On June 9, 2015, the Alberta Energy Regulator ("AER") and the Aboriginal Consultation Office ("ACO") released revised Joint Operating Procedures for First Nations Consultation on Energy Resources Activities (the "Revised Operating Procedures"). Bulletin 2015-20, detailing the revisions, was released by the AER on June 10, 2015. The Revised Operating Procedures explain how the AER and ACO will administer and coordinate their respective operations on matters relating to First Nations consultation. The Revised Operating Procedures replace the first version of the Joint Operating Procedures for First Nations Consultation on Energy Resource Activities ("Original Operating Procedures") dated December 10, 2014 and released on February 4, 2015. A Lawson Lundell Project Law Blog on the Original Operating Procedures can be found here.
The principal revision to the Original Operating Procedures is the replacement of the requirement to submit a declaration. Section 4 of the Original Operating Procedures required that a "First Nations Consultation Declaration" be completed and submitted and that proponents swear that the First Nations Impacts and Mitigation table "...accurately documents the potential adverse impacts on the existing rights of aboriginal peoples ... or their traditional uses". This was controversial as the declaration required companies to swear they had accurately documented all impacts in respect of each Aboriginal group regardless of whether consultation was required by the ACO.
The Revised Operating Procedures have eliminated the declaration requirement and now require instead, the submission of an "application supplement" on First Nations consultation. Section 4 of the Revised Operating Procedures states that "for all applications under the specified enactments submitted to the AER, except those applications for activities listed in appendix C of the Consultation Guidelines, an application supplement on First Nations consultation is required..."
Section 2.3 of the Revised Operating Procedures "First Nations Impacts and Mitigation Table" further provides that in the application supplement, the applicant must identify whether First Nations consultation was required. If First Nations consultation was required, the applicant must (1) complete the First Nations impacts and mitigation table contained in the supplement; (2) provide the information in a separate document attached to the supplement; or (3) attach the ACO Report containing the ACO's findings on consultation adequacy and any advice to the AER to the supplement.
The Revised Operating Procedures, including the new requirement for an application supplement, come into effect on July 1, 2015.
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