Background
British Columbia Hydro and Power Authority selected the Yəyus Energy Project, a proposed wind-power development in the Salmon River Watershed, through its 2024 Call for Power. The project proponent was ultimately majority-owned by Wei Wai Kum First Nation, which had a longstanding territorial dispute with K’ómoks First Nation. BC Hydro acknowledged that it owed K’ómoks a duty to consult before entering the electricity purchase agreement and delegated procedural aspects of consultation to the proponent.
The British Columbia Utilities Commission approved that agreement and nine others on August 25, 2025. It found that consultation concerning the agreement fell at the low-to-moderate end of the Haida spectrum because the agreement was an early development step that did not itself authorize construction or physical activity; further consultation would occur during permitting. K’ómoks filed its application for leave to appeal almost six months later, alleging inadequate consultation, and sought an extension of the 30-day deadline. K’ómoks and BC Hydro also requested narrowly tailored sealing orders for commercially sensitive evidence.
The Court’s Holding
Justice Francis, sitting in chambers, denied the extension of time and consequently denied leave to appeal without separately deciding the leave application. The Court found that K’ómoks had not demonstrated a timely intention to appeal, had inadequately notified the respondents, and had not offered a compelling explanation for the extraordinary delay. Its asserted need to regain access to confidential materials did not justify the delay because its Chief and former counsel previously had access, and K’ómoks already knew the extent of the consultation it had received.
The proposed appeal was weak, though not necessarily doomed to fail. The Commission’s factual findings about the preliminary nature of the electricity purchase agreement and the consultation undertaken would attract appellate deference, and K’ómoks had not identified a palpable and overriding error. Combined with prejudice to project planning and the public interest in BC Hydro meeting future electricity needs, the delay made an extension contrary to the interests of justice. The Court granted the uncontested sealing orders because they were narrow and reasonably balanced open-court principles against the public interest in commercial confidentiality.
Key Takeaways
- An applicant seeking additional time to appeal must explain the delay, show a timely intention to appeal, notify affected parties, and address prejudice; the overriding question is whether an extension serves the interests of justice.
- The scope of Indigenous consultation must be assessed against the specific Crown conduct at issue. Approval of a preliminary power-purchase agreement may require less consultation than later permits authorizing physical development.
- Commercially sensitive tribunal materials are not automatically sealed on appeal; a separate appellate sealing order is required and must appropriately balance confidentiality against the open-court principle.
Why It Matters
The ruling emphasizes that important constitutional issues do not excuse an unexplained failure to comply with appellate deadlines. Even though future stages of the wind project may trigger substantial consultation obligations concerning K’ómoks’ treaty rights and traditional elk-hunting territory, those broader impacts did not determine the narrower question of consultation before BC Hydro entered the electricity purchase agreement.
For utilities, project proponents, and Indigenous nations, the decision also underscores the importance of distinguishing among stages of a multistep project and pursuing any challenge promptly. Delay may itself create legally significant prejudice where energy planning, project expenditures, and the public electricity supply depend on regulatory certainty.