Request for Suspension of Hearing Process – Aboriginal Matters – Notice of Question of Constitutional Law
On August 4, 2017, the AER denied the request of the Fort McKay First Nation (“FMFN”) to suspend the hearing process for Prosper Petroleum Ltd.’s (“Prosper”) applications under the Oil Sands Conservation Act (“OSCA”), the Water Act and the Alberta Environmental Protection and Enhancement Act (“EPEA”) for its Rigel Project.
The AER allowed FMFN to file an amended Notice of Question of Constitutional Law.
Background
FMFN filed a Notice of Question of Constitutional Law on June 22, 2017 (the “NQCL”). On July 26, 2017, the Supreme Court of Canada (the “SCC”) rendered decisions in two cases: Clyde River (Hamlet) v. Petroleum Geo-Services Inc., 2017 SCC 40 (”Clyde River”) and Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., 2017 SCC 41 (“Chippewas of the Thames”). The AER considered the decisions to be relevant to the NQCL and asked the parties to provide their views about the relevance and impact of the decisions on the NQCL and the NQCL process.
In its submissions, FMFN asked the AER to suspend the hearing process for Prosper’s applications or, in the alternative, to give reasons for declining to suspend the hearing process and to provide a new schedule to allow FMFN to file an amended NQCL. FMFN submitted that it needed to incorporate its interpretation and application of the Clyde River and Chippewas of the Thames cases into its submissions on its NQCL.
The AER found that:
(a) the bulk of FMFN’s submissions were directed to the implications of the Clyde River and Chippewas of the Thames decisions for its NQCL; and
(b) this was not the appropriate time to address FMFN’s arguments about consultation and accommodation or the application of those decisions to the circumstances of this proceeding.
Form of Motion
The AER explained that Sections 46 and 44 of the Alberta Energy Regulator Rules of Practice (the “AER Rules”) provide that a party may file a written notice of motion asking for an adjournment of a hearing. A notice of motion is to be supported by affidavit evidence. The AER found that FMFN failed to make its request in the prescribed form and filed no affidavit evidence in support of its request. Prosper and Alberta did not raise any concerns about this. The AER found that since the request was clear and the hearing date was still more than two months away, no prejudice arose from the form of the request.
Request for Suspension of Hearing Process
FMFN submitted that:
(a) subsection 10(3) (c) of the OSCA gives the AER the authority to suspend the proceeding;
(b) subsection 7(3) of the Lower Athabasca Regional Plan Regulatory Details Plan (the “Regulatory Details Plan”) provides that if there are circumstances in addition to or other than those identified in paragraphs (a) and (b) of that subsection, then the AER may adjourn (or in this case suspend) the proceedings;
(c) to carry on the hearing process would impair the ability of the promise of Moose Lake Access Management Plan (“MLAMP”) to be fulfilled, which the FMFN characterized as a “constitutional promise” and as “accommodation”; and
(d) continuing with the hearing process might result in non-compensable damage.
The AER noted that subsection 7(3) of the Regulatory Details Plan required the AER to “not adjourn, defer, deny, refuse or reject any application, proceeding or decision-making process before it by reason only of the incompletion of a sub-regional plan, such as MLAMP.”
The AER found that FMFN failed to establish that there were circumstances other than or in addition to the incomplete status of the MLAMP that would warrant a suspension of the hearing process.
The AER noted that the Clyde River and Chippewas of the Thames SCC decisions reaffirmed a number of key principles. The AER found that principles relevant to FMFN’s request that the hearing process be suspended were as follows:
(a) a hearing process may form part of the Crown’s consultation process if the Crown has clearly communicated its intention to the relevant First Nation; and
(b) First Nations must engage in the consultation process.
The AER further found that:
(a) section 21 of the REDA prevented the AER from assessing the adequacy of Crown consultation; and
(b) FMFN had not persuaded the panel that it should interfere in the consultation process by suspending the AER hearing process.
With respect to FMFN’s submission that continuing with the hearing process might cause non-compensable damages, the AER found:
(a) if approved, Prosper’s applications under the Water Act and EPEA would only be operationalized if its application under the OSCA was approved;
(b) after hearing and considering the evidence and submissions of the parties, the AER may decide to refuse or to grant the OSCA approval;
(c) if the decision is to grant the OSCA approval, it is too early to know what conditions would be attached beyond any standard terms and conditions; and
(d) in any event, according to subsection 10(3) of the OSCA, if the AER finds it in the public interest to do so, it may only grant Prosper’s application for approval of an oil sands recovery scheme with the prior authorization of the Lieutenant Governor in Council.
The AER concluded that FMFN’s submissions about possible harm that may result from the hearing proceeding were purely speculative and premature at this point. For these reasons, the AER decided not to exercise its discretion to suspend the hearing process.
NQCL Amendment
Prosper objected to FMFN’s request to amend its NQCL. Prosper argued that it would be “unfair, inefficient and prejudicial to Prosper”. Prosper submitted that since FMFN had seen its submissions and those of Alberta, FMFN would have an unfair advantage. Prosper also stated that an amended NQCL would result in extra time and resources being directed to the NQCL.
In allowing FMFN’s request to amend its NQCL, the AER found that:
(a) the rules and regulations that explicitly deal with notices of questions of constitutional law in AER proceedings are silent on whether a notice of question of constitutional law, once filed, may be amended;
(b) with respect to Prosper’s concerns about fairness, efficiency and prejudice, Prosper and Alberta would have the opportunity to respond fully to whatever amendments and accompanying submissions FMFN might make;
(c) concerns about efficiency and impact on the hearing process were factors that could be taken into account in an application for costs; and
(d) the timeline established did not result in a delay of the oral hearing.
