In case with strong echoes of Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, the Ontario Energy Board has recently denied a request from a group of twelve First Nations for intervenor status in a licensing application.
The application seeks licence amendments related to eight hydroelectric generating stations owned by AbitibiBowater. The amendments will facilitate the sale of the generating stations to Bluearth Renewables, which intends to take advantage of incentives for upgrades and expansions offered by the Ontario Power Authority's Hydroelectric Contract Initiative (HCI). The First Nations group requested intervenor status with the intention of exploring the adequacy of the Crown’s consultation efforts with respect to potential infringements of their Aboriginal rights. The group argued that the sale of these facilities to Bluearth would result in increased or expanded hydroelectric generation under the HCI, which would change water levels and flows and impact their ability to harvest wild rice.
In dismissing the request for intervenor status, the Board found that the group did not have sufficient interest in the proceeding as the proposed license amendments were not connected to the potential infringement identified by the First Nations. While the panel accepted that the duty to the consult could be triggered by the HCI contract, it held that there was an insufficient nexus between the potential infringement and the application to require a review of the Crown's consultation efforts by the Board. In support of its conclusion, the Board noted that it lacks approval authority over the HCI contract and that the application would have "no direct impact on water levels or flows" and was "peripheral at best" to the physical operation of the facilities. On that basis, the Board rejected the First Nations' argument that it was the final decision-maker and concluded that "the assessment of whether that duty has been adequately discharged will reside elsewhere."
There are obvious parallels between this case and the Supreme Court of Canada's decision in Rio Tinto, in which the Court found that a energy purchase agreement with no physical impact did not trigger a duty to consult. This is likely not the end of the road for this case as the First Nations group has already indicated it intends to appeal the decision to the Divisional Court.