It is well-established in Canada that where the Crown has knowledge of a First Nations right or title that may be affected by the Crown's actions, the Crown has a duty to consult with the affected First Nations before taking those actions. This duty to consult may extend to an obligation to accommodate the First Nations interest if the rights will be significantly infringed.

In a recent application before the Ontario Energy Board, the limits of required consultation were in issue. The OEB was considering an application by ACH Limited Partnership and AbiBow Canada Inc. (both a part of the AbitibiBowater group) to amend the terms of certain electricity generating licenses at eight hydroelectric facilities in Northwestern Ontario, to reflect that ACH Limited Partnership would not just be the owner of these facilities but would also be the operator. This step was taken in preparation for a proposed sale of these eight facilities to BluEarth Renewables.

A group of twelve First Nations in the vicinity of the facilities sought intervener status before the OEB. The group claimed that it had a substantial interest in the OEB's proceedings - once sold, the facilities could be subjected to increased or expanded hydroelectric generation, possible changes in water levels and flows, ultimately leading to an adverse impact on the ability of the affected First Nations to harvest wild rice.

The OEB denied intervenor status to the group of First Nations.

The OEB stated that the proposed amendment to the licenses related only to the identity of the party holding the license. Even though the change in status (to owner-operator) might be a condition precedent to the sale, the sale was not up for approval by the OEB, nor was any amendment being considered which would permit changes to water levels or flows. As there was no application pending which would impact water levels or flows, there was no impact on First Nations rights and therefore no duty to consult.

As there were no intervenors before the OEB and no adverse impacts were identified from the proposed change, the OEB granted the application.

A copy of the OEB's reasons, which were delived on May 27th, can be found here