Alberta Government Announces New Rules for First Nations Consultation

On February 4, 2015, the Alberta Energy Regulator (AER) announced the release of the Joint Operating Procedures for First Nations Consultation on Energy Resource Activities (Procedures). The Procedures set out how the AER and newly-created Aboriginal Consultation Office (ACO) will work together on matters dealing with First Nations consultation, in accordance with the directions provided to the AER in the Ministerial Order issued on October 31, 2014.

Background

Under the Responsible Energy Development Act (REDA), the AER has jurisdiction over upstream energy development in the Province, including upstream oil, natural gas, oil sands, and coal activities. However, REDA expressly provides that the AER has no jurisdiction to assess the adequacy of Crown consultation. The ACO was established to manage all aspects of Aboriginal consultation in Alberta and to work closely with the AER to ensure that any necessary consultation occurs prior to the AER’s decision.

In 2013 and 2014, respectively, the Government of Alberta released its Policy on Consultation with First Nations on Land and Natural Resource Management (Consultation Policy) and Guidelines on Consultation with First Nations on Land and Natural Resource Management (Consultation Guidelines). The Procedures are intended to work in conjunction with these documents to administer and coordinate the operations of the ACO and AER on matters relating to First Nations consultation, as provided in the Ministerial Order.

Summary of the Procedures

The Procedures outline different rules depending on the level of consultation required for a particular project:

1. Applications requiring no consultation: An activity does not require consultation if it is listed in Section C of the Consultation Guidelines (including repairs or maintenance in the normal course of operations and applications for renewals and amendments to existing authorizations) or if the ACO has determined during a pre-consultation assessment that no consultation is required. Once the AER has confirmed that no consultation is required, the application proceeds to the decision-making step.
2. Enhanced approval process (EAP) applications: Certain land-use applications are handled through the AER’s EAP process. For these applications, consultation must be completed and an adequacy assessment must be made prior to the proponent’s application to the AER. Any statements of concern received by the AER from a First Nation or other Aboriginal group are provided to the ACO, and the ACO may provide advice to the AER on mitigating impacts to Treaty rights and traditional uses.
3. Non-enhanced approval process applications: Non-EAP applications, including certain applications made under the Public Lands Act, Mines and Minerals Act (Part 8), Water Act, and Environmental Protection & Enhancement Act, follow a modified process where the AER receives the application and begins its technical review while consultation is ongoing. Any statements of concern received by the AER from a First Nation or other Aboriginal group are provided to the ACO. The AER will make its final decision on the application after the ACO has assessed consultation adequacy and has provided any necessary advice on mitigating impacts to Treaty rights and traditional uses to the AER.
4. Extensive consultation: For projects requiring extensive consultation, the coordination of the consultation and regulatory processes between the ACO and AER will begin during the proponent’s development of a consultation plan. The ACO and AER will ensure that the period for consultation and the period for submitting a statement of concern end at the same time, so that all input can be assessed and considered in the AER’s decision. The ACO will provide the AER with a report containing the ACO’s assessment of consultation adequacy and may provide advice to the AER on mitigating impacts to Treaty rights and traditional uses.

New Application Requirements

Beginning March 2, 2015, applications requiring First Nations consultation must also contain a First Nations Consultation Declaration. The Declaration form is available on the AER’s website and should be completed and submitted after an adequacy decision is issued by the ACO.

The purpose of the Declaration is to require the proponent to declare that the purpose and location of the application to the AER is the same as was the subject of the First Nations consultation completed by the proponent and assessed by the ACO. The Declaration also provides information to the AER about any potential adverse impacts to existing rights and traditional uses, as well as the proponent’s action to address those impacts. It is intended that the ACO and AER processes will evolve over time to enable the verification of location and the communication of potential impacts without the need for the Declaration.

It is expected that the Procedures will be updated regularly to address operational issues. The full text of the Procedures may be found on the AER’s website. Additional information on the Consultation Policy and Consultation Guidelines may be found in our previous bulletins.