First Nation "Duty to Consult" process undermined by Ontario Energy Board in ruling
Ontario Regulator Rules That Aboriginal Consultation Need Not Be Completed Before Regulatory Approval Granted
November 5, 2008 - Patrick G. Duffy
Electricity transmitters developing new transmission lines in Canada face considerable uncertainty over the duty to consult with Aboriginal communities. One of the outstanding issues is whether such consultations must be completed before transmitters can obtain regulatory approval for their projects. A recent decision from the Ontario Energy Board (OEB) indicates that the entire consultation process need not be completed before any regulatory approvals are granted, provided that the regulator is satisfied that a workable process is in place to address the concerns of Aboriginal communities.
The issue arose when an Ontario transmitter applied to the OEB for leave to construct for a 500 kV transmission line from Bruce to Milton. A number of intervenors argued that leave could not be granted until the duty to consult had been satisfied. In its September 15, 2008 decision, the OEB rejected these arguments and granted leave, making some significant findings in an area that, as it noted, is devoid of "definitive guidance from the courts".
Notably, the OEB accepted some responsibility for assessing the adequacy of the Crown's consultation, but limited that responsibility to consultation on matters within its jurisdiction. Consequently, the OEB ruled that leave could be granted if adequate consultation had been undertaken on matters within its jurisdiction, even if consultation for the entire project was not yet completed.
In support of its position, the OEB stated that there is "only one Crown" and that "confusion and uncertainty and the potential for duplication and inconsistency" would result if each Crown actor involved in an approval for a project undertook consultation for the entire project. The OEB also expressed concern that waiting for the completion of consultation for the entire project could lead to a circular situation in which each Crown actor is unable to render a final finding on consultation while it awaits the completion of other processes.
Based on the evidence provided, the OEB concluded that granting leave for the project would not adversely affect any Aboriginal or treaty rights. While Aboriginal consultation for the project was "clearly not complete", the panel identified the issues raised by Aboriginal intervenors as related to the environmental assessment process, which was beyond OEB's jurisdiction and under the control of another Crown actor, the Minister of the Environment. In addition, the OEB stated that a review of consultation for the project as a whole was unnecessary in this specific case as, for reasons unrelated to Aboriginal consultation, the leave to construct order was conditional on the successful completion of the environmental assessment process.
The OEB's approach to this issue is similar to that taken by the British Columbia Utilities Commission (BCUC) in several recent decisions where the BCUC held that a review of the duty to consult for a transmission project can be deferred to the environmental assessment process. One of the BCUC's decisions is currently under appeal to the British Columbia Court of Appeal (see Kwikwetlem First Nation v. British Columbia Utilities Commission, 2008 BCCA 208). The outcome of that appeal may be to fill the void of definitive judicial guidance on this issue to which the OEB referred in its decision.