In his Oct. 10 decision, Justice Kevin Loo said the plaintiff, Greengen Holdings Ltd., “lost an opportunity to achieve a completed and profitable hydro-electric project” after government representatives wrongfully exercised their legal authority, a transgression described in the ruling as “misfeasance.”
Between 2003 and 2009, the company sought to develop a hydro-electric project on and around Fries Creek, which sits opposite the Brackendale neighbourhood on the other side of the Squamish River. To do so, Greengen Holdings Ltd. required a water licence from the Minister of the Environment and tenure over Crown land from the Minister of Agriculture.
After a lengthy process involving extensive communications between Greengen and various provincial and other ministries and regulatory agencies, the permits were denied, according to Loo. Both decisions cited impacts on Squamish Nation cultural sites that could not be mitigated.
Greengen asserted that the decisions were not made for reasons set out in the permit denials “but for collateral political purposes related to the Province’s relationship with the Squamish Nation (SN) and its desire to avoid a lawsuit from the SN,” Loo said in the ruling.
40-year electricity plan relied on Crown land
The case dates back to December 2005, when BC Hydro issued an open call for power with Greengen. The company submitted a tender several months later.
On July 26, 2006, BC Hydro awarded Greengen an energy purchase agreement under which Greengen would be entitled to supply electricity at a fixed price for 40 years.
Unlike conventional hydroelectric projects, which store large volumes of water in reservoirs, and in so doing flood large tracts of land, a run of the river project often requires little or no water storage. Instead, from a high elevation, they divert water from a stream or river channel.
Water is then sent into a pressured pipeline known as a penstock, and later passed through turbines to generate electricity, Loo explained. The system returns water to the original stream or river, or into another body of water.
The project called for most of that infrastructure to be built on Crown land, according to the ruling.
All sides seemed to support the project
In early 2005, company principle Terry Sonderhoff discussed the Fries Creek project in a preliminary meeting with Squamish Nation Chief Ian Campbell.
“Mr. Sonderhoff testified that Chief Campbell seemed supportive of the project at the time,” Loo said.