Review Application – Facilities – Standing
The Métis Nation of Alberta (“Métis”) filed an application pursuant to Rule 016: Review of Commission Decisions (“Rule 16”) with the AUC seeking a review of the AUC’s ruling which denied the Métis standing in Proceeding 21030, an application by Alberta PowerLine L.P. (“Alberta Powerline”) to construct the Fort McMurray West 500-kV Transmission Project (the “Project”) from the Wabamun area to the Fort McMurray area.
Alberta Powerline identified a preferred western route, and an alternate eastern route for the Project. Both routes as applied-for seek a 60 meter right-of-way to accommodate conductor swing under heavy wind conditions.
The Métis originally filed a statement of intent to participate (“SIP”) noting its concerns with the cumulative effects of the Project on northern wetlands and ecosystems, and the impacts on individual Métis members who exercise aboriginal rights along the length of the Project.
The AUC held that insufficient information was provided in the Métis SIP, and requested further information in respect of whether members of Métis were exercising rights on the land where the Project would be located. The Métis did not respond to this request, but later filed a letter requesting an extension on the time to file such information.
The AUC denied standing to the Métis, holding that while the Métis had met the first branch of the standing test, requiring that an individual demonstrate a legal right, the second branch of the test was not met. The second branch of the standing test generally requires that those seeking standing must file specific information related to the rights asserted, and demonstrate a degree of connection or proximity to the project in question. Accordingly the AUC found that the Métis did not demonstrate that the Project, if approved, may directly and adversely affect the exercise of the rights asserted by the Métis, and denied them standing.
The Métis, as part of its review application, did not take issue with the standing test as applied by the AUC, but submitted that there were new, previously unavailable facts that were not placed before the AUC, which may lead the AUC to materially vary its decision on standing.
The Métis submitted affidavits of four individuals who self-identified as rights-bearing Métis in the area through which the Project would pass, and provided evidence of traditional activities such as hunting, fishing, gathering and camping in the area near the Project right-of-way. The individuals expressed concerns about the potential impacts of the Project on their continued ability to exercise such rights, noting the cumulative impacts of the Project and other industrial development in the area. The Métis submitted that the affidavits demonstrated that the individuals, and by extension the Métis, demonstrated a connection between the proposed Project and the rights asserted.
The Métis also submitted that they were not aware of the Project in sufficient time to prepare the above evidence, and noted that it was not familiar with the AUC’s e-filing system.
Alberta Powerline did not take a position on the review application, but noted that it had provided notice to the regional councils of the Métis.
The AUC considered that prior to deciding on the merits of the Métis application, it must as a preliminary matter decide whether to grant leave to file the review application under section 3 of Rule 16, since the Métis was not a party to the proceeding. The AUC exercised its discretion to grant leave to the Métis to review the standing decision.
However, the AUC was not satisfied that the information in the affidavits could not have been discovered or provided before the standing ruling was issued, since the Métis were aware of the application by filing a SIP. Therefore, the AUC held that the Métis had not demonstrated that there were unique circumstances or new facts that would militate in favour of granting a review application. Accordingly, the AUC determined that the Métis had not met the review test set out in section 6(3)(b) of Rule 16, and therefore dismissed the review application.
Although the AUC affirmed its decision denying standing to the Métis, it considered that Métis Local #2010, Métis Local #2002, Métis Local #1909 and Métis Local #2907 (of which each of the individuals that provided affidavits were members) had standing to participate in Proceeding 21030, on the basis that at least one member of each Local exercises his or her aboriginal rights on or in close proximity to the right-of-way of the proposed transmission line routes for the Project.
