In our February 27, 2015 blog posting (found here), we alerted industry participants to new
application requirements set out in the Joint Operating Procedures
for First Nations Consultation on Energy Resource
Activities (found here) (Joint Operating Procedures).
These new requirements were scheduled to come into force March 2,
2015. They included the completion and submission of a First
Nations Consultation Declaration Form (Declaration) to the AER as
part of any application under the "specified enactments"
(defined in the Responsible Energy Development Act as the Mines and Minerals Act [Part 8], Public Lands Act, Water Act, and Environmental Protection and Enhancement Act)
for which First Nations consultation was required (as determined by
the Aboriginal Consultation Office, or ACO). The Declaration
included an impacts and mitigation table summarizing the
In our March 23, 2015 blog posting
(found here), we reported that in accordance with Bulletin
2015-10 (found here), the AER advised that it was
delaying implementation of the Declaration and application
requirements set out in the Joint Operating Procedures "until
further notice". The Bulletin went on to confirm that other
application requirements would continue to apply, including the
requirements for aboriginal consultation, as outlined in The Government of Alberta's Guidelines on
Consultation with First Nations on Land and Natural Resource
Management (Consultation Guidelines), and the report by the
Aboriginal Consultation Office (ACO) containing the ACO's
findings on consultation adequacy. There was no indication in
Bulletin 2015-10 as to the reason for, or anticipated length of,
the delay in the Joint Operating Procedures taking effect.
We had commented in our March 23 blog posting that this
indefinite delay marked a departure from what had been a swift and
significant ongoing evolution of the regulatory framework governing
First Nations consultation for energy development in Alberta (a
summary of that evolution may be found in our
prior blog posting).
In Bulletin 2015-20, released June 10, 2015, the AER Advised
that section 4 of the Joint Operating Procedures had been revised.
Effective July 1, 2015, for all AER applications under the
specified enactments (except applications for those activities set
out in Appendix C of the Consultation Guidelines), an
"application supplement" (Supplement) on First Nations
consultation is required. The Supplement replaces the Declaration.
In the Supplement, the applicant must identify, among other things,
whether First Nations consultation was required. If so, a First
Nations impacts and mitigation table must be completed and included
(which was previously the case with the Declaration), summarizing
the First Nations that were consulted, any potential adverse
impacts identified during consultation, and any mitigation
proposed. The Supplement is found on the AER's website (found here) and further instruction as to its
completion is included within the Supplement itself, as well as
within Bulletin 2015-20.
Canada is a constitutional monarchy, a parliamentary democracy and a federation comprised of ten provinces and three territories. Canada's judiciary is independent of the legislative and executive branches of Government.
In Bank of Montreal v Bumper Development Corporation Ltd, 2016 ABQB 363, the Alberta Court of Queen's Bench enforced the "immediate replacement" provision in the Canadian Association of Petroleum Landmen 2007 Operating Procedure...
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