Canada: Ontario Issues Draft Aboriginal Consultation Requirements For Certain Renewable Projects

The Ontario Ministry of the Environment (MOE) recently released the Draft Aboriginal Consultation Guide for preparing a Renewable Energy Approval Application (the Guide). This long anticipated guidance document (which has been posted on the Ontario Environmental Registry for a 90 day public comment period) provides direction for consultation with Aboriginal communities during the Renewable Energy Approval (REA) process, pursuant to the Environmental Protection Act, and Ontario Regulation 359/09.

The consultation requirements prescribed by the Regulation and further described in the Guide create mandatory obligations for project proponents of certain renewable energy projects in order to ensure that Aboriginal (First Nation and Métis) communities are consulted in keeping with the Crown's Duty to Consult.

It should be noted that the Guide does not apply to waterpower projects or to class 2 wind and class 1 and 2 solar facilities. Additionally, the Guide is silent regarding its effective date and it is unclear whether or not it will be retroactive in its application.


Aboriginal and treaty rights in Canada are protected under the Constitution Act, 1982. This protection has been interpreted in numerous Supreme Court of Canada decisions that have provided increasing clarity, especially in recent years. The Crown, in this instance the Government of Ontario, owes a Duty to Consult Aboriginal communities when it has knowledge of an existing or asserted Aboriginal or treaty right and there is potential for that right to be impacted. The Crown may delegate certain procedural aspects of the consultation process to proponents but remains ultimately responsible to uphold its Duty to Consult.

Before granting an REA, it is the MOE's responsibility to ensure the Crown's Duty to Consult is fulfilled. The Guide is intended to assist project proponents to understand the aspects of consultation that are being delegated by the Crown. The Guide also describes that the MOE will monitor the proponent's efforts in this regard to help facilitate consultation, where appropriate.


The Guide discusses the fact that conducting consultation is a dialogue with the community aimed at finding mutually beneficial solutions. The Guide also makes it clear that information a proponent is seeking from a community is part of the history and livelihood of the community and must be treated respectfully and with sensitivity. Communities may be able to provide information to proponents about their territory that can assist in developing a robust proposal.

Learning about communities' cultural and world views, events (such as elections or celebrations), socio-economic aspects and particular concerns may allow proponents to better relate to the communities. For example, First Nation and Métis communities are diverse in culture and linguistic heritage. The Guide states that it is important to consider that English or French may not be a first language to many in a given community and translators may be required in certain circumstances. Additionally, learning about communities' previous experience with renewable energy projects may help an proponent deepen its understanding of the community with which it is consulting.

Some communities have established protocols for consultation and it will be important to consider how these protocols fit with the requirements established in the Guide. Such assessments will need to be undertaken by proponents on a case by case basis as contemplated in the Guide.


Consultation with Aboriginal communities is a pre-submission activity required for applicable renewable energy projects. The Guide states that it is the proponent's responsibility to design and conduct consultation with Aboriginal communities in order to successfully prepare an REA application and that it is the proponent's responsibility to pay for the reasonable costs of the consultation process. The MOE will review and approve consultation plans prepared by the proponent and has the discretion to require further consultation by the proponent or may undertake additional consultation itself.

The first step in the process described by the Guide is the submission by the proponent of a Project Description Report and a request for an Aboriginal consultation list to the MOE. The MOE will provide the proponent a consultation list that includes Aboriginal communities that have, or have asserted, Aboriginal or treaty rights which may be adversely impacted by the proposed project and/or identifies a community as having an interest in any negative environmental effects of the proposed project. The Guide requirements apply to all communities identified on the Aboriginal consultation list. The Aboriginal consultation list will also include contact information for each of the communities on the list and the MOE will make initial contact with the Aboriginal communities on the consultation list to allow the community to prepare to begin discussions with the proponent.

The consultation list may be revised only if new information is made available, necessitating, for example, clarification of a project's scope. It is notable that there is no provision for revision of the list in other circumstances, such as where the proponent is of the view that the list is inconsistent with lists provided for other projects.

The second step for the proponent is to provide a Notice of Proposal to Engage in the Project and Notices of Public Meetings. Notices have to be published in certain locations depending on the nature of the project, generally including publication in any local and/or community newspapers and on any community website.

The proponent should include with the notice:

  • a description of the nature and scope of the project, including whether the project is on privately owned or Crown controlled land;
  • the potential negative environmental effects of the project;
  • any other federal or provincial approvals that may be required for the project to proceed;
  • the timeframe for the intended application; and
  • contact information and the proponent's availability to discuss the project.

The Guide states that proponents should contact the MOE before making contact with a community not on their consultation list.

The third step of the consultation process involves holding a minimum of two public meetings. At least 30 days before the first public meeting, the draft Project Description Report must be given to applicable Aboriginal communities. At least 60 days before the final public meeting, proponents must make the revised draft Project Description Report available to those Aboriginal communities. The meetings are noted in the Guide as an opportunity to meaningfully engage with the community with respect given to its members ideas and concerns about the project.

Interestingly, the Guide speaks mostly to public meetings and to the information and consultation with Aboriginal communities to be undertaken prior to the public meetings. There is not a great deal of guidance, however, regarding the precise nature of the consultation to be undertaken. It is also worth noting that Aboriginal communities will normally require separate meetings from the public meetings as they normally consider themselves to be members of separate nations and not "public" stakeholders.

The Guide notes that the purpose of the consultation process is to make Aboriginal communities fully aware of the project, understand any concerns and find means to avoid, minimize or mitigate any potential adverse effects. In doing so, the Guide notes a number of ways this can be accomplished, including:

  • modifying the project design to reduce or prevent the adverse effects on the exercise of the right;
  • conducting further studies or committing to establishing ongoing monitoring of environmental effects;
  • developing a contingency plan in the event the adverse effects are greater than anticipated; or
  • committing to a long-term relationship, which may involve regular community meetings.

Despite good faith efforts, it can be difficult to agree upon a solution in some situations. When that is the case, either the Aboriginal community or the proponent can contact the MOE to express their concerns.

As noted above the Guide provides that, in some situations, the MOE may determine that further consultation is required. This is likely to occur in projects where there is a significant adverse impact on the exercise of Aboriginal or treaty rights. An example might be if a facility is proposed on Crown land where Aboriginal communities exercise treaty rights to hunt. The additional requirements in such a situation might include:

  • working with the Ministry of the Environment to develop an Aboriginal consultation plan;
  • providing consultation progress updates to the Ministry; or
  • following Ministry direction.

It is possible that a proponent will become aware of a rights assertion in the process of the consultation. If that is the case, the Guide suggests contacting the MOE for further guidance.

It is important to note that there may be additional requirements depending on the nature of the project, imposed by either the Ministry of Natural Resources, the Ministry of Infrastructure or possibly other branches of Government. The Guide requires that all such requirements be discussed with the Aboriginal communities in the consultation.

As was mentioned earlier, the Guide is silent on the issue of its possible retroactivity. As such, one concern could be whether the MOE intends this Guide to apply to all projects, no matter their current position in the REA process. This issue could have significant implications for some proponents. It will be interesting to see if it is addressed during the comment period.

Finally, the Guide requires a Consultation Report be prepared and provided by the proponent to the MOE, in order to allow the MOE to determine if the REA application has met the regulatory requirements and provide a record of the consultation that took place. The Aboriginal consultation section of the Consultation Report must outline the following:

  • evidence that the required information was distributed to communities;
  • any information provided by Aboriginal communities in response to the request for information to be considered in the project documentation or for avoiding, minimizing or mitigating adverse impacts on Aboriginal and treaty rights;
  • how the information was considered and alterations to the REA that were made as a result; and
  • further details concerning any mitigation that took place.

The MOE will screen the REA submission to ensure it meets the applicable requirements. If the submission is complete, it will be accepted for a technical review and public notice will be given. After tech-nical review, the Ministry's REA Director, if it is in the public interest to do so, will issue or refuse the REA. It is also possible that the REA could be granted with certain further consultation conditions.


While the Guide provides additional detail to project proponents of renewable energy projects regarding the nature of their obligation to consult with Aboriginal communities, the precise nature of the consultation to be undertaken will need to be assessed and implemented on a case by case basis. Knowledge and experience in consultation processes will be essential in order to ensure that consultation pursuant to the REA process is undertaken and completed in as efficient manner as possible.

About BLG

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions