TABLE OF CONTENTS

                                                                                                                                                                                                              Page no.

Executive summary. 1

1.0          Introduction. 2

1.1          Background. 2

2.0          Extension Request Application. 2

2.1          Application Review Process. 3

2.2          Legislative and Regulatory Framework. 3

3.0          Decision   3

3.1          Consultation Activities Record from BC Hydro. 3

3.2          Letters of Comment from NIA First Nations. 5

3.3          BC Hydro’s Reply to the Letters of Comment. 6

 

COMMISSION ORDER G-262-23

 

APPENDIX A:  List of Acronyms

APPENDIX B:  Exhibit List

 

 

 

 

Executive summary

On June 16, 2023, British Columbia Hydro and Power Authority (BC Hydro) filed with the British Columbia Utilities Commission (BCUC) an extension request to file an application for reconsideration of Directive 85 of the BCUC Decision and Order G-91-23 regarding BC Hydro’s Fiscal 2023 to 2025 Revenue Requirements Application (F23-F25 RRA) after 60 days from the issuance of the decision and order (Application).

 

By Order G-227-22, dated August 12, 2022, in the BC Hydro 2021 Integrated Resource Plan (IRP) proceeding, the BCUC determined that BC Hydro’s Non-Integrated Areas (NIAs) are not within the scope of the BCUC’s review of the 2021 IRP. As a result, the BCUC recommended the establishment of a separate regulatory process to address the review of the long-term resource plan (LTRP) for the NIAs. BC Hydro committed to file with the BCUC a proposal for a modified framework for the regulatory review of the LTRP for the NIAs in spring 2023 (Proposal).

 

Subsequently, as part of Decision and Order G-91-23 from the F23-F25 RRA proceeding, dated April 21, 2023, the BCUC issued Directive 85 directing BC Hydro to file its long-term resource plan for the NIAs by March 31, 2024, and to include as part of that plan details of its NIA Diesel Reduction Strategy including proposed performance metrics for BCUC review and approval.

 

During the engagement sessions between BC Hydro and the NIA First Nations representatives in March 2023, the NIA First Nations representatives expressed their desire to be involved in the development of the Proposal, and their need for more time to understand the implications of the Proposal before BC Hydro files it with the BCUC. As a result of this consultation, BC Hydro was unable to file the Proposal in spring 2023. BC Hydro expects that it will require extended time to engage further with the NIA First Nations communities in developing the Proposal and the specifics of that Proposal may include inputs from the NIA First Nations communities that would require Directive 85 in Decision and Order G-91-23 to be modified. BC Hydro submits that it will be in a position to file the Proposal by December 15, 2023.

 

Rule 26.02 of the BCUC’s Rules of Practice and Procedure provides that unless prior permission of the BCUC is obtained, an application for reconsideration must be filed within 60 days of the issuance of the order or the reasons for decision, whichever is later. In light of the fact that Directive 85 was issued on April 21, 2023, and required BC Hydro to file its long-term resource plan for the NIAs by March 31, 2024, BC Hydro seeks permission from the BCUC to extend the time for filing an application for reconsideration of Directive 85 after the expiry of 60 days from the issuance of that directive.

 

For the reasons set out in this decision, the Panel approves BC Hydro’s extension request to file an application for reconsideration of Directive 85 of Decision and Order G-91-23 after 60 days from the issuance of that decision and order. The BCUC sets a deadline for filing or confirmation of BC Hydro’s intention not to request such reconsideration, by December 15, 2023.

 

 

 

 

 

 

 

 

 

 

1.0              Introduction

On June 16, 2023, British Columbia Hydro and Power Authority (BC Hydro) filed with the British Columbia Utilities Commission (BCUC) an extension request to file an application for reconsideration of Directive 85 of the BCUC Decision and Order G-91-23 issued on April 21, 2023 regarding BC Hydro’s Fiscal 2023 to 2025 Revenue Requirements Application (F23-F25 RRA) after 60 days from the issuance of the decision and order (Application).

 

In the Application, BC Hydro seeks permission to file an application for reconsideration of Directive 85 of Decision and Order G-91-23 by December 15, 2023.

1.1              Background

By Order G-227-22, dated August 12, 2022, in the BC Hydro 2021 Integrated Resource Plan (IRP) proceeding, the BCUC determined that BC Hydro’s Non-Integrated Areas (NIAs) are not within the scope of the BCUC’s review of the 2021 IRP. As a result, the BCUC recommended the establishment of a separate regulatory process to address the review of the long-term resource plan (LTRP) for the NIAs.[1] BC Hydro committed to file with the BCUC a proposal for a modified framework for the regulatory review of the LTRP for the NIAs in spring 2023 (Proposal).[2]

 

Directive 85 of Decision and Order G-91-23 of the F23-F25 RRA proceeding states the following:

The Panel directs BC Hydro to file its long-term resource plan for the Non-Integrated Areas by March 31, 2024, and to include as part of that plan details of its NIA Diesel Reduction Strategy including proposed performance metrics for review and approval by the BCUC.[3]

2.0              Extension Request Application

In March 2023, BC Hydro conducted engagement sessions with the NIA First Nations representatives to discuss the Proposal and the NIA Diesel Reduction Strategy’s components. According to the feedback received during these sessions, BC Hydro notes the NIA First Nations representatives have expressed their desire to be involved in the development of the Proposal and the NIA Diesel Reduction Strategy, and their need for more time to understand the implications of the Proposal before BC Hydro submits it to the BCUC.[4]

Initially, BC Hydro informed the NIA First Nations representatives that these concerns would be addressed during the regulatory process for reviewing the Proposal. However, the NIA First Nations representatives disagreed with this approach and suggested that BC Hydro should have more discussions with them before officially submitting the Proposal. Consequently, BC Hydro was unable to submit the Proposal in spring of 2023.[5]

 

BC Hydro further explains that the specifics of the Proposal mean that BC Hydro may not be able to comply with the terms of Directive 85 such that it will need to apply to the BCUC for a reconsideration and variance of that directive. The request to apply for a reconsideration is based on the following reasons:

(i)      BC Hydro has clarified that it does not anticipate producing a single LTRP for all 14 NIAs. Instead, BC Hydro plans to submit individual LTRPs that take into account the distinctive circumstances of each NIA community.

 

(ii)    BC Hydro has acknowledged that it will be unable to meet the March 31, 2024, deadline outlined in Directive 85 for submitting the LTRP. The reason for the delay is the need for additional time to complete the finalization of the Proposal. Furthermore, BC Hydro anticipates that the Proposal may include the elimination of the requirement for an LTRP for certain NIAs.[6]

In light of these changes, BC Hydro requests permission to file an application for reconsideration of Directive 85 of Decision and Order G-91-23 at the same time as the Proposal is submitted, with a deadline no later than December 15, 2023.[7]

2.1              Application Review Process

The BCUC established a public hearing and regulatory timetable for the review of the Application, directed BC Hydro to file a record of consultation with the NIA First Nations communities, invited the affected parties within the NIAs to file Letters of Comment, and granted BC Hydro the opportunity to provide a reply to the Letters of Comment.[8]

 

The following parties have provided Letters of Comment on the Application:

•         Ulkatcho First Nation (UFN);

•         Nuxalk First Nation (NFN);

•         Gitga’at First Nation (GFN); and

•         the First Nations NIA Working Group (FN NIA WG).

2.2              Legislative and Regulatory Framework

Pursuant to section 99 of the Utilities Commission Act (UCA), the BCUC, “on application or on its own motion, may reconsider a decision, an order, a rule or a regulation of the commission and may confirm, vary or rescind the decision, order, rule, or regulation.”[9]

 

Rule 26.02 of the BCUC’s Rules of Practice and Procedure (Rules) provides that unless prior permission of the BCUC is obtained, an application for reconsideration must be filed with the BCUC within 60 days of the issuance of the order or the reasons for decision, whichever is later.[10]

 

3.0              Decision

In reviewing this Application, the Panel considered the additional information filed by BC Hydro and the Letters of Comments submitted in the proceeding, as summarized below.

3.1              Consultation Activities Record from BC Hydro

BC Hydro shared information about the Proposal in March 2023 in a three-part series of engagements jointly hosted with the Community Clean Energy Branch of the Ministry of Energy, Mines and Low Carbon Innovation (EMLI).[11]

On March 7, 2023, EMLI presented an update on government activities to support community renewable energy projects. On March 9, 2023, BC Hydro presented information related to the development of its NIA Diesel Reduction Strategy and the Proposal. On March 15, 2023, both EMLI and BC Hydro presented summary presentations on what they heard in the previous sessions and outlined their next steps.[12]

General feedback from the session BC Hydro hosted on March 9, 2023, includes the following:[13]

•         Recognizing time commitment

BC Hydro needs to acknowledge the time required for the participants to engage in the discussion, including document review and attending sessions. Avoiding engagement fatigue is crucial, and building capacity in communities is essential for meaningful participation.

•         Importance of relationships

Building strong relationships with BC Hydro Indigenous Relationship Managers is vital for achieving desired outcomes. Decision-makers must also attend crucial meetings to support reconciliation efforts.

•         Collaboration and integration

To honor commitments to the Declaration on the Rights of Indigenous Peoples Act (DRIPA)[14], collaboration among government entities and non-siloed efforts are essential. The Environmental Social Governance Framework and Indigenous Modernization Procurement Act are potential tools to be integrated into discussions.

•         Equity and revenue sharing

NIA First Nations communities seek equity ownership and revenue sharing in energy projects. Concerns about health, finances, and environmental impact, particularly related to diesel backup generators, must be addressed.

•         Community engagement

BC Hydro should engage with communities at a high level and involve leadership and elected councils to ensure buy-in from all stakeholders. Challenges on the community side include timelines, staffing, funds, and legal guidance.

•         Resource availability

Adequate resources are crucial for meaningful engagement. Limited timeframes and staffing shortages can hinder effective participation.

Following these engagement sessions, BC Hydro established a monthly engagement session series, commencing on June 1, 2023. Subsequently, two more sessions were conducted on July 6, 2023, and August 3, 2023. BC Hydro reports that the agendas for these sessions were guided by feedback from the NIA First Nations representatives and primarily focused on how BC Hydro should facilitate the monthly engagement sessions and the NIA Diesel Reduction Strategy.[15]

3.2              Letters of Comment from NIA First Nations

Ulkatcho First Nation

In its Letter of Comment, UFN submits that the development of the NIA LTRP, and its regulatory framework for review will carry substantial consequences for them as they are actively pursuing a clean energy project in their community. UFN believes that meaningful engagement with the NIA communities is essential prior to BC Hydro’s submission to the BCUC for approval.[16]

Nuxalk First Nation

NFN is concerned about the approach and process taken by BC Hydro to date but considers approval of the Application appropriate, on the condition that BC Hydro addresses the concerns expressed by them (as detailed below), and in a broader context, the FN NIA WG submission. NFN anticipates that the extended timeframe will be utilized for comprehensive collaboration with NIA communities to jointly develop the Proposal and the NIA Diesel Reduction Strategy.[17]

 

NFN highlights that: (i) there is a lack of meaningful engagement with the Nations, emphasizing that during each engagement meeting, NFN and other Indigenous leaders have consistently requested BC Hydro to reconsider the current process, which is to work collaboratively with the NIA First Nations communities, yet they have not seen any changes made; (ii) BC Hydro has not initiated a proper meaningful consultation process with NFN; (iii) the meetings facilitated by BC Hydro have not yet been clear on intent and purpose; (iv) a capacity funding of $7,000 to support their participation in the meetings is insufficient; (v) they struggle to secure legal input on the process; and (vi) the process must respect the standards and expectations set out in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).[18]

 

Gitga’at First Nation

GFN supports BC Hydro's extension request with the condition that BC Hydro is obligated to address the ongoing failings in the engagement process and engage in genuine collaboration with them and other NIA First Nations communities, uses the Truth and Reconciliation spirit as a foundation for progress, and builds trust to create productive respectful relationship.

 

GFN is concerned about the strained relationship between BC Hydro and the NIA First Nations, highlighting that BC Hydro has not made any effort to articulate its UNDRIP[19] and Truth and Reconciliation Commission (TRC) Calls to Action Implementation Plan.[20] GFN also highlights that there is a lack of transparency and information sharing regarding the development of the Proposal and the NIA Diesel Reduction Strategy. There is also a concern related to the engagement funding for the First Nations. GFN adds it is essential that BC Hydro respect the Indigenous leadership within the NIA communities as equal partners in the development of the Proposal and the NIA Diesel Reduction Strategy.[21]

First Nations Non-Integrated Areas Working Group

FN NIA WG, an organization of representatives from NIA First Nations that was formed following BC Hydro’s March 2023 engagement session, supports the extension request with the condition that BC Hydro must address the ongoing problems in the engagement process and genuinely collaborate with the Indigenous People, as outlined by UNDRIP and the Interim Approach to Implement the Requirements of Section 3 of DRIPA[22], treating NIA First Nations communities as equal partners in policy and strategy development.[23]

 

FN NIA WG also expresses a concern that BC Hydro's approach to engaging with the communities has not met the criteria for meaningful engagement. During the summer 2023 engagement sessions, the FN NIA WG members said they faced challenges both in terms of process and content. They said BC Hydro staff have noted their concern and promised to collaborate as partners with the NIA First Nations communities. However, they stated that BC Hydro seems to view engagement as a formality rather than an opportunity to build a substantial partnership with NIA First Nations communities and jointly develop an energy future that respects Indigenous Rights.[24]

 

FN NIA WG’s outlines a litany of specific concerns regarding BC Hydro’s development of the Proposal and the NIA Diesel Reduction Strategy. These include (i) the lack of a collaborative process that aligns with UNDRIP; (ii) the lack of an Indigenous-led process; (iii) the lack of any Terms of Reference on the engagement process; (iv) the lack of equity and parity in resources, noting that the capacity funding is too low for them to meaningfully engage; (v) the need to hire economic, legal, and policy experts to engage in the process on equal footing with BC Hydro; (vi) the lack of equity and parity on agenda construction and speaking time; (vii) the lack of accountability to feedback; (viii) the lack of transparency and equity in the document development; (ix) there is a limited opportunity for their input on the document; (x) the importance of acknowledging the truth as a first step towards reconciliation; and (xi) the draft documents are too vague for meaningful comment.[25]

3.3              BC Hydro’s Reply to the Letters of Comment

In its reply to the Letters of Comment, BC Hydro confirms its commitment to engage meaningfully with the NIA First Nations communities. BC Hydro explains that it has adjusted the agenda of the most recent session held on September 7, 2023, based on feedback received in the Letters of Comment. BC Hydro adds that it has indicated a willingness to discuss further capacity funding for the NIA First Nations to support them in the upcoming monthly engagement sessions.[26]

 

BC Hydro has also set up upcoming engagement sessions that will take place on October 12, November 2, and December 7. Topics include those put forward by the NIA First Nations representatives, engagement Terms of Reference, the UNDRIP Implementation Plan, the Proposal, and the NIA Diesel Reduction Strategy.[27]

 

In addition to the ongoing engagement sessions, BC Hydro emphasizes that there will be continuous opportunities for consultation as it prepares future submissions of the NIA long-term resource plans to the BCUC. BC Hydro clarifies that the acceptance of the long-term resource plans would not constitute approval for capital projects or Energy Purchase Agreements (EPAs) even though they are identified under the long-term resource plans. BC Hydro acknowledges that separate applications to the BCUC may be necessary for the approval of the EPAs and the related expenditure schedules for capital projects or the EPAs. BC Hydro states it will continue to engage with affected First Nations in developing future long-term resource plans as well as any EPAs, as appropriate.[28]

 

Panel Determination

 

The Panel approves BC Hydro’s request to extend the time for filing of an application for reconsideration of Directive 85 of the Decision and Order G-91-23.

In reviewing BC Hydro’s Application, the Panel assesses whether BC Hydro has established sufficient grounds for the granting of an extension of time for the filing of an application for reconsideration of Directive 85 beyond 60 days of issuance of that directive.

 

Rule 26.02 of the Rules provides that unless prior permission of the BCUC is obtained, an application for reconsideration must be filed with the BCUC within 60 days of the issuance of the order or the reasons for decision, whichever is later. The Panel notes BC Hydro filed this Application with the BCUC on June 16, 2023, prior to the expiry of the sixty-day deadline (June 20, 2023) following the issuance of Decision and Order G-91-23 on April 21, 2023.

 

The Panel notes that all of the NIA First Nations communities who filed Letters of Comment with respect to the Application supported the approval of BC Hydro’s extension request. The Panel finds that BC Hydro has established that there is a need to extend the timeline for filing a reconsideration application with respect to Directive 85 so that BC Hydro can better incorporate the First Nations communities’ input in developing the Proposal and NIA Diesel Reduction Strategy. The Panel expects that BC Hydro would be better positioned to provide the necessary details to support the application for reconsideration after undertaking further engagement with the affected First Nations communities.

 

BC Hydro has stated that it intends to file the Proposal and reconsideration application no later than December 15, 2023. Accordingly, the Panel directs BC Hydro to file an application for reconsideration of Directive 85 or confirmation of BC Hydro’s intention not to file such reconsideration application by December 15, 2023.

 

For clarity, the Panel’s approval of BC Hydro’s extension request in this proceeding has no bearing on any future BCUC decision regarding the merits of any actual application for reconsideration of Directive 85.

 

With respect to the conditions to granting the extension request suggested by some of the NIA First Nations communities, including directing BC Hydro to articulate the UNDRIP and TRC Calls to Action Implementation Plan when engaging with the First Nations, the Panel finds that these requests are beyond the scope of this proceeding. Accordingly, the Panel declines to make any directives to BC Hydro in that regard. However, the Panel appreciates and acknowledges the concerns raised by NIA First Nations communities. Therefore, the Panel recommends that BC Hydro file, as part of the subsequent Proposal and any application for reconsideration of Directive 85, a comprehensive consultation report which addresses these concerns.

 

 

Dated at the City of Vancouver, in the Province of British Columbia, this          5^th          day of October 2023.

 

 

Original signed by:

____________________________________

A.K. Fung, KC

Panel Chair / Commissioner

 

 

British Columbia Hydro and Power Authority

Application for Permission to File and Application for Reconsideration of Directive 85 after 60 Days from the Issuance of Order G-91-23

 

Glossary and Acronyms

 

Acronym / Glossary	Description
Application	BC Hydro’s extension request to file an application for reconsideration of Directive 85 of the BCUC Decision and Order G-91-23 regarding BC Hydro’s F23-F25 RRA after 60 days from the issuance of the decision and order
BC Hydro	British Columbia Hydro and Power Authority
BCUC	British Columbia Utilities Commission
DRIPA	Declaration on the Rights of Indigenous Peoples Act
EMLI	Ministry of Energy, Mines and Low Carbon Innovation
F23-F25 RRA	BC Hydro’s Fiscal 2023 to 2025 Revenue Requirements Application
FN NIA WG	First Nations Non-Integrated Areas Working Group
GFN	Gitga’at First Nation
IRP	BC Hydro 2021 Integrated Resource Plan
LTRP	Long Term Resource Plan
NFN	Nuxalk First Nation
NIA	BC Hydro’s Non-Integrated Areas
Proposal	Proposal for a modified framework for the regulatory review of the long-term resource plan for the NIAs
Rules	BCUC Rules of Practice and Procedure
UFN	Ulkatcho First Nation
UNDRIP	United Nations Declaration on the Rights of Indigenous Peoples
UCA	Utilities Commission Act

 

IN THE MATTER OF

the Utilities Commission Act, RSBC 1996, Chapter 473

and

British Columbia Hydro and Power Authority

Reconsideration of BCUC Order G-91-23 Direction 85 Extension Request

EXHIBIT LIST

 

Exhibit No.                                                                          Description

 

Commission documents

 

A-1	Letter dated July 14, 2023 – Appointing the Panel for the to review of the BC Hydro Application for the Reconsideration of BCUC Order G-91-23 Direction 85 Extension Request
A-2	Letter dated July 26, 2023 – BCUC Order G-201-23 establishing a regulatory timetable
A-2-1	Letter dated August 1, 2023 - BCUC Order G-201-23A amending Order G-201-23
A-3	Letter dated September 20, 2023 – BCUC amending the Panel for the review of the application

 

Applicant documents

 

B-1	British Columbia Hydro and Power Authority (BC Hydro) - Application for Reconsideration of BCUC Order G-91-23 Direction 85 Extension Request dated June 16, 2023
B-2	Letter dated August 16, 2023 – BC Hydro submitting Order G-201-23A Directive 3 compliance regarding consultation with the First Nations within the 14 NIAs
B-3	Letter dated September 12, 2023 – BC Hydro submitting reply to Letters of Comment

 

Letters of comment

 

D-1	Ulkatcho First Nation (UFN) – Letter of Comment dated August 21, 2023
D-2	Nuxalk Nation (Nuxalk) – Letter of Comment dated August 25, 2023
D-3	First Nations NIA Working Group (FN NIA WG) – Letter of Comment dated August 30, 2023
D-4	Gitga'at First Nation (GFN) – Letter of Comment dated August 31, 2023