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The BC Utilities Commission (BCUC) is currently deciding the next steps regarding a complaint from Gitga鈥檃t First Nation protesting BC Hydro鈥檚 annual $85,000 utility fee charged to the Hartley Bay community.

Gitga鈥檃t First Nation had until Nov. 21 to provide written submissions for the case and BC Hydro had until Nov. 28 to respond.

The First Nation believes that the charge violates the Utilities Commission Act because it was not reviewed by BCUC and according to the act, all terms and conditions and rate schedules must be set by the commission. They feel that the fee is unfair and BC Hydro should reimburse them for past charges.

BC Hydro, on the other hand, is contesting the First Nations鈥� stance. The agreement that lists the fee is not for a regulated service but a commercial contract and therefore it did not have to be set by the BCUC, they wrote. On Nov. 4 they wrote that if the BCUC agrees with them and does not think the fee needed to be reviewed, they still plan to end it. However, they did not say they would reimburse the First Nation for past payments.

The $85,000 yearly fee is a charge the community pays on top of regular payments individuals in the community make for hydro.

BC Hydro started providing electricity to residents in Hartley Bay in February 2014 as part of the Remote Community Electrification Program. Prior to that, the Gitga鈥檃t First Nation operated their own utility.

When the First Nation signed on to the project, they had to sign an Electricity Servicing Agreement, which dictated the yearly fee.

The fee stemmed from a Memorandum of Understanding BC Hydro signed with the Government of Canada and the Province of B.C. in April 2009, Benton explained in the complaint.

The federal government agreed to continue providing First Nations in the program funding that had been given to them previously to operate their own electricity service. However, BC Hydro would be able to recuperate this money by charging these communities once a year. In that sense, BC Hydro said the money was merely 鈥榝lowing through鈥� the First Nation, but was really coming from the federal government.

There are four other B.C. First Nations that are part of the Remote Community Electrification Program and pay a yearly fee, namely Tsay Keh Dene, Kwadacha, Uchucklesaht and Dease River.

In a letter submitted to the BCUC on Nov. 4, BC Hydro wrote they plan to end the agreements, depending on the outcome of the complaint proceeding.

BC Hydro is standing by its original view that the yearly fee did not need to be reviewed by the BCUC. If the BCUC ultimately agrees with them, BC Hydro will stop charging the payments.

However, BC Hydro wrote, if the BCUC determines that the fee does need to be reviewed, then it will be up to them to decide whether it should be stopped, whether past payments should be refunded and if so, who will pay for them.

Gitga鈥檃t First Nation described BC Hydro鈥檚 response as a 鈥渨renching and deeply unfair choice for a financially strapped First Nation,鈥� in a letter on Nov. 8.

They feel like they are being put in a position to either accept BC Hydro鈥檚 argument that the fee is unregulated and they will not have to pay future fees, or they can take their chances with the BCUC where the decision could go either way. They could be granted refunds for past payment but alternatively, they could have to continue to pay a fee.

Gitga鈥檃t First Nation believes the issue is bigger than a mere concern about due diligence or the complaint not being reviewed. In the original complaint sent on Apr. 5, Benton wrote that if the BCUC did review the rate they would find it to be 鈥渦nfair, unjust and unduly discriminatory.鈥�

鈥淚t is important to recognize here that when Canada attempted to establish, for the purposes of the [Electricity Servicing Agreement], the true amount that it allocates to the Gitga鈥檃t First Nation for the provision of electricity, it was not able to do so with any precision,鈥� Benson wrote.

鈥淭his is because these costs live and are blended within a broader 鈥極perations and Maintenance鈥� funding envelope. As a result, the figure being charged by BC Hydro is, at best, a crude estimate.鈥�

He explained how the nominal funding the First Nation receives is already not enough and as a result, the Gitga鈥檃t First Nation has been given the freedom to move funds around where they see fit.

Therefore, rather than giving BC Hydro $85,000 each year, this money could be used elsewhere in the community.

The public and those affected by the issue can submit letters of comment expressing their views, opinions and insights by emailing them to commission.secretary@bcuc.com or using the online web form at .