Leave to Appeal – Dismissed
The O’Chiese First Nation applied for leave to appeal to the Alberta Court of Appeal (the “ABCA”), to appeal two decisions of the AER:
(a) One dated July 9, 2015 (the “Rocky 5 and Rocky 6 Decision”); and
(b) Another dated July 9, 2015 (the “Rocky 24 Decision”).
(collectively, the “Decisions”).
Shell Canada Limited (“Shell”) had applied to the AER for approval of two natural gas pipelines, (“Rocky 5” and “Rocky 6”).
Shell also applied for a mineral surface lease for a petroleum and natural gas well site and a licence of occupation for the use of a road, both under the Public Lands Act and under the Enhanced Approval Process which allows for streamlined applications and abbreviated timelines (collectively, “Rocky 24”).
The O’Chiese First Nation is located approximately 20 kilometers from the lands to which the Decisions apply. The O’Chiese First Nation argued that its aboriginal treaty rights would be directly and adversely affected by any development within the O’Chiese First Nation Consultation Area. This area was established by the Department of Aboriginal Affairs for the Government of Alberta to assist in discharging the duty to consult. A main point of the O’Chiese First Nation’s argument was that once a development had taken place, its traditional treaty rights are lost over the area of the development.
The AER had originally held in the Rocky 5 and Rocky 6 Decision that the O’Chiese First Nation was not eligible to request a regulatory appeal pursuant to section 36 and 38 of the Responsible Energy Development Act (the “REDA”), on the basis that the O’Chiese First Nation was not a person directly and adversely affected by an “appealable decision”.
In the Rocky 24 Decision, the AER similarly held that the O’Chiese First Nation was not directly and adversely affected by the decision rendered under the Public Lands Act.
The AER, in rendering the Rocky 5 and Rocky 6 Decision, held that the concerns raised by the O’Chiese First Nation were general in nature, and did not provide sufficient information to the AER to demonstrate how any potential approval may directly and adversely impact them. The AER also held that the O’Chiese First Nation was required to establish some degree of location or connection between the work proposed and the rights asserted, which the AER characterized as a question of fact.
The O’Chiese First Nation submitted that the AER erred in law in ruling that the O’Chiese First Nation was not eligible to request a regulatory appeal on the grounds that the O’Chiese First Nation was not directly and adversely affected by the AER’s issuance of the Decisions.
McDonald J.A. cited the appropriate test for leave to appeal from the AER as being governed by section 45(1) of the REDA, which limits appeals to the Alberta Court of Appeal to questions of law or jurisdiction. McDonald J.A. also cited a four point test developed by Hunt J.A. in Bearspaw Petroleum Ltd. v Alberta Energy and Utilities Board which provides that an application for leave to appeal must demonstrate a serious arguable point, including:
(a) Whether the point on appeal is of significance to the practice;
(b) Whether the point raised is of significance to the action itself;
(c) Whether the appeal is prima facie meritorious or frivolous; and
(d) Whether the appeal will unduly hinder the progress of the action.
McDonald J.A. did not analyze at length the application of defined terms such as “eligible person” in the REDA in determining whether the O’Chiese First Nation was indeed an eligible person. The primary reason being that the O’Chiese First Nation adduced no evidence whatsoever with respect to how its treaty rights would be impacted by the Decisions.
However, the O’Chiese First Nation acknowledged this, arguing that any development within its consultation area was evidence in and of itself of the loss of its traditional treaty rights within the development itself.
While the O’Chiese First Nation submitted that its question on appeal was a question of law, McDonald J.A. determined that the AER in effect applied a legal standard to a specific set of facts. Therefore, the question on appeal was characterized as one of mixed fact and law, and therefore not capable of forming the basis of an appeal to this court under section 45(1) of the REDA.
McDonald J.A. held that a decision of the AER, as a matter of fact, can directly and adversely affect a party, but that such a determination must be considered in light of the evidence and facts before it. Therefore the words “directly and adversely affected” are not strictly engaged as a matter of law.
McDonald J.A. held that while the appeal itself was important, it ultimately fell short by conflating the findings of the AER that the O’Chiese First Nation was not directly and adversely affected under the statutory language of the REDA and the Public Lands Act, with the adequacy of the Crown’s duty to consult.
In the result, McDonald J.A. held that the O’Chiese First Nation had not raised a “serious arguable point” in the matter, as it had failed to adduce any evidence before the AER on the matter, and accordingly dismissed both applications.
