July 12, 2017 To: Parties currently registered on Proceeding 22634 ATCO Gas and Pipelines Ltd. (South) Southwest Calgary Connector Pipeline Project Proceeding 22634 Application 22634-A001 Ruling on standing of the Asini Wachi Nehiyawak (Mountain Cree) / Bobtail Descendants Traditional Band 1. On May 5, 2017, ATCO Gas and Pipelines Ltd. (ATCO) filed an application seeking approval to install the Southwest Calgary Connector Project, which is part of the Urban Pipeline Replacement Project. The proposed project would be constructed within Calgary s Transportation Utility Corridor (TUC). The TUC is a restricted development area and will require Ministerial consent in accordance with the Calgary Restricted Development Area Regulations. 2. On May 26, 2017, the Commission issued a notice of application for the project. The notice set June 26, 2017 as the deadline to file a statement of intention to participate (SIP) for the project. The Asini Wachi Nehiyawak (Mountain Cree) / Bobtail Descendants Traditional Band (AWNTB) filed the only SIP with respect to the project. ATCO filed a response to the AWNTB s SIP. The Commission received no further submissions in relation to the AWNTB s SIP. 3. The Commission has authorized me to communicate its decision on standing. How the Commission determines standing 4. Section 9(2) of the Alberta Utilities Commission Act sets out how the Commission must determine standing: (2) If it appears to the Commission that its decision or order on an application may directly and adversely affect the rights of a person, the Commission shall (a) give notice of the application in accordance with the Commission rules, (b) give the person a reasonable opportunity of learning the facts bearing on the application as presented to the Commission by the applicant and other parties to the application, and (c) hold a hearing. [emphasis added] 5. The standing test applies to all persons, companies, organizations and First Nations who want to participate in Commission hearings. The test has two parts. First, you must demonstrate
July 12, 2017 Page 2 of 5 that your right or interest is recognized by law. Second, you must provide some concrete information that shows that if the Commission approves the application, your rights may be directly and adversely affected. The first part of the test is legal; the second part of the test is factual. 6. It is not enough to merely assert a possible aboriginal or treaty right, you must show some degree of location or connection between the work proposed and the right asserted. 1 This means, for example, that sufficient information about the traditional activity should be provided. This information should include a description of the traditional activity; e.g., hunting, trapping, or gathering berries or plants; the proximity of the activity to the proposed project; and, the effect of the proposed project or work on the activity described. AWNTB s submissions 7. The AWNTB submitted that the proposed project is located on lands historically occupied by the Mountain Cree. In its SIP, the AWNTB stated that it is a First Nations group that falls under the Duty To Consult rulings made by the Supreme Court of Canada, and that [a]s an Indigenous First Nations group with a proven Traditional Land Use in the Project area the AWNTB must be included in the Engagement process and the Duty To Consult Process for the project. 8. Attached to the AWNTB s SIP was an application to intervene in the proceeding, which included background information on the Mountain Cree in Alberta and references to a number of publications, all of which appear to have been authored by Joachim Fromhold, the individual who filed the SIP on behalf of the AWNTB. 9. In the application to intervene, the AWNTB stated that the Supreme Court of Canada in Delgamuukw v British Columbia, 1998, mandated a number of obligations that Canada owes to existing First Nations/Bands who retained underlying title to their traditional lands, and that Canada has ruled that these obligations are to be met by the Developer. The AWNTB stated that Natural Resources Canada has designated that AWNTB are a First Nations group that falls under the Duty to Consult ruling. The AWNTB submitted that it has participated in the National Energy Board hearing process and was engaged by ATCO Electric in respect of the ATCO Electric interconnection power line project in Jasper National Park and, as such, it must also be included in this proceeding. 10. The AWNTB also provided a copy of a letter sent to ATCO Power s Aboriginal Liaison Office on August 23, 2014, which stated that the AWNTB should be included in ATCO Power s Duty to Consult obligations for a number of projects. ATCO Submissions 11. ATCO submitted that the Commission should dismiss the AWNTB s request for standing because the AWNTB have not identified the nature of the rights being asserted or how those rights may be directly and adversely affected by the Commission s decision on the project. 1 Dene Tha First Nation v. Alberta (Energy and Utilities Board), 2005 ABCA 68, at paragraph 14.
July 12, 2017 Page 3 of 5 12. With respect to the first part of the standing test, ATCO submitted that although the AWNTB s SIP asserts that the Mountain Cree are the historic occupants of the project area, the AWNTB is not a recognized First Nation by the Ministry of Indigenous and Northern Affairs Canada or by the Alberta Aboriginal Consultation Office (ACO). ATCO submitted that there is no factual information about the AWNTB s membership, its leadership other than Mr. Fromhold, the nature of the organization or whether the AWNTB is a band as defined in the Indian Act. 13. ATCO also submitted that during the project s planning stage, it provided a project description to the ACO. The ACO determined that no consultation was required for the application, as the project would require no pipeline agreements under the Public Lands Act since no disposition of Crown lands outside of the Calgary TUC would be necessary. 14. ATCO also noted that the Commission previously ruled that the AWNTB did not have standing in Proceeding 20581, 2 on the basis that the AWNTB had provided insufficient information to identify the nature of the rights asserted or the source of those rights. ATCO submitted that in this case, the AWNTB has provided less information than it did in Proceeding 20851, and the Commission should find consistently in this proceeding that the AWNTB has not met the first part of the test for standing. 15. With respect to the second part of the standing test, ATCO submitted that the AWNTB did not provide any specific information as to how its asserted rights may be directly and adversely affected by the Commission s decision on the application. ATCO submitted that the documentation provided in the AWNTB s SIP did not speak to the project area and only made general references to the AWNTB s historical presence in the Calgary area. ATCO submitted that the AWNTB did not provide information sufficient to establish the causal connection necessary to fulfill the factual component of the standing test. 16. Finally, ATCO submitted that even if the AWNTB were to establish the nature and source of its claimed rights and a specific application of those claims, those rights would not be directly and adversely affected by the Commission s decision in this proceeding since the project is located within the Calgary TUC. Commission ruling 17. The Commission finds, for the reasons that follow, that the AWNTB have not demonstrated that it has rights that may be directly or adversely affected by the Commission s decision on the Southwest Calgary Connector Project. 18. For the factual part of the standing test, a person or group must show some degree of location or connection between the proposed project and the asserted right. The AWNTB submitted that the Mountain Cree have historically resided in the project area and that ATCO has a number of Supreme Court of Canada-mandated obligations to consult with affected First Nations. The AWNTB s SIP did not contain any information about any traditional activities or asserted rights that may be affected by the proposed project in this proceeding, or how those 2 Ruling on statements of intention to participate and standing, Proceeding 20581, September 10, 2015; Standing in Proceeding 20581, Proceeding 20581, October 15, 2015.
July 12, 2017 Page 4 of 5 interests may be affected by the Commission s decision in this proceeding. The Commission finds that the AWNTB s general statement of concern does not meet the factual test. Absent from the information filed by the AWNTB was any specific information demonstrating a causal connection between the project and its negative effects on the asserted rights. 19. With respect to the legal part of the standing test, the AWNTB s SIP asserts that the Mountain Cree are the historic occupants of the Calgary area. The SIP also includes a number of secondary historical sources detailing the history of the Mountain Cree, authored by Mr. Fromhold. However, absent from the AWNTB s SIP is any information relating to the AWNTB s membership, leadership, nature of the organization, or whether the AWNTB is a band as defined in the Indian Act, or recognized by the provincial ACO or the federal Ministry of Indigenous and Northern Affairs Canada. The information provided by the AWNTB is not sufficient for the Commission to determine that the AWNTB holds legally recognized rights or interests, as required under the first part of the standing test. 20. The Commission s determination that the AWNTB does not have standing in this proceeding is consistent with its ruling on the standing of the AWNTB in Proceeding 20581. In that proceeding, the Commission considered an application by EPCOR Distribution & Transmission Inc. to expand its Rossdale substation. The substation site was near the location of two historic fur trade establishments, Edmonton House and Fort Augustus, and was adjacent to a traditional burial ground associated with the fur trading posts. 21. The AWNTB submitted a SIP in Proceeding 20581 in which it expressed its concerns about the potential effects of the project on the traditional burial ground. Based on the information provided, the Commission found, in a series of rulings, that the AWNTB had failed to demonstrate that it had rights that may be directly and adversely affected by the Commission s decision on the application. The Commission noted that all of the AWNTB s submissions were authored by Mr. Fromhold, as was all of the information provided on the website listed on the AWNTB s letterhead, inewhistory.com, and, as such, it was unclear to the Commission whether the AWNTB comprised any members other than Mr. Fromhold. The Commission noted that there were a number of references to Supreme Court of Canada decisions and other information on the history of the AWNTB; however, the submissions did not include any factual information about AWNTB s membership, its leadership, other than Mr. Fromhold, the nature of the organization, the activities of its members, or whether the AWNTB is a band as defined in the Indian Act. The Commission concluded as follows: While the Commission acknowledges that you are asserting aboriginal rights, including the right to consultation, on behalf of the AWNTB, it cannot make a standing decision with respect to those rights without some basic factual information about the AWNTB s membership, leadership organization, activities and status under the Indian Act. The assertions contained in AWNTB s submissions did not provide that information and the Commission concludes that the AWNTB has failed to provide sufficient information regarding the rights it is asserting to satisfy the legal test for standing in Proceeding 20581. 3 3 Standing in Proceeding 20581, Proceeding 20581, October 15, 2015, paragraph 10.
July 12, 2017 Page 5 of 5 22. The Commission observes that the AWNTB provided much less information about the causal connection between the rights it asserts and the Southwest Calgary Connector Project than it did in the Rossdale substation expansion project. Given the lack of information provided respecting the nature of the AWNTB s alleged rights or interests, and the lack of information provided respecting the potential effect of the Commission s decision on those rights or interests, the Commission finds that the AWNTB has not demonstrated that it has legally recognized rights or interests that may be directly and adversely affected by the Commission s decision on the application. 23. The AWNTB s request for standing to participate in Proceeding 22634 is denied. Yours truly, Kim Macnab Commission Counsel