Leave Application – Review of AUC Decision
In this decision, an AUC review panel considered whether to grant leave to Paul First Nation to file an application for review of Decision 21030-D02-2017 approving Alberta PowerLine General Partner Ltd.’s application to construct the Fort McMurray 500-Kilovolt Transmission Project.
For the reasons summarized below, the review panel denied the leave request.
Paul First Nation Leave Request
Paul First Nation submitted that it holds and exercises Aboriginal and Treaty No. 6 rights throughout its territory, under Section 35 of the Constitution Act. It added that the project is directly adjacent to Wabamun Indian Reserve 133A lands and former reserve lands and that it will prima facie directly and adversely affect Paul First Nation. Further, Paul First Nation submitted that it was identified by the Alberta Consultation Office as a First Nation that will be affected and requires consultation. It cited Alberta PowerLine’s participant involvement program and Decision 21030-D02-2017 in support.
Paul First Nation acknowledged that it did not participate in Proceeding 21030. It added that in order to grant leave, the Commission requires the existence of extraordinary circumstances that prevented Paul First Nation’s participation in Proceeding 21030. It submitted that it was unable to gain standing due to leadership and staff transitions, and capacity constraints which limited Paul First Nation’s ability to successfully apply for standing. More particularly, Paul First Nation contended that it had applied for standing in Proceeding 21030 and that the attachment to the standing application was not received by the Commission and follow-up communications from the Commission to Paul First Nation were inadvertently overlooked due to a transition in staff and lack of a consultation manager.
Principles re Review of AUC Decisions
The AUC stated that the review process is not intended to allow parties, who had notice of a proceeding, a second opportunity to challenge a project that they oppose. The AUC noted that such an approach would be inefficient, unfair and create considerable regulatory uncertainty.
The AUC explained that section 3(2) of AUC Rule 016: Review of Commission Decisions (“Rule 016”) grants broad discretion to a reviewing panel’s decision whether to grant leave to review. With respect to applications for review filed outside the timelines set out in Section 3(3) of Rule 016, the AUC noted the following factors considered in previous AUC decisions regarding applications for review:
• whether a person had effective notice of a hearing and a fair opportunity to pursue his or her issues before the Commission in the first instance;
• the nature of the proceeding that led to the original decision (e.g. written process or full public hearing);
• whether the issues the review applicant intends to raise were issues considered in the original proceeding;
• whether other, extraordinary circumstances existed that prevented the participation of the person;
• whether upon learning of a decision or approval, the person acted expeditiously to initiate a review of that decision;
• whether approval of the project had the potential to materially affect a person’s future use of their property; and
• the potential prejudice to the original application from allowing a person to file a review application outside of the timeline specified in Rule 016.
In light of the above principles and factors, the review panel found that the Paul First Nation’s leave request raised two issues, namely:
(a) whether Paul First Nation had effective notice of Proceeding 21030, the hearing, and a fair opportunity to participate; and
(b) in light of the nature of the proceeding, whether Paul First Nation had made a case for the existence of extraordinary circumstances.
The review panel found that Paul First Nation had adequate notice of Proceeding 21030 and fair opportunity to participate, but that other than filing a statement of intent to participate, Paul First Nation did not follow up when asked to do so or take any other steps to bring its concerns with the project forward.
The review panel found that granting leave:
(a) would be contrary to the principle of finality of an AUC decision; and
(b) would afford Paul First Nation a second opportunity to make submissions on the issues considered in the proceeding such as historical resource impact assessment.
No Exceptional Circumstances
The review panel went on to consider whether Paul First Nation had demonstrated exceptional circumstances.
With respect to the extraordinary circumstances advanced by Paul First Nation, the review panel found that:
(a) there was no support for the submission that leadership transitions or capacity constraints prevented Paul First Nation from participating in the proceeding; and
(b) Paul First Nation had the opportunity to file information regarding its rights and concerns and to ask for further information, but chose not do so.
Decision
The AUC found that Paul First Nation was not deprived of notice or a fair opportunity to participate in Proceeding 21030 and that it had not demonstrated the existence of extraordinary circumstances preventing it from participating in the proceeding. The AUC review panel therefore dismissed the leave request of Paul First Nation.
