Category: Aboriginal Page 13 of 30

The NEB Modernization Report

On June 14, 2017

By: Nigel Bankes

PDF Version: The NEB Modernization Report

Report commented on: Forward, Together: Enabling Canada’s Clean, Safe and Secure Energy Future, Report of the Expert Panel on the Modernization of the National Energy Board, May 2017, and Volume II, Annexes.

This post provides a summary of and preliminary comments on the Report of the Expert Panel on the Modernization of the National Energy Board (NEB), which was released in May 2017. The Report begins with an overview of “What the Panel Heard” and then articulates a set of five principles which underlie the Panel’s recommendations. The Panel follows this with a statement of the Panel’s vision for Canada’s regulator of energy infrastructure and then a set of recommendations focused around six key themes for realizing the Panel’s vision. These recommendations constitute the meat of the report. The six key themes are: (1) mandate, (2) relationships with Indigenous Peoples, (3) governance and decision-making, (4) public participation, (5) Î-kanatak Askiy Operations (keeping the land pure), and (6) respect for landowners.

Federal Court Grants Alberta Leave to Intervene in TransMountain Proceedings: Has Alberta Earned the Privilege?

By Shaun Fluker

On June 2, 2017

In Aboriginal, Intervenors and Standing, Oil & Gas

By: Shaun Fluker

PDF Version: Federal Court Grants Alberta Leave to Intervene in TransMountain Proceedings: Has Alberta Earned the Privilege?

Case Commented On: Tsleil-Waututh Nation v Canada (Attorney General), 2017 FCA 102 (CanLII)

In Tsleil-Waututh Nation v Canada (Attorney General) Justice Stratas deals with two leave to intervene motions filed in the consolidated Kinder Morgan TransMountain pipeline judicial review proceedings currently before the Federal Court of Appeal. Justice Stratas grants Alberta’s application to intervene on the presumption that the Crown represents the interest of Albertans in the proceedings (at paras 11-27) and denies the application to intervene made by the Tsartlip First Nation on the basis it is really an application for judicial review under the guise of an intervention and its submissions would be duplicative of existing parties (at paras 35-54). Both applications were opposed by existing parties – the Tsleil-Waututh Nation opposed Alberta’s intervention and Kinder Morgan opposed the Tsartlip intervention. This comment focuses on the reasoning given by Justice Stratas in granting Alberta intervener status in these proceedings, and in particular I question why Alberta was not asked to justify or explain its basis for intervening in these proceedings. The privilege of representing the public interest is something which must be earned, and it isn’t clear to me Alberta has done so in this case.

The Alberta Energy Regulator Grants Rare Participation Rights to Three Indigenous Groups

By Amy Matychuk

On April 4, 2017

In Aboriginal, Energy

By: Amy Matychuk

PDF Version: The Alberta Energy Regulator Grants Rare Participation Rights to Three Indigenous Groups

Decision Commented On: The Alberta Energy Regulator decision on participation in the hearing of Prosper Petroleum Ltd.’s Rigel Project, March 16 2017

On March 16, 2017, the Alberta Energy Regulator (AER) held that three indigenous communities were directly and adversely affected by the Prosper Petroleum Rigel Oil Sands Project and granted these groups participation rights in the hearing on Prosper’s project application.

The AER has been publishing its participation and procedural decisions since September 2015. Since then, there have been 42 decisions dealing with claims by First Nations or Métis communities that they are directly and adversely affected by a proposed project. The AER has denied every claim until now. This decision only gives the three indigenous communities the right to participate in the hearing where the AER will decide whether to green light Prosper’s applications. It does not ensure that their lands or traditional activities will actually be protected, only that they will have the opportunity to explain how the project will affect them. However, given the pattern of decisions since 2015, this is a significant development.

The Rule of Law in Canada 150 Years After Confederation: Re-Imagining the Rule of Law and Recognizing Indigenous Peoples as Founders of Canada

By Kathleen Mahoney

On March 29, 2017

In Aboriginal, Rule of Law

By: Kathleen Mahoney

PDF Version: The Rule of Law in Canada 150 Years After Confederation: Re-Imagining the Rule of Law and Recognizing Indigenous Peoples as Founders of Canada

The 150^th anniversary of Confederation is upon us. The starting point for nation-wide celebrations will be Canada’s origin story, namely, that we are a nation founded by 2 peoples, the British and the French. Their concept of a nation, British North America Act, is held up as a monumental achievement forming the constitutional bedrock of our Canadian identity as well as the foundation for the rule of law and the free and democratic nation we believe ourselves to be.

But here’s the problem: our origin story is incomplete and misleading. In 1996, the Royal Commission on Aboriginal Peoples wrote, “A country cannot be built on a living lie.” (Vol II, at 1) My argument is that Canada’s origin story must be corrected through legislation that will recognize Canada as a country of three founding peoples, the British, the French, and the Indigenous. The rule of law is at the very root of Confederation but its application to indigenous peoples for the past 150 years has been dysfunctional, mired in racism and inequality. It must be re-imagined.

The Alberta Utilities Commission Rules on Its Jurisdiction to Assess Crown Aboriginal Consultation

By Kirk Lambrecht, Q.C.

On March 7, 2017

In Aboriginal, Energy

By: Kirk N. Lambrecht Q.C.

PDF Version: The Alberta Utilities Commission Rules on Its Jurisdiction to Assess Crown Aboriginal Consultation

Decisions Commented On:

AUC Ruling on jurisdiction to determine Questions stated in Notices of Questions of Constitutional Law, October 7, 2016, and Sent to Parties Currently Registered in Proceeding 21030 Fort McMurray West 500-kV Transmission Project Proceeding 21030 Applications 21030-A001 to 21030-A015 (Appendix J); and

AUC Decision 21030-D02-2017, Alberta PowerLine General Partner Ltd. Fort McMurray West 500-Kilovolt Transmission Project, February 10, 2017

Introduction

This post offers critical analysis of the first Ruling of the Alberta Utilities Commission (AUC) to grapple with the issue of whether the AUC has jurisdiction to consider the adequacy of Crown Aboriginal consultation in the course of AUC proceedings (the Preliminary AUC Ruling). The Preliminary AUC Ruling was issued on October 7, 2016. It was followed on February 10, 2017, with a ruling on the merits of the Application (the AUC Ruling on the Merits). Both are discussed here. The Preliminary AUC Ruling is attached as Appendix J to the AUC Ruling on the Merits.

The AUC is a quasi-judicial regulatory tribunal with power to determine all questions of law and constitutional law which arise in the course of its regulatory functions. It exercises a final approval function in relation to the construction of the Fort McMurray West 500-kV transmission line Project. The Project is generally described here. Appendix A to the current Alberta policy on Aboriginal consultation suggests that large-scale regional transmission line projects have high impact and require extensive consultation (see The Government of Alberta’s Guidelines on Consultation with First Nations on Land and Natural Resource Management, July 28, 2014). A deep consultation requirement of this kind is consistent with the description of the Project as critical in nature. It is also consistent with the finding of the AUC, described below, that the Project would introduce industrial development which would adversely impact Aboriginal groups in way which is not easily mitigated.

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, rather than the AUC. In this proceeding, absent guidance from Provincial policy, the AUC concluded that it had no jurisdiction in relation to Crown consultation and accommodation.