Canada: Alberta Replaces Ministerial Order On Aboriginal Consultation

On October 31, 2014, Alberta's Minister of Energy and Minister of Environment and Sustainable Resource Development issued Energy Ministerial Order 105/2014, the Aboriginal Consultation Direction (Second Direction). This order repeals Ministerial Order 141/2013 and replaces the previous Aboriginal Consultation Direction issued on November 26, 2013 (First Direction).

From an industry perspective, the significance of the Second Direction is its reference to the Guidelines on Consultation with First Nations on Land and Natural Resource Management (Consultation Guidelines) released by the Government of Alberta in July 2014. For more on the Consultation Guidelines, see our August 2014 Blakes Bulletin: Alberta Finalizes First Nation Consultation Guidelines. In referencing the Guidelines—and in particular, Appendix C of the Guidelines—the Second Direction appears to be intended to help ensure that industry and the Alberta Energy Regulator (Regulator) share a common understanding of those activities and applications that do not require consultation with First Nations and the role and requirements of the Regulator on these and other applications.

BACKGROUND ON ABORIGINAL CONSULTATION IN ALBERTA

The past two years have seen major developments in Alberta's approach to consultation with First Nations, starting with the release of the new Policy on Consultation with First Nations on Land and Natural Resource Management, 2013 (Policy) in June 2013, which replaced the Alberta government's former 2005 policy. For more on the Policy, see our November 2013 Blakes Bulletin: Centralizing the Duty to Consult: Alberta's New Aboriginal Consultation Office. Under the Policy, the Alberta government created the Aboriginal Consultation Office (Office), which reports to the Minister of Aboriginal Relations. The Office performs a variety of functions, including assessing the adequacy of Crown consultation with First Nations, pre-consultation assessment and the management and execution of consultation processes.

Under the new Policy, the Alberta government released the final version of its Consultation Guidelines in July 2014 (in place of the former 2007 guidelines) to help clarify the expectations of parties engaged in First Nation consultation processes. In this regard, the Consultation Guidelines include a sector-specific consultation matrix that outlines activities in various sectors such as forestry and fire management, transmission line and utility corridor, pipelines and petroleum, natural gas and oilsands that require consultation (Appendix A). The Consultation Guidelines also include a list of sector-specific activities that may not require consultation (Appendix B) and a list of non-sector-specific activities that do not require consultation (Appendix C).

ABORIGINAL CONSULTATION DIRECTIONS

Section 67 of the Responsible Energy Development Act (REDA) authorizes each of the ministers of Energy and Environment and Sustainable Resource Development to give directions to the Regulator for the purposes of: (a) providing priorities and guidelines for the Regulator to follow in the carrying out of its powers, duties and functions, and (b) ensuring the work of the Regulator is consistent with the programs, policies and work of the Alberta government in respect of energy resource development, public land management, environmental management and water management. Both Directions were issued pursuant to section 67 of REDA.

The First and Second Directions share many similarities. Both recognize that the Regulator has a responsibility, within its statutory authority under REDA, to consider the potential adverse impacts of energy applications on the existing rights of aboriginal people arising under Part II of the Constitution Act, 1982. They also recognize that Regulator processes will constitute part of Alberta's overall consultation process as appropriate, and that Alberta retains the responsibility to assess the adequacy of Crown consultation in respect of energy applications.

However, there are also some subtle differences between the Directions. For example, both require the Regulator to establish a consultation unit to coordinate its activities with the Office. However, the Second Direction also requires the Regulator to assist the Office in establishing and maintaining operating procedures that set out how the Regulator and Office will cooperate to administer and coordinate their work, and to follow those operating procedures.

The First Direction required the Regulator to direct an individual proponent to contact the Office if it was provided with information about a proposed energy project prior to the submission of an energy application. Under the Second Direction, the Regulator is required to direct all proponents to contact the Office for any proposed or planned energy resource activity prior to submitting energy applications to the Regulator.

Both the First and Second Directions require the Regulator to provide the Office with certain information following the submission of an energy application: a copy of the application, a copy of any Statement of Concern filed by a First Nation or other aboriginal group in respect of the application, a copy of any submission filed by a First Nation or other aboriginal group under the Regulator's Rules of Practice, and copies of any evidence and information submitted by or with respect to a First Nation or other aboriginal group. Under the First Direction, the Regulator was also required to provide the Office with any project details that it was aware of that it had not previously submitted to the Office and a list of anticipated energy applications in respect of the energy project. These latter requirements, pertaining to project details and anticipated energy applications, have been removed from the Second Direction.

Under the Second Direction, the Regulator must also undertake a number of steps in relation to an energy application unless that application relates to an activity or application in Appendix C of the Consultation Guidelines, or is accompanied by a pre-consultation assessment by the Office indicating that no First Nations consultation is required. Specifically, if neither of the above-referenced exceptions applies, the Regulator must require the proponent to include information about the potential adverse impacts of the proposed energy resource activity on the existing rights of aboriginal people and on "traditional uses" as defined by the Policy. The Regulator must also advise the Office of any changes proposed to an energy application, whether alternative dispute resolution (ADR) involving First Nations or other aboriginal groups will be used with respect to the application, whether a hearing will be held on the application, and the Regulator's decisions with respect to including First Nations in the hearing process.

The First Direction included requirements very similar to those listed above, however, there was no exception for applications related to activities or applications in Appendix C of the Policy, nor was there an exception for situations where the Office's pre-consultation assessment determined that no First Nations consultation was required.

Finally, the First Direction prescribed that, if requested, the Regulator had to provide the Office with its draft approval prior to issuance. This requirement has been removed in the Second Direction.

CONCLUSION

The recent establishment of the Policy, the Office and the Consultation Guidelines demonstrate the Alberta government's intention to centralize and standardize the First Nations consultation process in Alberta. The refinements to the role and responsibilities of the Regulator in the Second Direction is an example of the continuing evolution of the consultation process in Alberta as the government seeks to provide greater clarity to the parties involved and integration of the consultation process with other related processes. 

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 Mondaq.com.

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

Authors
Events from this Firm
14 Nov 2018, Speaking Engagement, Ontario, Canada

Join members of the Blakes Environmental and Enterprise Risk & Crisis Response groups for a discussion of hot topics and trends in Canadian environmental law.

15 Nov 2018, Webinar, Toronto, Canada

Join us for a live webcast with partners from our Employment & Labour and Litigation & Dispute Resolution groups as they discuss employment-related challenges and considerations surrounding the recent legalization of recreational cannabis in Canada.

15 Nov 2018, Webinar, Toronto, Canada

Join us for a live webcast with partners from our Employment & Labour and Litigation & Dispute Resolution groups as they discuss employment-related challenges and considerations surrounding the recent legalization of recreational cannabis in Canada.

 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
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

Mondaq.com (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 www.mondaq.com

To Use Mondaq.com 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.

Disclaimer

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.

General

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