The Alberta Utilities Commission (the “AUC”) recently announced that it will review its application requirements for consultation with Indigenous communities. The AUC has released an Interim Direction on Indigenous consultation for proponents to follow while this review is undertaken. “[T]o ensure that application requirements for consultation with First Nations and Métis are clear”, it is separating its review of other AUC application requirements. The commission’s goal is to have clear requirements for Indigenous consultation completed by the fall of 2020.

What the AUC Does

The AUC regulates the construction and operation of utility projects such as transmission lines, substations, power plants, hydro projects and gas utility pipelines, all of which may have the potential to impact Aboriginal and Treaty rights protected by section 35 of the Constitution Act, 1982.

The former AUC approval process did not specifically address Indigenous consultation or the assessment of impacts on Aboriginal and Treaty rights. Instead, Indigenous consultation was included in the general participant involvement program and there was no requirement to assess impacts on rights.

In 2017, the Supreme Court of Canada confirmed that the application process of a regulatory body, such as the AUC, can trigger the duty to consult in certain circumstances (Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., 2017 SCC 41; Clyde River (Hamlet) v. Petroleum Geo‑Services Inc., 2017 SCC 40). The duty to consult must be fulfilled before a decision is made to approve a project that could have adverse impacts on Aboriginal or Treaty rights. If not, the approval could be overturned by the courts.

The AUC’s Review

In June 2019, the AUC announced that it was undertaking a review of its stakeholder consultation process. On December 2, 2019, through AUC Bulletin 2019-20, Interim direction on Indigenous consultation the AUC has decided to conduct additional engagement “to ensure that application requirements for consultation with First Nations and Métis are clear” before releasing their updated procedures.

The AUC has released interim requirements for Indigenous consultation for project proponents to follow while it works with Indigenous communities and industry stakeholders to create new application requirements. This interim consultation process will apply to all new applications for transmission lines, substations, power plants, hydro projects, industrial system designations and gas utility pipelines made on or after March 1, 2020.

The AUC has also launched a pilot project to create a statement of intent to participate form specific for Indigenous groups. The AUC is piloting the use of the new form and is seeking feedback on its format and its effectiveness.