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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 AUC’s consultation process for Indigenous groups includes:
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 Rule 007: Applications for Power Plants, Substations, Transmission Lines, Industrial System Designations, Hydro Developments and Gas Utility Pipelines on page 134.