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From: Janet Stewardson

To: +OPS-AUTH-SOC; Rob Cruickshank; Elizabeth Grilo


Subject: FW: Request for Reconsideration by O"Chiese First Nation
Date: Friday, December 14, 2018 3:37:43 PM
Attachments: 2018-12-14 LT to parties reconsideration submissions.pdf
Request for Reconsideration.pdf

FYI
 
Janet Stewardson
Manager, Statement of Concern (SOC) Team
Authorizations, Business Process
 
From: Regulatory Appeal
Sent: Friday, December 14, 2018 3:31 PM
To: 'andrew.scott@ochiesebc.ca'; 'Marc.Symbaluk@teck.com'
Cc: 'connie.t@ocfn.ca'; 'phyllis.whitford@ochiesebc.ca'; 'kurt.borzel@gov.ab.ca'; 'Eric.Davey@gov.ab.ca';
Corey MacGarva; Janet Stewardson; Arlette Malcolm; Behn Morris; Julia Fulford
Subject: Request for Reconsideration by O'Chiese First Nation
 
Good afternoon,
 
Please find the enclosed correspondence on the above-noted matter.
 
Sincerely,
 
Sara Roth
Regulatory Appeals Coordinator, Law Branch
 
Alberta Energy Regulator
e regulatoryappeal@aer.ca tel 403-297-4116 
Suite 1000, 250 – 5 Street SW, Calgary, Alberta T2P 0R4
inquiries 1-855-297-8311 24-hour emergency 1-800-222-6514 www.aer.ca

This message, including any attachments, is confidential, may be privileged and is intended for the above-named
recipient only. If you have received this message in error, please notify the sender by return email and delete this
message from your system. Any unauthorized distribution, disclosure or use of this message is strictly prohibited. Do
not forward this message without the express consent of the sender.
 
 
Via Email

December 14, 2018

O’Chiese First Nation Teck Coal Limited, Cardinal River


Consultation Office Operations

Attention: Andrew Scott Attention: Marc Symbaluk

Dear Sirs:

RE: Request for Reconsideration by O’Chiese First Nation


Teck Coal Limited (Teck)
Cheviot Coal Mine - MacKenzie RedCap Project

The Alberta Energy Regulator (AER) acknowledges receipt of correspondence dated December 7, 2018,
filed by Andrew Scott, on behalf of O’Chiese First Nation, requesting that the AER consider and accept
their Statement of Concern on Application No. 1909318 Cardinal River Operations Ltd. Cheviot Coal
Mine.

The AER has authority to reconsider its decisions pursuant to section 42 of the Responsible Energy
Development Act (REDA). That section states:

The Regulator may, in its sole discretion, reconsider a decision made by it and may confirm, vary,
suspend or revoke the decision. [emphasis added]

As indicated by section 42, the AER has sole discretion to reconsider a decision made by it. That section
does not provide an appeal mechanism that is designed to be applied-for and utilized by industry or
members of the public: other provisions provide this opportunity. These provisions require appeals to be
filed in a timely manner in order to address the need for finality and certainty in AER decisions. The AER
will only exercise its discretion to reconsider a decision outside these time limits under the most
extraordinary circumstances, where it is satisfied that there are exceptional and compelling grounds to do
so.

The AER requests that Teck provide its submissions in reply to O’Chiese First Nation’s request for
reconsideration. Teck is requested to provide its response to the AER by 4:00 pm on January 2, 2018.
O’Chiese First Nation will have an opportunity to respond to Teck’s submissions and their response is
due by 4:00 pm on January 9, 2018.

The parties are requested to direct all communications relating to this matter to Sara Roth of the AER
Law Branch by e-mail at RegulatoryAppeal@aer.ca. Further, the parties are requested to copy each
other on all communications relating to the reconsideration.

Please be aware that pursuant to s.49 of the AER Rules of Practice (Rules) all documents filed will be
placed on the public record.

Sincerely,

Sara Roth
Regulatory Appeals Coordinator

Cc: Connie Tuharsky, O’Chiese First Nation


Phyllis Whitford, O’Chiese First Nation
Kurt Borzel, Aboriginal Consultation Office
Eric Davey, Aboriginal Consultation Office
Corey MacGarva, Alberta Energy Regulator
Janet Stewardson, Alberta Energy Regulator
Arlette Malcolm, Alberta Energy Regulator
Behn Morris, Alberta Energy Regulator

2
O’CHIESE FIRST NATION
Box 1570 Rocky Mountain House, Alberta – T4T 1B2
Phone: (403) 989-3943 Fax: (403) 989-3795 Toll Free: 1-888-256-3884

December 7, 2018

Mr. Jim Ellis


President/Chief Executive Officer
Alberta Energy Regulator
Suite 1000, 250-5 Street SW
Calgary Alberta, Canada
T2P 0R4

Dear Mr. Ellis,


RE: Appeal on Request for Acceptance of O’Chiese First Nation Statement of Concern
for Application No. 1909318 Cardinal River Coals Ltd. Teck Coal Ltd MacKenzie
Redcap Project dated November 16, 2018

This letter is sent on behalf of O’Chiese First Nation Chief and Council. The Chief and Council of
O’Chiese First Nation have the elected authority and responsibility to protect the collective rights
and interests of O’Chiese First Nation. The collective rights and interests of O’Chiese First Nation
are recognized by Treaty No. 6 and affirmed and protected by Section 35 of the Constitution Act,
1982 (collectively known as Aboriginal and Treaty rights).
O’Chiese First Nation submits this letter to Mr. Ellis, President and Chief Executive Officer of the
Alberta Energy Regulator (AER) concerning a Statement of Concern (SOC) date November 16,
2018 submitted by O’Chiese First Nation regarding Application No. 1909318 (the Application)
Cardinal River Coals Ltd. Teck Coal Ltd (Teck) MacKenzie Redcap Project (MKRC) (the Project)
that was rejected by the AER because it was “not submitted within the time limit specified in
section 5.3(a)” 1 according to the AER Rules of Practice.
O’Chiese First Nation requests a reconsideration of O’Chiese First Nation’s SOC by the AER.
O’Chiese First Nation advised the AER in the SOC and Request for Acceptance Letter submitted
to the AER on November 16, 2018 (attached), the Project will directly and adversely impact
O’Chiese First Nation members and their ability to exercise Aboriginal and Treaty rights.
Additionally, O’Chiese First Nation advised the AER in the SOC and Request for Acceptance
Letter that O’Chiese First Nation has several outstanding concerns regarding the Application as
outlined in the SOC which the AER should consider prior to Project decision-making.
O’Chiese First Nation is becoming increasingly disenchanted by the AER processes and the
AER’s lack of transparency on the Cheviot Coal Mine. O’Chiese First Nation has made multiple
attempts to communicate concerns and identified impacts to O’Chiese First Nation’s Aboriginal
and Treaty rights resulting from all six development phases of the Cheviot Coal Mine including
MKRC. O’Chiese First Nation’s concerns include the following:

1Alberta Energy Regulator (2018, November 26) Response to OCFN: SOC Late Filing Response to O’Chiese First
Nation

Letter- Alberta Energy Regulator - Re: Teck MKRC Project SOC – December 7, 2018 Page 1 of 3
1. The lack of consultation by Teck with O’Chiese First Nation when the Project was first
proposed in 1997; as such, there are no identified impacts to O’Chiese First Nation’s
Aboriginal and Treaty rights - a worrisome and notable oversight. Teck further relied on
this flawed process in Teck’s 2015-2016 consultation with O’Chiese First Nation related
to the Upper Harris Extension. More notably, Teck continues to reference and rely on the
historic environmental assessment despite O’Chiese First Nation’s repeatedly expressed
concerns;
2. Outstanding issues and concerns from the Upper Harris Extension Amendment
(Application No.18266). O’Chiese First Nation in the O’Chiese First Nation Occupied
Lands Inventory, Teck Coal Ltd. Cardinal River Operations Upper Harris Extension, 2016
provided Teck with detailed evidence of direct and adverse impacts to O’Chiese First
Nation’s Aboriginal and Treaty rights by the Upper Harris Extension. The AER did not
acknowledge or follow-up with O’Chiese First Nation on the identified impacts to O’Chiese
First Nation’s Aboriginal and Treaty rights resulting from the Upper Harris Extension;
3. The sudden removal of the condition in the Mine Permit requiring Teck to monitor and
mitigate adverse impacts on traditional land use including impacts on Aboriginal and
Treaty rights. The AER and the Alberta Consultation Office (ACO) have failed on multiple
occasions2 to answer O’Chiese First Nation’s queries why this condition was deleted.
Teck, despite a commitment to O’Chiese First Nation to address this matter with the AER,
has not supported O’Chiese First Nation in seeking an answer from the AER out of
concern that it will delay Teck’s timelines3.
The AER, as the sole provincial regulator, carries the designated Crown responsibility to fulfill the
duty to consult sufficiently and ensure the AER’s conduct upholds the Honour of the Crown. This
means that the AER must act in a way to ensure the Crown’s relationship with Aboriginal peoples
is fiduciary in nature 4 and is in keeping with the objective of reconciliation5, meaningful dialogue,
and respect. As noted in the Voices of Understanding, Looking Through the Window, 2017 report
on Indigenous Engagement by the AER - these objectives cannot be achieved without “empathic
engagement”6 and purposeful action by the AER.
The AER Rules of Practice at section 6.2 (1) permits the AER to accept a late submission SOC
at the AER’s discretion. O’Chiese First Nation is frustrated that the AER refused to exercise this
discretion despite several key points that raised by O’Chiese First Nation including: 1) O’Chiese
First Nation did not receive notification of the Application filing and O’Chiese First Nation was
therefore unaware of the deadline to submit an SOC during the procedurally designated comment
period; 2) the Project will directly and adversely affect O’Chiese First Nation’s Aboriginal and
Treaty rights (as demonstrated in the SOC); and 3) there has been no decision made by the AER
to-date on the Application7. The AER’s refusal to consider the SOC dated November 16, 2018

2 Referencing: O’Chiese First Nation Letter submitted to the AER December 2015.
E-mail correspondence with O’Chiese First Nation and the AER (Jennifer Comrie and Behn Morris) August 2018.
Engagement activities between Teck with O’Chiese First Nation starting in 2015.
3 Referencing Meeting on October 22, 2018 with Teck and O’Chiese First Nation. Teck reported to O’Chiese First

Nation that Teck would not be looking into the removal of this condition any further so as not to extend the approval
process on MKRC by the AER.
4 Tsilhqot’in Nation v. British Columbia, [2014] 2 SCR 257, 2014 SCC 44
5 Haida Nation v. British Columbia (Minister of Forests), [2004] SCC 73
6 Alberta Energy Regulator (2017, November) Voices of Understanding, Looking Through the Window at page xi.
7 O’Chiese First Nation (2018, November 16) Request for Acceptance of O’Chiese First Nation Statement of Concern

for Application No. 1909318 Cardinal River Coals Ltd. Teck Coal Ltd MacKenzie Redcap Project. Letter submitted by
O’Chiese First Nation to the AER along with SOC

Letter- Alberta Energy Regulator - Re: Teck MKRC Project SOC – December 7, 2018 Page 2 of 3
does not reflect the AER’s commitment to “a new way of thinking, a new way of doing things”8 as
reported in Voices of Understanding, Looking Through the Window, 2017.
O’Chiese First Nation wishes to: 1) engage with the AER about the O’Chiese First Nation’s issues
and concerns outlined in the SOC; and, 2) have an “influential voice”9 in the regulatory process.
O’Chiese First Nation believes that the AER cannot make an informed Project decision without
considering the November 16, 2018 SOC filed by O’Chiese First Nation10.
O’Chiese First Nation appeals to Mr. Ellis, President and CEO of the AER to reconsider the
acceptance of O’Chiese First Nation’s SOC on Application No. 1909318. Acceptance of the SOC
would be a demonstration of the AER’s commitment to learn from and improve relationships with
Indigenous Nations by ensuring that the Honour of the Crown is sufficiently upheld and the
regulatory process remains adaptable related to the size and scope of each project and its
potential to impact Aboriginal and Treaty rights.11

Sincerely,

Andrew Scott
Consultation Director
O’Chiese Consultation Office

cc:
Connie Tuharsky,
General Counsel, O’Chiese First Nation
Phyllis Whitford,
Treaty Manager, O’Chiese First Nation
Behn Morris,
Engagement Specialist, Indigenous
and Regional Engagement, AER
Arlette Malcolm,
Director of Indigenous and Regional
Engagement, Alberta Stakeholder
Engagement, AER

8
Alberta Energy Regulator (2017, November) Voices of Understanding, Looking Through the Window at page 16.
9 Alberta Energy Regulator (2017, November) Voices of Understanding, Looking Through the Window at page 37.
10 Clyde River (Hamlet) v Petroleum Geo-Services Inc, 2017 SCC 40
11
Tsleil-Waututh Nation v. Canada (Attorney General) 2018 FCA 153

Letter- Alberta Energy Regulator - Re: Teck MKRC Project SOC – December 7, 2018 Page 3 of 3
BY EMAIL ONLY

November 26, 2018

Andrew Scott
O’Chiese First Nation

COAL CONSERVATION ACT (CCA) APPLICATION NO. 1909318


ENVIRONMENTAL PROTECTION AND ENHANCEMENT ACT (EPEA)
APPLICATION NO. 020-00046972
WATER ACT (WA) APPLICATION NO. 011-00205213
CARDINAL RIVER OPERATIONS LTD.
CHEVIOT COAL MINE
TRACKING NO. 31367

Dear Andrew Scott:

The Alberta Energy Regulator (AER) acknowledges receipt of your correspondence on behalf of
O'Chiese First Nation dated November 16, 2018, in which they outlined concerns about the
subject applications. The deadline to file their statement of concern (SOC) was June 15, 2018,
at 4:00 PM; their correspondence has been received on November 16, 2018, after the deadline
for filing a SOC.

In accordance with the Responsible Energy Development Act and the AER Rules of
Practice (Rules), the AER posts public notice for all application submissions on our
website, and requires SOCs be filed within the deadline set out in the notice of
application unless the AER allows you to file the SOC late.

The AER has determined the statement of concern was not submitted within the time
limit specified in section 5.3(a) of the Rules. As such, the AER has decided to exercise its
discretion to disregard it as per sections 6.2(1) (b) of the Rules.

Alternatively, the AER offers Alternative Dispute Resolution (ADR), which provides
concerned parties a variety of options to manage disputes including direct negotiation
between the parties, AER staff-led mediation, and third-party mediation. If this interests
you, please contact Fiona LeBlanc at 780-538-5140 for more information on this process.

If you have any questions, contact me at 403-297-3431 or email SOC@aer.ca.

Sincerely,

Maribel Arguello
Statement of Concern Team
Authorizations

Enclosure (1): 31367 - O'Chiese to CRC - SOC LATE FILED - 2018-11-16

cc: Marc Symbaluk, Cardinal River Coals Ltd.


Corey MacGarva, AER Application Processor
AER, ADR Inbox
AER Drayton Valley Field Centre
AER Environmental Protection & Enhancement and Water Statements of
AER Indigenous Engagement
Aboriginal Consultation Office
O’CHIESE FIRST NATION
Box 2127 Rocky Mountain House, Alberta – T4T 1B2
Phone: (403) 989-3943 Fax: (403) 989-3795 Toll Free: 1-888-
256-3884

November 16, 2018

Alberta Energy Regulator


Statement of Concern Team
Suite 1000, 250-5 Street SW
Calgary Alberta, Canada
T2P 0R4
Fax : 403-297-7336

Attention : Rushang Joshi


Corey MacGarva

Dear Sir/Madam,
RE: Request for Acceptance of O’Chiese First Nation Statement of Concern for
Application No. 1909318 Cardinal River Coals Ltd. Teck Coal Ltd MacKenzie Redcap
Project

This letter is sent on behalf of O’Chiese First Nation Chief and Council. The Chief and Council of
O’Chiese First Nation have the elected authority and responsibility to protect the collective rights
and interests of O’Chiese First Nation. The collective rights and interests of O’Chiese First Nation
are recognized by Treaty No. 6 (collectively known as “Aboriginal and Treaty rights”).
O’Chiese First Nation submits this letter along with its Statement of Concern (SOC) to the Alberta
Energy Regulator (AER) regarding Application No. 1909318 (the Application) Cardinal River
Coals Ltd. Teck Coal Ltd (Teck) MacKenzie Redcap Project (MKRC) (the Project). O’Chiese First
Nation respectfully requests consideration and acceptance of this Statement of Concern by the
AER.
O’Chiese First Nation will be directly and adversely affected by the Project. The Project is located
in an area where O’Chiese First Nation has a continuous presence and where Nation members
both currently and historically exercise Aboriginal and Treaty rights. Additionally, O’Chiese First
Nation has outstanding concerns regarding the Application that the AER must consider prior to
any Project-decisions may occur.1
The AER, as a designated Crown actor with delegated responsibilities by the Crown regarding
the duty of consult, must conduct itself in such a manner as to uphold the Honour of the Crown.
The Supreme Court of Canada has repeatedly held that the relationships between the Crown

1
Clyde River (Hamlet) v. Petroleum Geo-Services Inc., [2017] 1 SCR 1069, 2017 SCC 40
and Aboriginal peoples is fiduciary in nature and trust-like.2 The Honour of the Crown as a
constitutional principle should inform and guide this relationship.
The Supreme Court of Canada also recognized the fundamental objective of the relationship of
Aboriginal and Treaty rights with the public interest should be reconciliation, using principles of
meaningful engagement, recognition, respect and action in their interactions with Indigenous
peoples.
In this spirit, O’Chiese First Nation requests that the AER accept the O’Chiese First
Nation’s SOC, despite having missed the administrative 30-day deadline to respond.
O’Chiese First Nation believes this to be a reasonable request for the AER to accommodate for
several key reasons:
1) O’Chiese First Nation did not receive notification of the Application filing and was therefore
unaware of the deadline to submit an SOC during the procedurally designated comment
period.

O’Chiese First Nation receives innumerable requests for consultation and project
notifications on a yearly basis and does not have the capacity to continuously chase down
information and seek out timelines that should be provided upfront to potentially impacted
Indigenous Nations.

2) The 30-day deadline that the AER placed on this Application for SOC filings is an arbitrary
deadline. The AER Rules of Practice notes that:

The Regulatory may disregard a statement of concern filed with the


Regulatory if in the Regulators opinion any of the following rules apply:
(b) the statement of concern was not filed with the time specified by these
Rules. (Rules of Practice. AR 99/2013 at 6.2 (1)(b) [emphasis added])
The use of the term “may” implies that the AER can disregard a SOC, however, the AER
is not required to disregard a late SOC. This leaves room for the discretion of the AER to
allow for exceptions. The AER has the authority, along with the responsibility, to ensure
that honourable Crown action is taken to “engage, dialogue meaningfully and grapple with
real concerns”3 of Indigenous Nations, like O’Chiese First Nation.

3) O’Chiese First Nation SOC demonstrates that the Project will directly and adversely affect
O’Chiese First Nation’s Aboriginal and Treaty rights.

It is critical that Project impacts to O’Chiese First Nation Aboriginal and Treaty rights are
properly considered and accommodated by Teck and the AER4. O’Chiese First Nation has
acted in good faith by meeting with Teck and actively engaging in the consultation process.
However, O’Chiese First Nation notes despite the ongoing consultation process where
O’Chiese First Nation has regularly identified potential impacts to their Aboriginal and

2 Tsilhqot’in Nation v. British Columbia, [2014] 2 SCR 257, 2014 SCC 44


3 Tsleil-Waututh Nation v. Canada (Attorney General) at para 6
4 Clyde River (Hamlet) v. Petroleum Geo-Services Inc., [2017] 1 SCR 1069, 2017 SCC 40 and Haida Nation v. British

Columbia (Minister of Forests), [2004] 3 SCR 511, 2004 SCC 73 (CanLII)


Treaty rights, and despite access to information including the O’Chiese First Nation
Occupied Lands Inventory, Teck Coal Ltd. Cardinal River Operations Upper Harris
Extension (2016)5, Teck has failed to recognize and accommodate impacts to O’Chiese
First Nation Aboriginal and Treaty rights. The fact that Teck did not identify impacts to
O’Chiese First Nation’s Aboriginal and Treaty rights despite having access to the
necessary information is a notable gap in the current Application.6

Drawing from the AER Rules of Practice at 6.2 (1)(a). The inability to demonstrate that the
Project will directly and adversely impact the individual or group that filed a SOC is a listed
rationale for why the AER may disregard an SOC. However, O’Chiese First Nation can
demonstrate that the Project will directly and adversely impact O’Chiese First Nation’s
Aboriginal and Treaty rights (see Attached SOC dated November 16, 2018).

4) No decision has been made by the AER to-date on the Application.

Drawing from the AER Rules of Practice at 6.2 (1)(c). A decision made by the AER prior
to a SOC being filed is listed as a rationale for why the AER may disregard and SOC.
The AER has not made any decisions on the Application, indicating that there is still
opportunity for additional information to be considered before any decisions occur,
including the SOC by O’Chiese First Nation.
O’Chiese First Nation respectfully requests that the AER upholds the Honour of the Crown and
accepts our SOC filing on the Application. Failing to address the impacts to O’Chiese First
Nation’s Aboriginal and Treaty rights in the assessment of the Application risks delays because
the Crown is required to do so prior to approval7 or the decision may be overturned by a judicial
review.

Sincerely,

Andrew Scott
Consultation Director
O’Chiese Consultation Office

cc:
Connie Tuharsky, OCFN
Phyllis Whitford, OCFN
Kurt Borzel, ACO
Trish Merrithew-Mercredi, ACO
Eric Davey, ACO

5
Filed with the AER and ACO in March 2016 in relation to Application No. 182666
6 Further details are provided in the SOC.
7 Clyde River (Hamlet) v Petroleum Geo-Services Inc, 2017 SCC 40 at para 22
Susan Foisy, ACO
Jim Ellis, AER
Carol Crowfoot, AER
Corey Macgarva, AER
Mark Taylor, AER
Charlene Graham, AER
Rick Brown, AER