First Nations launch legal challenge over Province’s failure to honour commitments

The Upper Nicola Indian Band and Okanagan Nation Alliance filed a law suit in BC Supreme Court on November 9, 2009 challenging the environmental assessment certificate for BC Hydro's controversial $600 million Interior to Lower Mainland Transmission Expansion Project. The certificate was issued by the Minister of Energy, Mines and Petroleum Resources and Minister of Environment on June 3, 2009. A second legal challenge to the certificate will be filed shortly by the Nlaka'pamux Nation Tribal Council.

The ILM Expansion Project would add a third 500 kV high voltage transmission line connecting the Nicola Substation near Merritt to the Lower Mainland. The line would run through the traditional territories of many First Nations, including the Okanagan Nation, of which Upper Nicola is a part, and the Nlaka'pamux Nation. BC Hydro built the Nicola Substation and two existing 500 kV lines in the early 1970's to transmit power from the Mica and Revelstoke dams in the southwest interior to the Lower Mainland, and now wants the third line to meet increased electricity demand in the Lower Mainland.

"The Provincial Government never consulted with us before they built the Nicola Substation and two 500 kV high voltage lines right next to our reserves, and right through our traditional territory," said Chief Tim Manuel of the Upper Nicola Indian Band. "We have been living for over thirty years with the consequences of that failure to respect our Aboriginal title and rights, and we will not allow it to happen again." The actions of the Provincial Government are particularly notable, given the recent controversy over transmission lines in Delta. "Some suburban Vancouver homeowners expressed valid concerns about transmission lines cutting through their property and neighbourhoods, and the Provincial Government and BC Hydro immediately took action. We have been raising those same concerns and others, yet we are ignored. We can't move - our people have lived in our territory for countless generations - yet the Province does nothing. That tells our children that to be Aboriginal in British Columbia is to be less than equal. That is unacceptable, and the world needs to see how we are treated," added Chief Manuel.

BC Hydro began the environmental assessment process for the ILM Expansion Project in 2006. Since that time, Upper Nicola, ONA and NNTC have worked together to seek consultations with the Province to address the existing ILM lines and substation, not just the new one that BC Hydro wants to add. The First Nations thought they had reached resolution on that issue when, late last year the then Minister of Aboriginal Relations and Reconciliation, Michael de Jong, committed to develop a consultation process to address the impacts of the existing ILM system. However, the Province then failed to deliver on its commitments, and no consultations occurred before the EA certificate was issued on June 3, 2009 without notice to Upper Nicola, ONA or NNTC.

"We sat down with the highest levels of government, and we trusted in their commitment that they would consult with us before they went ahead with this project," said Grand Chief Stewart Phillip, Chairperson of the ONA and President of the Union of B.C. Indian Chiefs. "Then, after six months of stalling by the Province, they approved the project without even moving forward on what they committed to. It is an outrageous breach of the honour of the Crown, and we have no option but to take them to court."

The NNTC are also pursuing a legal challenge to the EA certificate to ensure the protection of Nlaka'pamux Aboriginal title and rights. "Nlaka'pamux and Okanagan are united in our opposition to BC Hydro's plans to expand its transmission system without addressing the impacts to our people of its current facilities," said Chief Bob Pasco, Chairperson of the NNTC. "We will join with the Okanagan in this legal battle by filing our own legal challenge to the EA certificate contesting the Province's breach of its commitment to consult with us."

The ILM Expansion Project has already been before the courts. In February, 2009 the BC Court of Appeal issued a groundbreaking ruling that the BC Utilities Commission had failed to ensure that the Province had met its duty to consult with and accommodate First Nations, prior to issuing a certificate of public convenience and necessity for the ILM Expansion Project. The Court of Appeal suspended the CPCN, and sent it back to the Commission for reconsideration. That process is currently underway.

/For further information: Chief Tim Manuel, Upper Nicola Band Cell: (250) 378-1986; Chief Bob Pasco, Nlaka’pamux Nation Tribal Council Cell: (250) 371-0775; Grand Chief Stewart Phillip, Chair, Okanagan Nation Alliance Cell: (250) 490-5314

Tags: Upper Nicola  Okanagan  BC Hydro  Nlaka'pamux