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.
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.