Duty to consult

The AUC has the authority to consider and address potential adverse impacts to Aboriginal and treaty rights (set out in Section 35 of the Constitution Act) when deciding whether approval of an electric facility or gas utility project is in the public interest. The AUC is committed to ensuring that Indigenous groups whose constitutionally protected rights may be directly and adversely affected by development have the opportunity to have their concerns heard, considered, understood and accommodated (if required).

The duty to consult​ is a process intended to understand the potential for adverse impacts of anticipated Crown decisions on Aboriginal and treaty rights with a view to substantially address any impacts on those rights.

Duty to consult activities occur on a spectrum that depends on the strength of the claim of proven or asserted Section 35 rights and the potential for adverse impact on those rights. The consultation activities required to fulfill the duty range from notification-only to deep consultation, and in some instances may require accommodation.

The AUC acknowledges that a duty to consult arises in relation to a proposed utility development application filed with the AUC when the following factors are all present:

• The Crown has real or constructive knowledge of a proven or asserted Section 35 right.
• An AUC decision is contemplated that could affect land or natural resources, including air and water.
• The AUC’s decision has the potential to adversely affect the continued exercise of a Section 35 right.

The AUC’s consultation process for Indigenous groups includes:

1. Pre-application engagement by proponents.
2. AUC’s notice of application and the opportunity for Indigenous groups to self-identify if they consider their rights may be directly and adversely affected.
3. Public hearings in accordance with Section 9 of the Alberta Utilities Commission Act.

If an Indigenous group asserts that Section 35 rights are potentially affected, the group can submit a statement of intent to participate in the proceeding. The AUC will review the statement of intent to participate and make a standing decision in the normal course.​

Additional information on the AUC’s participant involvement program guidelines for Indigenous groups can be found in AUC R​ule 007: Applications for Power Plants, Substations, Transmission Lines, Industrial System Designations, Hydro Developments and Gas Utility Pipelines on page 134.