Court of Appeal for British Columbia : in the matter of the Utilities Commission Act, R.S.B.C. 1996, c. 473, and the application by the British Columbia Transmission Corporation for a certificate of public convenience and necessity for the Interior to Lower Mainland Project : between the Kwikwetlem First Nation, appellant (applicant/intervenor), and British Columbia Transmission Corporation, British Columbia Hydro and Power Authority, and British Columbia Utilities Commission, respondents; and, in the matter of the Utilities Commission Act, R.S.B.C. 1996, c. 473, and the application by the British Columbia Transmission Corporation for a certificate of public convenience and necessity for the Interior to Lower Mainland Project : between Nlaka’pamux Nation Tribal Council, Okanagan Nation Alliance and Upper Nicola Indian Band, appellants, (applicants/intervenors), and British Columbia Utilities Commission, British Columbia Transmission Corporation, British Columbia Hydro and Power Authority, and Attorney General of British Columbia, respondents : before the Honourable Madam Justice Levine (in chambers) . --

Before:	The Honourable Madam Justice Levine
	(In Chambers)

G. McDade, Q.C. and M. Giltrow	Counsel for the Appellant The Kwikwetlem First Nation
C. Ostrove	Counsel for the Appellant Nlaka’pamux Nation Tribal Council
K. Bergner and C. Wilson	Counsel for the Respondent BC Hydro and Power Authority
A. Carpenter and D. Curtis	Counsel for the Respondent BC Transmission Corporation
Place and Date of Hearing:	Vancouver, British Columbia
April 18, 2008
Place and Date of Judgment:	Vancouver, British Columbia
May 15, 2008

Reasons for Judgment of the Honourable Madam Justice Levine:

Introduction

[1] These applications are for leave to appeal the decision of the British Columbia Utilities Commission made February 21, 2008. The Commission decided that it “should not consider the adequacy of consultation and accommodation efforts on the ILM [Interior to Lower Mainland Transmission] Project as part of its determinations in deciding whether to grant a CPCN [Certificate of Public Convenience and Necessity] for the ILM Project.” The Commission concluded that the regulatory approvals required under the Environmental Assessment Act, S.B.C. 2002, c. 43, will provide a process for ensuring that the Crown has satisfied its obligations to consult and, if necessary, accommodate First Nations before the project proceeds.

Background

[2] The British Columbia Transmission Corporation (“BCTC”) has proposed to construct and operate the ILM Project, which consists of a transmission line from the Nicola substation (near Merritt, British Columbia) to the Meridian substation (near Coquitlam, British Columbia) and a capacitor station on the transmission line.

[3] Pursuant to s. 45 of the Utilities Commission Act, R.S.B.C. 1996, c. 473, BCTC requires a CPCN to construct and operate the project. On November 5, 2007, BCTC filed an application for a CPCN with the Commission.

[4] Pursuant to s. 10(1)(c) of the Environmental Assessment Act, BCTC also requires an Environmental Assessment Certificate (“EAC”) for the project. It has not yet applied for the EAC.

[5] The Commission invited submissions on the following “scoping” question:

Should the Commission Panel consider the adequacy of consultation and accommodation efforts on the ILM Project as part of its determinations in deciding whether to grant a CPCN for the ILM Project?

[6] The Commission received submissions from the Kwikwetlem First Nation, BCTC, British Columbia Hydro and Power Authority (“BC Hydro”), the BC Old Age Pensioners Organization, and Terasen Utilities, and a joint submission from Nlaka’pamux Nation Tribal Council, Okanagan Nation Alliance, and the Upper Nicola Indian Band.

[7] On February 21, 2008, the Commission Secretary released her decision, and on March 5, 2008, she released her reasons for decision. She concluded (at 4):

The Commission Panel believes that a distinction needs to be drawn between circumstances such as those in the Gitxsan Houses v. British Columbia (Minister of Forests) (2002), 10 B.C.L.R. (4th) 126 (S.C.) and the Haida [Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511] cases where a decision or a series of decisions are made each having their own impacts, and the circumstances in the instant case where a single project requires at least two different regulatory approvals before there are impacts on Aboriginal rights and title. A CPCN approves the scope, design, and cost estimates for a project; all of which may be of interest to First Nations. The statutory requirement for an EAC, together with the Section 11 Procedural Order, the draft Terms of Reference and the Guide to the Environmental Assessment Process, ensures that First Nations will be consulted, prior to a decision of the Ministers on whether to issue an EAC for the ILM Project. Moreover, the EAC requirement ensures that if the duty to consult has not been met and, where necessary, adequate accommodation has not been provided, then the project will not proceed, and there will be no impacts on Aboriginal rights and title. In this manner, meaningful consultation is ensured, and the honour of the Crown will be upheld. In other words, the honour of the Crown does not require consultation on every step of a regulatory scheme, provided, as in the instant case, that meaningful consultation is ensured before there are impacts on Aboriginal rights and title.

Leave to Appeal

[8] The applications for leave to appeal are brought under s. 101(1) of the Utilities Commission Act, which provides: “An appeal lies from a decision or order of the commission to the Court of Appeal with leave of a justice of that court.”

[9] The test for leave to appeal from a statutory tribunal was confirmed in Joint Industry Electricity Steering Committee v. British Columbia Utilities Commission, 2005 BCCA 330, at para. 9:

The governing authority in this Province on leave applications from statutory tribunals is Queens Plate Dev. Ltd. v. Vancouver Assessor, Area 09 (1987), 16 B.C.L.R. (2d) 104, 22 C.P.C. (2d) 265 (C.A.) [cited to B.C.L.R.], per Taggart J.A. (In Chambers), in which the factors relevant to an application for leave to appeal are summarized at 108-110:

[I]t seems a justice may have regard for one or more of the matters listed below:

(a) whether the proposed appeal raises a question of general importance as to the extent of jurisdiction of the tribunal appealed from … ;

(b) whether the appeal is limited to questions of law involving:

(i) the application of statutory provisions … ;

(ii) a statutory interpretation that was particularly important to the litigant … ; or,

(iii) interpretation of standard wording which appears in many statutes, for example the in force provisions of retroactive legislation … ;

(c) whether there was a marked difference of opinion in the decisions below and sufficient merit in the issue put forward … ;

(d) whether there is some prospect of the appeal succeeding on its merits … ; although there is no need for a justice before whom leave is argued to be convinced of the merits of the appeal, as long as there are substantial questions to be argued;

(e) whether there is any clear benefit to be derived from the appeal … ; and

(f) whether the issue on appeal has been considered by a number of appellate bodies…. Leave to appeal has consistently been denied where the Court is asked to retry a case a third or fourth time on issues involving judgment exercised by tribunals with specialized expertise where no error of principle has been shown.

[Citations omitted.]

Positions of the Parties

[10] The applicants say that the Commission erred in law and jurisdiction in deciding that it did not have a legal obligation to consider whether the Crown had satisfied its duty to consult and accommodate First Nations before the Commission issued a CPCN, and that the process of consultation and accommodation can be deferred to the review under the Environmental Assessment Act.

[11] The applicants note that the decision is the fourth decision of the Commission in which its jurisdiction in respect of First Nations consultation and accommodation has been raised: Re BCTC Application for a CPCN for the Vancouver Island Transmission Reinforcement Project (July 7, 2006) (BCUC); Re BC Hydro Application for a CPCN for Revelstoke Unit 5 (July 12, 2007) (BCUC); Re BC Hydro Filing of Electricity Purchase Agreement with Alcan (January 29, 2008) (BCUC). (Leave to appeal the last decision was granted on April 4, 2008: The Carrier Sekani Tribal Council v. The British Columbia Utilities Commission and British Columbia Hydro and Power Authority and Alcan Inc., 4 April 2008, Vancouver CA035715, CA035791, Tysoe J.A. in chambers.)

[12] The applicants maintain that the appeal raises questions about the jurisdiction of the Commission that are of general importance in that they affect First Nations and public utilities, as well as other provincial administrative tribunals who exercise delegated decision-making authority on matters that could affect aboriginal title and rights. They say that the appeal will address whether the Commission must interpret and apply s. 45 of the Utilities Commission Act in a manner consistent with s. 35 of the Constitution Act, 1982, by considering consultation and accommodation of First Nations before issuing a CPCN. They claim that, in the context of the Commission’s previous decisions on this issue, a decision of this Court would provide guidance and clarification of the Commission’s jurisdiction and obligations.

[13] The respondents, BCTC and BC Hydro, take the position that the applicants have overstated the importance of the proposed appeal, and that it has no prospect of success. They say that the Commission decided, in the factual context of the particular application before it, that a consideration by the Commission of the Crown’s duty to consult and accommodate First Nations would anticipate and duplicate the process to be undertaken by the Crown under the Environmental Assessment Act, and that the decision falls to be reviewed on a standard of reasonableness. On that basis, they claim that the appeal has no chance of success.

Discussion

[14] In my opinion, the proposed appeal satisfies the criteria set out in Queens Plate Development Ltd. for granting leave to appeal. It raises a question of general importance concerning the jurisdiction of the Commission: whether it may issue a CPCN without considering whether the Crown’s duty to consult and accommodate First Nations, to that stage of the approval process, has been met. That is a question of law involving, among other questions, the interpretation and application of s. 45 of the Utilities Commission Act. There is some prospect of success, in the sense that there are substantial questions to be argued. Clarification by the Court of the Commission’s role in the consultation and accommodation process could have implications that extend beyond this case. It has been the subject of three other decisions of the Commission, one of which has been appealed, and the principles may apply to other regulatory and administrative tribunals in the Province.

Conclusion

[15] The applications for leave to appeal are granted.

“The Honourable Madam Justice Levine”

Citation:	*Kwikwetlem First Nation v. British Columbia Utilities Commission,*
	2008 BCCA 208