This comment discusses briefly the legal and policy context of the first Alberta Utilities Commission (“AUC”) Ruling addressing its jurisdiction to consider the adequacy of Crown Aboriginal consultation in the course of AUC proceedings.1 The AUC Ruling is dated October 7, 2016.

The Project before the AUC2 had been designated as “critical transmission infrastructure.”3 The legal consequence of this designation was succinctly described by the Alberta Court of Appeal in Shaw v Alberta (Utilities Commission):

[3] For the reasons that follow, I conclude that when the government designates a transmission development as critical, the legislature intended that government would assume sole responsibility for determining that the development is necessary and in the public interest. It left to the Commission only the second stage of the inquiry, to assess whether the proposed routing and siting of the transmission line and other facilities required to meet the need are in the public interest.4

For this Project, the public interest jurisdiction of the AUC is limited to the proposed routing and siting of the transmission line and other facilities. AUC approval means approval of the construction of the Project according to site and routing conditions fixed by the AUC.

On September 2, 2016, the AUC received Notices of Questions of Constitutional Law (“NQCLs”) from Metis and First Nations. The AUC Ruling is a preliminary determination of its jurisdiction to consider the NQCLs and as issued prior to the commencement of its public hearing process.

The AUC held that final AUC approval of the proposed routing and siting of the Fort McMurray West 500-kV transmission line and other facilities does not itself trigger the duty to consult even though the AUC Decision, when issued, would be a final approval of the construction of the Project which might adversely affect Aboriginal rights. The AUC Ruling also confirmed that the AUC will not assess the adequacy of Crown Aboriginal consultation, because the Crown is responsible for all aspects of Crown consultation and accommodation and the Crown will make its assessment after the final AER Decision, when issuing instruments which are corollary to the construction and operation of the Project.5

After the Ruling, the AUC hearing proceeded to conclusion without any participation by Alberta or the Aboriginal Consultation. The final AUC Decision is on reserve as of the date of publication of this comment.6

The AUC has not been at the center of Alberta’s policy development in relation to Aboriginal consultation. That development has tended to focus on the Alberta Energy Regulator (“AER”), rather than the AUC. Alberta has issued a general policy entitled The Government of Alberta’s Guidelines on Consultation with Metis Settlements on Land and Natural Resource Management 2016. It has a specific section on the AER, and refers to a Ministerial Guideline which “will provide direction on ACO and AER interaction.” There is no equivalent specific reference to the AUC, nor any direction on ACO and AER interaction.

The law regarding the role which Tribunals can play in relation to the discharge of constitutional obligations of consultation and accommodation is discussed by the Supreme Court of Canada in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council. The Court suggested that a Tribunal like the AUC, which has final approval authority and power to determine questions of law or constitutional law which arise in the course of its regulatory functions, might perform at least one of two functions: conducting consultation and accommodation, or assessing Crown consultation and accommodation. The AUC Ruling means that the AUC performs neither of these functions.7

At paragraph 109 of its Ruling the AUC supported its Ruling by reliance on the majority Judgment in the Federal Court of Appeal decision in Chippewas of the Thames First Nation v. Enbridge Pipelines Inc.8 That Federal Court of Appeal case was appealed to the Supreme Court of Canada. The appeal before the Court was argued on November 30, 2016, and Judgment was taken on reserve. During argument of the appeal before the Supreme Court of Canada, Counsel for the Attorney General of Canada conceded that the point relied upon by the AUC was wrongly decided by the majority decision of the Federal Court of Appeal. The impact which this may have on the AUC Ruling will be known when the Court issues its Judgment, likely in 2017, when the Court issues its Judgment in Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., et al.9 , and in a related appeal Hamlet of Clyde River, et al. v. Petroleum Geo-Services Inc. (PGS), et al.10