January 8, 2015

Duty to Consult: Da’naxda’xw/Awaetlala First Nation v. British Columbia Hydro and Power Authority


On a judicial review, the Da’naxda’xw/Awaetlala First Nation (“DAFN”) sought an order requiring that British Columbia’s Minister of Energy, Mines and Natural Gas (the “Minister”) direct BC Hydro to enter into good faith negotiations with DAFN and Kleana Power Corporation (“Kleana”) for a power purchase agreement on certain terms.

In 2008, DAFN and Kleana agreed to develop a hydro power project in DAFN’s traditional territory, and submitted a proposal to the 2008 Clean Power Call by BC Hydro. However, the proposed site for their project was within a conservancy, and the law prohibited hydro power projects within a conservancy. DAFN had asked the Minister to adjust the boundaries of the conservancy to accommodate the proposed project. During discussions with the Minister on the matter, DAFN and Kleana had understood the Minister to have assured them that if they lost the opportunity to participate in the 2008 Power Call due to delays involved in amending the conservancy’s boundaries, then the Minister would direct BC Hydro to enter into negotiations with Kleana for an energy purchase agreement at a price for power linked to the results of the winning bids coming out of the 2008 Power Call.

In 2012, after direction from the court (in 2011) to consult with DAFN, the Minister agreed to redraw the boundary. At this stage, DAFN asked the current Minister to uphold the previous Minister’s commitment. The Minister instructed BC Hydro to enter into good faith negotiations with Kleana but did not instruct BC Hydro to enter into a purchase agreement on the 2008 Power Call terms.

The court decided the Minister’s refusal to give directions was judicially reviewable, but the Minister did not have the power to require BC Hydro to contract with DAFN on specific terms. The consultation that followed the previous court decision assumed that redrawing the boundary would be an appropriate accommodation, and did not contemplate that the boundary redrawing might be pointless if is issued so late that the proposed project is no longer viable. The court held that such consultation was not in keeping with the honour of the Crown, and ordered the Crown to accommodate DAFN’s interests in a manner that more meaningfully addresses the fact that the project is no longer economically viable.

Da’naxda’xw/Awaetlala First Nation v. British Columbia Hydro and Power Authority, 2015 BCSC 16

Lisa C. Fong, Michael Ng and Siddharth Akali