Reconciliation and the Crown’s Duty to Consider the Economic Interests of Indigenous Groups


On October 15, 2021, the Alberta Court of Appeal released its decision in AltaLink Management Ltd v. Alberta (Utilities Commission) (the AltaLink decision). This decision deals with the obligation of the Crown and administrative tribunals to take into account the economic interests of Indigenous groups when making decisions. The AltaLink decision will have particular significance for public interest decisions regarding electric utilities, but it will be of broader significance to government decision-makers and administrative tribunals with public interest mandates across Canada.

The AltaLink decision is all the more significant for its timing. It arises in the midst of ongoing litigation in provincial and federal courts that touch on the Crown’s duty to consider and promote Indigenous economic interests.

As we mentioned in a previous update, the Federal Court decision of July 2021 in Ermineskin Cree Nation v. Canada (Environment and Climate Change) (the Ermineskin decision)[1] overturned the decision of the federal Minister of Environment and Climate Change Canada (the Minister) to designate mining activities under federal law Impact Assessment Act without consulting on how the decision would negatively impact the economic interests of the Ermineskin Cree Nation. The Ermineskin decision explicitly recognized the Crown’s duty to consult with Indigenous groups about their economic interests that flow from or are closely related to Indigenous and treaty rights.

The Government of Canada has now appealed the Ermineskin decision, saying the Federal Court failed to “properly interpret and apply the jurisprudence regarding economic interests and aboriginal and treaty rights in the assessment of duty to consult ”and that the Minister’s designation should be reinstated.[2]

These same considerations will also be at play in the recent proceedings before the Alberta Court of Appeal and the Federal Court to challenge decisions made by the Alberta Energy Regulator (AER) and the Federal Minister to deny the project. of Grassy Mountain Metallurgical Coal (Iron and Steel).

This update provides a summary of the AltaLink decision, with particular emphasis on what it says about honor of the Crown and reconciliation in the context of Indigenous economic interests.

The AltaLink decision

Background

The AltaLink decision stems from an appeal by AltaLink Management Ltd. (AltaLink) against a decision of the Alberta electric utilities regulator, the Alberta Utilities Commission (the Commission). The Commission approved the transfer of power lines from AltaLink to limited partnerships controlled by Piikani Nation (PiikaniLink LP) and Blood Tribe (KainaiLink LP), but found that the transfers would result in additional costs for taxpayers and refused to allow PiikaniLink LP and KainaiLink LP to recover these costs through their tariffs.[3]

AltaLink had routed the transmission lines through Piikani Nation and Blood Tribe reserve lands (the most direct and economical route option) in 2010 in exchange for the opportunity for the Piikani Nation and the Blood tribe to obtain property interests and participate in the transmission industry. In 2012 and 2014, Blood Tribe and Piikani Nation exercised their options to purchase a 51% stake in transmission lines located on reserves, and transfers were to be made through limited partnership agreements. between AltaLink as general partner and Piikani Nation and Blood Tribe’s corporate entities. AltaLink asked the Commission in 2017 to approve the transfers.

Applying its ‘no harm’ test, the Board approved the transfer, but only on condition that the related Board audit and hearing costs were not passed on to PiikaniLink LP and KainaiLink subscribers. LP. The Commission declined to consider in its decision making the estimated $ 32 million in savings by routing transmission lines through reserve lands. He also refused to consider the intangible benefits flowing from the partnership between AltaLink and First Nations, namely access to First Nations labor, strengthening AltaLink’s relationships with other First Nations in Canada. and the United States and supporting the alignment of interests between AltaLink and First Nations to improve the long-term safe and reliable operation of utility assets on their reserve lands. The Commission considered that it did not have sufficient evidence that these benefits would materialize[4] and concluded that audit and hearing costs were not offset, but could be mitigated by the condition of approval that they would not be passed on to taxpayers.[5]

As general partner of PiikaniLink LP and KainaiLink LP, AltaLink appealed the Board’s decision. He argued that the Commission should have viewed the money saved for taxpayers by carrying the transmission line through reserve lands as a benefit to the public and should have considered its constitutional obligations under the honor of the Crown. in the exercise of its public interest mandate. He further argued that the Commission had an obligation to view reconciliation as part of the public interest and should have taken into account its international legal commitments under the United Nations Declaration on the Rights of Indigenous Peoples..

Alberta Court of Appeal: economic development on reserve is in the public interest

Watson and Wakeling JJ.wrote the majority’s reasons in the AltaLink decision, concluding that the Commission erred in ignoring the cost savings flowing from transmission lines routed through the Piikani Nation and Blood Tribe reserves. . On this basis, the majority ordered that PiikaniLink LP and KainaiLink LP be allowed to recover the incremental costs of audits and hearings through their tariffs.

Although Justices Watson and Wakeling did not directly consider whether the Commission erred in disregarding the honor of the Crown and reconciliation, they commented on how Indigenous participation in economic opportunity serves the public interest.

In particular, the majority indicated that projects that increase the likelihood of economic activity and provide employment opportunities on a reserve should be encouraged and are in the public interest.[6] Justices Watson and Wakeling found that on-reserve employment opportunities foster the pursuit of educational opportunities among on-reserve residents, and that jobs and education are critical to improving the quality of life on the reserve. on reserves – with benefits for on-reserve communities, for Canada as a whole, and for future generations.[7] They compared the untapped source of labor in Indigenous communities to the movement of large numbers of women into the labor force triggered by World War II, noting that a “diverse workforce benefits the nation. company “.

Consideration of the honor of the Crown and reconciliation

Justice Feehan wrote concurring reasons in which he fully agreed with the majority decision. However, Justice Feehan went further in answering questions regarding the Commission’s duties to Indigenous peoples and their governing bodies that appear before it.

Justice Feehan defined the honor of the Crown as the guiding principle that servants of the Crown should conduct themselves with honor whenever they engage with Indigenous peoples. This principle extends to the Commission to decide questions of law and constitutional questions, and to make decisions of public interest. Justice Feehan explained that, in this case, the Commission had a duty to take the honor of the Crown into account in its decision-making process and to do whatever was necessary to uphold the honor of the Crown, on the understanding that Crown obligations must be interpreted generously and on purpose, and will vary as necessary depending on the context and circumstances.

Perhaps even more powerful is Justice Feehan’s discussion of the principle of reconciliation. Reconciliation, as Justice Feehan described it, is a “distinct concept that exists separately from the honor of the Crown and includes both legal and social dimensions”. This is not only a fundamental objective of Article 35 of the Constitution Act, 1982, but it is also part of the broader public interest and applies to matters affecting indigenous peoples outside the constitutional context. As such, an administrative tribunal with a broad public interest mandate, such as the Commission, must approach reconciliation as a social concept of reconstructing the relationship between Indigenous peoples and the Crown, which specifically includes Indigenous interests. to participate freely in the economy and to have sufficient resources to self-govern effectively. This means that the economic interests of Indigenous groups must be taken into account in determining the public interest to foster reconciliation.

The Crown’s Duty to Consult

While the Government of Canada has always encouraged reconciliation with Indigenous communities, the government has made it clear that it rejects the view that this includes a requirement that the Crown take into account the economic interests of Indigenous communities in making the decision. legislative decisions and constitutionally mandated consultations. The government appealed the Ermineskin decision, claiming, among other things, that the Federal Court failed to properly interpret and apply the law regarding economic interests and aboriginal and treaty rights in assessing the duty to to consult. This position is reinforced by a recent consultation report published by the Impact Assessment Agency of Canada (the Agency), in which the Agency advised the Minister that a decision preventing the implementation of a project no ‘would not engage the Crown’s duty to consult, even if the Crown is aware of the agreements between the proponent and affected Indigenous groups.[8] Therefore, the Government of Canada’s position appears to be that economic impacts on Indigenous communities resulting from Crown decisions are beyond the scope of reconciliation and do not trigger any Crown consultation obligation.

Implications

The majority and concurring reasons for the AltaLink decision are important to the Crown and administrative tribunals, and have important implications for litigation currently before federal and provincial courts. Similar concerns are sure to arise in the coming months as the Government of Canada continues its appeal of the Ermineskin decision, and when the Federal Court and the Alberta Court of Appeal consider whether the AER and the Minister Federal government should have consulted with Treaty 7 Nations on economic interests related to the Grassy Mountain metallurgical coal project.

Developers and Indigenous communities should follow these procedures closely, as they will certainly affect decisions about future economic development and ways to ensure regulatory and economic certainty. Canada’s appeal against the Ermineskin decision, in particular, will have profound implications for the future of reconciliation in Canada.


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