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Indigenous communities should have the right to set up their own utility companies without provincial interference, the B.C. Utilities Commission has concluded.

The BCUC – the independent regulator of public utility services – is one of the first arms of the province to offer action on the government’s political promises to adopt internationally recognized human rights of Indigenous people.

Last month, the B.C. government introduced legislation that aims to enact the principles of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). The implementation process will take years, but in a new draft report the regulator isn’t waiting for the legislative framework to be completed. It is interpreting that commitment to mean First Nations should be given the opportunity to self-regulate when it provides utility services on its reserve land, in much the same way municipalities and regional districts do.

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B.C. said it is honouring the principles of UNDRIP in its partnership with First Nations to share gambling revenue, and in the new Environmental Assessment Act, but for a long-time proponent of clean energy projects for Indigenous communities, the BCUC report is a concrete example of UNDRIP-guided policy.

“It’s the first practical application, otherwise it’s just been promises,” said Judith Sayers, president of the Nuu-chah-nulth Tribal Council. Ms. Sayers has spearheaded clean energy projects since 2001.

Ms. Sayers led the challenge to the regulator, saying Indigenous communities should have the ability to generate revenue from running their own utilities for electricity, gas or other energy sources.

“It could actually be a really big opportunity for many,” she said in an interview. Indigenous communities such as the Squamish Nation, the Osoyoos Indian Band and the Tk’emlups te Secwepemc in Kamloops would each have opportunities to provide power to the hundreds of businesses that operate on their reserve lands.

The challenge followed a failed bid by the Beecher Bay First Nation on Vancouver Island to set up its only utility company that would provide ocean thermal energy, gas propane and electricity to a large new housing and commercial development being built on reserve lands. The BCUC rejected that request in 2016.

The goalposts have since moved, the regulator said. “While there is no certainty as to the timing or outcome of the actual implementation of UNDRIP, we believe that the principles set out in UNDRIP should nonetheless guide us in our recommendations regarding the regulation of Indigenous utilities," the draft report said.

Ms. Sayers said the issue of utilities has taken even greater urgency since the B.C. government spiked clean energy business opportunities for First Nations by choosing to proceed with the Site C hydroelectric dam.

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“They cut off all electricity purchase agreements, and we have First Nations sitting on projects with millions of dollars invested and nowhere to go with that," she said.

The BCUC process should serve as a model as the provincial government begins the long procedure of working out how to implement UNDRIP, she added. In its draft report, the BCUC acknowledged that the current system has led to injustices for Indigenous communities, and has created barriers to development of their own resources.

“In terms of impacts of existing utilities on First Nations, many First Nations communities in British Columbia have seen extensive utility infrastructure placed on their lands without their consent, with no commensurate compensation, benefits or service to those communities,” the 114-page report said.

“Several interveners have urged us to be bold in our approach in this Inquiry, to take a broad, generous and liberal view and to adopt an Indigenous lens with respect to our recommendations. We agree with those sentiments, and believe that our analysis, to the extent feasible, should strive to reflect the UNDRIP principles.”

The report is now being shared for consultation before a final version is sent to the provincial government.

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