Canada: New AER Application Requirements Regarding First Nations Consultation To Take Effect March 2

Last Updated: March 3 2015
Article by Michael G. Massicotte

Most Read Contributor in Canada, September 2016

On February 4, 2015, the Alberta Energy Regulator (the "AER") announced the release of the Joint Operating Procedures for First Nations Consultation on Energy Resource Activities (the "Joint Operating Procedures"), which contain new requirements for applications under the "specified enactments", defined in the Responsible Energy Development Act ("REDA") as the Mines and Minerals Act [Part 8], Public Lands Act, Water Act, and Environmental Protection and Enhancement Act ("EPEA"). As the new requirements come into force March 2, 2015, industry participants will have to quickly familiarize themselves with those new application requirements, which are summarized in section 4 of the Joint Operating Procedures. The Joint Operating Procedures and  accompanying AER Bulletin 2015-04 (the "Bulletin") may be found here and here, respectively.

By way of background:

  • Under REDA, while the AER has regulatory jurisdiction for the entire life cycle of upstream energy resource development in Alberta, it does not have jurisdiction to assess the adequacy of Crown consultation.
  • As a result, the Government of Alberta, under The Government of Alberta's Policy on Consultation with First Nations on Land and Resource Management, 2013 (the "Policy"), created the Aboriginal Consultation Office (the "ACO"), to manage all aspects of aboriginal consultation, including working with the AER to ensure that any needed consultation occurs for decisions on energy applications within the AER's mandate.
  • The Joint Operating Procedures are part of a First Nations consultation regulatory framework applicable to energy resource activities in Alberta, the other components being: a) the ministerial order on aboriginal consultation direction (Ministerial Order 105/2014 and 53/2014 issued on October 31, 2014, a copy of which may be found here); b) the Policy (a copy of which may be found here); and c) The Government of Alberta's Guidelines on Consultation with First Nations on Land and Natural Resource Management (the "Guidelines", a copy of which may be found here).

The Joint Operating Proceduresdescribe four internal ACO-AER processes, based on the AER application type, and the degree of consultation which the ACO determines is required:

1. ACO-AER Process 1 (No Consultation Required)

  • The AER will confirm either that the application submitted is for an activity listed in appendix C of the Guidelinesor that the application is accompanied by the ACO's pre-consultation assessment indicating that no consultation is required, following which the AER will render its decision.

2. ACO-AER Process 2 (Enhanced Approval Process Applications)

  • For certain land-use applications for energy resource activities made under the specified enactments, handled through the AER's Enhanced Approval Process ("EAP"), the proponent applies to the ACO requesting a pre-consultation assessment to determine whether a streamlined (level 1), standard (level 2) or extensive (level 3) consultation is required.
  • If the ACO determines that an extensive (level 3) consultation is required, ACO-AER Process 4 must be followed. Otherwise, ACO-AER Process 2 applies.
  • Once the consultation has been completed, the ACO may provide advice to the AER on mitigating impacts on Treaty rights and traditional uses, and will advise the AER whether the consultation is adequate, or is adequate pending the outcome of the AER's process.
  • Once the ACO indicates that the consultation is complete, the proponent is able to submit its application electronically through the EAP, following which the AER will render its decision. For all applications where the ACO has determined consultation is necessary, the application must include a First Nations Consultation Declaration (available on the AER website) which is to include a First Nations impacts and mitigation table summarizing the consultation.

3. ACO-AER Process 3 (Non-Enhanced Approval Process Applications)

  • Non-EAP land-use applications, including applications made under the Public Lands Act, Mines and Minerals Act (Part 8), Water Act, and EPEA, follow a modified ACO-AER process 2.
  • As with ACO-AER Process 2, the proponent applies to the ACO requesting a pre-consultation assessment to determine whether what level of consultation is required. However, unlike ACO-AER Process 2, the AER will accept applications and will concurrently begin a technical review while consultation is ongoing. Statements of concern and proponent responses are provided to the ACO.
  • Once the consultation has been completed, the proponent will be required to submit a First Nations impacts and mitigation table to the AER, and the ACO will generate a report setting out whether consultation has been adequate. The ACO report may also contain advice to the AER on whether actions may be required to address potential adverse impacts on Treaty rights and traditional uses.
  • The AER will not proceed with a decision on the application until the ACO has provided its findings on consultation adequacy.

4. ACO-AER Process 4 (Extensive Consultation)

  • This process applies where the ACO determines, on a pre-consultation assessment, that extensive consultation (level 3) is required.
  • Following submission of a consultation plan to the ACO, the ACO provides the proponent with consultation requirements.
  • Proponents may file their application with the AER so that the application review process can proceed concurrently with consultation.
  • The ACO prepares a consultation completion notice that indicates the deadline for consultation, which coincides with the deadline for the filing of statements of concern.
  • The AER provides any statements of concern and proponent responses received, to the ACO, which may direct the proponent to address potential impacts on Treaty rights and traditional uses.
  • The ACO completes its assessment and issues a report which contains its finding on consultation adequacy and which may also contain advice on whether actions may be required to address potential adverse impacts on Treaty rights and traditional uses.
  • Once the ACO has determined that consultation has been adequate, the AER may complete its review of the application and issue a regulatory decision or call a hearing.
  • If a hearing is called and it appears that a First Nations will be participating, the AER will notify the ACO, which may observe or monitor the hearing, or participate beyond this.
  • If information emerges during the hearing about impacts on Treaty rights and traditional uses, the ACO may provide a hearing report prior to or at the close of the evidentiary portion of the hearing and before final submissions, which addresses the adequacy of consultation and which may contain advice on whether actions may be required to address potential adverse impacts on Treaty rights and traditional uses raised during the hearing.

Industry Implications

The ongoing evolution of the regulatory framework governing First Nations consultation for energy development in Alberta has been swift and significant.  The Policy is dated June 3, 2013, the Guidelines are dated July 28, 2014, the Ministerial Order is dated October 31, 2014, and the Joint Operating Polices are dated February 4, 2015. While industry participants have been forced to stay abreast of these rapid developments, and while these developments have entailed significant change in terms of regulatory requirements for First Nations consultation and for applications brought before the AER, they appear to be a step in the right direction in terms of accomplishing the Alberta's Government's objective of streamlining, clarifying and simplifying the provincial regulatory process, in an attempt to enhance Alberta's attractiveness for global investment required for the responsible development of its vast natural resources.

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