Regulatory Appeal – Water Act – Aboriginal Rights
Samson Cree Nation (“Samson Cree”) filed five regulatory appeal requests. Each request related to approvals issued by the AER to Encana Corporation (“Encana”) for its proposed construction and operation of an integrated water, gas gathering and fuel gas infrastructure as part of its proposed hydraulic fracturing project located about 20 km west of Fox Creek, AB (the “Project”).
The AER denied the Samson Cree appeal request on the basis that:
• Samson Cree had not demonstrated that it will be directly and adversely affected, or directly affected (as the test may be), by any of the Project applications;
• For the appeal request regarding a certificate issued to Encana under the Water Act, the Samson Cree did not file a statement of concern and is therefore not an “eligible person,” and the AER decision to issue the certificate is not an “appealable decision” under the Responsible Energy Development Act (“REDA”); and
• Samson Cree’s request for appeal of the AER’s September 26, 2014 approval decision of Encana’s fresh water storage reservoir was not filed within the 7 day limitation period and therefore not filed in accordance with AER rules.
The AER cited the ABCA decision in Dene Tha’ First Nation v Alberta (Energy and Utilities Board, 2005 ABCA 68 (“Dene”), where the ABCA discussed the “directly and adversely affected” test in the context of Aboriginal rights.
In Dene, the court stated at paragraph 14:
[The Board] is not compelled by this legislation to order intervention and a hearing whenever anyone anywhere in Alberta merely asserts a possible aboriginal treaty or right. Some degree of location or connection between the work proposed and the right asserted is reasonable. What degree of is a question of fact for the Board.
The AER held that the Samson Cree had not established specific locations where its members might be affected, or specific ways in which they might be affected by the Project. The AER noted that the Samson Cree provided extensive submission describing the Samson Cree’s treaty and other aboriginal rights, and summarized generally thegroup’s exercise of those rights. However, the AER held that Samson Cree did not provide sufficient detail to establish the requisite degree of location or connection with the Project to demonstrate the potential that Samson Cree members might be affected by the AER decisions.
