Government's claim it's responding to pro-First Nation court decision rings hollow.
The Klinaklini River on north end of Sunshine Coast: Proposed site of one of largest private river power projects ever.
Amid the flood of bills the BC Liberals recently pushed through the legislature in the closing days of the spring session was a quiet amendment to the boundaries of the Great Bear Rainforest -- labelled Bill 49. The legislation cleared the way for one of the largest proposed private river power projects in Canadian history on the Klinaklini River.
Bill 49 reversed then-Liberal environment minister Barry Penner's 2010 decision to reject the redrawing of the conservancy boundary. The recent flip-flop is related to a lawsuit launched in 2010 by project proponent Kleana Power Corporation and its partner, the Da'Naxda'xw First Nation, whose village lies 30 kilometres east of Alert Bay, after their project was waylaid.
But did the Liberal government need to go so far as accommodating the project by changing its own law?
The Klinaklini River, which flows west from the Chilcotin plateau into Knight Inlet on the north end of the Sunshine Coast, is the proposed site of a private river power project of unprecedented proportions. With estimates ranging from 550 to 800 megawatts (MW) of peak energy production, it would see the mighty river diverted for 17 km through a 10-metre wide tunnel and involve a 10 to 30 metre high dam (euphemistically referred to as a "weir" and "head pond" by the project's proponents). The dam would flood part of the conservancy; transmission lines and other components of the project would also encroach on the protected lands.
Only Alterra Power's proposed 17-river Bute Inlet project would cumulatively surpass Kleana Power's $2.5 billion project in scale. The Kilanklini project even approaches the scale of Site C -- a conventional dam proposed for the Peace River -- with its 1,100 MW capacity.
NDP charges 'broken promise'
The official Opposition came out swinging last week against the BC Liberals' "broken promise" to protect the Klinaklini: "Two years ago we were delighted when the environment minister effectively killed this project by refusing to change the conservancy boundaries," said North Island MLA Claire Trevena. "So it was extremely disappointing to see the new Liberal environment minister reverse that decision."
As NDP Deputy Environment Critic Michael Sather asserted to Liberal Environment Minister Terry Lake during the mere 30 minutes of debate allotted by the government for Bill 49, the government has clearly gone well beyond Madam Justice Barbara Fisher's ruling, which stated it was "not appropriate" for the court to force the government to actually change the conservancy boundary.
Said Sather: "The First Nation asked for the 2010 order that Barry Penner made to be quashed. They got that. They asked for the minister to be directed to recommend to cabinet that the boundaries of the conservancy be changed. They did not get that... Yet Bill 49 changes the boundaries of the conservancy, something the court didn't grant. Why is the government abandoning its previous attempt to protect the Klinaklini River and going beyond what the judge ordered?"
Sather is correct here -- and the reason the court did not order this change to the Great Bear Rainforest boundaries is because courts do not have the power to mandate legislation, only to strike down that which is unconstitutional.
The minister defended the government's decision, saying, "The court ordered that the Minister of Environment has a legal duty to consult with the First Nation, a proponent in this case, about their request for an amendment -- and this is the important part -- with a view to considering a reasonable accommodation."
But, as Sather noted, while the judge clearly directed the government properly consult and accommodate the First Nation, she did not go as far as to order it to change the law on the plaintiff's behalf: "It is rare, however, for the court to become involved in directing a particular form of accommodation... I do not consider this an appropriate case to direct the minister to make the recommendation sought."
The rekindling of the project is sure to be controversial, as it comes at a highly-charged moment for both private power projects and the Great Bear Rainforest, which has become a focal point for citizens, First Nations and environmental groups battling the proposed Enbridge Northern Gateway pipeline.
Private power controversies
Private power projects have been the subject of intense criticism of late, both for revelations of widespread fish kills and weak environmental monitoring and enforcement -- slammed by BC's Auditor General -- and for the economics of these deals, discredited by independent economists such as Dr. Marven Shaffer and Erik Andersen.
Page 10 of BC Hydro's new Draft Integrated Resources Plan states the Crown corporation is still intent on purchasing another 2,000 gigawatt hours (GWhrs) a year of private power, despite losing hundreds of millions of dollars this year on the deals it already has in place. Yet the proposed Kilnaklini project would likely considerably exceed that 2,000 GWhr total.
That means Hydro's plan would need to be revised upward to accommodate the project and would leave no room to purchase any other private power contracts -- such as the even larger Bute Inlet project proposed by Alterra Power (unless it, say, quadrupled its next "Clean Power Call"). The equally controversial Bute project was also put back on the table last week as the proponent announced a deal with the local Sliammon First Nation to build transmission lines through its territory.
What Da'Naxda'xw First Nation and Kleana Power argued
Writing for the Vancouver Sun and its newspaper chain, Scott Simpson summarized Kleana Power and the Da'Naxda'xw First Nation's case in May 2010, a month after Penner rejected the project.
"Da'Naxda'xw First Nation and Kleana Power Corporation allege in a writ of summons filed this week in B.C. Supreme Court that the government failed to honor a 2007 commitment to exclude the project area from the bounds of the Upper Klinaklini conservancy, prior to the settling of the conservancy's boundaries.
"When the conservancy was announced in 2008, the project area was included within its boundaries -- contrary to the expectations of the Da'Naxda'xw and Kleana.
"The project includes a 10-metre-high weir that would cause water to back up about 5.5 kilometres into the conservancy.
"Environment Minister Barry Penner has stated in the legislature that the government will not consider moving park and other protected area boundaries to accommodate electricity projects.
"The plaintiffs are seeking a court declaration that would overturn the boundaries of the Upper Klinaklini conservancy, and order the B.C. environment minister to recommend to cabinet an amendment to the conservancy boundary in order to exclude the land and stream bed required to sustain the power project."
In the end, while Madam Justice Fisher's decision, reached in May of last year, concluded that the nation had not been properly consulted, she stopped far short of telling the government to change the boundary.
The judge's decision included another interesting conclusion.
Noting that one of the First Nation's councillors, Fred Glendale, is also a director of Kleana Power Corp., the judge stressed that while the First Nation is entitled to be consulted and accommodated on the conservancy, the company is not: "While it may be obvious, it is important to emphasize that the Crown's constitutional duty to consult is owed only to a First Nation. In this case, Mr. Glendale is both a councillor of the Da'naxda'xw and a director of Kleana. I have considered his evidence with this in mind, as it is not proper for a corporate entity with First Nation directors (or shareholders) to be the recipient of this constitutional duty."
The Da'Naxda'xw First Nation fired back at the NDP this week for its criticism of the project. Spokesperson Dallas Smith told the Campbell River Courier-Islander, "If built, the Kleana project would be one of the most sustainable sources of clean energy in North America."
By contrast, in a media advisory issued on June 7, Deputy Environment Critic Michael Sather had stated, "The environmental devastation from this project is unthinkable. Five species of wild salmon make the Klinaklini their home. This project would affect them, plus red and blue-listed species and a grizzly bear and moose corridor."
Smith countered, "There will be no net negative impact to eulachon, salmon or grizzly bear by the project... In fact, the project has the potential to deliver a net benefit to fish populations," though he neglected to elaborate on this surprising contention.
According to the Globe and Mail's Justine Hunter, reporting in 2010, even the BC Liberal minister acknowledged the project's likely environmental impacts: "Kleana's president said the project could be built with a fraction of the ecological footprint of Site C, but Mr. Penner said it threatened protected wetlands, fish-bearing streams, old-growth forest and grizzly-bear habitat."
The Da'Naxda'xw may hold title to the territory affected by the project, but they and councillor/Kleana Power corporate director Glendale are asking the people of B.C. to purchase private power which has been roundly criticized as driving up hydroelectric bills and contributing to the bankrupting of B.C.'s most prized Crown corporation.
The BC Liberal government can't honestly contend Madam Justice Fisher forced their hand. They're only too eager to ignore Aboriginal title and rights when First Nations oppose a favoured industrial project -- i.e., Enbridge, Fish Lake -- but if a nation supports a private power project, they apparently bend over backwards to accommodate it.
Whatever the case, the project's revival would seem to be short-lived, as the NDP have made their position clear. If the BC Liberals and the project's proponents can't ram through environmental approval and a multi-billion dollar purchase contract for the power from the project by May 2013, future premier Adrian Dix may well kill it once and for all.