In order to implement the green energy act, Ontario has
recently adopted O. Reg. 359/09, to set up a new regime for
accelerated approvals of renewable energy projects (wind, solar,
anaerobic digestion and biomass combustion). One key element of the
new regime is a six month "service guarantee". This means
that the Approvals Branch has promised to make decisions on
renewable energy projects within six months after a complete
application is filed.
Aboriginal consultation may not fit well with this concept; it
is certainly the area least under the control of either the
applicant or the Ministry of the Environment. The regulation
therefore attempts to achieve several conflicting goals: to keep
aboriginal consultation both constitutional and manageable for
proponents, while keeping it from eating into the ministry's
six-month processing time.
Applicants must perform aboriginal consultation well before they
submit an application to the Ministry. Under section 14, the
Director provides each applicant with a list of aboriginal
communities to be consulted, defined as those who "have or may
have constitutionally protected aboriginal treaty rights that may
be adversely impacted by the project". The Director will also
include on the list any other aboriginal community that
"otherwise may be interested in any negative environmental
effects of the project".
This could be a long list, but the applicant might at least take
comfort from having a defined list of communities with whom they
are obliged to consult. This hope is dashed by section 15, which
puts an independent, equivalent obligation upon the applicant to
identify aboriginal stakeholders. It is further dashed by section
17(4), which allows the Director to require additional aboriginal
consultation at any stage of the process.
Assuming that the applicant has been able to successfully
identify the relevant aboriginal communities, the applicant must
provide certain drafts and other documents to the aboriginal
communities before they provide a draft of their application to the
public. The applicant is required to "communicate" with
each aboriginal community concerning its "constitutionally
protected aboriginal or treaty rights", and the measures that
each community thinks should be taken to protect those rights.
"Constitutionally protected aboriginal or treaty rights"
are not defined. In particular, it is unclear whether they include
unresolved and possibly overlapping land and other claims. We can
also anticipate constitutional challenges to any approvals that are
issued without what each aboriginal community considers to be full
and adequate consultation and accommodation.
Section 17(2) 4 optimistically requires the applicant to make a
written request of each aboriginal community, asking them to
provide their comments and concerns in writing. There is no
indication of how long an applicant must wait for this document,
and what they should do if it is not forthcoming.
In contrast to aboriginal consultation, the necessary
consultation with members of the public and with municipalities is
relatively straightforward, and should be within the Ministry's
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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