C3-25
BRITISH COLUMBIA UTILITIES COMMISSION IN THE MATTER OF THE UTILITIES COMMISSION ACT, R.S.B.C 1996, CHAPTER 473 Regarding the Application by British Columbia Transmission Corporation ( BCTC ) for a Certificate of Public Convenience and Necessity ( CPCN ) for the Interior to Lower Mainland ( ILM ) Project Reply Submissions of British Columbia Hydro and Power Authority Regarding the Admissibility of the Rebuttal Evidence December 31, 2009
1 1. Pursuant to Commission Order G-144-09 (Exhibit A-25) these are the reply submissions of British Columbia Hydro and Power Authority ( BC Hydro ) to Intervenors submissions on the admissibility of the Rebuttal Evidence (Exhibit B-20). BC Hydro has received and reviewed submissions from the following intervenors: Stó:l Ad Hoc Hydro Committee ( SHAC ) (Exhibit C9-8); Coldwater, Cook s Ferry, Siska and Ashcroft Bands ( Coldwater et al. ) (Exhibit C6-8); British Columbia Public Interest Advocacy Centre ( BCOAPO ) (Exhibit C2-7); Kwikwetlem First Nation ( Kwikwetlem ) (Exhibit C4-13); Nlaka pamux Tribal Council, Okanagan Nation Alliance, and Upper Nicola Indian Band ( ONA/NNTC ) (Exhibit C5-17); and Stó:l Tribal Council ( STC ) (Exhibit C8-13). 2. Where BC Hydro does not respond directly to any particular part of the above submissions, it should not be taken as agreement with or acceptance of that submission. SHAC 3. SHAC has consented to the admissibility of the Rebuttal Evidence. BC Hydro makes no reply to these submissions. BC Hydro confirms that it supports SHAC s proposal that it not submit a panel for cross-examination, and similarly not cross-examine the BCTC / BC Hydro panel. On this basis, BC Hydro will not require SHAC to present a panel for cross-examination, conditional in part on no other party requiring SHAC wishing to cross-examine a SHAC panel. Coldwater et al. 4. Coldwater et al. do not object to the admissibility of Rebuttal Evidence on the basis that BC Hydro and BCTC have agreed not to object to the admissibility of the letter dated December 18, 2009 from Esh-kn-am Cultural Resources Management Services. BC Hydro confirms that, if the Rebuttal Evidence is admitted, it will not object to the admissibility of the letter introduced by Coldwater et al. BCOAPO 5. BCOAPO takes no position on the admissibility of the Rebuttal Evidence but instead purports to confine its submissions to the general principles that the Commission should apply to this
2 Kwikwetlem issue. However, BCOAPO does not cite any authorities for the principles it advocates and goes on to suggest a number of procedural mechanisms that might be employed some of which are not typically part of Commission proceedings and which are not requested by any intervenor. Given that BCOAPO has not filed evidence in the current proceeding (and accordingly none of the Rebuttal Evidence speaks to BCOAPO), BC Hydro respectfully submits that BCOAPO s submissions are of limited assistance. BC Hydro categorically rejects any suggestion that the approach BCTC/BC Hydro have taken to this proceeding (which is without precedent in terms of the detail and volume of information filed in respect of a consultation program) was an effort to lie in the weeds and hold back detailed evidence regarding the record of consultation. 6. With one exception, Kwikwetlem does not object to the admissibility of the Rebuttal Evidence. The one exception is its objection to a set of notes for a meeting held on October 2, 2007 (Exhibit B-20, Attachment A-21). Kwikwetlem states: This document is with respect to a meeting that was not raised by either the Kwikwetlem or by BCTC in initial evidence submissions and to admit it in rebuttal would be allowing BCTC to split its case. 7. In reply, BC Hydro submits that the record does not support Kwikwetlem s position. 8. The Supplemental Evidence describes a number of rounds of meetings BC Hydro/BCTC held with various First Nations, including Kwikwetlem. These meetings are identified in general time periods and by the general themes that were discussed. None of these meetings are identified by specific dates. The Supplemental Evidence includes summary statements such as the following that describe events that unfolded over several meetings, including the October 2, 2007 meeting: For First Nations whom BC Hydro did not manage to negotiate Comprehensive Capacity Funding Agreements, alternative and/or more limited arrangements were sometimes possible. For example, Kwikwetlem First Nation was provided funding for their own Archeological assessment using their own archaeologists. This work was incorporated into the Golder AIA that was later filed as part of the EAC Application. Exhibit B-3-1, p. 57.
3 9. After the Supplemental Evidence was filed, the BCUC requested, through Information Request 1.1.1, a summary of the consultation process with each Intervenor First Nation. The response (in respect of Kwikwetlem) included the following description of the October 2, 2007 meeting: On October 2, 2007, BC Hydro and BCTC had a meeting with Kwikwetlem and Ratcliff & Company. At the meeting, BCTC provided a further description of the ILM Project and an overview of the BCEAO and Commission regulatory processes. BCTC explained that the 5L83 Alternative would be located on the north/west side of the existing right of way. BCTC also explained that new towers and conductors would be situated within the existing right of way in Kwikwetlem s traditional territory but that clearing would be required outside of the right of way. BCTC confirmed that the station work required for the Project at the Meridian Substation in Coquitlam would take place within the existing substation fence line and indicated that it was relatively certain that no new right of way would be required within Kwikwetlem traditional territory. At this meeting, there was also further discussion of Kwikwetlem s request to have the archaeology work done by Brown and Oakes under a separate archaeology permit. BCTC said if Kwikwetlem wanted to pursue that proposal directly with the Archaeology branch, BCTC would not stand in the way and would respect the Archaeology Branch s decision. BCTC did state that they were uncertain if the Archaeology Branch had issued multiple permits in the past for single projects. BCTC indicated that, regardless of who held the permit for the archaeology work, BCTC would fund Kwikwetlem s choice of archaeologists and would work with them to incorporate their findings in the AIA for the project. Exhibit B-11, p 18 (Kwikwetlem). 10. However, Kwikwetlem states in its evidence that July 31, 2007 was the last meeting that took place between BC Hydro and Kwikwetlem. (page 13 of Exhibit C4-10) This was the first time that any issue with respect to the October 2, 2007 meeting was raised by Kwikwetlem. It was not reasonably foreseeable at the time the Supplementary Evidence was filed that Kwikwetlem would omit or not acknowledge the October 2, 2007 meeting. The meeting notes are admissible as rebuttal as they are responsive to Kwikwetlem s suggestion that July 31, 2007 was the last meeting with Kwikwetlem. 11. Further, in its evidence, Kwikwetlem states: George Chaffee was a Councillor in the 2006-2007 time periods; however he was also a staff person George Chaffee attended all meetings in a staff capacity, except for the March 26, 2007 meeting, when he attended with Council Chief Percy Cunningham. (Exhibit C4-10, pages 13 and 14)
4 12. George Chaffee attended the October 2, 2007 meeting (without Council Chief Percy Cunningham). The notes of the October 2, 2007 meeting contain the following: George Chaffee replied that he is a Councillor of the Kwikwetlem and that he and Glen Joe will remain involved throughout the process. He stated that he constantly takes the information back to the community and that he receives his mandate from the community. (Exhibit B-20, Attachment A-21, page 7) 13. The issue around the capacity of George Chaffee (Councillor or staff) was not an issue that had been raised or identified prior to Kwikwetlem filing its evidence. There is no basis on which BC Hydro/BCTC could have anticipated this issue prior to Kwikwetlem filing its evidence. The meeting notes are admissible as rebuttal as they are responsive to Kwikwetlem s suggestion that George Chaffee attended meetings in a staff capacity. ONA/NNTC and STC 14. This section addresses some of the submissions made by the ONA/NNTC and STC together since some of their submissions are similar or overlap. First, BC Hydro addresses the submissions of the ONA/NNTC and STC that BCTC and BC Hydro have split the case. In the second section, BC Hydro addresses specific issues raised by the ONA/NNTC in respect of specific pieces of the filed Rebuttal Evidence. Third and finally, BC Hydro addresses the issue of remedy, if necessary, as proposed by ONA/NNTC and STC. 1. BCTC and BC Hydro have not split the case 15. Both the ONA/NNTC and the STC argue that BCTC and BC Hydro have split the case and as such the Rebuttal Evidence in respect of these intervenors should not be admitted. 16. With limited exceptions (which are addressed below), ONA/NNTC and STC unlike other intervenors have not identified any particular concerns or objections to any particular Attachment or particular piece of the Rebuttal Evidence, but submit that the Attachments should be excluded in their entirety. ONA/NNTC oppose the filing of Attachments B-1 to B- 11 and C-1 to C-8. Similarly, STC opposes the filing of Attachments E-1 to E-10. 17. At paragraphs 3 and 19 of its submissions, ONA/NNTC appears to concede that the Attachments may be relevant. For its part, the STC does not appear to contest the relevancy of the Attachments. The ONA/NNTC does however suggest that the Attachments should be
5 excluded because their prejudicial effect out weighs their probative value. (para. 3) Similarly, STC submits that allowing the documents would be unfair. (para. 5) 18. The primary basis for the objection in both cases appears to be the view taken by ONA/NNTC and STC that BC Hydro/BCTC should have filed all of the documents before the intervenors filed their evidence. 19. At paragraph 7 of its submissions, the ONA/NNTC suggest that included in BCTC s burden of proving need for a CPCN, BCTC is required to file all evidence relevant to consultation as part of its application. The STC makes a similar argument and suggests that BCTC/BC Hydro should have filed all the materials including meeting minutes, emails and other communications before intervenors were required to file evidence. 20. This is not the applicable requirement for a CPCN application, nor is it a reasonable or efficient manner of proceeding. The consultation process conducted by BCTC/BC Hydro commenced in the summer of 2006 approximately two years prior to the BCUC s decision. Not surprisingly, it produced vast quantities of letters, minutes, contact records and other documents. It involved numerous First Nations (many of whom would not ultimately intervene) and in respect of each First Nation canvassed numerous issues. Filing all evidence of consultation would result in an unwieldy and unnecessarily voluminous record that would risk the accusation that the applicant was trying to bury the truly relevant evidence in a volume of marginally relevant (or even irrelevant) material that does not speak to any contentious issue the Commission is being asked to resolve. BC Hydro/BCTC tried to strike a balance by attempting to identify issues that intervenors may ask the Commission to address and filing evidence and documents relevant to those issues. 21. The Court of Appeal determined that the Appellant First Nations were entitled to have their challenge to the adequacy of the consultation process assessed by the Commission. The Court said the BCUC was to hear the complaints of the First Nations in respect of the consultation process: in my view, the appellants were not only entitled to be consulted and accommodated with regard to the choice of the ILM Project by BCTC, they were also entitled to have their challenge to the adequacy of that consultation and accommodation assessed by the
6 Commission before it certified BCTC s proposal for extending the power transmission system as being in the public interest. it was incumbent on the Commission to hear the appellants complaints about the Crown s consultation efforts during the process leading to BCTC s selection of its preferred option, and to assess the adequacy of those efforts. Kwikwetlem First Nation v. British Columbia (Utilities Commission), 2009 BCCA 68, para. 60 and 62. 22. BC Hydro notes that the Intervenors complaints now appear to extend far beyond consultation efforts during the process leading to BCTC s selection of its preferred option. The ONA/NNTC (one of the Appellants in the Court of Appeal proceedings) and STC suggest BCTC/BC Hydro ought to have been able to anticipate (without being told) the precise nature and scope of their current complaints that First Nation intervenors would seek to place before the Commission. 23. The Court of Appeal did not say that the BCUC was to hear and review the complete unabridged history of every single solitary step in the consultation process whether or not a First Nation had any concern or complaint with that portion of the consultation process and including every issue ever discussed in that consultation process irrespective of whether there were any outstanding concerns or complaint in respect of that issues. 24. The Court of Appeal s directive to the Commission to hear the complaints of the First Nations does not mean that BC Hydro and BCTC are to file in evidence every document in their possession so that First Nations can first conduct an audit of the process and the record keeping in respect of that process before they identify any complaint or concern with the consultation process. 25. The comparison and contrast between the Commission s process and court proceedings is illuminating: Unlike in court proceedings that are conducted by trial, the BCUC process does not include pleadings filed by opposing parties that delineate and define the issues prior to any evidence being filed. In a court process, all parties file pleadings (identifying areas of agreement and disagreement) before any party introduces evidence.
7 In court proceedings that proceed by judicial review, the applicant files its Application identifying the grounds of its complaints prior to any evidence being filed in respect of the consultation process. 26. In the absence of pleadings (or any similar form of issue identification), it can (and regularly does) occur in Commission proceedings that an issue is not identified or joined until issues are identified by way of intervenor evidence. 27. The procedure advocated by ONA/NNTC and STC would have the applicant file all evidence in its possession (without any guide as to what is relevant and what complaints it was seeking to answer), allowing intervenors to review that filed evidence prior to identifying any complaint it wished to bring against the conduct of the applicant, and then precluding the applicant from filing any additional material that may address those complaints. 28. To adopt such a procedure would place an unreasonable and undue burden on applicants, intervenors and on the Commission. Applicants would feel compelled to file entire filing cabinets full of documents, notes or emails in their possession that may touch in any way on any issue that an intervenor may raise (but has not yet raised). 29. BC Hydro submits that evidence only becomes relevant to a proceeding when the issues for that particular proceeding are clearly identified. 30. It is the identification of relevant issues for the proceeding which is determinative. It is not every single issue that is identified during a consultation process which thereby becomes a relevant issue for the BCUC in its proceedings. The consultation process took place over a number of years and involved numerous First Nations and Tribal Councils. There are a countless number of issues that were raised (and addressed) during the consultation process. To the extent that there are no concerns or complaints raised in respect of these issues, filing detailed information and every document touching on these issues would not speak to any issue relevant to this proceeding. 31. At paragraph 8, the ONA/NNTC focuses on BCTC s description of the Supplemental Evidence as general evidence of the consultation and accommodation efforts that were under way up to the point of the Commission s decision. This is exactly what the Supplemental Evidence was;
8 viz. general evidence. It was not, and did not purport to be, an exhaustive treatise on every twist and turn of the consultation process. Instead, the Supplemental Evidence expressly focused on the issue that had been identified (by ONA/NNTC in the Court of Appeal proceedings) the appellants complaints about the Crown s consultation efforts during the process leading to BCTC s selection of its preferred option. 32. At paragraph 10 of its submissions, ONA/NNTC observe that the Supplementary Evidence contained meeting notes. A similar observation is made at paragraph 4 of the STC s submissions. This is true. The meeting notes included in the Supplementary Evidence were included because they spoke to an issue that had been specifically identified in advance of filing the Supplemental Evidence namely the choice of alternatives between the 5L83 Alternative and the UEC Alternative. Since this issue was identified previously (by way of the Court of Appeal hearing), the Supplemental Evidence was supported by documents relevant to that issue. 33. ONA/NNTC assert that (even though the documents may now be relevant) the admission of the Attachments would seriously prejudice these intervenors. They appear to invoke two reasons. First, they say they are unable to respond to any inaccuracies. BC Hydro notes that the ONA/NNTC have not identified any purported inaccuracies (or even asserted there are inaccuracies). It is simply the purported loss of opportunity to respond of which they complain. If the ONA/NNTC wish to identify purported inaccuracies, BC Hydro expects that (like with Coldwater et al.) there may be reasonable measures that can be taken to remedy any purported loss of opportunity to respond. (This is discussed further below in the section on remedy.) Second, they claim they will be prejudiced by being unable to test the evidence. The ONA/NNTC are entitled to cross-examine. 34. At paragraph 13 of their submissions, the ONA/NNTC suggest that the the scope of consultations/existing and ongoing impacts issue was addressed as part of the Supplementary Evidence and therefore all the Attachments should have been filed with the Supplemental
9 Evidence. In support of their contention that this issue was already addressed they point (para. 10) to a single entry in Table 1-5 (page 80 of the Supplemental Evidence). 35. BC Hydro observes that Table 1-5 identifies in excess of 100 issues that were raised by First Nations during the consultation process. The Supplemental Evidence clearly did not file every single solitary piece of paper relevant to all 100-plus issues. That would have produced voluminous material that (as it now turns out) would not have been relevant to any issue the Commission is now being asked to consider. 36. At paragraph 14, ONA/NNTC suggest that ONA/NNTC s concerns were clearly, and repeatedly, made known to BCTC throughout the consultation process As discussed above, not every issue raised as part of a consultation process necessarily becomes an issue for the Commission to determine. BC Hydro notes that ONA/NNTC concerns regarding existing and ongoing impacts from existing facilities were consistently raised throughout the consultation process as a deficiency of the EAO process. These concerns were not raised during the consultation process an issue for the BCUC to consider. Further, the ONA/NNTC did not argue to the Court of Appeal that the shortcoming of the Commission process was its refusal to consider impacts from existing facilities. 37. At paragraph 17 of their submissions, ONA/NNTC suggest that BC Hydro/BCTC are advocating a new advance notice procedure that would be uniquely imposed on Aboriginal interveners. 38. While BC Hydro acknowledges that Aboriginal consultation stands on a different footing from public consultation, BC Hydro notes that, in the ordinary course of a CPCN application, applicants typically file a very general and generic summary description of their public consultation processes. It is not the general practice (nor would it be desirable or efficient) for applicants to file every single scrap of paper and to describe in detail every issue or concern raised by any member of the public and the applicant s response to that issue. However, if members of the public intervene in the Commission process and raise concerns or complaints with the public consultation process, it is appropriate for the applicant to then bring forward relevant evidence in respect of those concerns or that part of the public consultation process. In this way the BCUC can hear and consider the relevant evidence and decide the issues placed before it without being burdened by unnecessary material.
10 2. Specific Issues Raised by ONA/NNTC 39. At paragraphs 22 to 24 of its submission, ONA/NNTC object to statements which they characterizes as argumentative and do not constitute evidence. (Para. 22) 40. The impugned evidence consists of two sentences. The second sentence is already part of the filed evidence as part of the response to BCUC IR 3.0. It is only included in the Rebuttal Evidence (along with the first sentence) for context. (If there is a concern that this is repetitive (which was not the objection taken), BC Hydro is content to see the second sentence struck from the Rebuttal Evidence.) 41. The first sentence is: In reply, BC Hydro and BCTC state that if these other Nlaka pamux bands were looked at individually (as suggested by Coldwater et al.), we would not assess the other individual Bands as individually requiring the same level of consultation on the Haida spectrum as Spuzzum and Boston Bar. 42. This is a clarifying statement which BCTC/BC Hydro believed could be helpful (to both the ONA/NNTC and the BCUC) given the apparent misunderstanding or misreading of the filed evidence which appeared to be reflected in ONA/NNTC s intervenor evidence. 43. The ONA/NNTC object that this is argumentative. BC Hydro believed that if this statement had been made for the first time in argument, it may have been faced with the objection that the statement was evidentiary in nature. BC Hydro is content to see this statement withdrawn if the ONA/NNTC acknowledge they will not object to such statements in argument on the grounds that it is evidence and not argument. Otherwise, the statement is proper rebuttal evidence. 44. At paragraph 25 of their submissions, the ONA/NNTC objects to statements that they say confirm or reinforce evidence already tendered. The basis for the objection appears to be that the statements in the Rebuttal Evidence simply confirm what is already reflected in the filed evidence. If this is a correct understanding of the objection, BC Hydro is content to see these portions stuck from the Rebuttal Evidence. 45. In paragraph 26, Upper Nicola and/or ONA object that the Rebuttal Evidence confirming that documents were sent is repetitive. BC Hydro assumes that this is referring to the Rebuttal
11 Evidence found at pages 3 and 4 of Rebuttal Evidence C which states that certain documents were sent to UNIB and ONA. These statements were included in the Rebuttal Evidence in response to the non-committal responses given to BC Hydro Information Requests in which the intervenors stated: Upper Nicola and ONA are not able to confirm, but do not deny receipt of this document. Faced with this non-committal answer, BC Hydro was left uncertain as to whether it was clear (in the previously filed evidence) that these documents were sent to Upper Nicola and/or ONA. BC Hydro is content to see these portions of the Rebuttal Evidence withdrawn on the understanding that ONA/NNTC will not subsequently argue that there is no evidence such documents were sent to ONA/NNTC. 46. At paragraph 27 to 29 of its submissions, ONA/NNTC object to the filing of the 2003 Writ of the Okanagan. The Writ is a public document. Coldwater et al. filed the analogous protective Writ of the Nlaka pamux. The ONA/UNIB filed evidence regarding their asserted Aboriginal rights and title and alleged infringements arising from existing facilities. The existence of the Writ is relevant to the claims of the Okanagan (which overlaps with the claim of the Nlaka pamux). 3. Remedy Sought 47. In response to what it submits is the prejudice occasioned by the Rebuttal Evidence, ONA/NNTC and STC suggest two alternate remedies: 1. All the Attachments (including those which are admittedly relevant) should be excluded; or 2. ONA/NNTC and STC suggest in the alternative that they should be permitted to file a response or surrebuttal as little as 24 or 48 hours before the witness panel for that intervenor is called. 48. With respect, neither is a reasonable remedy. Excluding the evidence entirely would deny the Commission of admittedly relevant evidence in respect of an issue that has now been put in contention in the Commission Process. 49. The scope of the alternative remedy is far too uncertain and timeline is far too abbreviated. ONA/NNTC appear to seek the right to file surrebuttal as little as one day prior to the date they
12 take the stand. The STC take a similar approach by asking the BCUC to allow them to file surrebuttal forty-eight hours before they take the stand. 50. This proposed approach is to be contrasted with the approach taken by Coldwater et al. Coldwater et al. took issue with some particular statements contained in BC Hydro s notes of telephone calls and meeting minutes. Prior to the deadline for its submissions, Coldwater et al. clearly identified the particular documents and statements that were contentious, prepared draft surrebuttal evidence and raised the issue with BCTC and BC Hydro. This resulted in an arrangement whereby Coldwater et al. did not object to the Rebuttal Evidence and BCTC and BC Hydro did not object to the brief surrebuttal evidence of Coldwater et al. 51. In contrast, ONA/NNTC and STC have not identified any particular concerns with the content of the Attachments. Instead, they have objected to the Attachments in their entirety and seek an unconstrained right to file a response during the course of hearing. The subject, scope and/or extent of this response is left entirely undefined. 52. In further contrast, the timeline proposed is not reasonable. It is likely that, in the twenty-four or forty-eight hours before intervenors put up their panel, other intervenor panels will be on the stand and being cross-examined by BCTC/BC Hydro (or the BCTC/BC Hydro panel will still be on the stand). In effect, forty-eight hours or even twenty-four hours notice of surrebuttal in these circumstances is akin to virtually no notice for a response of undefined scope. (Further, BC Hydro notes that the intervenors are seeking leave to file their response after the BCTC/BC Hydro panel has been cross-examined.) 53. It is notable that at the third Procedural Conference held on November 30, 2009 counsel for ONA/NNTC was adamant that they required a full two weeks to prepare submissions on rebuttal evidence: MR. STADFELD: Having not seen, of course, what rebuttal evidence there might be, and whether there would be any in reply to our clients, it is hard to judge, but I do echo Mr. McDade s comments that one week for our clients to reply would likely be very difficult, and so we would also suggest that at the earliest we would have until December 21st. Transcript of the Procedural Conference, volume 3, 167-168.
13 54. Having sought and obtained a full two weeks to prepare a response, it is reasonable to expect that ONA/NNTC and STC could have provided some further indication of any particular concerns they may have had with the Attachments. 55. If ONA/NNTC and/or STC wish to file surrebuttal on specific points (which they have not currently identified), BC Hydro submits that they should prepare the proposed surrebuttal prior to the commencement of the hearing on January 11, 2009 (and, given that the order has not yet been determined, a reasonable time before counsel for ONA/NNTC and/or STC seek to crossexamine the BCTC/BC Hydro panel). BC Hydro suggests that ONA/NNTC and/or STC (like Coldwater et al.) might first approach BC Hydro and BCTC to determine whether surrebuttal can proceed by mutual consent. This may avoid the need for further Commission determinations. If there are any objections to the surrebuttal (which can not be known before it is seen), then submissions can be made and admissibility can be determined at least 48 hours before intervenors witnesses take the stand. ALL OF WHICH IS RESPECTFULLY SUBMITTED this 31 st day of December, 2009. Counsel for British Columbia Hydro and Power Authority original signed on behalf of Keith B. Bergner original signed on behalf of Michelle S. Jones