Tsleil-Waututh Nation as a British Columbia Utilities Commission intervener, confirms the Crown’s Duty to Consult
Over the past year, the Treaty, Lands, and Resources Department participated as an intervener in the British Columbia Utilities Commission (BCUC) process to decide whether to issue a Certificate of Public Convenience and Necessity (CPCN) for the proposed Tilbury Liquefied Natural Gas Storage Expansion Project on the Fraser River.
A CPCN is granted by the BCUC after a utility has secured a proven source of supply, provided an acceptable system design, met the required administrative and financial conditions, and justified that the Project is in the “public interest”.
As an intervenor, TLR made complex legal arguments on the role of Indigenous Nations in CPCN proceedings and the nuances of the duty to consult throughout the proceeding. TLR raised novel issues surrounding the Declaration Act and UNDRIP and contributed to the Commission’s understanding of these important issues going forward.
The BCUC’s Decision on March 23, 2023 affirmed many of TLR’s submissions, including that:
- the decision to grant a CPCN may trigger an independent duty to consult on the part of the Crown;
- The Ministry of Energy, Mines and Low Carbon Initiatives is the Crown entity responsible for consultation, and there was no delegation of the duty to the BCUC for this process;
- the consultation triggered by a CPCN is separate from consultation triggered by an environmental assessment under the Environmental Assessment Act; and
- the Commission must consider UNDRIP and reconciliation in the determination of the public interest, public convenience and necessity, and the adequacy of consultation.
This is a great result for both TWN and other Indigenous Nations who will participate in BCUC proceedings in the future. The findings are directly responsive to our arguments and move the needle forward for Indigenous participants in BCUC processes. This also sets up TWN (or other Nations) very well to hold the Crown accountable in fulfilling its constitutional duty to consult and to improve its practices for consulting with Indigenous Nations on certificate approvals.
For more information or for any questions, please reach out to Tsleil-Waututh Nation Communications at communications@twnation.ca.
Roberts Bank Terminal 2 receives approval from the Government of Canada
An announcement was made on April 21st by the Government of Canada to approve the Port of Vancouver’s Roberts Bank Terminal 2 (RBT2) project. The approval is subject to 370 legally binding conditions.
The decision to approve the project was made after careful consideration of the report of the Review Panel on the Designated Project, the additional information provided since the Review Panel report, and the implementation of mitigation measures. However, it was determined that the project is likely to cause significant adverse environmental effects, and the decision was referred to the Governor in Council (GiC) to determine whether these effects were justified in the circumstances. The GiC decided that the significant adverse environmental effects that the Project is likely to cause are justified in the circumstances.
Since 2011, TLR has actively participated in the environmental assessment process, dedicating significant time and effort to ensure TWN’s rights and interests are fairly represented and protected. Our engagement included the hearings for the Roberts Bank Terminal 2 Review Panel, writing and submitting our own Consultation and Accommodation Report, informing the Vancouver Fraser Port Authority’s scoping of studies, and reviewing proposed conditions and mitigations on the Project. Throughout the process, TWN presented a compelling case emphasizing the deep connection between the project area and TWN’s intangible cultural heritage. TWN testimony was not only acknowledged but also accepted by the government panel, setting a groundbreaking precedent for the recognition of intangible cultural heritage within a Crown government assessment.
TWN is in agreement with the Federal Review Panel Report for RBT2 (2020) and the Minister of Environment’s decision statement that the project will result in significant adverse effects, and further discussions will need to occur with the Vancouver Fraser Port Authority, Impact Assessment Agency of Canada, and the BC Environmental Assessment Office including conversations regarding economic accommodations. TWN will likely continue to participate in aspects of RBT2 after a certificate is granted, as there are many aspects that require attention, including obtaining federal and provincial permit processes and mitigating potential impacts during construction and operation.
As we move forward, we will continue to closely monitor the progress of the Roberts Bank Terminal 2 project, with a particular focus on safeguarding and preserving TWN’s intangible cultural heritage.
We will continue to keep the community informed of any further updates on TWN’s involvement in the RBT2 project as they arise.
For more information or for any questions, please reach out to Tsleil-Waututh Nation Communications at communications@twnation.ca.
