Electricity transmitters developing new transmission lines in
Canada face considerable uncertainty over the duty to consult with
Aboriginal communities. One of the outstanding issues is whether
such consultations must be completed before transmitters can obtain
regulatory approval for their projects. A recent decision from the
Ontario Energy Board (OEB) indicates that the entire consultation
process need not be completed before any regulatory approvals are
granted, provided that the regulator is satisfied that a workable
process is in place to address the concerns of Aboriginal
The issue arose when an Ontario transmitter applied to the OEB for
leave to construct for a 500 kV transmission line from Bruce to
Milton. A number of intervenors argued that leave could not be
granted until the duty to consult had been satisfied. In its
September 15, 2008 decision, the OEB rejected these arguments and
granted leave, making some significant findings in an area that, as
it noted, is devoid of "definitive guidance from the
Notably, the OEB accepted some responsibility for assessing the
adequacy of the Crown's consultation, but limited that
responsibility to consultation on matters within its jurisdiction.
Consequently, the OEB ruled that leave could be granted if adequate
consultation had been undertaken on matters within its
jurisdiction, even if consultation for the entire project was not
In support of its position, the OEB stated that there is
"only one Crown" and that "confusion and uncertainty
and the potential for duplication and inconsistency" would
result if each Crown actor involved in an approval for a project
undertook consultation for the entire project. The OEB also
expressed concern that waiting for the completion of consultation
for the entire project could lead to a circular situation in which
each Crown actor is unable to render a final finding on
consultation while it awaits the completion of other processes.
Based on the evidence provided, the OEB concluded that granting
leave for the project would not adversely affect any Aboriginal or
treaty rights. While Aboriginal consultation for the project was
"clearly not complete", the panel identified the issues
raised by Aboriginal intervenors as related to the environmental
assessment process, which was beyond OEB's jurisdiction and
under the control of another Crown actor, the Minister of the
Environment. In addition, the OEB stated that a review of
consultation for the project as a whole was unnecessary in this
specific case as, for reasons unrelated to Aboriginal consultation,
the leave to construct order was conditional on the successful
completion of the environmental assessment process.
The OEB's approach to this issue is similar to that taken by
the British Columbia Utilities Commission (BCUC) in several recent
decisions where the BCUC held that a review of the duty to consult
for a transmission project can be deferred to the environmental
assessment process. One of the BCUC's decisions is currently
under appeal to the British Columbia Court of Appeal (see
Kwikwetlem First Nation v. British Columbia Utilities
Commission, 2008 BCCA 208). The outcome of that appeal may be
to fill the void of definitive judicial guidance on this issue to
which the OEB referred in its decision.
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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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.
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