The Alberta Court of Appeal, in O'Chiese First Nation v Alberta
Energy Regulator, dismissed two applications by
the O'Chiese First Nation seeking permission to appeal
decisions by the Alberta Energy Regulator (AER) approving certain
applications made by Shell Canada Limited. This decision is
important as it establishes that requests for regulatory appeals
will not be granted merely because the decision at issue involves
development on treaty lands. Rather, specific evidence is needed to
demonstrate the party seeking to appeal is directly and adversely
affected by the decision.
The AER decisions at issue related to licences and associated
approvals for two natural gas pipelines, a mineral surface lease,
and a licence of occupation for a petroleum and natural gas site
The Government of Alberta previously determined Crown
consultation with the O'Chiese First Nation to be either
adequate or not required for the applications. The AER did not hold
a hearing, and all of the licences and approvals were issued.
On July 9, 2015, the AER dismissed the O'Chiese First
Nation's request to appeal the granting of the licences and
approvals on the basis that it failed to establish its rights would
be directly and adversely affected by the decisions. In fact, the
O'Chiese First Nation adduced no evidence as to how its treaty
rights would be impacted by the decisions.
The O'Chiese First Nation argued the AER erred in law in
finding that it was not directly and adversely affected by the AER
It asserted that its treaty rights would be directly and
adversely affected by any development falling within the
consultation area, and once development occurs, its traditional
treaty rights are lost over the developed area. Thus, it had no
obligation to adduce any specific evidence showing how the AER
decisions affected it. Rather, the decisions, as a matter of law,
"directly and adversely" affect their rights by the mere
fact that its reserve and the lands covered by the decisions are
situated within the consultation area.
The Court rejected this argument, holding that the specific
words of the legislation cannot be conflated with the
Crown's duty to consult, and the duty does not inform the
requirements of the legislation to show one is "directly and
adversely affected" by the decisions in order to pursue a
regulatory appeal at the AER.
Consequently, the AER's determination of "directly and
adversely affected" must be made based on the evidence before
it, and the O'Chiese First Nation chose not to adduce any
evidence in this regard, so the AER's decisions could not be
The Court concluded by noting there is no right to a regulatory
appeal merely because the decisions relate to a project located
within the party's area of consultation and had the legislature
intended such a result it could have so provided.
This decision emphasizes that First Nations, even when AER
decisions relate to lands within their consultation area, must
adduce specific evidence to show that the particular decisions, and
thus, the particular development or project, directly and adversely
affects their rights.
While the nature of the evidence that would satisfy the
"directly and adversely affected" test is unclear, this
decision clarifies that the mere location of the proposed work is
not enough. This suggests that "directly and adversely
affected" requires evidence as to how specific treaty rights,
such as the right to hunt, will be affected by the proposed
development for permission to pursue a regulatory appeal to be
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Canada is a constitutional monarchy, a parliamentary democracy and a federation comprised of ten provinces and three territories. Canada's judiciary is independent of the legislative and executive branches of Government.
In Bank of Montreal v Bumper Development Corporation Ltd, 2016 ABQB 363, the Alberta Court of Queen's Bench enforced the "immediate replacement" provision in the Canadian Association of Petroleum Landmen 2007 Operating Procedure...
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