​In our previous blog we analyzed two judicial review decisions of the Alberta Court of Queen’s Bench defining the scope of procedural fairness and the information requirements in assessing whether the Alberta Crown’s duty to consult has been triggered in resource development applications before the Alberta Energy Regulator (AER). In Fort McMurray West 500-kV Transmission Project (Proceeding 21030) Ruling on jurisdiction to determine the questions stated in the Notices of Questions of Constitutional Law (October 7, 2016) (the Letter Decision), the Alberta Utilities Commission (AUC) determined the scope of information required on Notices of Questions of Constitutional Law (NQCLs) submitted by First Nations and Métis groups relating to their asserted or established rights, as well as the AUC’s jurisdiction to assess the adequacy of Crown consultation as requested in the NQCLs.

​Background

Alberta PowerLine L.P. sought AUC approval to construct and operate a 500-kv line and associated transmission facilities, between the Wabamun area and the Fort McMurray area (the “Project”). The Project is defined as critical transmission infrastructure in the Electric Utilities Act (“EUA”). The AUC is a designated decision maker under Schedule 1 of the Designation of Constitutional Decision Makers Regulation made pursuant to the Administrative Proced​ures and Jurisdiction Act, RSA 2000, c A-3 (“APJA”), and has jurisdiction to determine “all questions of constitutional law.”

The two issues in relation to the NQCLs were first, the adequacy of the NQCLs pursuant to the APJA and the Designation of Constitutional Decision Makers Regulation, and second, the jurisdiction of the AUC to determine the adequacy of Crown consultation before making a determination on the applications before the AUC.

Decision

On the adequacy of the information in the NQCLs, the AUC found the information provided in the First Nations and Métis NQCLs was sufficiently detailed to meet the requirements of Schedule 2 of the Designation of Constitutional Decision Makers Regulation. The NQCLs contained reasonable particulars regarding the First Nations’ and Métis argument on the adequacy of Crown consultation. The AUC noted that to address the NQCLs at the preliminary stage of the proceedings, it was not called upon to consider or make conclusions on the strength of the claim advanced by the Métis Interveners. The materials presented were sufficient to suggest they have an asserted, unproven claim. The AUC noted that if the AUC determines it has jurisdiction over the questions of constitutional law raised in the NQCLs, to ensure that no prejudice results, Alberta would be afforded an opportunity to ask for additional information from the First Nations and each of the Métis Interveners on their respective NQCLs before filing its evidence.

On the jurisdictional question, the AUC considered its role in relation to the Crown’s duty to consult under its statutory framework in the absence of any express provisions. Relying on the framework set out by the Supreme Court of Canada in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43 (Carrier Sekani), that the duty of a tribunal to consider the scope of the Crown’s duty to consult depends on its statutory mandate, the AUC had to consider whether the determinations it is required to make in the applications before it engage the need to assess the adequacy of Crown consultation. The AUC found that there are no provisions in its governing legislation that expressly empower it to make, or prohibit it from making, determinations on the adequacy of Crown consultation. However it also found that it may only determine questions of constitutional law “that are properly before it.” The AUC then considered whether under its statutory mandate it may consider the adequacy of Crown consultation when the Crown is not an applicant or a participant in the proceeding.

The AUC applied the three-part test to trigger a duty to consult and accommodate set out by the Supreme Court of Canada in Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 (Haida) and clarified in Carrier Sekani: (i) the Crown’s knowledge, actual or constructive, of a potential Aboriginal claim or right; (ii) contemplated Crown conduct; and (iii) the potential that the contemplated conduct may adversely affect an Aboriginal claim or right. The AUC found that for the purposes of addressing the NQCLs, the first and third elements of the Haida test were met, provided that there is Crown conduct or a Crown decision that arises within the applications currently before the AUC. Regarding the second element, the AUC found that, other than for purposes of the NQCLs, the Crown was not a participant or applicant in the proceeding and there was no Crown conduct or a Crown decision that the AUC was tasked with considering. The AUC held that it has no statutory authority to adjudicate the adequacy of or direct Crown conduct when the Crown is not an applicant or a party. The AUC may only determine constitutional questions where the necessary elements (including a Crown decision) arise in the applications before it and which is limited to determinations relating to the parties before it.

The AUC applied the Federal Court of Appeal the decisions in Chippewas of the Thames First Nation v Enbridge Pipelines Inc. 2015 FCA 222 (under appeal to the Supreme Court of Canada, Chippewas) and Standing Buffalo Dakota First Nation v. Enbridge Pipelines Inc., 2009 FCA 308 (Standing Buffalo). Standing Buffalo confirmed that where the party seeking approval was a private-sector corporation unrelated to the Crown, and the Crown did not participate in the proceedings, t​​he National Energy Board “was not required, as a precondition to its consideration of that application, to determine whether the Crown was under a Haida duty, and if so, had discharged that duty, in respect of the Project.” The AUC noted that Chippewas distinguished Carrier Sekani in that the British Columbia Crown, in the form of British Columbia Hydro, was a party to the application for approval to enter into a power purchase agreement before the British Columbia Utilities Commission, and there was a specific Crown action or conduct that engaged the duty to consult.

The AUC also considered the scope of its remedial powers. While the First Nations and the Métis Interveners submitted that they were not asking the AUC to give any direction to the Crown, the AUC found that their request would result in the AUC denying the Applicant’s approvals or holding the applications in abeyance because of a failure on the part of the Crown. The AUC found that such an outcome would result in an indirect direction to the Crown in relation to its duty to consult. The AUC concluded that it has no jurisdiction over the Crown where the Crown is not a party to the proceeding and has no powers to direct the Crown to carry out Crown consultation or to make a decision on the adequacy of Crown consultation where the Crown is not before the AUC. Further, the AUC does not have jurisdiction over other Crown conduct or decisions that do not arise in the context of the applications before it. The AUC found that the First Nations would have recourse to the courts if the Crown does not fulfill its duty to consult and accommodate.

The AUC determined that Alberta’s policy on consultation and guidelines apply to decisions of the Crown and Crown decision makers. The AUC rejected the submissions of the First Nations that the Applicant has been delegated the Crown’s duty to consult on the project before the AUC. It also rejected the submissions that the issuance of a permit and licence by the AUC is Crown conduct sufficient to trigger the Crown duty to consult, since the AUC operates as part of the executive branch of government under the mandate of the Legislature. The AUC determined that to the extent that its decision may have a potential impact on the asserted or established rights of the Aboriginal groups, the AUC’s hearing process is designed to consider the parties’ evidence and to determine the potential impacts of the Project and whether such potential impacts may be avoided or mitigated.

Implications

The sufficiency of evidence, of asserted or established rights of Aboriginal groups to trigger or assess adequacy of the Alberta Crown’s duty to consult, continues to be in issue in various contexts. It is clear that in the regulatory context where the Crown’s duty to consult is a preliminary jurisdictional question, the evidentiary threshold is much less than in judicial review where such rights are required to be proven. This decision also confirms that for the AUC to have jurisdiction to assess the trigger and the adequacy of the Alberta Crown’s duty to consult, the Crown must be a participant or an applicant before the AUC or there must be a Crown decision before the AUC. This case also makes it clear that judicial review of the decision of the Aboriginal Consultation Office (ACO) is the current process for First Nations and Métis groups to assess the trigger and the adequacy of the Alberta Crown’s duty to consult rather than by NQCLs in regulatory proceedings.

Unlike Section 21 of the Responsible Energy Development Act, SA 2012, c. R-17.3 (REDA) which expressly provides that the AER has no jurisdiction with respect to assessing the adequacy of Crown consultation associated with the rights of aboriginal peoples, there is no such provision in the Alberta Utilities Commission Act or other legislation administered by the AUC. As seen above, the AUC relied on the common law and has determined the scope of its jurisdiction under APJA to determine “all questions of constitutional law.” The AUC’s decision will likely be accorded deference. However, the AUC’s jurisdiction to assess adequacy of Alberta Crown’s consultation in applications before it, remains far from settled as the appeal of Chippewas, which the AUC relied heavily upon, awaits the decision of the Supreme Court of Canada. BLG will continue to monitor developments on these issues and provide updates accordingly.