Canada: Alberta Utilities Commission Confirms It Has No Jurisdiction To Assess Crown Consultation

On October 7, 2016, the Alberta Utilities Commission (AUC or Commission) confirmed it has no jurisdiction to consider or assess the adequacy of Crown consultation with Aboriginal groups that may be affected by a project under review. The ruling was issued as part of the AUC's process to consider the Fort McMurray West 500-kV Transmission Project (AUC Proceeding 21030) and marks the first occasion that the Commission has explicitly considered and ruled on this jurisdictional issue. Subject to any appeals, this ruling will help guide the scope of future facilities proceedings before the AUC.

Background

Over the last several years, the issue of whether a tribunal has the jurisdiction to review and consider Crown consultation with Aboriginal groups has arisen in several contexts in Alberta. Much of the debate has followed the 2010 Supreme Court of Canada ruling in Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, 2010 SCC 43 (Carrier Sekani), which found that the B.C. Utilities Commission had the jurisdiction to consider whether the Crown had satisfied its constitutional duties to consult with Aboriginal people in relation to an application by the Crown to obtain approval of an Energy Purchase Agreement.

In 2012, the Alberta Energy Resources Conservation Board (ERCB) – which, at the time, had similar statutory powers to the AUC – considered whether it had jurisdiction to determine the adequacy of Crown consultation in relation to the Osum Oil Sands Corp. Taiga Project. The party responsible for raising the constitutional question, Cold Lake First Nation (CLFN), argued that, for the ERCB to decide matters in the public interest, it must necessarily assess whether Crown obligations were fulfilled.

The ERCB ultimately concluded that it did not have jurisdiction to assess the adequacy of Crown consultation. It found that, although it had the power to decide constitutional questions, such questions must relate to the Board's statutory mandate. The ERCB found nothing in its mandate to extend its authority to review Crown consultation with respect to Aboriginal or treaty rights in circumstances where the Crown is not the applicant. In support of its decision, the ERCB referenced Dene Tha' First Nations v Alberta (Energy and Utilities Board), 2005 ABCA 68 (para 28) and distinguished Carrier Sekani on the basis that the applicant was a private entity.

CLFN subsequently reached an agreement with the proponent and withdrew its objection to the project under review by the ERCB. CLFN appealed the ERCB's jurisdictional decision to the Alberta Court of Appeal, but Justice Berger denied leave on the basis of mootness (2012 ABCA 304).

Similar issues were raised in the context of the Joint Review Panel that considered the Jackpine Mine Expansion Project. The decisions in that case were influenced in part by the terms of the Joint Review Panel Agreement (see 2012 ABCA 352). As of June 2013, the ERCB became the Alberta Energy Regulator (AER) under the Responsible Energy Development Act. This statute addressed the issue for energy resource projects by explicitly stating that the AER does not have the authority to consider the adequacy of Crown consultation (section 21). However, that Act does not apply to the AUC.

More recently, the Commission had occasion to determine whether it has jurisdiction to assess the adequacy of Crown consultation in an application by EPCOR Distribution & Transmission Inc. (EDTI) to expand a substation. The Samson Cree First Nation provided a Notice of Question of Constitutional Law (NQCL) with respect to the adequacy of Crown consultation and on March 3, 2016, the Commission dismissed the NQCL. On May 13, 2016, the Commission provided its reasons.

With respect to the NQCL, the Commission held that the only consultation required in the circumstances was the consultation conducted by EDTI in accordance with the Commission's requirements. The Commission found that the NQCL could be dismissed because Samson Cree First Nation, despite having concerns regarding the adequacy of consultation prior to the hearing, failed to give notice as required by the Administrative Procedures and Jurisdiction Act and Schedule 2 of the Designation of Constitutional Decision Makers Regulation (the Regulation), which resulted in undue prejudice to the Crown, the applicant and the integrity of the Commission's hearing process. The Commission did not, however, explicitly deal with the question of whether the AUC had the jurisdiction to consider the questions posed in the NQCL.

The October 7, 2016 decision

The NQCLs in the present case were brought before the Commission by several First Nations and Métis groups (collectively, the Aboriginal Groups). The NQCLs posed the following questions: 

  1. Has the Crown, through the regulatory process or otherwise, discharged its duty to consult and accommodate SCFN and BLCN with respect to adverse impacts arising from the Project on the rights guaranteed to SCFN and BLCN pursuant to Treaty, the Natural Resources Transfer Agreement, 1930 ("NRTA") and section 35 of the Constitution Act, 1982
  2. Can the Alberta Utilities Commission ("AUC") find the project is in the public interest, pursuant to subsection 17(1) of the Alberta Utilities Commission Act, in the absence of adequate consultation with respect to adverse impacts arising from the Project on the rights guaranteed to SCFN and BLCN pursuant to Treaty, the Natural Resources Transfer Agreement, 1930, and section 35 of the Constitution Act, 1982?

The Commission held that the Aboriginal Groups provided sufficient information and notice pursuant to the Regulation. As such, the Commission was able to rule on the jurisdictional issue.

After reviewing its enabling legislation, the Commission held that it has no explicit or implicit duty to assess the adequacy of Crown consultation before making determinations on applications before it where the Crown is not a participant or an applicant before the Commission and where no Crown decision is before the Commission. The Commission held that it is only empowered to determine questions of constitutional law "that are properly before it," adopting the language used in Carrier Sekani.

The Commission upheld the 'Crown applicant' distinction with reference to the Federal Court of Appeal decisions in Chippewas of the Thames First Nation v Enbridge Pipelines Inc., 2015 FCA 222 (Chippewas) and Standing Buffalo Dakota First Nation v Enbridge Pipelines Inc., 2009 FCA 308 (Standing Buffalo). It was significant that the Federal Court of Appeal in Chippewas distinguished Carrier Sekani from Standing Buffalo on the basis that the Crown was not a participant in the hearing process at issue in Standing Buffalo.

Finally, the Commission held that assessing Crown consultation would be premature as Crown consultation processes were not exhausted by the hearing process, rather the hearing process was but one component of a broader consultation process. For the foregoing reasons, the Commission declined jurisdiction over assessing the adequacy of Crown consultation in the context of the transmission facility applications.

Conclusion and implications

The AUC's October 7, 2016 ruling clearly articulates the AUC's view that it does not have the jurisdiction to consider the adequacy of Crown consultation where the applicant is a private entity. For the AUC, issues regarding Crown consultation and impacts on Aboriginal groups are most likely to arise in the context of facilities applications, such as transmission lines and power (including wind, hydro and gas) plants. The ruling provides some assurance to proponents of these projects that, going forward, the Commission will no longer need to postpone regulatory proceedings to consider this question. It also confirms that the AUC's focus will continue to be on the proponent's consultation with stakeholders, including Aboriginal groups, pursuant to AUC requirements and guidelines. This may help to limit the scope of matters addressed within AUC proceedings where Aboriginal groups are intervening.

As a caution, we note that the AUC's ruling does not have binding precedential value on future AUC decisions. However, given the history on this issue and the widely recognized value in maintaining a consistent approach across applications, future AUC decision-makers are likely to follow this approach. Given the recent timing of this decision, it is not yet known whether the Aboriginal Groups involved will seek to appeal the AUC's ruling to the Alberta Court of Appeal.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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