Canada: Energy Regulators May Be Held Responsible For Assessing The Sufficiency Of Aboriginal Consultation

In our October 2008 Energy Update, we discussed the decision by the Ontario Energy Board (OEB) to limit its review of the adequacy of Aboriginal consultation in the Bruce to Milton leave-to-construct proceeding and defer certain issues to the environmental assessment process. The OEB noted in that decision that the area was devoid of "definitive guidance from the courts." The significance of this issue has been elevated since last October by the provincial government's new Green Energy Act, which contains many of the promises that are dependent upon the development and approval of new transmission lines.

Two companion decisions released by the British Columbia Court of Appeal in February 2009 -- Carrier Sekani Tribal Council v. British Columbia (Utilities Commission), 2009 BCCA 67 and Kwikwetlem First Nation v. British Columbia (Utilities Commission), 2009 BCCA 68 - provide some guidance in the area of Aboriginal consultation. In Carrier Sekani, the Court determined that British Columbia's utilities regulator has the jurisdiction and obligation to assess the adequacy of an applicant's consultation efforts; in Kwikwetlem, the Court found that this assessment should not be deferred to the environmental assessment process.

Carrier Sekani was an appeal of a decision of the British Columbia Utilities Commission (BCUC) approving an Energy Purchase Agreement (EPA), under which BC Hydro will purchase electricity from a hydro-generating station owned by Alcan that has been in operation since the 1940s. The Carrier Sekani First Nation claimed that the diversion of water for use in the project was an infringement of their Aboriginal and treaty rights and that BC Hydro therefore had a duty to consult before entering into the EPA. The BCUC declined to deal with the issue, as the EPA will not affect water flows (it is a financial arrangement with limited physical consequences) and Alcan could have avoided the duty to consult by selling its electricity to a non-Crown entity.

In setting aside the BCUC's decision, the Court of Appeal was critical of what it called the BCUC's "aversion to assessing the adequacy of consultation" and concluded the BCUC acted unreasonably by not considering the duty to consult in circumstances where BC Hydro "was taking commercial advantage of an assumed infringement on a massive scale, without consultation." Moreover, the Court held that the BCUC's obligation to consider the public interest gave the BCUC the needed jurisdiction to consider "whether the Crown has a duty to consult and whether it has fulfilled the duty." The Court went on to state that the BCUC was the most appropriate forum to decide consultation issues in a timely and effective manner and that the BCUC has "the skill, expertise and resources to carry out this task."

The companion appeal of Kwikwetlem involved a BCUC approval for a proposed transmission line that will serve the lower mainland and pass through the traditional territory of a number of First Nations. Several of the affected First Nations intervened in the BCUC proceeding and claimed the duty to consult had not been fulfilled by BC Hydro. The BCUC again concluded that it did not need to consider the adequacy of the Crown's consultation and determined that this assessment could be deferred to the future environmental assessment process. The First Nations disagreed with this approach and asserted that the BCUC was effectively precluding their input on alternative solutions to satisfy the lower mainland's anticipated energy shortage.

The BCUC's decision in Kwikwetlem was also set aside by the Court of Appeal. The Court found that deferring the assessment was tantamount to denying First Nations timely access to a Crown decision-maker with authority over the subject matter, and was therefore inconsistent with the honour of the Crown. At the heart of the Court's conclusion was a finding that the BCUC approval process fixed the essential structure of the project and effectively determined the scope of any subsequent environmental assessment. In the Court's view, consultation cannot be deferred in such circumstances and the BCUC should have determined whether "the Crown's honour had been maintained up to that stage of the Crown's activity."

Underlying the two decisions was an understandable concern that in the absence of a forum to address consultation issues, First Nations will be forced to seek interlocutory injunctions in the courts and engage in complex litigation that takes years or decades to resolve. That said, it is questionable whether an economic regulator such as the BCUC has the expertise and resources to deal with these complex questions more expeditiously than the courts. The Court's vague direction that the adequacy of consultation be considered "up to that stage" could also prove troublesome in practice. For example, it is unclear if the OEB's decision in the Bruce to Milton proceeding to limit its assessment of consultation to matters within its jurisdiction would satisfy this threshold.

It should be noted there are unique elements in the British Columbia environmental assessment regime that were important in the Court's analysis and may lead to different conclusions in other Canadian jurisdictions. Legislative action may also fill the void identified by the Court in these two decisions. Nevertheless, these decisions are important precedents, and if followed in Ontario, they could significantly extend the complexity and length of leave-to-construct proceedings before the OEB. To avoid delaying projects dependent on the development of new transmission, it is critical that the Crown be proactive, and in this respect it is notable that the Ontario Power Authority recently announced the establishment of a First Nations and Métis Relations Department.

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

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

In association with
Related Video
Up-coming Events Search
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.