Ontario Regulator Rules That Aboriginal Consultation Need Not Be Completed Before Regulatory Approval Granted

Electricity transmitters developing new transmission lines in Canada face considerable uncertainty over the duty to consult with Aboriginal communities. One of the outstanding issues is whether such consultations must be completed before transmitters can obtain regulatory approval for their projects. A recent decision from the Ontario Energy Board (OEB) indicates that the entire consultation process need not be completed before any regulatory approvals are granted, provided that the regulator is satisfied that a workable process is in place to address the concerns of Aboriginal communities.

The issue arose when an Ontario transmitter applied to the OEB for leave to construct for a 500 kV transmission line from Bruce to Milton. A number of intervenors argued that leave could not be granted until the duty to consult had been satisfied. In its September 15, 2008 decision, the OEB rejected these arguments and granted leave, making some significant findings in an area