Project-related information for review and comment, including but14
not limited to: the Project EA, two Archaeological Impact Assessments, mapping and15
shape files for the Project, Management Plans in support of all Provincial permit16
applications, including Management Plans for the SFQ, Marine Load Out Area and17
Spur Road, the EMP, the Application to the BCUC and regular Project updates. The18
FNITR considered the relevant documents and provided detailed feedback.19
To support Saulteau’s participation in the consultation process, BC Hydro provided20
Saulteau capacity funding. The Capacity Funding Agreement agreed to by the21
parties provided Saulteau funding to attend meetings with BC Hydro, to hold22
community meetings, to consider the information and documentation provided by23
BC Hydro and provide feedback and comments, to retain legal counsel, to share24
information about the Project with community members, to participate in regulatory25
processes associated with the Project and to engage two consultants (Firelight and26
LGL) to undertake the Saulteau TUS and FNITR. In addition, as part of the ongoing27
Page 20
May 6, 2016
consultation process on mitigation measures, BC Hydro has offered Saulteau further1
capacity funding to continue to engage their preferred consultant to review the draft2
EPP and the Traffic Management Plan.3
Saulteau has also participated in various aspects of the Project including, but not4
limited to several site visits to the Project area and participated in fieldwork for the5
AIAs. Most importantly, BC Hydro has received extensive information from Saulteau6
regarding their interests in the area and the potential impacts. Of particular note are7
the Saulteau TUS and the FNITR. BC Hydro has considered all the information there8
and provided Saulteau responses to all of the Requested Mitigation Measures. 9
5.2.2.2 The BCUC’s Regulatory Review Process10
The Crown is responsible for adequately discharging the duty to consult. While the11
duty cannot be delegated to third parties, other processes, such as the12
Commission’s regulatory process, provide a complementary avenue through which13
procedural aspects of the Crown’s duty can be fulfilled. In such cases, the duty14
continues to lie with the Crown, but some of the procedural aspects of the15
Commission’s process, including the opportunity to raise concerns regarding the16
impacts of the Project directly to the Commission, are provided.17
The BCUC has recognized in past decisions the contribution its own regulatory18
process makes towards discharging the Crown’s duty to consult:19
The Minister has delegated the responsibility for current20
consultation to BC Hydro, and has requested BC Hydro21
undertake further consultation if it is required for the purpose of22
a decision by the Minister regarding the Commission’s23
determinations. However, in the Inquiry Panel’s view, the24
regulatory process that the Inquiry Panel is responsible for will25
fulfill certain procedural aspects of the consultation owed by the26
Crown.33 [Emphasis added.]27
Through the BCUC’s regulatory process, Saulteau was provided with:28
33 BCUC, Section 5 Transmission Inquiry, Appendix A to Order No. G-108-09, at page 13.
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May 6, 2016
• All necessary information in a timely way;2
• An opportunity to express its interest and concerns directly to the3
decision-maker (in this case the BCUC);4
• An opportunity to engage in the discovery process through the filing of IRs;5
• An opportunity to file evidence including the TUS and FNITR; and6
• An opportunity to receive participant assistance/cost award funding.7
Saulteau actively participated in the BCUC process.8
5.2.3 Saulteau First Nations’ Concerns9
5.2.3.1 Failure to Share Relevant Project Documents10
Saulteau has raised specific concerns regarding the sharing of documents during11
the consultation process including that BC Hydro did not share the draft EMP for the12
Project in a timely way or provide BC Hydro’s meeting notes until requested.13
With respect to the first concern, BC Hydro agrees that the EMP for the Project14
could have been provided to Saulteau earlier in the process. However, even with this15
delay, Saulteau’s interests have not been prejudiced. Their consultant undertook a16
review of the EMP as part of the FNITR and BC Hydro is in the process of amending17
the EMP to address some of the concerns raised therein including:18
1. The information from the FNITR regarding Caribou critical habitat is being used19
to inform revisions to the Caribou Mitigation and Monitoring Plan, which is part20
of the EMP34; and21
2. A revision is being made to account for operational wildlife protection and22
monitoring and this will also form part of the contractors EPP.35 23
34 Exhibit B-14, page 17.
Page 22
May 6, 2016
BC Hydro leaves the determination of whether to provide meeting notes to First1
Nations to the individual Aboriginal Relations lead based on their judgment in a2
specific consultation process and based on any discussion with a First Nation about3
this.36 Saulteau asked BC Hydro for our meeting notes and BC Hydro provided4
them. BC Hydro fails to see how the sharing of meeting notes is material to the5
assessment of the adequacy of consultation. Saulteau has provided detailed written6
input on the Project through the FNITR and their TUS and BC Hydro has provided7
detailed written responses.8
5.2.3.2 The Project EA was deficient9
The FNITR considered the VCs identified by the Saulteau TUS and concluded that10
the Project was likely to impair the ability of First Nation members to exercise their11
Aboriginal and treaty rights to hunt, fish, trap and carry out other traditional activities12
in their preferred locations by their preferred means.37 The FNITR suggested that13
the Project EA was deficient in a number of respects and recommended that14
BC Hydro have its contractor Ecofor undertake further baseline studies, testing,15
modelling, and assessments. BC Hydro considered the Requested Mitigation16
Measures (which includes studies) and provided a detailed issue by issue17
response.38 18
BC Hydro disagrees that the Project EA is deficient. The Project EA was adequate19
and appropriate for the scope of the Project. The EA, prepared by qualified and20
competent biologists, found that all identified environmental impacts are mitigable.39 21
Many of the requests made in the FNITR were for studies, baseline collection and22
further assessments similar in detail to those required for a legislated environmental23
assessment on a larger project. The Project is not a reviewable project under either24
35 Exhibit B-14, Appendix A.
36 Exhibit B-18, BC Hydro Response to SFN IR 3.22.5
37 Exhibit B-14 (section 2.1.2.1).
38 Exhibit B-14, Appendix B.
39 Exhibit B-1, page 4-16.
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May 6, 2016
CEAA or BCEAA. The proposition put forth in the FNITR, that in the absence of1
these additional studies, testing, modelling, and assessments the Project EA is2
deficient, fails to recognize that the nature, scope and magnitude of environmental3
assessment required varies with the magnitude and nature of the project. The4
thresholds established by the Legislature and Parliament were intended to reflect the5
seriousness and likelihood of impacts from a project. The same considerations6
establishing these legal thresholds are relevant in considering the seriousness of a7
project’s potential impacts on Aboriginal interests.8
The Project EA was filed in support of BC Hydro’s applications for the requisite9
permits and authorizations from both FLNRO and MEM. Both of these regulatory10
authorities relied on the Project EA in issuing their respective permits and11
authorizations. Those permits and authorizations remain valid and have not been12
challenged.13
BC Hydro conducted the Project EA voluntarily to gain a better understanding of14
environmental impacts. The scope and methodology employed for the Project EA15
was guided by input from FLNRO who itself undertook direct consultation with16
potentially affected First Nations. The Ecological Components (ECs) studied in the17
Project EA were selected having regard to input received from FLNRO and First18
Nations at the time, literature searches, site visits, professional judgment and field19
studies.40 BC Hydro agrees that the TUS and FNITR provide useful information as to20
the VCs important to First Nations. Had these VCs been communicated to BC Hydro21
at the time, they would have informed the selection of the ECs for the EA. In any22
event, the potential impacts to these First Nations VCs were assessed as part of the23
TUS and FNITR and BC Hydro has considered that information in forming its24
assessment on the potential impacts of the Project.25
40 Exhibit B-14, Appendix B.
Page 24
May 6, 2016
5.2.3.3 BC Hydro did not undertake a Cumulative Effects Assessment1
The FNITR alleged that BC Hydro’s assessment of Project impacts was deficient in2
the absence of a cumulative effects assessment. In particular, the FNITR required3
BC Hydro to undertake a quantitative analysis of past disturbances from 1984 to4
2015.5
BC Hydro’s approach to cumulative effects assessments is guided by the provincial6
and federal regulatory guidelines, which directs that a cumulative effects7
assessment is triggered where residual effects remain.41 The Project does not give8
rise to any residual effects, as defined in by those guidelines and therefore no9
cumulative effects assessment was undertaken.10
There is no requirement at law for a cumulative effects assessment to be undertaken11
as part of the Haida determination on the seriousness of the potential impacts. The12
requirement is for the Crown to ensure that it has assessed the new potential Project13
impacts in the appropriate historical context in order to fully comprehend their14
magnitude.42 This is precisely the assessment that BC Hydro undertook and in doing15
so, it met the requisite legal standard.16
5.2.3.4 BC Hydro’s Response to the Requested Mitigation Measures is17
Inadequate18
As BC Hydro understands it, Saulteau is of the view that consultation on the Project19
is not adequate as BC Hydro has not agreed to all of the Requested Mitigation20
Measures.21
As a direct result of the FNITR, BC Hydro is in the process of updated its EMP as22
follows:23
41 Exhibit B-3, BC Hydro’s response to BCUC IR 1.20.1,
42 West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2011 BCCA 247 (CanLII), [2011]
BCJ No. 942 (QL), paragraph 117. [West Moberly]
Page 25
May 6, 2016
1. The information from the FNITR regarding Caribou critical habitat is being used1
to inform revisions to the Caribou Mitigation and Monitoring Plan, which is part2
of the EMP (Exhibit B-14, page 17); and3
2. A revision is being made to account for operational wildlife protection and4
monitoring and this will also form part of the contractors EPP (Exhibit B14,5
Appendix A).6
In addition, BC Hydro integrated a number of new mitigation measures into the7
Project. These include:8
1. BC Hydro will ensure First Nations are provide with a trucking schedule to9
facilitate safe access through the Project area;10
2. BC Hydro will work with the Contractor and First Nations to a develop11
communication plan or protocol for the Project which will include12
communication with First Nations;13
3. Background turbidity levels will be measured in the nine fish bearing streams in14
the Project footprint prior to construction to facilitate monitoring of potential15
effects from the Project to the water quality of these fish bearing streams;16
4. Removal of vegetation in Riparian Management Areas will be planned and17
coordinated to avoid windthrow risk;18
5. Opportunities will be provided to First Nations to work as environmental19
monitors;20
6. All proposed methods in the FNITR work plan regarding Caribou Mitigation and21
Monitoring will be incorporated into the Project;22
7. The Contractor will complete wildlife observation forms, map locations of23
sittings, and where a species that is listed under the Species At Risk Act 24
(SARA) has been observed describe mitigations and undertake follow-up25
monitoring in the area; and26
Page 26
May 6, 2016
8. BC Hydro has required the Contractor to incorporate a provision in its EPP that1
provides that BC Hydro’s employees and contractors’ employees cannot2
engage in hunting or fishing activities in the Project area while engaged in3
employment activities connected with the Project.43 4
As to the remaining Requested Mitigation Measures:5
• Where BC Hydro has advised that it will not be undertaking the requested6
mitigation or studies, it has explained the rationale for its decision.7
• As to the outstanding Requested Mitigation Measures, consultation is ongoing.8
This is appropriate given the extraordinarily detailed nature of the Requested 9
Mitigation Measures and the current stage of the Project. Specific details of10
construction planning are currently being negotiated as part of the ECI process11
and in the absence of these construction details, it is not practical for BC Hydro12
to provide definitive responses to the outstanding Requested Mitigation13
Measures at this time.14
BC Hydro’s respectfully submits that its overall response to the Requested Mitigation15
Measures has been reasonable and adequate. The depth of information provided in16
BC Hydro’s substantive responses to each of the Requested Mitigation Measures17
supports that BC Hydro gave serious consideration to the individual requests made.18
Consultation on the FNITR directly resulted in the incorporation of additional19
mitigation measures into the Project.20
The fact that BC Hydro has not accepted all of the Requested Mitigation Measure21
and continues to consult on those that are outstanding does not mean consultation22
is inadequate. The duty to consult is a procedural protection, it does not guarantee a23
substantive right of accommodation:24
Page 27
May 6, 2016
The First Nation argues that in exercising his discretion to1
approve the grant the Director was required to have regard to2
First Nation’s concerns and to engage in consultation. This is3
true. The First Nation goes too far, however, in seeking to4 impose on the territorial government not only the procedural5
protection of consultation but also a substantive right of6
accommodation. The First Nation protests that its concerns7
were not taken seriously — if they had been, it contends, the8
Paulsen application would have been denied. This overstates9
the scope of the duty to consult in this case. The First Nation10
does not have a veto over the approval process. No such11
substantive right is found in the treaty or in the general law,12
constitutional or otherwise [Emphasis added].44 13
5.2.3.5 Absence of Agreement on Requested Mitigation Measures 14
The FNITR requested that the parties commit to reaching an agreement on the15
content of a number of the Requested Mitigations Measures, particularly in the form16
of a number of workplans. In response, BC Hydro advised that while it hoped to gain17
First Nations’ support for its mitigation and monitoring measures, final approval of18
the detailed construction plans (e.g. EMP, EPP and Traffic Management Plan) rests19
with BC Hydro. Such a response is reasonable, appropriate and correct at law.20
“There is no duty to agree; rather, the commitment is to a meaningful process of21
consultation.”22
In making decisions about the Requested Mitigation Measures, BC Hydro had a duty23
to consider not only feedback from First Nations, but also other valid interests24
including ratepayer interests (costs, reliability), safety, environment, practicality25
schedule. BC Hydro weighed the appropriate considerations and came to26
reasonable conclusions. Such is the nature of reconciliation:27
Aboriginal rights are a necessary part of the reconciliation of28
aboriginal societies with the broader political community of29
which they are part; limits placed on those rights are, where the30
objectives furthered by those limits are of sufficient importance31
44 Beckman v. Little Salmon/Carmacks First Nation, [2010] 3 SCR 103, paragraph 14. [Little Salmon]
Page 28
May 6, 2016
to the broader community as a whole, equally a necessary part1
of that reconciliation. [Emphasis added.]2
In many cases, accepting the proposed workplans in the FNTIR would provide First3
Nations a veto over the Project’s mitigations and monitoring measures which would4
be contrary to BC Hydro’s other responsibilities. BC Hydro’s response was5
reasonable and prudent.6
5.2.3.6 Consul tation is not Complete7
Saulteau has expressed concern that the consultation process is not complete8
before the BCUC renders its decision. Consultation continues through each stage of9
project development. The BCUC does not need to find that consultation is complete.10
Its assessment is whether or not consultation up to the point of its decision is11
adequate. 45 BC Hydro’s duty to consult does not end with the Commission process,12
it continues for the life of the Project. If Saulteau is not satisfied with the consultation13
process on the outstanding Requested Mitigation Measures, it is not left without14
further remedy; recourse lies with the courts.46 15
5.2.3.7 BC Hydro has delegated the Duty to Consul t to the Contractor16
Saulteau has suggested that the involvement of the Contractor in the discussion on17
appropriate mitigation and monitoring measures is in effect a delegation of the18
Crown’s duty to consult. To be clear, BC Hydro has not delegated its duty to consult19
First Nations. Such a delegation is not allowed at law: “the ultimate legal20
responsibility for construction and accommodation rests with the Crown. The honour21
of the Crown cannot be delegated.”47 22
By involving the Contractor in this process, BC Hydro is in fact ensuring that those23
individuals undertaking the Project will have the necessary context to undertake the24
Project in a manner that is sensitive to First Nations concerns. Having reviewed the25
45 Kwikwetlem, paragraph 70.
47 Haida, paragraph 53.
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May 6, 2016
Saulteau TUS and the FNITR, the Contractor will have the necessary context to1
understand the specific First Nations concerns that the mitigations and monitoring2
measures are meant to address.3
Similarly, the involvement of the Contractor in these discussions facilitates the4
discussion around how the Requested Mitigation Measures can be incorporated into5
the Project. The Contractor has specialized knowledge in respect of the Project6
activities and its involvement in developing mitigation measures is necessary.7
While Contractor involvement contributes to the development of mitigations8
responsive to First Nations concerns, BC Hydro retains ultimate decision-making9
authority and oversight over these measures and their implementation. BC Hydro10
has the ability to reject the final EPP if it is not satisfied that its meets the necessary11
environmental standard set out in the EMP. With respect to ensuring that the EPP is12
adhered to, BC Hydro will, through its Construction Contract, retain adequate13
powers to at its discretion:14
• Stop work; and15
•
Issue a default notice to the Contractor requiring compliance within a16
reasonable period of time.48 17
Further, should the Contractor not achieve compliance in accordance with the18
default notice, BC Hydro will have the option of terminating the Construction19
Contract or doing the work itself at the Contractor’s expense49. The Contractor’s20
involvement in no way jeopardizes the consideration First Nations’ feedback. In fact,21
it helps ensure that those undertaking the Project have a clear and contextual22
understanding of the mitigation measures and their importance to First Nations.23
48 Exhibit B-18, BC Hydro’s response to BCUC IR 3.29.1.2.
49 Exhibit B-18, BC Hydro’s response to BCUC IR 3.29.1.2.
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May 6, 2016
5.2.4 Assessment of Adequacy of Consultation1
The evidentiary record supports that consultation with Saulteau on the Project has2
exceeded the low level of consultation required in this case. In Little Salmon, the3
Supreme Court of Canada found that the following definition of consultation was4
consistent with a duty to consult at the “lower end of the spectrum”:5
“Consult” or “consultation” means to provide:6
a) to the party to be consulted, notice of a matter to be decided7
in sufficient form and detail to allow that party to prepare its8
views on the matter;9
b) a reasonable period of time in which the party to be10 consulted may prepare its views on the matter, and an11
opportunity to present such views to the party obliged to12
consult; and13
c) full and fair consideration by the party obliged to consult of14
any views presented.50 15
Irrespective of the scope of consultation required, the Crown must always act in16
good faith with the intention of substantially addressing the First Nations’ concerns17
as they arise throughout all the stages of the consultation process.51 The Supreme18
Court of Canada in Haida relied on the following definition from New Zealand as an19
indicator of meaningful consultation:20
• gathering information to test policy proposals22
• putting forward proposals that are not yet finalized23
• seeking Mäori opinion on those proposals24
• informing Mäori of all relevant information upon which25
those proposals are based26
51 Haida, paragraph 42.
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May 6, 2016
• not promoting but listening with an open mind to what1
Mäori have to say2
and after the decision-process.5
BC Hydro acted in good faith through the process, and consistently approached the6
consultation process with the intention of substantially addressing Saulteau’s7
concerns about the Project. Consultation on the Project commenced early on in the8
Project and continued throughout its development. Saulteau was provided with9
adequate Project information in a timely manner. Where further information was10
required, BC Hydro was responsive to such requests. Saulteau received adequate11
capacity funding to support their participation in the process including the12
engagement of two separate consultants (LGL and Firelight) to complete two13
separate studies. BC Hydro listened with an open mind to what Saulteau has14
proposed and made changes to the Project where appropriate . As a direct result of15
the engagement with Saulteau, BC Hydro will be amending its EMP, and has16
required the Contractor to integrate several of the Requested Mitigation Measures17
into the EPP. In addition, BC Hydro continues to consider the outstanding18
Requested Mitigation Measures as the specific details about construction become19
available from the Contractor. Saulteau will have an opportunity to review and20
comment on the draft EPP and Traffic Management Plan prior to BC Hydro21
approval.22
BC Hydro respectfully submits that the scope of the consultation undertaken with23
Saulteau on the Project was deeper than required. In Squamish Nation, the24
B.C. Supreme Court provided the following helpful description of consultation at a25
medium level, with reference to other cases:26
[197] … I note some general parameters from the case law on27
what a mid-range consultation may consist of. It is more than a28
duty “to give notice, disclose information, and discuss any29
Page 32
May 6, 2016
issues raised in response to the notice” (Haida Nation at1
paragraph 43). It is less than “the opportunity to make2
submissions for consideration, formal participation in the3
decision-making process, and provision of written reasons to4 show that Aboriginal concerns were considered and to reveal5
the impact they had on the decision” (Haida Nation at6
paragraph 44).7
[198] In Dene Tha’ First Nation v. British Columbia (Minister8
of Energy and Mines) Grauer J. found that the government9
engaged in a reasonable mid-range consultation by giving the10
First Nation the opportunity to make “extensive and11
wide-ranging submissions”, exchanging reports and a “great12
deal of information, economic, environmental, scientific and13
speculative”, and setting up processes to involve the First 14
Nation “in ongoing development decisions that could give rise to15
potential adverse impacts on its treaty rights” (at16
paragraph 117).17
[199] In Long Plain First Nation Hughes J. held that a18
mid-range consultation required more than the minimum of19
giving notice, disclosing information and responding to concerns20
raised. He said the consultation ought to include “at least some21
of the higher duties including a duty to meet with the Applicants,22
to hear and discuss their concerns, to take those concerns into23
meaningful consideration and to advise as to the course of24
action taken and why” (paragraph 74).52 25
BC Hydro submits that the consultation process with Saulteau satisfied these26
definitions. The parties have met face to face and by teleconference numerous times27
over the course of the five-year consultation process in addition to two site visits with28
Ecofor. During meetings Saulteau communicated its concerns about the Project to29
BC Hydro and BC Hydro meaningfully considered how to address these concerns30
through mitigation, and where appropriate, accommodation. Saulteau’s feedback on31
the Project was extensive and wide-ranging covering a number of topics including32
but not limited to potential impacts from the Project to Soils and Terrain, Water33
Quality and Quantity, Air Quality, Fish, Fish Habitat and Aquatic Resources, Riparian34
52 Squamish Nation v. B.C. (Community, Sport and Cultural Development), 2014 BCSC 991 (CanLII),
paragraphs 197 to 199. [Squamish Nation]
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May 6, 2016
Species at Risk, Socio-Economic, Traditional Law and Resource Use, Human2
Occupancy and Resource Use, Community Health, Cumulative Effects, Dust, Noise,3
and Environmental Mitigation and Monitoring Measures. The parties exchanged4
reports on the Project and the potential impacts from the Project including but not5
limited to the Project EA, two AIAs undertaken on the SFQ and areas adjacent to the6
roads, the Saulteau TUS, and the FNITR. Throughout the process, where BC Hydro7
has made decisions about the Project, it has provided Saulteau with the rationale8
supporting those decisions and offered to meet to discuss. Finally, BC Hydro has9
committed to ensuring that Saulteau is involved in the ongoing development of10
mitigation and monitoring measures including through consultation on the draft EPP11
and TMP.12
BC Hydro recognizes the parties disagree on the adequacy of BC Hydro’s response13
to the Requested Mitigation Measures. While this disagreement is unfortunate, it is14
not a basis on which to find that the honour of the Crown has not been maintained.15
As stated by the Supreme Court of Canada:16
[…] the Crown is bound by its honour to balance societal and17
Aboriginal interests in making decisions that may affect18
Aboriginal claims. The Crown may be required to make19
decisions in the face of disagreement as to the adequacy of its20
response to Aboriginal concerns. Balance and compromise will21
then be necessary.53 [Emphasis added.]22
BC Hydro submits that it has and continues to strive to find an appropriate balance23
between Aboriginal concerns and the significant other public interests that it must24
consider.25
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5.3.1 Scope of the Duty to Consul t2
As set out in Exhibit B-14 (section 2.1.3), BC Hydro is of the view that the duty to3
consult McLeod Lake Indian Band (McLeod Lake) is at the low end of the Haida4
spectrum. As the descendants of signatories to Treaty 8, McLeod Lake has5
established treaty rights in the Project area. As discussed in section 5.2.1, Treaty 86
guarantees McLeod the right to engage in its traditional activities over the lands7
covered by Treaty 8 subject to the Crown’s right to “take up” lands from time to time8
for certain purposes. The Project is precisely the type of activities contemplated by9
the “taking up” provision. The Project is temporary, on previously disturbed lands,10
with no new permanent taking up of lands, and a significant distance from First11
Nations’ main communities.12
BC Hydro/McLeod Lake Direct Consultation14
The Crown consultation process with McLeod Lake started in December 2011 when15
the Project was still in its infancy. Both parties approached the consultation process16
in good faith with the goal of addressing McLeod Lake’s concerns.54 Throughout the17
consultation process, BC Hydro consistently provided McLeod Lake with all relevant18
Project-related information for review and comment.55 BC Hydro has been19
responsive to information and capacity requests made by McLeod Lake. The parties20
entered into a capacity funding agreement to support McLeod Lake’s review of the21
Project which included, but was not limited to, engaging consultants to undertake the22
McLeod Lake TUS and the FNITR. BC Hydro has carefully considered all the23
information received from McLeod Lake as part of the consultation process24
(including but not limited to the McLeod Lake TUS and the FNITR). BC Hydro has25
54 BCUC, Transcript – Procedural Conference #1 (January 27, 2016), at page 45.
55 For a full chronology of the consultation process between BC Hydro and McLeod Lake refer to Exhibit B-1
(section 4.2.5) and Exhibit B-14, Appendix C-2.
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May 6, 2016
used the information received to inform its decisions about the Project. As a direct1
result of the FNITR, BC Hydro made a number of additions to the Project’s mitigation2
and monitoring measures. Consultation with McLeod Lake on mitigation and3
monitoring measures for the Project is ongoing and will continue throughout the life4
of the Project.5
BCUC Process6
McLeod Lake has intervened in the BCUC process. As an Intervener, McLeod Lake7
has received all of the documentation filed in the proceeding, and had the8
opportunities to fully participate in the review of the Application. McLeod Lake’s TUS9
and the FNITR were filed with the Commission for consideration. Furthermore,10
McLeod Lake (through LGL) submitted IRs on BC Hydro’s Application.11
Mr. Clayton Davis, a representative from McLeod Lake’s Land Referral Office that12
has been the primary contact from the First Nation in respect of the Project, took the13
opportunity recently to directly express McLeod’s views on the Project to the14
Commission:15
So, it’s late in the game, there are potentials for impacts, we’re16
well aware of that. However, Hydro has said, yeah, let’s stops17
and we’ll look at these mitigations and we’ll do some adaptive18
monitoring plans, and we’ll get this stuff figured out down the19
road. So, I’m happy with that. So yeah, let’s get going on this20
project.21
My concern is if something pops up on this TLUS or FNITI [Sic]22
that nobody foresaw, this is going to cause problems, yes or no?23
But I have to go back to the main view, safety. That dam fails,24
we’re all hooped. We’ll die up there. You guys will lose your25
power, but we will die up there. We’ll lose our land, we’ll lose26 lots. So, I go back to the safety issue, let’s take care of that first.27
Treaty is important, but if there’s no land left, if there’s no28
members left, you can’t exercise your treaty rights. That’s the29
bottom line. So, I say to you folks, make a decision, get going on30
this, and then down the road make sure that we – any31
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information come out of the FNITI [sic] and out the TLUS is1
incorporated as we work of Hydro [sic], and proceed with this2
project.56 3
5.3.3 Assessment of Adequa