BCUC’s Indigenous Utilities Inquiry Final Report Misses The Mark On UNDRIP And Transformative Regulatory Change – MT & Co.
Many Indigenous Nations view the development of Indigenous-led utilities and Independent Power Producer (“IPP”) projects as a viable means of promoting self-determinism and economic stability and manifesting their Aboriginal rights and title within the utilities sector.
Over the past year, several of our clients participated as interveners in the BC Utilities Commission’s (“BCUC”) Indigenous Utilities Regulation Inquiry (the “Inquiry”). The BCUC is a quasi-judicial body tasked with regulating public utilities under the Utilities Commission Act (the “Act”). Currently under the Act, small-scale electrical, gas, and other utilities owned or operated by First Nations are regulated as public utilities and subject to the same rate criteria as large utilities such as BC Hydro.
This regulatory environment creates significant administrative and economic barriers for Indigenous Nations who wish to operate a utility, including IPP projects. To date, Indigenous Nations that have sought exemption from regulation under the Act have had little success; in 2016, for instance, the BCUC rejected an application for exemption from Beecher Bay First Nation, which sought to distribute electricity to a mixed residential/commercial development on its reserve lands. To further compound the difficulties faced by Indigenous Nations within this regulatory context, the discontinuation of BC Hydro’s Standing Offer Program (“SOP”) in 2017, pursuant to which BC Hydro purchased power produced by IPPs to add capacity to its network, has created significant uncertainty as to the viability of Indigenous utility developments.
