Canada: Alberta Energy Regulator Assesses Cumulative Effects Of Pipeline Project On Aboriginal/Treaty Rights: Tips For Bill C-69 And Interprovincial Pipeline Approvals

Against the backdrop of the recent jurisdictional turmoil in approving interprovincial market access pipelines for Alberta's oil and gas resources, the Alberta Energy Regulator (the "AER") in its first decision of the year approves TransCanada Pipelines Limited's ("TCPL") Applications for the White Spruce Pipeline Project in the Fort McKay Area of Alberta, 2018 ABAER 001. While this is not an interprovincial pipeline, it is an important link that would carry oil from Canadian Natural Resources Limited's ("CNRL") Horizon processing plant to the Grand Rapids Pipeline GP Ltd.'s MacKay Terminal (the "MacKay Terminal") for onward delivery to markets. A major consideration in this decision was measuring cumulative effects of extensive industrial development in the Fort McKay area on Fort McKay's exercise of treaty and aboriginal rights. Similar arguments have been made in the context of interprovincial pipelines in certain areas of British Columbia. The AER held in this decision that it requires specific legislative or regulatory limits or thresholds for cumulative effects of development on treaty and aboriginal rights to direct and guide it in determining such issues. In the absence of such direction or specific evidence, the AER was unable to make direct findings of impact or give meaningful direction to eliminate or mitigate such alleged effects. The AER's decision offers direct lessons to many stakeholders, especially the Government of Canada on crucial considerations for Bill C-69 and decision-makers that have roles to play in interprovincial pipeline approvals.

Background

TCPL applied to the AER for land dispositions and approvals under the Pipeline Act1 or Public Lands Act2 to construct two crude oil pipelines (the "Project") to deliver synthetic crude oil from CNRL Horizon processing plant to the MacKay Terminal for delivery to markets. The Project would be located within Fort McKay First Nation's ("Fort McKay") traditional territory and 7 km of Fort McKay's residential settlement. Fort McKay holds treaty rights under Treaty 8 and aboriginal rights that include rights to hunt, fish, trap, and gather culturally important natural resources for social, cultural, and consumption purposes as well as to use and enjoy their reserve lands. Extensive industrial development exists within Fort McKay's traditional territory including oil sands mines, in situ oil sands projects, upgraders, roads, pipelines, and transmission lines. The Project would be co-located with other linear disturbances but would enlarge the environmental footprint. It would involve multiple water crossings, including at the Dover and Mackay Rivers, which are important to community members for fishing, hunting, harvesting, and general enjoyment. Fort McKay was most concerned about watercourse crossings, wildlife and habitat, herbicide use, and cumulative effects of industrial development on exercising their treaty and aboriginal rights. Other concerns raised included construction, effects on historical resources, and trails and access to traditional land-use areas.

Issues

One of the key issues is the potential adverse effects of the Project on aboriginal participants and whether such effects can be adequately mitigated. Of particular consideration on this issue, among many others, was measuring the cumulative effects of industrial development on exercising treaty and aboriginal rights.

Decision

The AER approved the Project with conditions. It determined that the impacts of the Project, after implementation of TCPL's commitments and mitigation plans and the AER's conditions imposed, can be mitigated to a level consistent with responsible development.

Aboriginal Consultation and Assessment Framework

The Government of Alberta ("GoA") is required to consult with aboriginal groups when energy decisions under its jurisdiction may adversely affect treaty and aboriginal rights. This obligation is carried out by the Aboriginal Consultation Office ("ACO"). While none of the Responsible Energy Development Act ("REDA") and other legislation administered by the AER expressly required it to do so, the AER as a statutory decision maker is required under common law to consider potential adverse impacts of energy resource activities on the existing rights of aboriginal peoples and the exercise of those rights. The Aboriginal Consultation Direction, Energy Ministerial Order 105/2014 and Environment and Sustainable Resource Development Ministerial Order 53/2014, and the Joint Operating Procedures for First Nations Consultation on Energy Resource Activities direct how the AER must deal with proceedings where First Nations consultation is required by the ACO.

The direction applies to TCPL's applications under the Public Lands Act. Under section 21 of REDA, the AER has no jurisdiction to assess the adequacy of Crown consultation associated with the rights of aboriginal peoples. However, the AER cannot make a decision on an energy application requiring aboriginal consultation until it has requested and received the ACO's advice on consultation adequacy and on any required action to address potential adverse effects on treaty and aboriginal rights or traditional uses.  The ACO usually provides this advice through a project specific report to the AER. Where the AER holds a hearing on a project, the ACO may provide a second report to address any impacts raised in the hearing that were not previously addressed in the consultation process. The ACO made two consultation reports about the project. The first addressed the project consultation and potential adverse impacts on Fort McKay's treaty and aboriginal rights. The second took into account the evidence filed and arguments made in this hearing and dealt with matters that were not previously addressed in the consultation process. The ACO found consultation with Fort McKay to be adequate but made recommendations to reduce impact on wildlife.

The Parties' Positions

In respect of this Project, Fort McKay asserted that, in combination with other industrial development in its traditional territory, it would result in adverse cumulative effects on their treaty and aboriginal rights. The alleged cumulative effects on the Project rights include: (a) reduction of the area where they can exercise treaty and aboriginal rights in a culturally relevant way; (b) negative effects on food and resource gathering; (c) reduced connection to community, history, and knowledge about traditional land use; (d) reduced enjoyment of traditional land-use activities; (e) potential health and safety risks; and (f) uncertainty about ability to access reserve lands and traditional territory. Fort McKay relied on the AER Decision 2013 ABAER 011: Shell Canada Energy, Jackpine Mine Expansion Project and the Fort McKay specific assessment study submitted therein. The joint review panel in that decision found that there were cumulative adverse effects on some elements of Fort McKay's cultural heritage. Fort McKay also relied on the 2015 review panel report on the Lower Athabasca Regional Plan ("LARP"). The report considered whether LARP adversely affected Fort McKay's rights and concluded that cumulative effects were not being properly managed in the Lower Athabasca region. Fort McKay also raised concerns about herbicide use to control vegetation growth along the right-of-way and its effects on their exercise of treaty and aboriginal rights. Fort McKay required a traditional land-use study for the Project to be funded by TCPL.

TCPL submitted that co-locating the Project route with existing pipelines, together with mitigation measures in its environmental protection plan, would minimize environmental disturbance and limit the impacts on Fort McKay. TCPL distinguished Decision 2013 ABAER 011 and argued that the AER's obligation is to act in accordance with LARP and not to assess whether LARP is accomplishing its cumulative effects objective. TCPL also disagreed with the request for traditional land-use study for the Project. TCPL set out a number of alternate vegetation control methods it could use near these sites, including spot spraying, wicking, mowing, or hand picking. TCPL insisted that that the Project's route and effects on Fort McKay's rights have been examined through consultation, a helicopter flyover and map review, and studies carried out for previous development of the Northern Courier and McKay East pipelines.

Findings of the Regulator

The AER agreed with TCPL that the AER is only required under section 20 of REDA to act in accordance with LARP. While LARP is Alberta's vehicle to address cumulative effects in the Lower Athabasca region, it does not currently set any specific limits or thresholds related to the cumulative effects of development on aboriginal rights. The AER found that as there is no other legislative or regulatory limits for cumulative impacts on aboriginal rights and no evidence was provided to make a sound comparison of cumulative effects, neither the LARP review panel report nor the Jackpine mine expansion decision provide guidance on this issue. The AER concluded that concerns about cumulative effects on treaty and aboriginal rights raised by Fort McKay were general in nature and not supported by evidence specific enough to allow direct findings of impact or give meaningful direction to eliminate or mitigate such alleged effects. LARP sets out plans to develop a biodiversity management framework and regional landscape management plan for public land in the Green Area. While these frameworks will consider how the region's Aboriginal peoples can continue to exercise their constitutionally protected rights within reasonable distances of the main population centers, they are not yet completed or in effect. It is expected that such frameworks would provide clearer direction and guidance to the AER in determining cumulative effects issues raised by Fort McKay. The AER encouraged the GoA to complete and put into effect a biodiversity management framework and a regional landscape plan for the Lower Athabasca region.

The AER also found that while a traditional land-use study can be an important source of information for identification of specific traditional land-use sites where resource development is proposed, it is not statutorily required for applications under the Pipeline Act or Public Lands Act. The AER also found that the Fort McKay community database, represented as the most accurate recorded data available for the community's land use and relied upon by Fort McKay, has sufficient information to provide specific traditional land-use site information to TCPL. The AER refused Fort McKay's request for a traditional land-use study for the Project and instead accepted TCPL's commitment to restrict general application of herbicides near traditional land-use sites together with its more general mitigation measures on herbicide use set out in its environmental protection plan.

Implications

The AER Decision 2018 ABAER 001 appears to have lessons for all stakeholders, including the provincial and federal governments, Aboriginal peoples, regulators, other decision-makers, and industry proponents. A major consideration in this decision was measuring cumulative effects of extensive industrial development on treaty and aboriginal rights and similar arguments have been made in the context of interprovincial pipelines in certain areas of British Columbia. However, we note that cumulative effect issues transcend aboriginal rights.

The AER held in this decision sends a message to governments that regulators and decision-makers approving projects require specific legislative or regulatory limits or thresholds for cumulative effects of development to direct and guide them in deciding such issues. The message to right-holders that may allege such impacts, including aboriginal peoples, is that in the absence of such legislative direction, regulators and decision-makers require specific evidence to allow them to make direct findings or give meaningful direction to eliminate or mitigate such alleged effects. The message to regulators and decision-makers is that in the absence legislative or regulatory direction from government and specific evidence from right-holders, a decision cannot be made on cumulative impacts of a project. Lastly, the message to project proponents is that cumulative impacts should be thoroughly addressed in project application whether or not specific thresholds and limits exist.

Of particular importance is the lesson to Government of Canada on crucial considerations for Bill C-69 as a vehicle to address cumulative effects of projects that fall within that jurisdiction. BLG will continue to monitor and report on these issues as they unfold.

Footnotes

1 RSA 2000, c P-15.
2 RSA 2000, c P-40.

About BLG

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions