British Columbia’s Green Energy Policy: The Impact on and Opportunities for First Nations

Speaking Notes by Dave Porter

Aboriginal Law Update 2010

Vancouver, British Columbia

Date: March 4, 2010

By March 4, 2010 No Comments

First, let me thank the Pacific Business and Law Institute for arranging this conference and for putting this panel of speakers together.

As all of us here today know, we live in interesting times. The continued build-up of greenhouse gases in the Earth’s atmosphere is pushing the Earth’s climate dangerously close to a tipping point that could have dire consequences for us all.

At the same time, the world’s population continues to grow, and with that growth comes increased demand for energy.

In light of this, there is a clear need to embrace new energy policies; and in particular, new green or renewable energy sources, which is precisely what the British Columbia government is doing.

The provincial government is not alone, of course, in recognizing the need to do this. In fact, First Nations have long understood the need to do so.

One primary reason for that is that many of our nations are at the forefront of the current climate crisis. Changing temperatures and precipitation patterns have had a profoundly negative impact on traditional lands and resources. And those impacts continue.

In the interior, the devastation unleashed on forests by the mountain pine beetle is directly tied to climate change. The pine beetle attack has left in its wake more than one billion dead pine trees. In the midst of all that destruction, 103 First Nation communities live with the knowledge that the forests surrounding them are for the foreseeable future at increased risk of burning.

On the coast and on river systems throughout the interior, frightening declines in wild salmon populations are thought to be at least partially related to changing conditions in the ocean; changes which may be linked to climate change. With collapses in various salmon runs, traditional and extremely important First Nations’ food sources are being lost.

The threats posed by climate change, are real, and have prompted many First Nations to call for a transformation in energy policy – one that provides First Nation and non-First Nation communities alike with the means to secure healthier and greener futures.

Being on the front lines of the climate crisis, then, our nations understand and support the need to act. And generally speaking, we are pleased to see a provincial government that appears intent to act with a range of policies including:

  • Targets to reduce provincial greenhouse gas emissions;
  • A commitment to CO2 neutrality in all government buildings;
  • The introduction of a carbon tax; and
  • The embracing of market mechanisms in the form of a large, regional market in tradable carbon credits.

In addition, the Crown corporation, BC Hydro, has instituted sweeping policy changes aimed at ensuring that the province is electricity self-sufficient; unleashing a wave of proposals from private power proponents for various renewable energy projects; most notably to date run-of-river facilities.

Moreover, well-established sectors in BC’s resource-based economic sector, notably the pulp and paper industry, are clamoring to participate in the new green economy through increased use of renewable forest resources to generate carbon neutral power. And emerging players in renewable bio-energy are pushing forward with various initiatives, some in direct response to BC’s Hydro’s call for new sources of independently produced green power.

Finally, massive renewable energy projects are proposed to harness wind-power and tidal power.

All of this and more has resulted in an explosion of new or proposed renewable energy developments across the province, which from social, environmental and economic perspectives is largely for the good.

But there is reason to be concerned. In the rush to “go green” First Nation rights and interests could be compromised and First Nation communities left on the outside looking in.

The rapidity with which private run-of-river projects have proceeded in the province is a good case in point.

In the green rush, we have seen numerous water licences issued, almost none of which went to First Nations. There is concern that if new developments in other areas of the emerging green energy economy evolve in the same way, that First Nation rights and interests will be compromised through the alienation of lands and resources. For that reason, there is strong interest moving forward to ensure that our nations are involved at the outset in planning for – and benefiting from – the new green economy.

Thirdly, many of our communities because of their remoteness face unique challenges when it comes to being able to participate in the new, green, renewable energy economy. But it is the very challenges raised by remoteness that also, conversely, may offer the greatest opportunities to promote new green energy developments.

It is said, for example, that the numerous “off-grid” First Nation communities in the province may be the “low hanging fruit” that we ought to focus on first in setting BC’s energy system on a more a sustainable footing.

Off-grid communities are those communities that because of their isolation are not connected to the main hydro grid. As a result, such communities rely almost exclusively on costly diesel fuel to fire electrical generators, which in turn light and heat their homes, businesses and community buildings. Moving such communities off of their reliance on such atmospherically unfriendly fuels and onto renewable sources of power has a range of plusses for First Nation communities. It makes economic sense. It makes environmental sense. And it provides communities with a foundation upon which to diversify their economies and make their economies more sustainable.

One inspiring example of this, is the community of Atlin in northwestern BC. Last April, the off-grid community switched electricity sources, moving from diesel-fired electrical generators to a new run-of-river hydro system, owned 100 per cent by the Taku River Tlingit First Nation. The move to this new, renewable source of power has eliminated the need to burn more than 1.2 million litres of diesel fuel per year.

So there is cause for excitement at the prospects of what green power can mean for individual First Nation communities, but also the province as a whole as it seeks to lower greenhouse gas emissions.

But while we celebrate such successes, we have to focus on the need for a coherent approach to developing a green energy policy in the province that is equitable and just and that improves overall opportunities for First Nations moving forward.

In its recent Speech from the Throne, the provincial government re-emphasized the point that its promises to cut greenhouse gas emissions, as embodied in its Climate Action Plan, hinged on the development of new sources of clean, renewable energy.

“Building on the contributions of the Green Energy Advisory Task Force,” the Throne Speech read, “your government will launch a comprehensive strategy to put B.C. at the forefront of clean energy development.” The Speech went on to say:

We have enormous potential in bioenergy, run-of-river, wind, geothermal, tidal, wave and solar energy. We will put it to work for our economy. A new Clean Energy Act will encourage new investments in independent power production while also strengthening BC Hydro. It will feature simplified procurement protocols and new measures to encourage investment and the jobs that flow from it.

Elsewhere, the same Speech made the point that the government remains committed to “working hard to build a new relationship with First Nations” and that such a new relationship should have as its goal to “welcome First Nations into our economy as true partners, with new opportunities and shared decision-making in their traditional territories.”

The BC First Nations Energy and Mining Council, which is where I have devoted much of my time over the past two years, is pleased to see such commitments. If a new Clean Energy Act is indeed adapted, it must be done with the full consultation of First Nations and it must ensure that First Nations’ rights and interests are respected. But I would like to say that much, much more must be done if we are to realize the goal of a new, clean energy future that fully involves and benefits First Nations. And the provincial government has a lot of work to do if that is to be the case.

Recently, our council has spent time considering what we think is required by way of establishing a true and lasting partnership between the province and First Nations when it comes to green or renewable energy developments.

Broadly speaking, we believe actions are required in the following areas:

First, as I mentioned a few moments ago, we think it makes a lot of sense for the province, BC Hydro and others to aggressively pursue an energy diversification strategy in remote off-grid, First Nation communities. Millions of dollars are spent each year in numerous off-grid communities to purchase diesel fuel to fire diesel generators. These communities should be moved as soon as possible off of diesel-fired electricity onto renewable power sources, be they run-of-river hydro, wind, solar or bioenergy sources.

To facilitate this transition, a working group consisting of provincial government, BC Hydro and First Nations’ representatives, should be struck to assess and prioritize off-grid First Nation communities for renewable energy systems.

Funding should then be provided to expedite community energy plans, as has been done in some First Nations’ territories such as Haida Gwaii.

Second, when considering new bioenergy sources of power, the province and private power proponents should deal directly with First Nations on a project-by-project basis to ensure that further alienation of lands and resources does not occur as new bioenergy projects proceed and that when such projects proceed that First Nations are:

  • Given priority consideration for new bioenergy tenures.
  • Provided full opportunity to become equity shareholders in bio-energy projects within their respective territories.
  • Share in all resource rents generated as a result of tree-harvesting activities in support of bio-energy tenures.
  • Benefit from any carbon credits generated as a result of bio-energy projects.

Failure to work toward such outcomes will undoubtedly lead to delays in new bio-energy projects proceeding; an outcome that runs counter to the interests of many parties including First Nations’ and non-First Nation communities, private power proponents, public utilities, forest companies and the provincial and federal governments.

Third, as market mechanisms are embraced in efforts to lower greenhouse gas emissions, First Nations interests to lands and resources must be respected. In particular, First Nations must be able to draw economic benefits in the emerging carbon offset market by being able to claim credit for the carbon stored in forests. The BC First Nations Energy and Mining Council is pleased in this regard to see this interest captured in new agreements signed between the province and the Haida Nation and the province and various First Nations from the North and Mid Coasts of BC.

Fourth, British Columbia must come to agreement with First Nations over how to resolve outstanding issues over how previous renewable energy developments – in particular hydro developments and their related distribution infrastructure such as transmission lines – have impacted First Nations.

During a recent inquiry conducted by the BC Utilities Commission, the BCUC heard from many First Nations leaders who expressed concerns that the impacts to First Nation lands and resources from past hydroelectric projects had been substantial; and that such impacts had, in most cases, not been addressed.

A brief prepared by the BC First Nations Energy and Mining Council and submitted to a Green Energy Task Force appointed by the provincial government noted in December 2009 that:

Throughout the Province there are many instances where transmission lines were built without consultation or consent across both reserve and traditional lands, where the Crown did not act fairly or honourably, where transmission corridors negatively impacted territories vital to the productivity of First Nations’ traditional economic activities, where culturally significant areas were not given respectful protection, where corridors were constructed that facilitated the extraction of billions of dollars of hydro-electricity with virtually no return to First Nations in terms of jobs, business opportunities, revenue or profit sharing. Progress in the green energy sector cannot be built on the back of such historical grievances.

A concerted effort must be made in an open, fair, and transparent manner to address the impact that historic hydroelectric power and power transmission projects have had on First Nations’ lands and resources and to compensate individual First Nations based on the impacts within their respective territories. In this regard, recent compensations to the Kwadacha and Tsay Keh Dene First Nations serve as useful guidelines.

In closing, I would like to also suggest that the ultimate success of BC’s green energy policy is likely to rest on how well it is integrated with other such policies emerging in other Canadian provinces, in the country as a whole and beyond that a continental energy strategy.

Looking around at what other provinces are doing, for example, we see that in places like Ontario a much more concerted effort is being made to work with First Nations on further community energy plans and developments.

In September 2009, Canada’s largest province launched two new programs for First Nations’ and Métis’ communities interested in developing and owning wind, solar and hydroelectric power facilities. The Province noted that through its renewable energy initiatives it intended to “create jobs and stimulate economic development as well as offer a guaranteed and sustained long term revenue stream” to First Nations in the province.

The first program dedicated $250 million to an Aboriginal Loan Guarantee Program. The government said that this would “facilitate Aboriginal ownership in energy projects by providing loan guarantees for up to 75 per cent of an Aboriginal corporation’s equity in an eligible [renewable energy] project.”

The second program – Aboriginal Energy Partnerships – was launched to “maximize” First Nation participation in renewable energy projects by “building capacity” within First Nation communities and by increasing First Nation participation in renewable energy projects by providing funds for community energy plans, funds for feasibility studies, funds for technical research and finally funds for developing business cases.

The Ontario government also indicated with the launch of the two programs that it was willing to make it even more attractive for new renewable energy projects to be built in First Nations communities by providing price incentives as part of a new Feed-in Tariff program.

All Canadian provinces ought to be doing similar things to encourage green energy developments within their borders and to facilitating such developments in First Nations’ communities, which are in desperate need of new economic opportunities.

More broadly, we need to understand that the success of endeavors like a market for tradable carbon credits requires broad buy-in by governments. The more buy-in we have, the more opportunity there will be for First Nations to fully embrace and participate in the new green energy economy.

PO Box 9, Lower Post, BC V0C 1W0
Phone: 250.779.3181 | Fax: 250.779.3020