EPCOR Distribution & Transmission Inc.

Transcription

1 Decision D Rossdale Substation Building Expansion May 13, 2016

2 Alberta Utilities Commission Decision D Rossdale Substation Building Expansion Proceeding Application A001 May 13, 2016 Published by the: Alberta Utilities Commission Fifth Avenue Place, Fourth Floor, 425 First Street S.W. Calgary, Alberta T2P 3L8 Telephone: Fax: Website:

3 Contents 1 Introduction Process Legislative scheme for facility applications Application details Historical and cultural impacts EDTI Samson Cree Mr. Delorme and Mr. Fromhold Commission findings Participant involvement EDTI Samson Cree Commission findings Visual impacts Commission findings Findings Decision Appendix A Proceeding participants Appendix B Oral hearing registered appearances Appendix C - Commission ruling on notice of constitutional question Appendix D Summary of Communications between EDTI and the Samson Cree Decision D (May 13, 2016) i

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5 Alberta Utilities Commission Calgary, Alberta Decision D Proceeding Rossdale Substation Building Expansion Application A001 1 Introduction 1. In this decision, the Alberta Utilities Commission decides whether to approve an application by (EDTI) to expand its existing Rossdale substation. 1 The application stated that the alteration is needed to accommodate new electrical equipment to ensure that the power supply at the substation is safe and reliable. The proposed alteration would consist of relocating 15-kilovolt (kv) equipment and extending the existing Rossdale substation building within the existing perimeter fence. 2. The substation is located in the Rossdale Flats area of Edmonton. The Rossdale Flats area was the location of at least two historic fur trade establishments, Edmonton House and Fort Augustus and a gathering place for First Nations. The existing Rossdale substation is adjacent to a cemetery site and traditional burial ground associated with the fur trading posts. 3. The Samson Cree Nation intervened in the proceeding because it was concerned that construction of the project could unearth human remains or cultural artifacts important to it. 4. A public hearing to consider the application was held in Edmonton, Alberta on December 9 and 10, The two main issues raised in the hearing were the adequacy of EDTI s plan to deal with any artifacts or human remains encountered during the project s construction and the adequacy of EDTI s consultation with the Samson Cree Nation. 5. After consideration of the record of the proceeding, and for the reasons outlined in this decision, the Commission finds that approval of the project is in the public interest having regard to the social and economic effects of the project and its effects on the environment. 6. In reaching the determinations set out within this decision, the Commission has considered all relevant materials comprising the record of this proceeding. Accordingly, references in this decision to specific parts of the record are intended to assist the reader in understanding the Commission s reasoning relating to a particular matter and should not be taken as an indication that the Commission did not consider all portions of the record with respect to the matter. 1 The Rossdale substation is located in the city of Edmonton and is owned and operated by EDTI pursuant to Permit and Licence D (Proceeding 20421, Application A002, June 26, 2015). Decision D (May 13, 2016) 1

6 2 Process 7. EDTI filed its application with the AUC on June 30, It was registered as Application A001 in Proceeding The Commission issued a notice of application for the proceeding on July 27, The Commission received submissions from the following interested parties in response to the notice of application: Asini Wachi Nehiyawak Traditional Band (Mountain Cree) Gerald Delorme Rossdale Community League Samson Cree Nation (Samson Cree) 8. These parties expressed concerns regarding notification for the project, the proximity of the project to traditional burial grounds and the old Fort Edmonton cemetery, and potential wildlife and visual impacts. 9. On September 10, 2015, the Commission ruled that the Samson Cree had standing to participate in the proceeding but that the Mountain Cree, Mr. Delorme and the Rossdale Community League had failed to demonstrate that they had rights that may be directly and adversely affected by the Commission s decision. The Commission granted each of these parties the opportunity to make a brief statement at the hearing and allowed them to provide further information regarding their standing to participate in the hearing. 10. After receiving additional submissions from the Mountain Cree and Mr. Delorme, the Commission again found that neither the Mountain Cree nor Mr. Delorme had met the test for standing under Section 9(2) of the Alberta Utilities Commission Act. However, the Commission repeated its offer to allow these two parties to make a brief oral statement at the hearing. 11. The Samson Cree filed a budget submission for advance local intervener funding pursuant to Section 2 of Rule 009: Rules on Local Intervener Costs. The Commission awarded the Samson Cree advance funding in the amount of $23, for legal fees, general consulting fees and honoraria for elders and knowledge holders on October 23, The application was deemed complete on September 16, 2015, the day upon which the Commission issued its notice of hearing stating that a public hearing would be held in Edmonton on December 9, On December 9, 2015, a division of the Commission consisting of Commission members Tudor Beattie, QC and Neil Jamieson and Acting Commission member Patrick Brennan held a public hearing at the AUC Edmonton Office Hearing Room. Tudor Beattie was the panel chair. 14. During final argument on December 10, 2015, counsel for the Samson Cree argued that the Crown had not fulfilled its duty to consult with it about the potential effects of the project on its aboriginal and treaty rights. Because the Commission had no jurisdiction to consider this constitutional question until the Crown had been notified, pursuant to the 2 Decision D : - Application to Expand the Rossdale Substation Building Advance Funding Award, Proceeding 20581, Application A001, October 23, Decision D (May 13, 2016)

7 Administrative Procedures and Jurisdiction Act, it adjourned the hearing and directed the Samson Cree to notify the Crown. 15. Notice was given and a process for parties to address the issue was established. On March 3, 2016, the Commission dismissed the constitutional question in a short ruling and stated that it would provide its reasons for that ruling in this decision. Those reasons are found in Appendix C of this decision. 16. On March 10, 2016, EDTI submitted its final reply argument in writing. 17. The Commission considers that the record for this proceeding closed on March 11, 2016, when the Commission issued a letter to EDTI regarding the timing of the decision for the application. 3 Legislative scheme for facility applications 18. The Commission regulates the construction and operation of transmission facilities in Alberta. Section 14 of the Hydro and Electric Energy Act states that no persons shall make a significant extension or alteration of a transmission line 3 without the approval of the Commission. 19. When deciding whether the approval of an application for a substation alteration is in the public interest, the Commission must have regard for the purposes of the Electric Utilities Act and consider the social, economic and environmental effects of the alteration Further, Rule 007: Applications for Power Plants, Substations, Transmission Lines, Industrial System Designations and Hydro Developments applies to applications for substation alterations. An application must meet the informational and other requirements set out in Rule 007. Specifically, an applicant must provide technical and functional specifications, information on public consultation, and environmental information. 21. A needs identification document application, as described in Section 34 of the Electric Utilities Act, was not required for the proposed alterations as they would not result in an expansion or enhancement of the capability of the transmission system, rather they were proposed to improve the safety and reliability of the Rossdale substation. 4 Application details 22. The Rossdale substation is located within a larger area known as the Rossdale Site. The site includes the Bellamy substation, the former Rossdale generating station, and other facilities owned by EPCOR Water Services Inc. The site is surrounded by a perimeter fence owned by EPCOR Water Services Inc. A map of the Rossdale Site is shown in Figure transmission line, as defined in subsection 1(1)(o) of the Hydro and Electric Energy Act; includes substations. As required by Section 17 of the Alberta Utilities Commission Act. Exhibit X0011, Application Appendix E, page 5 (with the addition of a circle indicating the Rossdale substation building location). Decision D (May 13, 2016) 3

8 Figure 1 Rossdale Site Map 23. The Rossdale Site is located in an area considered by Alberta Culture and Tourism (ACT) to be an archaeological site, known as the Rossdale archaeological site. In a report filed as part of EDTI s rebuttal evidence, Ms. Nancy Saxberg, a professional archaeologist with AMEC Foster Wheeler, explained that valuable heritage structures and archaeological, cultural and palaeontological resources have been recorded within the vicinity of the project The application proposed to expand the existing Rossdale substation building 7 to accommodate the installation of new 15-kV switchgear 8 into which eight network feeders would be transferred. 9 The application stated that the development was needed to reduce high fault levels on the 15-kV buses at the substation and to replace aging equipment. 25. The substation building expansion would consist of a larger section, approximately 18x10 metres, and a smaller section, approximately 7x7 metres, on the north side of the building. The height of the building expansions would match that of the existing building Exhibit X0073, page 3. The location of the substation building is circled on Figure 1. Disconnect switches, fuses and circuit breakers used to isolate electrical equipment. The new switchgear lineup would consist of 12 installed feeder breakers in the new building; however, four would be left for future use, since adding breakers later would require a complete outage of the switchgear which would disrupt power services. 4 Decision D (May 13, 2016)

9 26. The application also proposed to replace aging equipment and relocate existing equipment to accommodate the new equipment configuration that would be required at the substation. Specifically, EDTI proposed to: Remove the existing current limiting electrical equipment and install similar new equipment on the east side of the substation building. Install cable trays from the new current limiting electrical equipment to the substation building. Remove the two station service transformers and two switching cubicles. Install two station service transformers and one switching cubicle on the northwest side of the substation building. Install one switching cubicle northeast of the existing Bellamy terminal station building (west of an existing underground concrete vault). 27. The project also included the construction of a new permanent access road on the north side of the substation building. 28. The expected in-service date for the proposed project was December 31, However, EDTI stated that construction may go into 2018 given the delay caused by the need for a public hearing The proposed alterations would occur within the existing substation property boundaries and there would be no changes required to the existing fenceline, however, sections could be temporarily removed for construction access and reinstalled after completion of the project No noise producing equipment is being added or replaced thus EDTI considered that the noise levels at nearby dwellings, which are separated from the substation by a heavily travelled four-lane urban roadway, 12 would not be affected by the proposed project. 31. EDTI explained that the Rossdale Site is located within the Rossdale Flats area just south of downtown Edmonton, which has been the location of various rail, industrial and public utility developments dating back to at least As such, none of the native natural environmental features remain on the site EDTI considered the potential for encountering contamination during this project by reviewing previous environmental assessments of the site. EDTI found that there was no indication that historical releases of any substances, regulated under the Environmental Protection and Enhancement Act, had occurred at the project site. 14 A new environmental impact assessment was not required by Alberta Environment and Parks for the proposed project Transcript, Volume 1, page 87. Exhibit X0032, page 4, Section Exhibit X0002, paragraph 93. Exhibit X0002, paragraph 108. Exhibit X0032, page 14, Section Decision D (May 13, 2016) 5

10 33. EDTI prepared an environmental screening report with the City of Edmonton due to the substation s location within the North Saskatchewan River Valley. The report was used to develop a project-specific environmental protection plan and environmental construction operation plan (ECO plan) which outlined the proposed activities and mitigation measures EDTI intended to implement to minimize potentially adverse environmental impacts from the project. 34. EDTI anticipated removing 12 trees to accommodate the proposed building expansion. EDTI has stated it would work with the City of Edmonton s Urban Forester to replant 13 trees and 16 shrubs. 15 EDTI would conduct these tree removal activities outside of the restricted activity periods for migratory and non-migratory birds EDTI asserted there would be no new material impacts to terrain, wetlands, groundwater, surface water, air quality, drainage or aquatic resources because the project would be on a previously disturbed lot. EDTI considered that potential environmental impacts would be related to the construction of the project and that the operational impacts would be negligible Historical and cultural impacts 5.1 EDTI 36. Ms. Saxberg stated that historical resources in Alberta are protected by the Historical Resources Act, which is administered by ACT. Under Section 1(e) of that act, historical resources are defined as:... any work of nature or of humans that is primarily of value for its palaeontological, archaeological, prehistoric, historic, cultural, natural, scientific or aesthetic interest including, but not limited to, a palaeontological, archaeological, prehistoric, historic or natural site, structure or object EDTI submitted that a historical resources review was undertaken by AMEC Foster Wheeler under Ms. Saxberg s direction for lands within the Project area for the purpose of identifying areas potentially applicable to further historical resources assessment. The objective of the review was to assess the potential for archeological, historical, or palaeontological sites to occur on lands that will be affected by the Project. Following this assessment, a Statement of Justification (SOJ) was prepared and submitted to ACT to obtain HRA [Historical Resources Act] approval and/or requirements Ms. Saxberg stated that according to ACT: The area defined as the Rossdale archaeological site includes the EDTI property on the Rossdale Flats and portions of the surrounding lands to the east and west. The archaeological site is valuable due to the presence of the remains of a fur trade period cemetery and at least two fur trade establishments...some evidence of a precontact Aboriginal occupation has also been identified, but never in abundance and with little Exhibit X0032, page 4, Section Exhibit X0077, page 8. Exhibit X0002, paragraph 112. Exhibit X0073, page 1. Exhibit X0032, page Decision D (May 13, 2016)

11 patterning. The cemetery area has been designated by the City of Edmonton as a commemorative area The cemetery area was described in Ms. Saxberg s report and in other materials filed in the hearing as the traditional burial ground/fort Edmonton Cemetery. 40. Ms. Saxberg stated that the cemetery area was likely used from about 1814 to She explained that research excavations revealed evidence of a former wooden palisade-style fence that formerly surround the cemetery and several grave outlines. 21 She stated that other graves had been accidentally encountered on the Rossdale archaeological site in the late 19th century and in the 1960s and Ms. Saxberg provided an overview and summary of the results of the 12 archeological investigations that have occurred within or partially contained by the project site since She reported that no human remains or graves were observed and very few historical artifacts were found with the exception of disarticulated human remains in a fill deposit in the southeast corner of the project area Ms. Saxberg stated that those remains were not considered to have come from graves in the immediate area. Instead, she believed that those remains had originally come from the known cemetery based on observations of the subsoil they were found in. Ms. Saxberg believed that it was reasonable to conclude that human burials would not be found in the project area. 43. Ms. Saxberg explained that the project area boundary is approximately 65 metres east of the known fenceline of the burial grounds and the places where intact burials and other human remains have been found. Ms. Saxberg asserted that it s a reasonable assumption based on archeological data that the traditional burial ground does not extend into the project area ACT granted Historical Resources Act approval for the substation expansion, transmission upgrades and switching cubicle relocation to EDTI on December 4, The approval required a historic resources impact assessment for archaeology which was to consist of a monitoring program EDTI stated that a combination of hydrovac and mechanical excavation would be used in the project area. EDTI stated that hydrovac excavation is a safe, cost-effective and archeologically appropriate method of excavation. EDTI observed that Ms. Saxberg described hydrovaccing as an acceptable method for excavation if the hydrovac operators and monitoring archeologists are experienced, have good communication and are vigilant. 26 EDTI committed to using a team of hydrovac operators who have experience working in the Rossdale area and have prior experience working closely with archeological monitors for this project Exhibit X0073, page 3. Ibid. Exhibit X0073. Exhibit X0073, page 11. Transcript, Volume 1, page 59. Exhibit X0079. Exhibit X0074, page 2. Exhibit X0068, page 14. Decision D (May 13, 2016) 7

12 46. EDTI stated that a small backhoe would be used for the four metre by four metre excavation in the vicinity of the existing vaults in the southeast corner of the project area where disarticulated human remains were found in fill material in It explained that if human remains or artifacts are found in that excavation, the method used would immediately be changed to hand excavation EDTI stated that excavations at all locations would be monitored by a qualified archeologist with experience working on this particular site and similar sites. EDTI pointed out that this goes beyond both the recommendation of Ms. Saxberg to monitor two locations and the Historical Resources Act clearance which only required monitoring of one location. 48. EDTI stated that it had developed two separate protocols in the event that historic artifacts or human remains or graves were discovered. 49. In the event historic artifacts are found, work would immediately stop and access to the location would be blocked. The site supervisor and project manager would be advised. The project archaeologist, who would be monitoring the excavation, would then identify the historical artifact and assess its significance. The project manager and archaeologist would notify ACT and the EPCOR Public and Government Affairs group. Depending on the identification and significance of the discovery, and with the consent of ACT, EDTI would notify interested First Nations groups. Ms. Saxberg explained that consent from ACT is required due to confidentiality agreements with respect to historic sites and artifacts. 29 Finally, a mitigation plan would be developed to continue with the project In the event human remains or graves are found the same protocol would be followed except the Edmonton Police Service would be notified 31 since human remains are not covered by the Historical Resources Act. 32 Also, First Nations groups would be notified of any human remains found without a further assessment of how significant the find is. 33 Furthermore, EDTI committed to consult with the Samson Cree regarding reburial protocols should remains be found EDTI testified that it considered the concerns of aboriginal groups including the Samson Cree. In order to mitigate the concerns of these nations, EDTI stated it will provide them with the opportunity to observe the excavations. 35 In the interest of safety, since the excavations would be on a construction site in an energized substation, EDTI determined that a maximum of two observers could be on-site at a time, 36 thus construction monitoring would have to be shared among nations Transcript, Volume 2, page 205. Transcript, Volume 1, page 54. Exhibit X0077, PDF page 28 and Transcript, volume 1, pages Exhibit X0077, PDF page 29. Transcript, Volume 1, page 68. Transcript, Volume 1, page 75. Transcript, Volume 1, page 62. Transcript, Volume 1, pages Transcript, Volume 1, page Decision D (May 13, 2016)

13 52. EDTI argued that it should not be mandated to give preferential treatment to one nation over others. EDTI committed to work with the First Nations that have asked to have monitors present on-site to come up with an acceptable approach to facilitating observation of excavation work EDTI argued that it had developed reasonable and adequate mitigation measures that would address all relevant potential impacts on the Samson Cree s interests and there was no need for the Samson Cree s suggested condition Samson Cree 54. The Samson Cree asserted that the area known as Rossdale Flats has been a significant historical site for the Samson Cree and other First Nations people. The Samson Cree explained that its oral histories indicate that it was a location for sacred ceremonies, social gatherings, celebrations, and trading. 39 It stated that any work, whether artifacts and human remains have been found at that location or not, should be carried out in the most respectful way possible, given the history of the area as a sacred and ceremonial site to several of Alberta s First Nations In argument the Samson Cree submitted that, based on its oral history and traditional knowledge, the burial ground is actually much larger than the area defined by EDTI and its archeologist. 41 It asserted that the project application did not consider the nation s oral history and that EDTI failed to demonstrate that the desktop reviews it relied on considered the nation s oral history. 56. Mr. Herbert Lightning, a witness for the Samson Cree, asserted that there is a strong possibility that more cultural heritage property and artifacts will be found in the proposed substation expansion area since there have already been bones found in that area. 42 The Samson Cree s other witness, Ms. Kyra Northwest, acknowledged that the human remains found in the substation expansion area were likely brought there from some other location. 43 However, she observed that there could still be more remains in that area and that it was important to be careful in such situations. Ms. Northwest stated in that regard that the Samson Cree were fine with EDTI s plan for excavations near the site where human remains had previously been found When asked about EDTI s plan to have two First Nation monitors on-site during excavation, with rotating participation from interested First Nations, Mr. Lightning stated that he had no comments. Ms. Northwest explained that a similar approach was used for the Walterdale Bridge project in Edmonton, which is adjacent to the Rossdale Site. She stated that one limitation with rotating monitors for that project was that the Samson Cree did not get all the information it needed. She explained that the purpose of having First Nation monitors on such Exhibit X0155, page 8. Exhibit X0155, page 9. Exhibit X0063, PDF pages 2 and 8. Transcript, Volume 2, page 246. Transcript, Volume 2, page 252. Exhibit X0064, paragraph 14. Transcript, Volume 1, page 131. Transcript, Volume 1, page 107. Decision D (May 13, 2016) 9

14 sites was to make sure that things are done in a careful way and respectfully if anything is found Ms. Northwest stated that while she could not speak for the Samson Cree s consultation co-ordinator, she thought that the Samson Cree would be willing to work with other First Nations to develop guidelines or protocols for choosing monitors and working together so that information is effectively shared between First Nations. Ms. Northwest stated that the Samson Cree had taken such an approach on prior projects and stated that it would be a step in the right direction to do something along those lines Ms. Northwest answered as follows when asked if the Samson Cree s participation in previous projects with rotating monitors had been successful: I would say that it has been if we're coordinating with other First Nations communities. Because a lot of times I guess the views are a little -- are the same, but I guess protocols are different. So it's kind of the same -- they treat them with the same respect that -- well, that we would, but it's just, yeah, like I said, it would just be different protocols depending on which First Nations they would be However, the Samson Cree stated in its argument that EDTI s proposal to have only two First Nation monitors at one time fell short of protecting its interest in the area. It asserted that each First Nation is unique and such blanket accommodation measures are inadequate to address the unique concerns of the Samson Cree. The Samson Cree proposed that one representative each day should be from the Samson Cree Nation because it was the only First Nation that intervened in the proceeding and the project is directly within Treaty No. 6 s geographical boundaries In its final argument, the Samson Cree also took issue with EDTI s proposed protocol in the event historical artifacts are discovered. The Samson Cree disagreed that they should only be notified with the consent of ACT. The Samson Cree argued that the discovery of artifacts would directly engage Samson Cree s aboriginal and treaty rights regarding cultural property and was therefore not within the ability of ACT to determine whether or not the Samson Cree should be contacted. The Samson Cree requested that the Commission condition any approval of the project on the development of a mitigation plan with the Samson Cree Mr. Delorme and Mr. Fromhold 62. Mr. Gerald Delorme, a member of the Edmonton Stragglers Band, agreed with the Samson Cree that the Rossdale area was a sacred site for aboriginal peoples. Mr. Delorme provided a brief and informative history of his people and stated that his ancestors were buried directly in the Indian graveyard. He was concerned that remains found in the area in the past had not been dealt with in a respectful manner based on conversations he d had with witnesses to Transcript, Volume 1, pages 108 and 109. Transcript, Volume 1, page 110. Transcript, Volume 1, pages Transcript, Volume 2, pages Transcript, Volume 2, pages Decision D (May 13, 2016)

15 past excavations. 50 Mr. Delorme felt that the Rossdale area should be protected as a historical sacred site Mr. Delorme stated that there have been many recordings of occupations in the Rossdale area and attempts to locate the known historical traditional burial ground, and provided newspaper articles on such. 52 He asserted that the traditional burial ground extends far into the EDTI power plant site 53 and stated that he had talked to men who were on the site in 1976 who indicated the cemetery was much larger Mr. Joseph Fromhold, a member of the Mountain Cree, stated that 95 people related to the Mountain Cree band had been buried in or around Rossdale. He was concerned with the protocol for dealing with human remains that had been used in the area in the past. He asserted that if human remains are unearthed they should be reinterred with a proper ceremony. He was also concerned that the Mountain Cree had never been contacted by EPCOR or the City of Edmonton when human remains were discovered in the Rossdale area in the past. 5.4 Commission findings 65. The Commission finds that EDTI has taken reasonable steps to address the potential for encountering cultural artifacts or human remains during the Rossdale substation building expansion project. The Commission finds that the work proposed by EDTI will be conducted in accordance with the requirements of the Historical Resources Act and the clearance approval given by ACT. 66. In Decision , the Commission s predecessor, the Alberta Energy and Utilities Board, explained how it accounted for the regulatory standards and guidelines of other government departments or regulators: The existence of regulatory standards and guidelines and a proponent s adherence to these standards are important elements in deciding whether potential adverse impacts are acceptable. In the Board s view, the public interest will be largely met if applications are shown to be in compliance with existing provincial health, environmental, and other regulatory standards in addition to the public benefits outweighing negative impacts Transcript, Volume 1, pages 155 and 164. Transcript, Volume 1, page 163. Exhibit X0089. Transcript, Volume 1, page 136. Transcript, Volume 1, page 165. Decision : EPCOR Generation Inc. and EPCOR Power Development Corporation MW Coal-Fired Power Plant, Application , December 21, 2001, page 4. Decision D (May 13, 2016) 11

16 67. The Commission endorsed this approach in decisions and 3183-D While both decisions related to applications to construct and operate power plants, the Commission finds that this approach applies equally to applications for electric transmission infrastructure. 68. The approval granted to EDTI under the Historical Resources Act includes conditions to ensure the protection of cultural artifacts encountered during construction of the project. Those conditions include the requirement to have a professional consulting archaeologist on-site to monitor construction activities and set out EDTI s reporting requirements. A further condition of the approval is that Alberta s First Nations consultation guidelines on land management and resource development must be followed at the time of any discovery of an Aboriginal Traditional Use Site. The protocol for addressing the discovery of human remains, that EDTI has committed to following, closely follows the protocol for cultural artifacts. In the Commission s view, EDTI s compliance with the Historical Resources Act and the approval issued to EDTI under that act will ensure that any recovered artifacts or human remains are treated in a respectful and fitting manner by a trained archaeologist. 69. The Commission finds the mitigation measures and action plan proposed by EDTI in the event that human remains or artifacts are encountered are reasonable in the circumstances. The Commission observes that EDTI has considerable experience in managing construction projects on the Rossdale Site and co-ordinating the necessary archaeological components of those projects and notes that there have been 12 studies in the immediate project area alone. The Commission likewise finds that the consulting archaeologist selected by EDTI, Ms. Saxberg, has worked on the site for a number of years and is familiar with the requirements of the Historical Resources Act and the obligations of her profession. 70. The Commission further finds that EDTI s plan to have up to two rotating First Nation monitors on-site during excavations is reasonable from a safety perspective. The Commission observes that ACT has a list of 21 aboriginal groups with ties to the site and finds that rotating monitors between those groups is the most effective way to ensure that all those with an interest in the site have an opportunity to be involved in the monitoring. The Commission observes that EDTI also committed to continue to work with the Samson Cree and other First Nations, on the development of a mitigation plan in the event that artifacts or human remains are found. The Commission finds that the development of such a plan will be essential to ensure that the interests of all parties are met. 71. The Samson Cree s argument that the rotating monitoring proposed by EDTI would not satisfy its needs was inconsistent with the evidence of its witness, Ms. Northwest. Ms. Northwest testified that the Samson Cree had participated in similar programs in the past and, in her view, those programs had been a success, subject to concerns regarding the exchange of information between the rotating monitors Decision : ENMAX Shepard Inc.- Construct and Operate 800-MW Shepard Energy Centre, Proceeding 241, Application , October 21, 2010, paragraphs 25 and 26. Decision 3183-D : TransAlta MidAmerican Partnership - Sundance 7 Power Plant, Proceeding 3183, Application , June 9, 2015, paragraphs 28 and Decision D (May 13, 2016)

17 72. The Commission finds that the rotating monitor program will be most effective if guidelines and protocols for participant selection, attendance, and information exchange are agreed upon by participants beforehand. In the Commission s view, the implementation of an effective communication strategy between EDTI, its consulting archaeologist, the on-site monitors and the other participating aboriginal groups will address the concerns expressed by the Samson Cree about notification in the event that artifacts or human remains are unearthed during construction. 73. Accordingly, the Commission will make it a condition of approval that EDTI work with interested aboriginal groups to develop: A protocol for the selection of participants for an on-site monitoring program. Guidelines setting out daily attendance expectations and clearly indicating if work will continue in the event one or both monitors cannot attend excavations on any given day. A protocol for the exchange of information between participants in the event that artifacts or human remains are found. 74. To be effective, these protocols and guidelines must be finalized before project excavations begin. The Commission considers that such guidelines and protocols can reasonably be developed within 45 days of the date of this decision and expects all interested parties to co-operate to achieve this goal. Accordingly, EDTI shall not undertake excavations for the project until after this 45-day period has elapsed. Should the guidelines and protocols be finalized before the 45-day period expires, EDTI may commence excavation work after advising the Commission in writing that the protocols and guidelines have been finalized. 6 Participant involvement 75. In this section, the Commission reviews the views of the parties with respect to EDTI s participant involvement program under Rule 007. The Commission addresses the Samson Cree s arguments regarding the adequacy of Crown consultation that it raised in its Notice of Constitutional Question in Appendix C to this decision. 6.1 EDTI 76. EDTI stated that its participant involvement program aligned with the guidelines outlined in Rule 007. This included a project-specific information package that was mailed to approximately 2,600 occupants, residents and landowners in the vicinity of the Rossdale Site. EDTI also created an internet information page on its public website. 77. EDTI consulted with the City of Edmonton as the landowner of all properties within the first row of development to the Rossdale Site and held an open house at the Rossdale Community Hall to inform interested parties about the proposed project. 78. EDTI discussed the project with Alberta Culture and Tourism. ACT confirmed that the project was not located on aboriginal land but that the Fort Edmonton Cemetery and traditional burial ground were culturally significant to 21 aboriginal groups. EDTI decided to work with Decision D (May 13, 2016) 13

18 these groups to explain the purpose and scope of the project. 58 EDTI stated that its aboriginal participant involvement included the following forums to provide the groups with information on the project, engage them in dialogue, and gather their feedback: Delivery of the project-specific information packages in March and May An offer for personal consultation with members of each aboriginal group, either at the Rossdale Site or at the aboriginal group s location. A request for feedback from each aboriginal group in order to incorporate, where possible, this feedback into the project EDTI followed up the mailing of the information packages with phone calls to all aboriginal groups that EDTI had not received a reply from. EDTI received expressions of interest from eight aboriginal groups and met with seven of those groups prior to the hearing, as shown in Table 1. Table 1. Status of Consultation with Aboriginal Groups as of December 4, Group name Meeting location Meeting Meeting date status Papaschase Band Rossdale Site Completed April 16, 2015 Alexander First Nation Rossdale Site Completed April 27, 2015 Tsuu T ina Nation Rossdale Site Completed May 25, 2015 Piikani Nation Piikani Nation Completed June 11, 2015 Siksika Nation Rossdale Site Completed June 17, 2015 Kehewin Cree Nation Rossdale Site Completed August 7, 2015 Samson Cree Nation Samson Cree Nation Completed October 8, 2015 Samson Cree Nation Rossdale Site Completed October 15, 2015 Michel First Nation Rossdale Site Pending TBD 80. EDTI stated that it made efforts to incorporate feedback from aboriginal groups into the project 61 and argued that its decision to have all excavations monitored by First Nations groups showed that it responded to input In its rebuttal evidence, EDTI advised that on November 27, 2015, further details related to EDTI s notification to aboriginal groups, consistent with the information on the record of this proceeding, was provided to ACT in response to a request from ACT. 63 On December 4, 2015, EDTI received approval under the Historical Resources Act EDTI argued that the fact that meetings between EDTI and the Samson Cree did not occur until October 2015, was not the result of anything EDTI did or failed to do. EDTI asserted Exhibit X0002, paragraph 60. Exhibit X0002, paragraph 59. Exhibit X0002, page 5, Table Exhibit X0066, SCN-EDTI-2015NOV Transcript, Volume 2, page 209. Exhibit X0068, page 6. Transcript, Volume 2, page Decision D (May 13, 2016)

19 that it took reasonable steps to notify and consult with the Samson Cree and that six other aboriginal groups had no difficulty scheduling earlier meetings with EDTI EDTI submitted correspondence records, as part of its rebuttal evidence, that indicated that it mailed and ed the project information package to the Samson Cree on March 20, On April 2, 2015, the Samson Cree advised EDTI that the contact person had changed. On April 15, 2015, EDTI ed the new contact to organize a site visit to the Rossdale substation to discuss the project and to offer to meet the Samson Cree at their location to give an overview prior to a site visit. correspondence between EDTI and the Samson Cree about booking a meeting time continued after this, including the exchanging of fee schedules for engagement and site visits. On May 7, 2015, the Samson Cree ed EDTI indicating it could meet the next week. However, a meeting did not occur and on June 9, 2015, EDTI received an from the Samson Cree indicating that they were working on finding a meeting time and would get back to EDTI with a meeting date On September 18 and 22, 2015, EDTI called and ed the Samson Cree to inquire what the next steps should be to move forward. On September 23, 2015, the Samson Cree ed EDTI and indicated they would identify a meeting time shortly. On September 29, 2015, the Samson Cree ed EDTI indicating they were available for a meeting on October 8, On October 8, 2015, EDTI representatives met with Samson Cree representatives in Maskwacis, Alberta. Subsequently, on October 15, 2015, representatives for EDTI and the Samson Cree met at the Rossdale Site. 68 EDTI submitted the meeting notes from this meeting 69 as well as a copy of the from EDTI to the Samson Cree on November 13, 2015 that provided responses to questions and concerns raised by the Samson Cree at the October 15th meeting. 70 On December 3, 2015, the Samson Cree ed EDTI its report and invoice for the meeting EDTI argued that the record showed that EDTI consulted with the Samson Cree and provided extensive information to the Samson Cree about the nature of the project and its potential effects, as well as the historical and scientific knowledge and research applicable to the site. 72 EDTI also claimed that the record showed that EDTI offered to provide reasonable compensation to the Samson Cree for its efforts to consult with EDTI. In addition, EDTI noted that the Commission approved the payment of $23,200 to the Samson Cree as advance intervener funding 73 for the purpose of its participation in this proceeding Transcript, Volume 2, page 194. Exhibit X0070, PDF pages 4 and 5. Exhibit X0070, PDF page 4. Exhibit X0070, PDF pages 2 and 3. Exhibit X0070, PDF pages Exhibit X0070, PDF pages Exhibit X0070, PDF page 1 and Transcript, Volume 2, page 196. Decision D : Advance Funding Award, October 23, Transcript, Volume 2, pages Decision D (May 13, 2016) 15

20 6.2 Samson Cree 87. The Samson Cree asserted that it had not been provided any capacity to conduct a third-party independent review of EDTI s application and for this reason it had not been provided a sufficient consultation process which would include a reasonable opportunity to provide comments on EDTI s project and challenge EDTI s evidence The Samson Cree argued that EDTI s consultation logs should not be relied upon because the Samson Cree was not asked to comment on the accuracy of the logs The Samson Cree asserted that EDTI should have consulted with it earlier. In response to an information request from EDTI, Samson Cree stated that it and EDTI initiated a consultation process for the project in October 2015 and it was not until November 13, 2015, that EDTI proposed a process that would allow Samson the opportunity to become meaningfully engaged The Samson Cree asserted that should the substation building expansion be approved, it should be approved conditionally with additional consultation to occur with [the] Samson Cree to allow the nation to develop comments on the proposed plans to protect the Rossdale Area s historic and cultural character Commission findings 91. Rule 007 states that a participant involvement program must be conducted before a facility application is filed with the Commission. A participant involvement program is a fundamental component of any facility application and the responsibility of the applicant to meet its consultation requirements under Rule 007 must be satisfied before the Commission can consider whether approval of a project is in the public interest. 92. The Commission described the elements of a successful public involvement program in Decision : In the Commission s view, effective consultation achieves three purposes. First, it allows parties to understand the nature of a proposed project. Second, it allows the applicant and the intervener to identify areas of concern. Third, it provides a reasonable opportunity for the parties to engage in meaningful dialogue and discussion with the goal of eliminating or mitigating to an acceptable degree the affected parties concerns about the project. If done well, a consultation program will improve the application and help to resolve disputes between the applicant and affected parties outside of the context of the hearing room The Commission acknowledges that even a very effective consultation program may not resolve all intervener concerns. This is not the fault of the applicant or the intervener; it merely reflects the fact that the parties do not agree. With this in mind, the Commission will consider a consultation program to be effective if it meets AUC Rule 007 requirements and has allowed interveners to understand the project and its Exhibit X0066, SCN-EDTI-2015NOV24-005(a). Transcript, Volume 2, page 243. Exhibit X0066, SCN-EDTI-2015NOV24-005(a). Exhibit X0066, SCN-EDTI-2015NOV24-005(a). 16 Decision D (May 13, 2016)

21 implications for them, and to meaningfully convey to the applicant their legitimate concerns about the project The Commission finds that EDTI made reasonable efforts to engage stakeholders, including the Samson Cree, in meaningful and effective Rule 007 consultation throughout the project life cycle. EDTI took a proactive approach to its participant involvement obligations and reached out to all aboriginal groups identified by ACT as having historical and cultural ties to the Rossdale area. 94. The Commission recognizes that it would have been preferable if EDTI and the Samson Cree could have met earlier in the process. However, the Commission finds that the delay in their meeting until October 2015, is attributable to both parties. EDTI began its attempts to schedule a meeting with the Samson Cree in April 2015 and followed up again in May and June which prompted the Samson Cree s representative to advise that she was trying to co-ordinate a date and would get back to EDTI as soon as she could. 80 Unfortunately, the next communication between the two parties was not until September 2015, when EDTI sent a follow up to once again schedule a preliminary meeting. Ultimately EDTI and the Samson Cree held two meetings in October Notwithstanding the concerns expressed by the Samson Cree regarding the lateness of EDTI s consultation, the Commission finds, based on the evidence before it, that EDTI s Rule 007 consultation with the Samson Cree satisfied the primary objectives of such consultation as set out above. Specifically, through its Rule 007 consultation, EDTI explained the project to the Samson Cree and made reasonable and persistent efforts to understand the project s impacts on the Samson Cree and to understand the mitigation measures proposed by the Samson Cree. 7 Visual impacts 96. EDTI explained that it considered the visual impacts of the proposed project due to the substation s location in the North Saskatchewan River Valley, directly south of downtown Edmonton. The proposed building extension would look similar to the existing building in height and have a similar exterior finish. EDTI stated that it would ensure that landscaping was restored to a level sufficient for both urban and parkland settings. EDTI engaged a landscape architect to evaluate and implement the best options for the restoration of the substation site to its pre-construction condition taking into consideration site equipment configurations and security issues. 97. EDTI received a request from the Rossdale Community League to improve the overall aesthetics of the Rossdale Site by making changes to the perimeter fence and guard house as part of the proposed project Decision : AltaLink Management Ltd. and Heartland Transmission Project, Proceeding 457, Application , November 1, 2011, paragraphs 283 and 284. Exhibit X0070, PDF page 93 ( from Kyra Northwest to Andrew Laycock re Rossdale Substation expansion, June 8, 2012). A summary of the communications between EDTI and the Samson Cree (filed as Exhibit X0070) is provided in Appendix D for reference. Exhibit X0002, paragraph 103. Decision D (May 13, 2016) 17