First Nations Must Show Specific Impact on Rights to be Entitled to Pursue a Regulatory Appeal

Written By Alison J. Gray

The Alberta Court of Appeal, in O'Chiese First Nation v Alberta Energy Regulator, dismissed two applications by the O'Chiese First Nation seeking permission to appeal decisions by the Alberta Energy Regulator (AER) approving certain applications made by Shell Canada Limited. This decision is important as it establishes that requests for regulatory appeals will not be granted merely because the decision at issue involves development on treaty lands. Rather, specific evidence is needed to demonstrate the party seeking to appeal is directly and adversely affected by the decision. 

Facts

The AER decisions at issue related to licences and associated approvals for two natural gas pipelines, a mineral surface lease, and a licence of occupation for a petroleum and natural gas site and road.

The Government of Alberta previously determined Crown consultation with the O'Chiese First Nation to be either adequate or not required for the applications. The AER did not hold a hearing, and all of the licences and approvals were issued.

On July 9, 2015, the AER dismissed the O'Chiese First Nation's request to appeal the granting of the licences and approvals on the basis that it failed to establish its rights would be directly and adversely affected by the decisions. In fact, the O'Chiese First Nation adduced no evidence as to how its treaty rights would be impacted by the decisions.

Decision

The O'Chiese First Nation argued the AER erred in law in finding that it was not directly and adversely affected by the AER decisions.

It asserted that its treaty rights would be directly and adversely affected by any development falling within the consultation area, and once development occurs, its traditional treaty rights are lost over the developed area. Thus, it had no obligation to adduce any specific evidence showing how the AER decisions affected it. Rather, the decisions, as a matter of law, "directly and adversely" affect their rights by the mere fact that its reserve and the lands covered by the decisions are situated within the consultation area.

The Court rejected this argument, holding that the specific words of the legislation cannot be conflated with the Crown's duty to consult, and the duty does not inform the requirements of the legislation to show one is "directly and adversely affected" by the decisions in order to pursue a regulatory appeal at the AER.

Consequently, the AER's determination of "directly and adversely affected" must be made based on the evidence before it, and the O'Chiese First Nation chose not to adduce any evidence in this regard, so the AER's decisions could not be successfully appealed.

The Court concluded by noting there is no right to a regulatory appeal merely because the decisions relate to a project located within the party's area of consultation and had the legislature intended such a result it could have so provided.

Implications

This decision emphasizes that First Nations, even when AER decisions relate to lands within their consultation area, must adduce specific evidence to show that the particular decisions, and thus, the particular development or project, directly and adversely affects their rights.

While the nature of the evidence that would satisfy the "directly and adversely affected" test is unclear, this decision clarifies that the mere location of the proposed work is not enough. This suggests that "directly and adversely affected" requires evidence as to how specific treaty rights, such as the right to hunt, will be affected by the proposed development for permission to pursue a regulatory appeal to be granted.

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