Decision 20581-D02-2016
EPCOR Distribution & Transmission Inc.
Rossdale Substation Building Expansion
May 13, 2016
Alberta Utilities Commission Decision 20581-D02-2016 EPCOR Distribution & Transmission Inc. Rossdale Substation Building Expansion Proceeding 20581 Application 20581-A001
May 13, 2016
Published by the: Alberta Utilities Commission Fifth Avenue Place, Fourth Floor, 425 First Street S.W. Calgary, Alberta T2P 3L8
Telephone: 403-592-8845 Fax: 403-592-4406
Website: www.auc.ab.ca
Contents
1 Introduction ...... 1
2 Process ...... 2
3 Legislative scheme for facility applications ...... 3
4 Application details ...... 3
5 Historical and cultural impacts ...... 6 5.1 EDTI ...... 6 5.2 Samson Cree ...... 9 5.3 Mr. Delorme and Mr. Fromhold ...... 10 5.4 Commission findings ...... 11
6 Participant involvement ...... 13 6.1 EDTI ...... 13 6.2 Samson Cree ...... 16 6.3 Commission findings ...... 16
7 Visual impacts ...... 17 7.1 Commission findings ...... 18
8 Findings ...... 18
9 Decision ...... 19
Appendix A – Proceeding participants ...... 20
Appendix B – Oral hearing – registered appearances ...... 21
Appendix C - Commission ruling on notice of constitutional question ...... 22
Appendix D – Summary of Communications between EDTI and the Samson Cree...... 30
Decision 20581-D02-2016 (May 13, 2016) • i
Alberta Utilities Commission Calgary, Alberta
Decision 20581-D02-2016 EPCOR Distribution & Transmission Inc. Proceeding 20581 Rossdale Substation Building Expansion Application 20581-A001
1 Introduction
1. In this decision, the Alberta Utilities Commission decides whether to approve an application by EPCOR Distribution & Transmission Inc. (EDTI) to expand its existing Rossdale substation.1 The application stated that the alteration is needed to accommodate new electrical equipment to ensure that the power supply at the substation is safe and reliable. The proposed alteration would consist of relocating 15-kilovolt (kV) equipment and extending the existing Rossdale substation building within the existing perimeter fence.
2. The substation is located in the Rossdale Flats area of Edmonton. The Rossdale Flats area was the location of at least two historic fur trade establishments, Edmonton House and Fort Augustus and a gathering place for First Nations. The existing Rossdale substation is adjacent to a cemetery site and traditional burial ground associated with the fur trading posts.
3. The Samson Cree Nation intervened in the proceeding because it was concerned that construction of the project could unearth human remains or cultural artifacts important to it.
4. A public hearing to consider the application was held in Edmonton, Alberta on December 9 and 10, 2015. The two main issues raised in the hearing were the adequacy of EDTI’s plan to deal with any artifacts or human remains encountered during the project’s construction and the adequacy of EDTI’s consultation with the Samson Cree Nation.
5. After consideration of the record of the proceeding, and for the reasons outlined in this decision, the Commission finds that approval of the project is in the public interest having regard to the social and economic effects of the project and its effects on the environment.
6. In reaching the determinations set out within this decision, the Commission has considered all relevant materials comprising the record of this proceeding. Accordingly, references in this decision to specific parts of the record are intended to assist the reader in understanding the Commission’s reasoning relating to a particular matter and should not be taken as an indication that the Commission did not consider all portions of the record with respect to the matter.
1 The Rossdale substation is located in the city of Edmonton and is owned and operated by EDTI pursuant to Permit and Licence 20421-D03-2015 (Proceeding 20421, Application 20421-A002, June 26, 2015).
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2 Process
7. EDTI filed its application with the AUC on June 30, 2015. It was registered as Application 20581-A001 in Proceeding 20581. The Commission issued a notice of application for the proceeding on July 27, 2015. The Commission received submissions from the following interested parties in response to the notice of application:
Asini Wachi Nehiyawak Traditional Band (Mountain Cree) Gerald Delorme Rossdale Community League Samson Cree Nation (Samson Cree)
8. These parties expressed concerns regarding notification for the project, the proximity of the project to traditional burial grounds and the old Fort Edmonton cemetery, and potential wildlife and visual impacts.
9. On September 10, 2015, the Commission ruled that the Samson Cree had standing to participate in the proceeding but that the Mountain Cree, Mr. Delorme and the Rossdale Community League had failed to demonstrate that they had rights that may be directly and adversely affected by the Commission’s decision. The Commission granted each of these parties the opportunity to make a brief statement at the hearing and allowed them to provide further information regarding their standing to participate in the hearing.
10. After receiving additional submissions from the Mountain Cree and Mr. Delorme, the Commission again found that neither the Mountain Cree nor Mr. Delorme had met the test for standing under Section 9(2) of the Alberta Utilities Commission Act. However, the Commission repeated its offer to allow these two parties to make a brief oral statement at the hearing.
11. The Samson Cree filed a budget submission for advance local intervener funding pursuant to Section 2 of Rule 009: Rules on Local Intervener Costs. The Commission awarded the Samson Cree advance funding in the amount of $23,200.00 for legal fees, general consulting fees and honoraria for elders and knowledge holders on October 23, 2015.2
12. The application was deemed complete on September 16, 2015, the day upon which the Commission issued its notice of hearing stating that a public hearing would be held in Edmonton on December 9, 2015.
13. On December 9, 2015, a division of the Commission consisting of Commission members Tudor Beattie, QC and Neil Jamieson and Acting Commission member Patrick Brennan held a public hearing at the AUC Edmonton Office Hearing Room. Tudor Beattie was the panel chair.
14. During final argument on December 10, 2015, counsel for the Samson Cree argued that the Crown had not fulfilled its duty to consult with it about the potential effects of the project on its aboriginal and treaty rights. Because the Commission had no jurisdiction to consider this constitutional question until the Crown had been notified, pursuant to the
2 Decision 20581-D01-2015: EPCOR Distribution & Transmission Inc. - Application to Expand the Rossdale Substation Building Advance Funding Award, Proceeding 20581, Application 20581-A001, October 23, 2015.
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Administrative Procedures and Jurisdiction Act, it adjourned the hearing and directed the Samson Cree to notify the Crown.
15. Notice was given and a process for parties to address the issue was established. On March 3, 2016, the Commission dismissed the constitutional question in a short ruling and stated that it would provide its reasons for that ruling in this decision. Those reasons are found in Appendix C of this decision.
16. On March 10, 2016, EDTI submitted its final reply argument in writing.
17. The Commission considers that the record for this proceeding closed on March 11, 2016, when the Commission issued a letter to EDTI regarding the timing of the decision for the application.
3 Legislative scheme for facility applications
18. The Commission regulates the construction and operation of transmission facilities in Alberta. Section 14 of the Hydro and Electric Energy Act states that no persons shall make a significant extension or alteration of a transmission line3 without the approval of the Commission.
19. When deciding whether the approval of an application for a substation alteration is in the public interest, the Commission must have regard for the purposes of the Electric Utilities Act and consider the social, economic and environmental effects of the alteration.4
20. Further, Rule 007: Applications for Power Plants, Substations, Transmission Lines, Industrial System Designations and Hydro Developments applies to applications for substation alterations. An application must meet the informational and other requirements set out in Rule 007. Specifically, an applicant must provide technical and functional specifications, information on public consultation, and environmental information.
21. A needs identification document application, as described in Section 34 of the Electric Utilities Act, was not required for the proposed alterations as they would not result in an expansion or enhancement of the capability of the transmission system, rather they were proposed to improve the safety and reliability of the Rossdale substation.
4 Application details
22. The Rossdale substation is located within a larger area known as the Rossdale Site. The site includes the Bellamy substation, the former Rossdale generating station, and other facilities owned by EPCOR Water Services Inc. The site is surrounded by a perimeter fence owned by EPCOR Water Services Inc. A map of the Rossdale Site is shown in Figure 1.5
3 “transmission line”, as defined in subsection 1(1)(o) of the Hydro and Electric Energy Act; includes substations. 4 As required by Section 17 of the Alberta Utilities Commission Act. 5 Exhibit 20581-X0011, Application – Appendix E, page 5 (with the addition of a circle indicating the Rossdale substation building location).
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Figure 1 – Rossdale Site Map
23. The Rossdale Site is located in an area considered by Alberta Culture and Tourism (ACT) to be an archaeological site, known as the “Rossdale archaeological site”. In a report filed as part of EDTI’s rebuttal evidence, Ms. Nancy Saxberg, a professional archaeologist with AMEC Foster Wheeler, explained that valuable heritage structures and archaeological, cultural and palaeontological resources have been recorded within the vicinity of the project.6
24. The application proposed to expand the existing Rossdale substation building7 to accommodate the installation of new 15-kV switchgear8 into which eight network feeders would be transferred.9 The application stated that the development was needed to reduce high fault levels on the 15-kV buses at the substation and to replace aging equipment.
25. The substation building expansion would consist of a larger section, approximately 18x10 metres, and a smaller section, approximately 7x7 metres, on the north side of the building. The height of the building expansions would match that of the existing building.
6 Exhibit 20581-X0073, page 3. 7 The location of the substation building is circled on Figure 1. 8 Disconnect switches, fuses and circuit breakers used to isolate electrical equipment. 9 The new switchgear lineup would consist of 12 installed feeder breakers in the new building; however, four would be left for future use, since adding breakers later would require a complete outage of the switchgear which would disrupt power services.
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26. The application also proposed to replace aging equipment and relocate existing equipment to accommodate the new equipment configuration that would be required at the substation. Specifically, EDTI proposed to:
Remove the existing current limiting electrical equipment and install similar new equipment on the east side of the substation building. Install cable trays from the new current limiting electrical equipment to the substation building. Remove the two station service transformers and two switching cubicles. Install two station service transformers and one switching cubicle on the northwest side of the substation building. Install one switching cubicle northeast of the existing Bellamy terminal station building (west of an existing underground concrete vault).
27. The project also included the construction of a new permanent access road on the north side of the substation building.
28. The expected in-service date for the proposed project was December 31, 2017. However, EDTI stated that construction may “go into 2018” given the delay caused by the need for a public hearing.10
29. The proposed alterations would occur within the existing substation property boundaries and there would be no changes required to the existing fenceline, however, sections could be temporarily removed for construction access and reinstalled after completion of the project.11
30. No noise producing equipment is being added or replaced thus EDTI considered that the noise levels at nearby dwellings, which are separated from the substation by a heavily travelled four-lane urban roadway,12 would not be affected by the proposed project.
31. EDTI explained that the Rossdale Site is located within the Rossdale Flats area just south of downtown Edmonton, which has been the location of various rail, industrial and public utility developments dating back to at least 1952. As such, none of the native natural environmental features remain on the site.13
32. EDTI considered the potential for encountering contamination during this project by reviewing previous environmental assessments of the site. EDTI found that there was no indication that historical releases of any substances, regulated under the Environmental Protection and Enhancement Act, had occurred at the project site.14 A new environmental impact assessment was not required by Alberta Environment and Parks for the proposed project.
10 Transcript, Volume 1, page 87. 11 Exhibit 20581-X0032, page 4, Section 2.1.2. 12 Exhibit 20581-X0002, paragraph 93. 13 Exhibit 20581-X0002, paragraph 108. 14 Exhibit 20581-X0032, page 14, Section 4.2.1.
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33. EDTI prepared an environmental screening report with the City of Edmonton due to the substation’s location within the North Saskatchewan River Valley. The report was used to develop a project-specific environmental protection plan and environmental construction operation plan (ECO plan) which outlined the proposed activities and mitigation measures EDTI intended to implement to minimize potentially adverse environmental impacts from the project.
34. EDTI anticipated removing 12 trees to accommodate the proposed building expansion. EDTI has stated it would work with the City of Edmonton’s Urban Forester to replant 13 trees and 16 shrubs.15 EDTI would conduct these tree removal activities outside of the restricted activity periods for migratory and non-migratory birds.16
35. EDTI asserted there would be no new material impacts to terrain, wetlands, groundwater, surface water, air quality, drainage or aquatic resources because the project would be on a previously disturbed lot. EDTI considered that potential environmental impacts would be related to the construction of the project and that the operational impacts would be negligible.17
5 Historical and cultural impacts
5.1 EDTI 36. Ms. Saxberg stated that historical resources in Alberta are protected by the Historical Resources Act, which is administered by ACT. Under Section 1(e) of that act, historical resources are defined as:
... any work of nature or of humans that is primarily of value for its palaeontological, archaeological, prehistoric, historic, cultural, natural, scientific or aesthetic interest including, but not limited to, a palaeontological, archaeological, prehistoric, historic or natural site, structure or object.18
37. EDTI submitted that “a historical resources review was undertaken by AMEC Foster Wheeler” under Ms. Saxberg’s direction “for lands within the Project area for the purpose of identifying areas potentially applicable to further historical resources assessment. The objective of the review was to assess the potential for archeological, historical, or palaeontological sites to occur on lands that will be affected by the Project. Following this assessment, a Statement of Justification (SOJ) was prepared and submitted to ACT to obtain HRA [Historical Resources Act] approval and/or requirements.”19
38. Ms. Saxberg stated that according to ACT:
The area defined as the Rossdale archaeological site includes the EDTI property on the Rossdale Flats and portions of the surrounding lands to the east and west. The archaeological site is valuable due to the presence of the remains of a fur trade period cemetery and at least two fur trade establishments...Some evidence of a precontact Aboriginal occupation has also been identified, but never in abundance and with little
15 Exhibit 20581-X0032, page 4, Section 2.1.2. 16 Exhibit 20581-X0077, page 8. 17 Exhibit 20581-X0002, paragraph 112. 18 Exhibit 20581-X0073, page 1. 19 Exhibit 20581-X0032, page 12.
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patterning. The cemetery area has been designated by the City of Edmonton as a commemorative area.20
39. The cemetery area was described in Ms. Saxberg’s report and in other materials filed in the hearing as the traditional burial ground/Fort Edmonton Cemetery.
40. Ms. Saxberg stated that the cemetery area was likely used from about 1814 to 1871. She explained that research excavations revealed evidence of a “former wooden palisade-style fence that formerly surround the cemetery and several grave outlines.”21 She stated that other graves had been accidentally encountered on the Rossdale archaeological site in the late 19th century and in the 1960s and 1981.
41. Ms. Saxberg provided an overview and summary of the results of the 12 archeological investigations that have occurred within or partially contained by the project site since 1977.22 She reported that no human remains or graves were observed and very few historical artifacts were found with the exception of disarticulated human remains in a fill deposit in the southeast corner of the project area.23
42. Ms. Saxberg stated that those remains were not considered to have come from graves in the immediate area. Instead, she believed that those remains had originally come from the known cemetery based on observations of the subsoil they were found in. Ms. Saxberg believed that it was reasonable to conclude that human burials would not be found in the project area.
43. Ms. Saxberg explained that the project area boundary is approximately 65 metres east of the known fenceline of the burial grounds and the places where intact burials and other human remains have been found. Ms. Saxberg asserted that “it’s a reasonable assumption based on archeological data that the traditional burial ground does not extend into” the project area.24
44. ACT granted Historical Resources Act approval for the substation expansion, transmission upgrades and switching cubicle relocation to EDTI on December 4, 2015. The approval required a historic resources impact assessment for archaeology which was to consist of a monitoring program.25
45. EDTI stated that a combination of hydrovac and mechanical excavation would be used in the project area. EDTI stated that hydrovac excavation is a safe, cost-effective and archeologically appropriate method of excavation. EDTI observed that Ms. Saxberg described hydrovaccing as an acceptable method for excavation if the hydrovac operators and monitoring archeologists are experienced, have good communication and are vigilant.26 EDTI committed to using a team of hydrovac operators who have experience working in the Rossdale area and have prior experience working closely with archeological monitors for this project.27
20 Exhibit 20581-X0073, page 3. 21 Ibid. 22 Exhibit 20581-X0073. 23 Exhibit 20581-X0073, page 11. 24 Transcript, Volume 1, page 59. 25 Exhibit 20581-X0079. 26 Exhibit 20581-X0074, page 2. 27 Exhibit 20581-X0068, page 14.
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46. EDTI stated that a small backhoe would be used for the four metre by four metre excavation in the vicinity of the existing vaults in the southeast corner of the project area where disarticulated human remains were found in fill material in 2001. It explained that if human remains or artifacts are found in that excavation, the method used would immediately be changed to hand excavation.28
47. EDTI stated that excavations at all locations would be monitored by a qualified archeologist with experience working on this particular site and similar sites. EDTI pointed out that this goes beyond both the recommendation of Ms. Saxberg to monitor two locations and the Historical Resources Act clearance which only required monitoring of one location.
48. EDTI stated that it had developed two separate protocols in the event that historic artifacts or human remains or graves were discovered.
49. In the event historic artifacts are found, work would immediately stop and access to the location would be blocked. The site supervisor and project manager would be advised. The project archaeologist, who would be monitoring the excavation, would then identify the historical artifact and assess its significance. The project manager and archaeologist would notify ACT and the EPCOR Public and Government Affairs group. Depending on the identification and significance of the discovery, and with the consent of ACT, EDTI would notify interested First Nations groups. Ms. Saxberg explained that consent from ACT is required due to confidentiality agreements with respect to historic sites and artifacts.29 Finally, a mitigation plan would be developed to continue with the project.30
50. In the event human remains or graves are found the same protocol would be followed except the Edmonton Police Service would be notified31 since human remains are not covered by the Historical Resources Act.32 Also, First Nations groups would be notified of any human remains found without a further assessment of how significant the find is.33 Furthermore, EDTI committed to consult with the Samson Cree regarding reburial protocols should remains be found.34
51. EDTI testified that it considered the concerns of aboriginal groups including the Samson Cree. In order to mitigate the concerns of these nations, EDTI stated it will provide them with the opportunity to observe the excavations.35 In the interest of safety, since the excavations would be on a construction site in an energized substation, EDTI determined that a maximum of two observers could be on-site at a time,36 thus construction monitoring would have to be shared among nations.
28 Transcript, Volume 2, page 205. 29 Transcript, Volume 1, page 54. 30 Exhibit 20581-X0077, PDF page 28 and Transcript, volume 1, pages 67-70. 31 Exhibit 20581-X0077, PDF page 29. 32 Transcript, Volume 1, page 68. 33 Transcript, Volume 1, page 75. 34 Transcript, Volume 1, page 62. 35 Transcript, Volume 1, pages 43-44. 36 Transcript, Volume 1, page 57.
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52. EDTI argued that it should not be mandated to give preferential treatment to one nation over others. EDTI committed to work with the First Nations that have asked to have monitors present on-site to come up with an acceptable approach to facilitating observation of excavation work.37
53. EDTI argued that it had developed reasonable and adequate mitigation measures that would address all relevant potential impacts on the Samson Cree’s interests and there was no need for the Samson Cree’s suggested condition.38
5.2 Samson Cree 54. The Samson Cree asserted that the area known as Rossdale Flats has been a significant historical site for the Samson Cree and other First Nations people. The Samson Cree explained that its oral histories indicate that it was a location for sacred ceremonies, social gatherings, celebrations, and trading.39 It stated that “any work, whether artifacts and human remains have been found at that location or not, should be carried out in the most respectful way possible, given the history of the area as a sacred and ceremonial site to several of Alberta’s First Nations.”40
55. In argument the Samson Cree submitted that, based on its oral history and traditional knowledge, the burial ground is actually much larger than the area defined by EDTI and its archeologist.41 It asserted that the project application did not consider the nation’s oral history and that EDTI failed to demonstrate that the desktop reviews it relied on considered the nation’s oral history.
56. Mr. Herbert Lightning, a witness for the Samson Cree, asserted that there is a strong possibility that more cultural heritage property and artifacts will be found in the proposed substation expansion area since there have already been bones found in that area.42 The Samson Cree’s other witness, Ms. Kyra Northwest, acknowledged that the human remains found in the substation expansion area were likely brought there from some other location. 43 However, she observed that there could still be more remains in that area and that it was important to be careful in such situations. Ms. Northwest stated in that regard that the Samson Cree were “fine” with EDTI’s plan for excavations near the site where human remains had previously been found.44
57. When asked about EDTI’s plan to have two First Nation monitors on-site during excavation, with rotating participation from interested First Nations, Mr. Lightning stated that he had no comments. Ms. Northwest explained that a similar approach was used for the Walterdale Bridge project in Edmonton, which is adjacent to the Rossdale Site. She stated that one limitation with rotating monitors for that project was that the Samson Cree did not get all the information it needed. She explained that the purpose of having First Nation monitors on such
37 Exhibit 20581-X0155, page 8. 38 Exhibit 20581-X0155, page 9. 39 Exhibit 20581-X0063, PDF pages 2 and 8. 40 Transcript, Volume 2, page 246. 41 Transcript, Volume 2, page 252. 42 Exhibit 20581-X0064, paragraph 14. 43 Transcript, Volume 1, page 131. 44 Transcript, Volume 1, page 107.
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sites was “to make sure that things are done in a careful way and respectfully if anything is found.”45
58. Ms. Northwest stated that while she could not speak for the Samson Cree’s consultation co-ordinator, she thought that the Samson Cree would be willing to work with other First Nations to develop guidelines or protocols for choosing monitors and working together so that information is effectively shared between First Nations. Ms. Northwest stated that the Samson Cree had taken such an approach on prior projects and stated that it “would be a step in the right direction to do something along those lines.” 46
59. Ms. Northwest answered as follows when asked if the Samson Cree’s participation in previous projects with rotating monitors had been successful:
I would say that it has been if we're coordinating with other First Nations communities. Because a lot of times I guess the views are a little -- are the same, but I guess protocols are different. So it's kind of the same -- they treat them with the same respect that -- well, that we would, but it's just, yeah, like I said, it would just be different protocols depending on which First Nations they would be.47
60. However, the Samson Cree stated in its argument that EDTI’s proposal to have only two First Nation monitors at one time fell short of protecting its interest in the area. It asserted that each First Nation is unique and such blanket accommodation measures are inadequate to address the unique concerns of the Samson Cree. The Samson Cree proposed that one representative each day should be from the Samson Cree Nation because it was the only First Nation that intervened in the proceeding and the project is directly within Treaty No. 6’s geographical boundaries.48
61. In its final argument, the Samson Cree also took issue with EDTI’s proposed protocol in the event historical artifacts are discovered. The Samson Cree disagreed that they should only be notified with the consent of ACT. The Samson Cree argued that the discovery of artifacts would directly engage Samson Cree’s aboriginal and treaty rights regarding cultural property and was therefore not within the ability of ACT to determine whether or not the Samson Cree should be contacted. The Samson Cree requested that the Commission condition any approval of the project on the development of a mitigation plan with the Samson Cree.49
5.3 Mr. Delorme and Mr. Fromhold 62. Mr. Gerald Delorme, a member of the Edmonton Stragglers Band, agreed with the Samson Cree that the Rossdale area was a sacred site for aboriginal peoples. Mr. Delorme provided a brief and informative history of his people and stated that his ancestors were buried directly in the “Indian graveyard”. He was concerned that remains found in the area in the past had not been dealt with in a respectful manner based on conversations he’d had with witnesses to
45 Transcript, Volume 1, pages 108 and 109. 46 Transcript, Volume 1, page 110. 47 Transcript, Volume 1, pages 110-111. 48 Transcript, Volume 2, pages 247-248. 49 Transcript, Volume 2, pages 248-250.
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past excavations.50 Mr. Delorme felt that the Rossdale area should be protected as a historical sacred site.51
63. Mr. Delorme stated that there have been many recordings of occupations in the Rossdale area and attempts to locate the known historical traditional burial ground, and provided newspaper articles on such.52 He asserted that the traditional burial ground extends far into the EDTI power plant site53 and stated that he had talked to men who were on the site in 1976 who indicated the cemetery was much larger.54
64. Mr. Joseph Fromhold, a member of the Mountain Cree, stated that 95 people related to the Mountain Cree band had been buried in or around Rossdale. He was concerned with the protocol for dealing with human remains that had been used in the area in the past. He asserted that if human remains are unearthed they should be reinterred with a proper ceremony. He was also concerned that the Mountain Cree had never been contacted by EPCOR or the City of Edmonton when human remains were discovered in the Rossdale area in the past.
5.4 Commission findings 65. The Commission finds that EDTI has taken reasonable steps to address the potential for encountering cultural artifacts or human remains during the Rossdale substation building expansion project. The Commission finds that the work proposed by EDTI will be conducted in accordance with the requirements of the Historical Resources Act and the clearance approval given by ACT.
66. In Decision 2001-111, the Commission’s predecessor, the Alberta Energy and Utilities Board, explained how it accounted for the regulatory standards and guidelines of other government departments or regulators:
…The existence of regulatory standards and guidelines and a proponent’s adherence to these standards are important elements in deciding whether potential adverse impacts are acceptable….
In the Board’s view, the public interest will be largely met if applications are shown to be in compliance with existing provincial health, environmental, and other regulatory standards in addition to the public benefits outweighing negative impacts.55
50 Transcript, Volume 1, pages 155 and 164. 51 Transcript, Volume 1, page 163. 52 Exhibit 20581-X0089. 53 Transcript, Volume 1, page 136. 54 Transcript, Volume 1, page 165. 55 Decision 2001-111: EPCOR Generation Inc. and EPCOR Power Development Corporation - 490-MW Coal-Fired Power Plant, Application 2001173, December 21, 2001, page 4.
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67. The Commission endorsed this approach in decisions 2010-49356 and 3183-D01-2015.57 While both decisions related to applications to construct and operate power plants, the Commission finds that this approach applies equally to applications for electric transmission infrastructure.
68. The approval granted to EDTI under the Historical Resources Act includes conditions to ensure the protection of cultural artifacts encountered during construction of the project. Those conditions include the requirement to have a professional consulting archaeologist on-site to monitor construction activities and set out EDTI’s reporting requirements. A further condition of the approval is that Alberta’s First Nations consultation guidelines on land management and resource development must be followed at the time of any discovery of an Aboriginal Traditional Use Site. The protocol for addressing the discovery of human remains, that EDTI has committed to following, closely follows the protocol for cultural artifacts. In the Commission’s view, EDTI’s compliance with the Historical Resources Act and the approval issued to EDTI under that act will ensure that any recovered artifacts or human remains are treated in a respectful and fitting manner by a trained archaeologist.
69. The Commission finds the mitigation measures and action plan proposed by EDTI in the event that human remains or artifacts are encountered are reasonable in the circumstances. The Commission observes that EDTI has considerable experience in managing construction projects on the Rossdale Site and co-ordinating the necessary archaeological components of those projects and notes that there have been 12 studies in the immediate project area alone. The Commission likewise finds that the consulting archaeologist selected by EDTI, Ms. Saxberg, has worked on the site for a number of years and is familiar with the requirements of the Historical Resources Act and the obligations of her profession.
70. The Commission further finds that EDTI’s plan to have up to two rotating First Nation monitors on-site during excavations is reasonable from a safety perspective. The Commission observes that ACT has a list of 21 aboriginal groups with ties to the site and finds that rotating monitors between those groups is the most effective way to ensure that all those with an interest in the site have an opportunity to be involved in the monitoring. The Commission observes that EDTI also committed to continue to work with the Samson Cree and other First Nations, on the development of a mitigation plan in the event that artifacts or human remains are found. The Commission finds that the development of such a plan will be essential to ensure that the interests of all parties are met.
71. The Samson Cree’s argument that the rotating monitoring proposed by EDTI would not satisfy its needs was inconsistent with the evidence of its witness, Ms. Northwest. Ms. Northwest testified that the Samson Cree had participated in similar programs in the past and, in her view, those programs had been a success, subject to concerns regarding the exchange of information between the rotating monitors.
56 Decision 2010-493: ENMAX Shepard Inc.- Construct and Operate 800-MW Shepard Energy Centre, Proceeding 241, Application 1605340, October 21, 2010, paragraphs 25 and 26. 57 Decision 3183-D01-2015: TransAlta MidAmerican Partnership - Sundance 7 Power Plant, Proceeding 3183, Application 1610492-1, June 9, 2015, paragraphs 28 and 29.
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72. The Commission finds that the rotating monitor program will be most effective if guidelines and protocols for participant selection, attendance, and information exchange are agreed upon by participants beforehand. In the Commission’s view, the implementation of an effective communication strategy between EDTI, its consulting archaeologist, the on-site monitors and the other participating aboriginal groups will address the concerns expressed by the Samson Cree about notification in the event that artifacts or human remains are unearthed during construction.
73. Accordingly, the Commission will make it a condition of approval that EDTI work with interested aboriginal groups to develop:
A protocol for the selection of participants for an on-site monitoring program. Guidelines setting out daily attendance expectations and clearly indicating if work will continue in the event one or both monitors cannot attend excavations on any given day. A protocol for the exchange of information between participants in the event that artifacts or human remains are found.
74. To be effective, these protocols and guidelines must be finalized before project excavations begin. The Commission considers that such guidelines and protocols can reasonably be developed within 45 days of the date of this decision and expects all interested parties to co-operate to achieve this goal. Accordingly, EDTI shall not undertake excavations for the project until after this 45-day period has elapsed. Should the guidelines and protocols be finalized before the 45-day period expires, EDTI may commence excavation work after advising the Commission in writing that the protocols and guidelines have been finalized.
6 Participant involvement
75. In this section, the Commission reviews the views of the parties with respect to EDTI’s participant involvement program under Rule 007. The Commission addresses the Samson Cree’s arguments regarding the adequacy of Crown consultation that it raised in its Notice of Constitutional Question in Appendix C to this decision.
6.1 EDTI 76. EDTI stated that its participant involvement program aligned with the guidelines outlined in Rule 007. This included a project-specific information package that was mailed to approximately 2,600 occupants, residents and landowners in the vicinity of the Rossdale Site. EDTI also created an internet information page on its public website.
77. EDTI consulted with the City of Edmonton as the landowner of all properties within the first row of development to the Rossdale Site and held an open house at the Rossdale Community Hall to inform interested parties about the proposed project.
78. EDTI discussed the project with Alberta Culture and Tourism. ACT confirmed that the project was not located on aboriginal land but that the Fort Edmonton Cemetery and traditional burial ground were culturally significant to 21 aboriginal groups. EDTI decided to work with
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these groups to explain the purpose and scope of the project.58 EDTI stated that its aboriginal participant involvement included the following forums to provide the groups with information on the project, engage them in dialogue, and gather their feedback:
Delivery of the project-specific information packages in March and May 2015. An offer for personal consultation with members of each aboriginal group, either at the Rossdale Site or at the aboriginal group’s location. A request for feedback from each aboriginal group in order to incorporate, where possible, this feedback into the project.59
79. EDTI followed up the mailing of the information packages with phone calls to all aboriginal groups that EDTI had not received a reply from. EDTI received expressions of interest from eight aboriginal groups and met with seven of those groups prior to the hearing, as shown in Table 1.
Table 1. Status of Consultation with Aboriginal Groups as of December 4, 201560 Group name Meeting location Meeting Meeting date status Papaschase Band Rossdale Site Completed April 16, 2015 Alexander First Nation Rossdale Site Completed April 27, 2015 Tsuu T’ina Nation Rossdale Site Completed May 25, 2015 Piikani Nation Piikani Nation Completed June 11, 2015 Siksika Nation Rossdale Site Completed June 17, 2015 Kehewin Cree Nation Rossdale Site Completed August 7, 2015 Samson Cree Nation Samson Cree Nation Completed October 8, 2015 Samson Cree Nation Rossdale Site Completed October 15, 2015 Michel First Nation Rossdale Site Pending TBD
80. EDTI stated that it made efforts to incorporate feedback from aboriginal groups into the project61 and argued that its decision to have all excavations monitored by First Nations groups showed that it responded to input.62
81. In its rebuttal evidence, EDTI advised that on November 27, 2015, further details related to EDTI’s notification to aboriginal groups, consistent with the information on the record of this proceeding, was provided to ACT in response to a request from ACT.63 On December 4, 2015, EDTI received approval under the Historical Resources Act.64
82. EDTI argued that the fact that meetings between EDTI and the Samson Cree did not occur until October 2015, was not the result of anything EDTI did or failed to do. EDTI asserted
58 Exhibit 20581-X0002, paragraph 60. 59 Exhibit 20581-X0002, paragraph 59. 60 Exhibit 20581-X0002, page 5, Table 8.2-1. 61 Exhibit 20581-X0066, SCN-EDTI-2015NOV24-008. 62 Transcript, Volume 2, page 209. 63 Exhibit 20581-X0068, page 6. 64 Transcript, Volume 2, page 188.
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that it took reasonable steps to notify and consult with the Samson Cree and that six other aboriginal groups had no difficulty scheduling earlier meetings with EDTI.65
83. EDTI submitted correspondence records, as part of its rebuttal evidence, that indicated that it mailed and emailed the project information package to the Samson Cree on March 20, 2015. On April 2, 2015, the Samson Cree advised EDTI that the contact person had changed. On April 15, 2015, EDTI emailed the new contact to organize a site visit to the Rossdale substation to discuss the project and to offer to meet the Samson Cree at their location to give an overview prior to a site visit. Email correspondence between EDTI and the Samson Cree about booking a meeting time continued after this, including the exchanging of fee schedules for engagement and site visits. On May 7, 2015, the Samson Cree emailed EDTI indicating it could meet the next week. However, a meeting did not occur and on June 9, 2015, EDTI received an email from the Samson Cree indicating that they were working on finding a meeting time and would get back to EDTI with a meeting date.66
84. On September 18 and 22, 2015, EDTI called and emailed the Samson Cree to inquire what the next steps should be to move forward. On September 23, 2015, the Samson Cree emailed EDTI and indicated they would identify a meeting time shortly. On September 29, 2015, the Samson Cree emailed EDTI indicating they were available for a meeting on October 8, 2015.67
85. On October 8, 2015, EDTI representatives met with Samson Cree representatives in Maskwacis, Alberta. Subsequently, on October 15, 2015, representatives for EDTI and the Samson Cree met at the Rossdale Site.68 EDTI submitted the meeting notes from this meeting69 as well as a copy of the email from EDTI to the Samson Cree on November 13, 2015 that provided responses to questions and concerns raised by the Samson Cree at the October 15th meeting.70 On December 3, 2015, the Samson Cree emailed EDTI its report and invoice for the meeting.71
86. EDTI argued that the record showed that EDTI consulted with the Samson Cree and “provided extensive information to the Samson Cree about the nature of the project and its potential effects, as well as the historical and scientific knowledge and research applicable to the site.”72 EDTI also claimed that the record showed that EDTI offered to provide reasonable compensation to the Samson Cree for its efforts to consult with EDTI. In addition, EDTI noted that the Commission approved the payment of $23,200 to the Samson Cree as advance intervener funding73 for the purpose of its participation in this proceeding.74
65 Transcript, Volume 2, page 194. 66 Exhibit 20581-X0070, PDF pages 4 and 5. 67 Exhibit 20581-X0070, PDF page 4. 68 Exhibit 20581-X0070, PDF pages 2 and 3. 69 Exhibit 20581-X0070, PDF pages 75-80. 70 Exhibit 20581-X0070, PDF pages 87-89. 71 Exhibit 20581-X0070, PDF page 1 and 90-93. 72 Transcript, Volume 2, page 196. 73 Decision 20581-D01-2015: Advance Funding Award, October 23, 2015. 74 Transcript, Volume 2, pages 196-197.
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6.2 Samson Cree 87. The Samson Cree asserted that it had not been provided any capacity to conduct a third-party independent review of EDTI’s application and for this reason it had not been provided a sufficient consultation process which would include a reasonable opportunity to provide comments on EDTI’s project and challenge EDTI’s evidence.75
88. The Samson Cree argued that EDTI’s consultation logs should not be relied upon because the Samson Cree was not asked to comment on the accuracy of the logs.76
89. The Samson Cree asserted that EDTI should have consulted with it earlier. In response to an information request from EDTI, Samson Cree stated that it and EDTI “initiated a consultation process for the project in October 2015” and “it was not until November 13, 2015, that EDTI proposed a process that would allow Samson the opportunity to become meaningfully engaged”.77
90. The Samson Cree asserted that should the substation building expansion be approved, “it should be approved conditionally with additional consultation to occur with [the] Samson Cree” to allow the nation to develop “comments on the proposed plans to protect the Rossdale Area’s historic and cultural character.”78
6.3 Commission findings 91. Rule 007 states that a participant involvement program must be conducted before a facility application is filed with the Commission. A participant involvement program is a fundamental component of any facility application and the responsibility of the applicant to meet its consultation requirements under Rule 007 must be satisfied before the Commission can consider whether approval of a project is in the public interest.
92. The Commission described the elements of a successful public involvement program in Decision 2011-436:
… In the Commission’s view, effective consultation achieves three purposes. First, it allows parties to understand the nature of a proposed project. Second, it allows the applicant and the intervener to identify areas of concern. Third, it provides a reasonable opportunity for the parties to engage in meaningful dialogue and discussion with the goal of eliminating or mitigating to an acceptable degree the affected parties concerns about the project. If done well, a consultation program will improve the application and help to resolve disputes between the applicant and affected parties outside of the context of the hearing room.
284. The Commission acknowledges that even a very effective consultation program may not resolve all intervener concerns. This is not the fault of the applicant or the intervener; it merely reflects the fact that the parties do not agree. With this in mind, the Commission will consider a consultation program to be effective if it meets AUC Rule 007 requirements and has allowed interveners to understand the project and its
75 Exhibit 20581-X0066, SCN-EDTI-2015NOV24-005(a). 76 Transcript, Volume 2, page 243. 77 Exhibit 20581-X0066, SCN-EDTI-2015NOV24-005(a). 78 Exhibit 20581-X0066, SCN-EDTI-2015NOV24-005(a).
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implications for them, and to meaningfully convey to the applicant their legitimate concerns about the project.79
93. The Commission finds that EDTI made reasonable efforts to engage stakeholders, including the Samson Cree, in meaningful and effective Rule 007 consultation throughout the project life cycle. EDTI took a proactive approach to its participant involvement obligations and reached out to all aboriginal groups identified by ACT as having historical and cultural ties to the Rossdale area.
94. The Commission recognizes that it would have been preferable if EDTI and the Samson Cree could have met earlier in the process. However, the Commission finds that the delay in their meeting until October 2015, is attributable to both parties. EDTI began its attempts to schedule a meeting with the Samson Cree in April 2015 and followed up again in May and June which prompted the Samson Cree’s representative to advise that she was trying to co-ordinate a date and would get back to EDTI as soon as she could.80 Unfortunately, the next communication between the two parties was not until September 2015, when EDTI sent a follow up email to once again schedule a preliminary meeting. Ultimately EDTI and the Samson Cree held two meetings in October 2015.81
95. Notwithstanding the concerns expressed by the Samson Cree regarding the lateness of EDTI’s consultation, the Commission finds, based on the evidence before it, that EDTI’s Rule 007 consultation with the Samson Cree satisfied the primary objectives of such consultation as set out above. Specifically, through its Rule 007 consultation, EDTI explained the project to the Samson Cree and made reasonable and persistent efforts to understand the project’s impacts on the Samson Cree and to understand the mitigation measures proposed by the Samson Cree.
7 Visual impacts
96. EDTI explained that it considered the visual impacts of the proposed project due to the substation’s location in the North Saskatchewan River Valley, directly south of downtown Edmonton. The proposed building extension would look similar to the existing building in height and have a similar exterior finish. EDTI stated that it would ensure that landscaping was restored to a level sufficient for both urban and parkland settings. EDTI engaged a landscape architect to evaluate and implement the best options for the restoration of the substation site to its pre-construction condition taking into consideration site equipment configurations and security issues.
97. EDTI received a request from the Rossdale Community League to improve the overall aesthetics of the Rossdale Site by making changes to the perimeter fence and guard house as part of the proposed project.82
79 Decision 2011-436: AltaLink Management Ltd. and EPCOR Distribution & Transmission Inc. – Heartland Transmission Project, Proceeding 457, Application 1606609, November 1, 2011, paragraphs 283 and 284. 80 Exhibit 20581-X0070, PDF page 93 (Email from Kyra Northwest to Andrew Laycock re Rossdale Substation expansion, June 8, 2012). 81 A summary of the communications between EDTI and the Samson Cree (filed as Exhibit 20581-X0070) is provided in Appendix D for reference. 82 Exhibit 20581-X0002, paragraph 103.
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98. In its written submission to the Commission, the community league asserted that the 30-year-old fence that surrounds the substation is no longer in keeping with the standards of today and its appearance adversely affects property values in the Rossdale area. The community league argued that the substation fence needed to be addressed within the scope of the substation expansion as the fence is in place to protect the public from harm associated with the transmission assets. The community league requested that the Commission direct EDTI to improve the aesthetics of the fence out of respect and regard for both the adjoining burial ground commemorative site and residential property owners in Rossdale.83
99. EDTI determined that alteration of this fence, owned by EPCOR Water Services Inc., is not within the scope of the proposed project since the proposed project work does not require alteration of the perimeter fence. EDTI did not include any fence alterations in the description of the proposed project.
100. Furthermore, EDTI noted it is currently in discussions with the City of Edmonton relating to the subdivision of the Rossdale Site and transfer of portions of this land to the city.84 EDTI stated that changes to the fenceline and relocation of the guard house would be more appropriately considered after subdivision of the land happens. This community engagement is expected to begin in the first quarter of 2016.85
101. EDTI stated that it will review its landscaping plans with the community league, once they are developed, and attempt to incorporate feedback to the greatest degree possible.86
7.1 Commission findings 102. The Commission finds that EDTI has made reasonable measures to minimize the visual impacts associated with the proposed building expansion. The Commission is satisfied that the concerns of the Rossdale Community League, which apply to the entire Rossdale Site and not just the substation area, would be more appropriately addressed in the upcoming community engagement sessions.
8 Findings
103. The Commission finds that the facility application to expand the Rossdale substation, submitted by EDTI, complies with the information requirements prescribed in Rule 007.
104. The Commission accepts that the potential for adverse environmental impacts is low because the project is located on a previously disturbed, industrial site in a developed urban area within the city of Edmonton and EDTI has committed to implement the mitigation measures outlined in the environmental protection plan and ECO plan.
105. The Commission finds that there are no outstanding technical, environmental or noise concerns associated with the alteration and operation of the substation.
83 Exhibit 20581-X0056. 84 Exhibit 20581-X0002, Table 7.5-1, page 16. 85 Transcript, Volume 1, page 88. 86 Exhibit 20581-X0002, Table 7.5-1, page 15.
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106. As per sections 5.4, 6.3 and 7.1, the Commission finds that historical, cultural, and visual impacts from the project will be minimized through mitigation measures and that EDTI’s participant involvement program, pursuant to Rule 007, was sufficient.
107. As per paragraphs 72 through 74, the Commission directs EDTI to finalize the protocols and guidelines for a rotating excavation-monitoring program before project excavations begin.
108. Given the considerations discussed above, the Commission finds the proposed project to be in the public interest pursuant to Section 17 of the Alberta Utilities Commission Act.
9 Decision
109. Pursuant to sections 14, 15 and 19 of the Hydro and Electric Energy Act, the Commission approves the application and grants EDTI the approval set out in Appendix 1 – Substation Permit and Licence 20581-D03-2016, for alteration of the substation.
110. Appendix 1 will be distributed separately.
Dated on May 13, 2016.
Alberta Utilities Commission
(original signed by)
Tudor Beattie, QC Panel Chair
(original signed by)
Neil Jamieson Commission Member
(original signed by)
Patrick Brennan Acting Commission Member
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Appendix A – Proceeding participants
Name of party or organization (abbreviation) Counsel or representative
Asini Wachi Nehiyawak Traditional Band (Mountain Cree) Joseph Fromhold
Gerald Delorme
Rossdale Community League Lynn Parish and Natalie Bunting
Samson Cree Nation (Samson Cree) Robyn Dean, Thompson Miller LLP
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Appendix B – Oral hearing – registered appearances
Name of party or organization (abbreviation) Witnesses Counsel or representative
Jay Baraniecki, EDTI Frank Bascelli, EDTI EPCOR Distribution & Transmission Inc. (EDTI) Mark Bensted, EDTI Jonathan Liteplo, Fasken Martineau DuMoulin LLP Lucian Ciocoiu, EDTI Nancy Saxberg, AMEC Foster Wheeler Ryan Wonnacott, AMEC Foster Wheeler
Samson Cree Nation (Samson Cree) Herbert Lightning Robyn Dean and Kennedy Bear Robe, Miller Thompson LLP Kyra Northwest
Gerald Delorme
Asini Wachi Nehiyawak Traditional Band (Mountain Cree)
Joseph Fromhold
Alberta Utilities Commission
Commission panel Tudor Beattie, Panel Chair Neil Jamieson, Commission Member Patrick Brennan, Acting Commission Member
Commission staff JP Mousseau (Commission Counsel) Danielle Glover Lindsey Mosher
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Appendix C - Commission ruling on notice of constitutional question
Introduction
1. The Samson Cree Nation (Samson Cree) raised the following question in its notice of constitutional question:
Has the Crown discharged its duty to consult with Samson Cree Nation in respect of any adverse effects upon Samson’s Aboriginal and Treaty rights that may arise from the proposed Rossdale Substation Building Expansion?1
2. After receiving submissions from the registered parties and the Minister of Justice and Solicitor General of Alberta (Alberta), the Commission decided to consider the constitutional question in two stages. In stage one the Commission would consider its jurisdiction to decide the constitutional question. If the Commission determined that it had jurisdiction, it would decide the constitutional question in stage two.
3. On March 3, 2016, the Commission dismissed the Samson Cree’s constitutional question and concluded that the only consultation that it was required to assess was that conducted by EPCOR Distribution & Transmission Inc. (EDTI) in accordance with the Commission’s requirements. The Commission stated that it would provide its reasons for its conclusion in this decision.
Legislation
4. The phrase “constitutional question” is defined in Section 10(d) of the Administrative Procedures and Jurisdiction Act to include “a determination of any right under the Constitution of Canada or the Alberta Bill of Rights.” Section 12(1) sets out the notice requirements and states:
12(1) Except in circumstances where only the exclusion of evidence is sought under the Canadian Charter of Rights and Freedoms, a person who intends to raise a question of constitutional law at a proceeding before a designated decision maker that has jurisdiction to determine such a question
(a) must provide written notice of the person’s intention to do so at least 14 days before the date of the proceeding
(i) to the Attorney General of Canada, (ii) to the Minister of Justice and Solicitor General of Alberta, and (iii) to the parties to the proceeding,
and
(b) must provide written notice of the person’s intention to do so to the designated decision maker.
1 Exhibit 20581-X0094, Notice of Question of Constitutional Law, December 17, 2015.
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5. Subsection 12(2) states “Until subsection (1) is complied with, the decision maker must not begin the determination of the question of constitutional law.”
6. The information requirements for a notice of constitutional question are found in Schedule 2 of the Designation of Constitutional Decision Makers Regulation. Schedule 2 states that the details of argument to be included in a notice are:
The grounds to be argued and reasonable particulars of the proposed argument, including a concise statement of the constitutional principles to be argued, references to any statutory provision or rule on which reliance will be placed and any cases or authorities to be relied upon.
The law in question, the right or freedom alleged to be infringed or denied or the aboriginal or treaty right to be determined, as the case may be.
The material and documents that will be filed with the decision-maker.
A list of witnesses intended to be called to give evidence before the decision-maker and the substance of their proposed testimony.
Alberta
7. Alberta submitted that the Commission should not consider the notice for three reasons:
The notice was deficient.
The Commission has no statutory mandate to consider adequacy of consultation where the Crown is not a party.
Because of the way that the proceeding unfolded, the Crown had no opportunity to question the Samson Cree’s witnesses or make submissions in the proceeding.
8. Alberta submitted that the purpose of a notice of constitutional question is to ensure that governments have a full opportunity to support the constitutional validity of their legislation, or to defend their action or inaction, and to ensure that courts have an adequate evidentiary record in constitutional cases. Alberta asserted that the Samson Cree’s notice was deficient because it failed to provide reasonable particulars of the Samson Cree’s arguments, i.e., the notice did not specify the decision of the Crown that attracted the duty to consult asserted and did not identify a recognized or credibly asserted aboriginal or treaty right. Alberta further stated that the Samson Cree’s notice did not specify the evidence it was relying upon in support of its assertions.
9. Alberta submitted that the Commission has no jurisdiction over the Crown, the Crown’s duty to consult or the remedy sought by the Samson Cree. While Alberta recognized that the Commission can assess consultation efforts generally, it submitted that the AUC has no supervisory role over the Crown and its duty to consult when considering an application by a private entity. In support of this position Alberta relied on a decision of the Alberta Court of
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Appeal, Dene Tha’ First Nation v Alberta (Energy & Utilities Board),2 and two decisions of the Federal Court of Appeal: Standing Buffalo Dakota First Nation v Enbridge Pipelines Inc.3 and Chippewas of the Thames First Nation v Enbridge Pipelines Inc.4
10. Alberta stated that the court in the Dene Tha decision was unable to “find any legal basis for the proposition that the Alberta Energy and Utilities Board (the predecessor to the AUC) has any supervisory role over the Crown and its duty to consult on aboriginal or treaty rights when considering an application by a private sector proponent.”5 Alberta relied on the following passage from Dene Tha in this respect:
28. A suggestion made to us in argument, but not made to the Board, was that the Board had some supervisory role over the Crown and its duty to consult on aboriginal or treaty rights. No specific section of any legislation was pointed out, and we cannot see where the Board would get such a duty. We will now elaborate on that.
29. There is no evidence here to tell the Board whether the Crown had consulted or not, and that fact is not conceded in argument. It seems to be disputed. Still less is there an evidentiary record which shows that there was no time or chance to consult. The little evidence there is suggests the contrary, but it is woefully inadequate to decide that question. Nor was anyone put on notice that that issue would be before the Board.
11. Alberta argued that the Dene Tha decision is binding on the AUC. It concluded that neither the Hydro and Electric Energy Act nor the Alberta Utilities Commission Act authorizes the Commission to oversee, supervise or adjudicate on Alberta’s Crown consultation with First Nations when considering an application brought by a private entity (as opposed to the Crown).
12. Alberta explained that the Federal Court of Appeal considered similar issues in the Standing Buffalo decision. It stated that the court found that the National Energy Board was not required to consider the adequacy of the Crown’s consultation when considering applications for approvals by private industry proponents. Alberta submitted that the Federal Court of Appeal considered this issue again in the Chippewas of the Thames decision issued in 2015.
13. Alberta also stated that that a tribunal can only consider consultation when it is explicitly permitted to do so by its enabling legislation and submits that such direction is lacking in the Commission’s statutory scheme.
14. Alberta further submitted that the remedy the Samson Cree is seeking does not relate to the Crown.
15. Alberta stated that, if the Commission determined that it had jurisdiction to consider the notice, it should decline to exercise that jurisdiction given the circumstances in which the notice
2 Dene Tha’ First Nation v Alberta (Energy & Utilities Board), 2005 ABCA 68. 3 Exhibit 20581-X0133, Standing Buffalo Dakota First Nation v. Enbridge Pipelines Inc., 2009 FCA 308. 4 Exhibit 20581-X0134, Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., 2015 FCA 222. Leave to appeal this decision to the Supreme Court of Canada was granted on March 10, 2016, Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., et al., 2016 CanLII 12151 (SCC). 5 Exhibit 20581-X0110, Preliminary Submissions of Alberta, January 25, 2016.
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was provided. Alberta argued that the Samson Cree’s late notice prejudiced the Crown because the evidentiary portion of the hearing was over.
EDTI
16. EDTI agreed with Alberta’s submissions and argued that the AUC has no jurisdiction to consider the notice. EDTI submitted that the notice was wholly inadequate. It stated that the Samson Cree failed to file its notice within the 14-day timeframe dictated by the Administrative Procedures and Jurisdiction Act and also failed to meet the information requirements set out in Schedule 2 of the Designation of Constitutional Decision Makers Regulation. EDTI submitted that the Commission has no discretion to cure defects in a notice, whether by holding a new hearing or otherwise.
17. EDTI argued that even if the notice was properly effected, the Commission has no jurisdiction to consider aboriginal consultation matters in circumstances where the Crown is not a party to the proceeding. EDTI stated that this position was consistent with that of the Energy Resources Conservation Board, which determined in 2012 that there was nothing in its mandate extending its authority to reviewing the Crown’s consultation with respect to aboriginal or treaty rights in circumstances where the Crown is not the applicant.6
18. EDTI also pointed out that the Federal Court of Appeal came to a similar conclusion with respect to the National Energy Board in Standing Buffalo Dakota First Nation v Enbridge Pipelines Inc.7 and, more recently in Chippewas of the Thames First Nation v Enbridge Pipelines Inc.8
19. EDTI argued that if the Samson Cree’s concerns relate to the approvals issued to it under the Historical Resources Act by Alberta Cultural and Tourism then the Samson Cree have raised these concerns in the wrong forum. EDTI submitted that the Commission has no jurisdiction over those approvals. It submitted that if the Samson Cree disagreed with Alberta Culture and Tourism’s decision to issue those approvals, its remedy was a judicial review application.
Samson Cree
20. The Samson Cree submitted that its notice complied with the requirements of the Designation of Constitutional Decision Makers Regulation and provided the Crown with sufficient information to allow it to decide whether or not to address the notice. In the alternative, it argued that if its notice was deficient, the Crown was not prejudiced because the Commission had not issued its decision on the matter.
21. The Samson Cree submitted that it was not required to identify a specific Crown decision in order to assert that consultation has been inadequate and maintained that consultation efforts have been inadequate throughout the process. The Samson Cree stated that its notice adequately described the treaty or aboriginal right it was asserting in that it specified that its “Aboriginal and
6 Exhibit 20581-X0130, Osum Oil Sands Corp, Taiga Project, ERCB Application No 1636580, Notice of Questions of Constitutional Law, August 24, 2012 Decision Letter. 7 Exhibit 20581-X0133, Standing Buffalo Dakota First Nation v. Enbridge Pipelines Inc., 2009 FCA 308. 8 Exhibit 20581-X0134, Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., 2015 FCA 222.
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Treaty No. 6 rights include the protection and preservation of archaeological and cultural heritage property as well as ancestral remains.”9
22. The Samson Cree argued that the Commission has the jurisdiction to assess whether consultation has been adequate to date, including the consultation efforts of the Crown, under its enabling legislation. Samson stated that the Chippewas of the Thames and Standing Buffalo decisions are distinguishable on the bases of the remedy it is seeking. It stated that because it is not asking the AUC to refuse approval of the project based on a lack of consultation, the Commission can order the remedies sought by the Samson Cree even if the Crown is not a participant in the proceeding.
Commission findings
23. The Commission dismissed the Samson Cree’s constitutional question in its ruling dated March 3, 2016. In that ruling, the Commission concluded that the only consultation it was required to consider in these circumstances was that conducted by EDTI in accordance with the Commission’s requirements. The Commission’s reasons for that conclusion follow.
24. First, the relief sought by the Samson Cree does not require the Commission to consider either constitutional consultation or the Crown’s common law duty to consult aboriginal peoples.
25. The Samson Cree made it clear in its submission that it was not seeking a constitutional remedy from the Commission and specifically described both the relief that it was seeking and the relief that it was not seeking:
Alberta correctly identifies that “the remedy sought by Samson in the NQCL [notice of question of constitutional law] does not relate to the Crown in any respect, rather Samson is seeking conditional approval of the EPCOR Rossdale Substation Building Expansion, if the Project is approved by the Alberta Utilities Commission.” Additionally, it states “that the relief could be granted with respect to EPCOR’s consultation duties under Rule 007, which the AUC can consider. However, the AUC cannot grant a remedy that would require Alberta to engage in further consultation, including with respect to the HRA [Historical Resources Act] clearance that ACT [Alberta Culture and Tourism] has issued.”
Samson is not seeking that the AUC engage in consultation itself, require that Alberta engage in consultation nor suspend the Project approval until Alberta has discharged its duty to consult Samson. Additionally, Samson is not asking the AUC to review, amend or cancel the HRA [Historical Resources Act] clearance decision made by ACT.
Samson looks to the AUC to exercise its statutory authority under the HEEA [Hydro and Electric Energy Act] and AUCA [Alberta Utilities Commission Act] framework to consider whether or not conditions are appropriate for the Project, should it be approved by the AUC.10
9 Exhibit 20581-X0137, Samson Reply Submissions, paragraph 20. 10 Exhibit 20581-X0137, Samson Reply submissions, paragraphs 61-63.
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26. Because the remedy sought by the Samson Cree is available pursuant to the Commission’s governing legislation and is not dependent or predicated upon the adequacy of Crown consultation, the Commission finds it unnecessary to consider the adequacy of that consultation as requested by the Samson Cree.
27. The Commission is also satisfied that the notice of constitutional question could also be dismissed because the Samson Cree failed to give notice prior to the proceeding as required by the Administrative Procedures and Jurisdiction Act. In the Commission’s view, the Samson Cree’s decision to proceed without notice resulted in undue prejudice to the Crown, the applicant and the integrity of the Commission’s hearing process.
28. The Samson Cree did not ask the Commission to rule on the adequacy of the Crown’s consultation until after the evidentiary portion of the hearing had closed and after the applicant had made its final argument. When the Samson Cree raised this issue for the first time in its own final argument, the Commission suspended the hearing and directed the Samson Cree to notify the Crown of its intention to have the Commission rule on this question.
29. Section 12(2), of the Administrative Procedures and Jurisdiction Act states that the Commission must not begin the determination of a question of constitutional law until notice to the Crown is provided in the manner set out in that act. The Alberta Court of Appeal emphasized the purpose and importance of notifying the Crown of a constitutional issue, albeit in the criminal context, in R v Aberdeen:
The requirement of notice is to ensure that governments have a full opportunity to support the constitutional validity of their legislation, or to defend their action or inaction, and to ensure that courts have an adequate evidentiary record in constitutional cases.11
30. The objectives behind the requirement for timely notice of constitutional issues described by the Court of Appeal in R v Aberdeen apply equally in the administrative context.
31. The Commission finds that the Samson Cree had a reasonable opportunity to provide the required notice under the Administrative Procedures and Jurisdiction Act. The Samson Cree registered to participate in the hearing in August 2015, and retained counsel, a consultant, and four elders and knowledge holders to assist it in the proceeding through interim funding granted by the Commission.
32. The Samson Cree pre-filed its evidence for the proceeding on November 17, 2015. That evidence consisted of the affidavits of Herbert Brian Lightning and Kyra Shaylee Renee Northwest. Attached to Ms. Northwest’s affidavit was a document entitled “EPCOR’s Rossdale Building Expansion Interveners’ Written Evidence” and historical photos of Rossdale Flats. Nowhere in its written evidence did the Samson Cree express concerns about Crown consultation for the project.
33. The Samson Cree responded to EDTI’s information requests regarding its pre-filed evidence on December 1, 2015. Nowhere in those answers to information requests did the Samson Cree express concerns about Crown consultation for the project.
11 Exhibit 20581-X0111, R. v. Aberdeen, 2006 ABCA 164 (CanLII), paragraph 12.
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34. Mr. Lightning and Ms. Northwest were the Samson Cree’s witnesses at the hearing. Neither Mr. Lightning nor Ms. Northwest expressed concern regarding Crown consultation for the project in their evidence.
35. During its cross-examination of EDTI, the Samson Cree questioned EDTI regarding EDTI’s Rule 007: Applications for Power Plants, Substations, Transmission Lines, Industrial System Designations and Hydro Developments consultation with the Samson Cree. However, the Samson Cree also asked EDTI’s witnesses questions regarding the Crown’s consultation guidelines12 and asked if EDTI was saying that it could not “fully discharge the obligation -- the consultation obligations here and that Alberta Culture has to…”.13
36. Despite never raising the issue of Crown consultation in its evidence, the Samson Cree immediately raised that issue at the commencement of its argument.14 Throughout its argument, the Samson Cree focused on the inadequacy of the consultation for the project, both by EDTI and by Alberta Culture and Tourism. Based on that argument, and having regard to Samson Cree’s cross-examination of EDTI’s witnesses, it was evident to the Commission that the Samson Cree had concerns regarding Crown consultation prior to the commencement of the hearing but, for reasons unknown, chose not to share those concerns with the applicant or the Commission or to give the notice required to have those concerns considered by the Commission.
37. The Samson Cree provided no rationale for its failure to give the required notice other than to submit, in response to a question from the Chair, that it was asking the Commission to rule on the duty to consult as a common law obligation rather than as a constitutional duty.15 However, in making this assertion, counsel for the Samson Cree affirmed that the duty to consult has both a common law and a constitutional aspect.16 Under the circumstances, the Commission finds that the Samson Cree, through its counsel, knew or should have reasonably known that it was required to give notice under the Administrative Procedures and Jurisdiction Act as a precondition to the Commission commencing its consideration of this issue.
38. Because the Crown was not a participant in the hearing and neither the Crown nor the applicant were notified that a constitutional question would be raised prior to the proceeding, neither had an opportunity to file evidence or cross-examine the Samson Cree’s witnesses with respect to the issue of the Crown’s duty to consult. Likewise, the Commission itself had no opportunity to question the witnesses who appeared before it on this matter. As a result, the record for the proceeding on the subject of the adequacy of the Crown’s consultation is, at best, incomplete.
39. The Samson Cree submitted that deficiencies in the record could be overcome by requiring “the witnesses to return to be cross-examined by Alberta and to permit Alberta to make closing submissions.”17 The Commission disagrees.
12 Transcript, Volume 1, pages 34, 35 and 36. 13 Transcript, Volume 1, page 51. 14 Transcript, Volume 2, pages 219 and 220. 15 Transcript, Volume 2, page 224. 16 Transcript, Volume 2, page 261. 17 Exhibit 20581-X0137, Samson Reply Submissions, February 1, 2016, paragraph 71.
28 • Decision 20581-D02-2016 (May 13, 2016) Rossdale Substation Building Expansion EPCOR Distribution & Transmission Inc.
40. To remedy the prejudice caused by the Samson Cree’s failure to give the required notice, the Commission finds that it would be necessary to completely re-hear EDTI’s application following the submission of additional written evidence from the parties and the Crown. Such a re-hearing process would result in considerable delay and expense for all parties and the Crown. From the Commission’s perspective, this is exactly the type of mischief that the notice provisions in the Administrative Procedures and Jurisdiction Act were enacted to prevent.
41. Had the Commission not concluded that it could dismiss the Samson’s constitutional question on the basis that the remedy it was seeking was not dependant or predicated on the Commission’s answer to the constitutional question, the Commission would have dismissed it on the basis that the Samson Cree’s decision not to file a notice in accordance with the Administrative Procedures and Jurisdiction Act prior to the hearing resulted in significant, undue prejudice to the applicant and the Crown.
Dated on May 13, 2016.
Alberta Utilities Commission
(original signed by)
Tudor Beattie, QC Panel Chair
(original signed by)
Neil Jamieson Commission Member
(original signed by)
Patrick Brennan Acting Commission Member
Decision 20581-D02-2016 (May 13, 2016) • 29 Rossdale Substation Building Expansion EPCOR Distribution & Transmission Inc.
Appendix D – Summary of Communications between EDTI and the Samson Cree104
Date Communication details
EPCOR Distribution & Transmission emailed and mailed project-specific information 20-Mar-15 package to the Samson Cree Nation (SCN). 02-Apr-15 SCN emailed informing that new SCN contact is Kyra Northwest. 15-Apr-15 EDTI emailed SCN inquiring about date, after Apr. 27, 2015, for site visit with SCN. 30-Apr-15 SCN emailed it would determine "how to move forward" and advise. 07-May-15 SCN emailed asking for a date to meet "next week after Monday". " EDTI emailed SCN that it would propose a few dates for a site visit the following week. 05-Jun-15 EDTI emailed SCN asking when SCN could meet. 09-Jun-15 SCN emailed indicating it was trying to co-ordinate a date to meet with EDTI. EDTI phoned SCN asking about next steps to move forward. SCN advised it would speak 18-Sep-15 with its historical archives group to set up a joint meeting. 22-Sep-15 EDTI emailed SCN asking if SCN had determined a date to meet. 23-Sep-15 SCN emailed advising that it would reply with tentative dates. 28-Sep-15 EDTI emailed SCN asking if SCN has determined a date to meet. 29-Sep-15 SCN emailed indicating availability to meet on October 8, 2015. " EDTI emailed SCN confirming meeting in Maskwacis on October 8, 2015. Meeting in Maskwacis between EDTI and SCN. (Attendees: EDTI - M. Bensted, A. Laycock, 08-Oct-15 F. Bascelli; SCN - K. Northwest, B. Crier, B. Lightning) EDTI emailed SCN indicating parties had met that day, confirming future site meeting, and " advising of follow-up information. 09-Oct-15 EDTI emailed SCN further summarizing main points of October 8, 2015 meeting. Meeting at Rossdale Site between EDTI and SCN. (Attendees: EDTI - M. Bensted, 15-Oct-15 F. Bascelli, J. Baker; SCN - N. Saddleback, K. Northwest, B. Crier, B. Lightning; AMEC Foster Wheeler: N. Saxberg) 29-Oct-15 EDTI emailed SCN a summary of October 15, 2015 meeting. 02-Nov-15 SCN emailed confirming receipt of October 29, 2015 email. EDTI emailed SCN providing responses to points discussed at meetings and indicating 13-Nov-15 EDTI was expecting a summary report of site visit from SCN. 03-Dec-15 SCN emailed report of site visit and invoice for site visit.
104 Summary of Exhibit 20581-X0070.
30 • Decision 20581-D02-2016 (May 13, 2016)