Transmission Line – Aboriginal Consultation – AUC Jurisdiction re Adequacy of Crown Consultation
In this decision, the AUC considered Alberta PowerLine Ltd.’s (“APL”) applications to construct and operate the proposed Fort McMurray West 500-Kilovolt transmission facilities (the “Project”). The Project consists of the following elements:
• A 500-kV single-circuit transmission line approximately 400 kilometres in length, designated as 12L41 from AltaLink Management Ltd.’s transmission line 1241L to the existing Livock 939S Substation. The transmission line also contains three optical repeater sites.
• A 500-kV single-circuit transmission line approximately 100 kilometres in length, designated as 12L44, from the existing Livock 939S Substation to the proposed Thickwood Hills 951S Substation.
• One 500-kV substation, including four 500-kV circuit breakers, at the existing Livock 939S Substation.
• One 500-kV substation, including one 500/240-kV transformer and three 500-kV circuit breakers, at the proposed Thickwood Hills 951S Substation.
AUC Jurisdiction to Consider Aboriginal Matters
In a preliminary ruling attached as an appendix to this decision, the AUC considered its jurisdiction over the questions raised in the Notices of Questions of Constitutional Law.
During Proceeding 21030, the AUC considered as a preliminary matter, Notices of Questions of Constitutional Law (“NQCL(s)”) received from the Wabasca Métis Local 90, the Gunn Métis Local 55, the Fort McMurray Métis Local 1935/Fort McKay Métis Community Association, the Métis Nation of Alberta Association Lakeland Local Council 1909, the Beaver Lake Cree Nation (“BLCN”) and the Sucker Creek First Nation (“SCFN”).
In a preliminary ruling, dated October 7, 2016 (the “NQCL Ruling”), attached as an appendix the Project Approval Decision, the AUC considered its jurisdiction over the questions raised in the NQCLs.
The question before the AUC was whether the Crown had discharged its duty to consult with the various Aboriginal groups about potential adverse impacts on their respective Aboriginal rights.
The AUC noted that the Crown had not delegated to the AUC the Crown’s duty to consult. Nor had the AUC itself engaged in direct consultation. The AUC also noted that there were no provisions in its governing legislation expressly providing for, or prohibiting, the AUC from making determinations on the adequacy of Crown consultation. However, the AUC noted that as a designated decision maker under Procedures and Jurisdiction Act and Designation of Constitutional Decision Makers Regulation, it is empowered to hear all questions of “constitutional law”.
The AUC therefore had to determine whether its jurisdiction to consider a question of constitutional law included the question of whether the Crown had discharged its duty to consult with holders of relevant Aboriginal interests in relation to the applications before it.
The AUC held that its jurisdiction does not include decisions regarding the adequacy of Crown consultation, where the Crown is not a party in a proceeding before the AUC.
Legislative Framework re Transmission Project Approval
The AUC provided an overview of the two-stage approval process for a proposed new transmission project.
The first stage requires the AESO to file an application with the AUC for approval of the need for the transmission line (“Needs Application”).
The AESO is responsible for preparing a needs application under Section 34 of the Electric Utilities Act. Section 11 of the Transmission Regulation (the “T-Reg”) sets out the contents of a Need Application, including:
• an assessment of current transmission capacity;
• load and generation forecasts;
• studies and analyses that identify the timing and nature of the need for new transmission;
• a technical and economic comparison of the technical solutions considered by the AESO to address the need identified; and
• the AESO’s preferred option or technical solution to address that need.
At the second stage, the AUC considers a transmission facility owner’s (“TFO”) application to construct and operate the proposed transmission facility (“Facility Application”).
Critical Transmission Infrastructure
The CCA submitted that the Project did not meet the provisions of the HEEA with respect to the Project being designated as a critical transmission infrastructure under Section 4 of the Schedule to the HEEA (the “Schedule”). Section 4 of the Schedule describes transmission facilities that are designated as critical transmission infrastructure.
APL and the AESO submitted that the Project is part of the critical transmission facilities described as “two single circuit 500 kV alternating current transmission facilities from the Edmonton region to the Fort McMurray region, generally described as follows”. The proposed project is for one of those transmission lines. The end-point subject to dispute is described in the Schedule as “the substation at or in the vicinity of the existing Brintnell 876S substation.”
The CCA submitted that the end point of the project was not in compliance with Section 4 of the Schedule because it would end at the Livock 939S Substation, which is 38 kilometres away from the Brintnell 876S Substation.
With reference to statutory interpretation principles, the AUC rejected the CCA’s argument. The AUC held that all the words used in a legislative provision are to be considered in the interpretation of that provision, unless an absurd consequence results by doing so. The AUC considered that the legislature intended for the words, “or in the vicinity of” to provide the AESO flexibility in determining the end point.
Public Consultation
APL’s participant involvement program consisted of the following stages:
• Program initiation – early discussions with government agencies and industry.
• Public notification and open houses – preliminary route options announced, input sought.
• First round consultations – personal consultations on preliminary route options.
• Public notification of refined route options.
• Second round consultations – further consultations on refined route options.
• Resolution of concerns – route adjustments identified, mitigation options discussed.
• Notification of proposed route and facility application.
The AUC acknowledged that there remained some specific unresolved concerns of individual interveners. However, the AUC noted that for a project of such magnitude, proponents will inevitably fail to satisfy the expectations of some parties. The AUC held that its consideration of the adequacy of public consultation must assess the fundamental components of the participant involvement program as a whole, in light of the nature and scope of the project at hand, and determine whether the overall program satisfies the requirements of Rule 007.
The AUC found the APL successfully demonstrated that it undertook a comprehensive participant involvement program. The AUC noted that APL conducted multiple rounds of consultation, refining its project with each iteration and providing updates on the changes. The AUC considered that APL utilized effective communication tools including direct consultation, mail notifications, public open houses and community meetings.
Route Selection
In its application, APL identified a west route option, preferred west variant option, an east route option and an east route variant option.
The Figures on the following page show the options set out in the Application.
The AUC found that overall, the south common route and the west route option for transmission would result in lower social, economic and environmental impacts. The reasons for this determination are summarized below.
APL’s Route Assessment Methodology
APL used the following criteria to assess the options and determine a preferred route:
• Minimize impacts on other land uses, such as residences, built-up areas, oil and gas facilities, and airstrips.
• Utilize existing linear developments to minimize new disturbance and clearing, and follow existing power lines where practical.
• Follow existing roads, where practical, for access, to reduce new clearing, and to avoid impacts to the environment.
• Follow quarter and section lines wherever practical to minimize impact to agriculture.
• Keep routes as straight as reasonably possible, to reduce line length, workspace requirements, and costly corner structures.
• Minimize length through environmentally-sensitive areas, such as watercourses, recreation areas, parks, campgrounds, and wildlife habitat. Minimize length through wet areas and steep slopes for better access and to reduce environmental impacts.
• Ensure all electrical system constraints and considerations are respected.
The AUC explained that its objective in assessing route selection includes considerations re social, economic and environmental impacts of the proposed and alternative routes. Specifically, the AUC assessed the following routing criteria: agricultural impacts, residential impacts, visual impacts, electrical considerations, environmental impacts and cost (collectively, the “Routing Criteria”).
The AUC found that overall, APL’s approach and methodology in seeking viable routes was reasonable. The AUC held that APL ably applied the Routing Criteria in assessing the initial study area and in identifying preliminary route options and alternatives. The AUC agreed with APL’s assessment that the west route option and east route option along with the common portions of the routes, were the best alternatives among the available options.
Impact on Residences
With respect to impact on residences, the AUC noted that there were more residences within 150 metres of the transmission line on the west route option than on the east route option. On the other hand, the AUC noted there were fewer residences within 800 metres of the west route option. In addition, the AUC found that there were only incremental impacts on many residences along the west route option, as those residences were already effected by other existing transmission lines.
Given the large size of the proposed transmission line structures and the small number of residences within 150 metres, the AUC placed more weight on the “residences within 800-metres” metric rather than the “residences within 150 metres” metric.
The AUC concluded that the west route option was the most favorable route option from a residential impacts perspective.
Environmental Impacts
The AUC found that the Environmental Assessment report and the supplementary assessments completed by CH2M and Matrix (the “EA Report”) adequately addressed the anticipated impacts through the proposed mitigation measures.
In its application and submissions, APL committed to finalize and implement the environmental protection plan for the Project outlined in the EA Report.
With respect to the relative impact of the alternative routes, the AUC found that the west route option would have fewer potential residual environmental effects than the east route option. The AUC supported this finding with reference to the west route option scoring better on 6 of the 9 metrics used in the EA Report.
Caribou
The Commission agreed with APL’s submission that a caribou habitat restoration offset program would be most effective if directed by a provincial agency such as Alberta Environment and Parks.
As such, the AUC did not require APL to restore habitat as a condition of the Project’s approval.
To ensure the implementation of the proposed mitigation measures, the AUC included, as part of the Project’s approval, the following conditions
• APL shall abide by the caribou protection plan as approved by Alberta Environment and Parks for the project.
• Throughout the construction, APL shall engage in ongoing discussions with the AEP about the impacts of the Project on woodland caribou, and incorporate any additional mitigation measures recommended by Alberta Environment and Parks into the caribou protection plan.
Birds
The AUC found that the Project will negatively impact birds.
However, the AUC recognized that APL had committed to installing bird line markers every 20 metres for the portions of the transmission line located within 150 metres of significant open waterbodies or where important nesting sites had been previously identified.
The AUC also noted that APL had committed to conducted supplemental wildlife field surveys, in addition to those already conducted as part of the Environmental Assessment, in areas where the route had been realigned.
The AUC concluded that given the above mitigation measures, APL had made reasonable efforts to limit the impact on wildlife and wildlife habitat.
Aboriginal Consultation
The AUC cited Decision 2011-436, where the Commission made the following comments with respect to effective consultation under Rule 007:
… In the Commission’s view, effective consultation achieves three purposes. First, it allows parties to understand the nature of a project. Second, it allows the applicant and the intervener to identify areas of concern. Third, it provides a reasonable opportunity for the parties to engage in meaningful dialogue and discussion with the goal of eliminating or mitigating to an acceptable degree the affected parties concerns about the project. If done well, a consultation program will improve the application and help to resolve disputes between the applicant and affected parties outside of the context of the hearing
With respect to Aboriginal consultation regarding the Project, the AUC found that APL’s consultation with Aboriginal groups met the three objectives identified in Decisions 2011-436 above.
The AUC found that APL engaged in a dialogue with Aboriginal groups in an attempt to identify and potentially mitigate their concerns with the Project.
The AUC considered that the withdrawal of concerns by the majority of Aboriginal groups consulted by APL supported the AUC’s finding that APL made reasonable efforts to engage with Aboriginal groups in discussions about their members’ concerns.
Approval
The AUC found approval of the Project to be in the public interest, having regard to the social and economic effects of the facilities, and their effects on the environment.
Accordingly, the AUC approved the Project along the west route option.
