Canada: Procedures Introduced To Administer And Coordinate First Nation Consultation

On February 4, 2015, the Aboriginal Consultation Office (ACO) and the Alberta Energy Regulator (AER) released the Joint Operating Procedures for First Nations Consultation on Energy Resource Activities (Procedures). The Procedures were released in accordance with Energy Ministerial Order 105/2014 and Environment and Sustainable Resource Development Ministerial Order 53/2014 (Orders).

The Procedures expand upon The Government of Alberta's Policy on Consultation with First Nations on Land and Natural Resource Management (Policy) released on June 3, 2013, and The Government of Alberta's Guidelines on Consultation with First Nations on Land and Natural Resource Management (Guidelines) released on July 28, 2014. For more on the Policy, see our November 2013 Blakes Bulletin: Centralizing the Duty to Consult: Alberta's New Aboriginal Consultation Office. For more on the Guidelines, see our August 2014 Blakes Bulletin: Alberta Finalizes First Nation Consultation Guidelines.

PURPOSE

The purpose of the Procedures is to help facilitate First Nation consultation related to energy projects in Alberta. The Procedures introduce new processes to administer and coordinate the operations of the ACO and the AER on matters related to First Nation consultation. The Procedures also encourage the ACO and AER staff to informally engage one another, as needed, to coordinate the processing of individual energy resource development files or applications.

PROCEDURES

Unless exempted under Appendix C of the Guidelines, all proposed upstream energy resource developments must undergo a pre-consultation assessment administered by the ACO. The ACO's role is to determine whether consultation is required, which First Nations need to be consulted with and what level of consultation is required.

The Procedures set out four ACO-AER specified consultation processes:

Process 1: No consultation required

  • Proposed activity is listed in Appendix C of Guidelines or ACO has determined activity does not require consultation

Process 2: Enhanced Approval Process (EAP) applications – consultation required

  • EAP is the application process for issuance of oil and gas development-related surface land dispositions by Alberta Environment and Sustainable Resource Development
  • ACO determines if consultation should be streamlined, standard or extensive
  • If consultation is streamlined or standard, proponent must engage with First Nations and provide First Nations impacts and mitigation table
  • ACO must provide consultation adequacy report (Report) and AER may begin its review of activity or project application
  • Report may contain advice to AER on whether action is required to address potential impacts on treaty rights and traditional uses

Process 3: Non EAP applications – consultation required

  • Same process as Process 2, except AER can accept and review activity or project application while consultation is ongoing
  • AER cannot make final decisions until ACO has provided Report

Process 4: Extensive consultation required

  • Proponent must submit consultation plan to ACO, begin engaging in consultation with First Nations and submit First Nations impacts and mitigation table
  • AER may accept and review activity or project application while consultation is ongoing
  • ACO will provide proponent and First Nations with notice to indicate that delegated consultation is ending
  • Once consultation is complete, ACO provides Report
  • Once adequacy of consultation is determined, AER can complete application review

Statements of Concern

Under all of the ACO-AER processes, the AER is required to address any statements of concern received from First Nations and other Aboriginal groups through its established process, including providing the ACO with copies of the statements of concern.

Hearings

Where a hearing is called under any of the ACO-AER Processes, the ACO has the option to observe, monitor or participate in the hearing. The ACO may also provide a hearing report if information is revealed regarding impacts to treaty rights and traditional uses. The ACO hearing report is provided to the hearing panel and the parties involved prior to or at the close of the evidentiary portion of the hearing. After completion of the hearing, the AER makes its decision and provides the decision to the ACO and First Nations.

First Nations Impacts and Mitigation Table

When the ACO requires consultation, proponents must submit a First Nations impacts and mitigation table to the AER. This summary table is either drawn from the "record of consultation log" (for level 1 and 2 consultation) or from the "specific concern and response table" (for level 3 consultation).

SUMMARY

The Procedures outline the new First Nation consultation processes for activities that fall within the jurisdiction of the AER.

For project proponents, the Procedures result in three new AER application requirements:

  1. Where the ACO has determined that no consultation is required, the proponent must attach the related pre-consultation assessment to its AER application
  2. For an EAP application, the proponent must submit a First Nations impacts and mitigation table to the AER
  3. For a non-EAP application the proponent must submit a) a copy of the pre-consultation assessment from the ACO and b) a copy of the First Nations impacts and mitigation table.

Requirements 1, 2 and 3(b) come into effect for AER applications submitted as of March 2, 2015.

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.

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