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Alberta Energy Regulator and Aboriginal Consultation Office Publish Revised Joint Operating Procedures

Fasken
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Indigenous Law

On October 31, 2018, the Alberta Energy Regulator ("AER") and the Aboriginal Consultation Office ("ACO") released the revised Joint Operating Procedures for First Nation Consultation on Energy Resource Activities (PDF) ("JOP"). The purpose of the JOP is to administer and coordinate the operations of the AER and ACO on energy applications in a manner that is consistent with the obligations of the Government of Alberta to consult Indigenous people. The AER oversees the entire lifecycle of upstream energy resource development, and the ACO manages all aspects of Indigenous consultation.

The previous version of the JOP was released on June 10, 2015. Many of the changes made to this new version were already incorporated in practice. However, the document has been revised to incorporate additional detail to make the JOP more clear. Certain key updates from the prior version are highlighted below.

Clarifying the Roles of the ACO and AER

The revised JOP includes a new section to explain that the ACO is responsible for determining whether consultation is required, to manage the consultation process, to assess the adequacy of consultation, and to provide advice to the AER on whether actions may be required to address potential adverse impacts on Treaty rights and traditional uses.

The AER is responsible for considering and accommodating the impacts of energy applications on the rights of Indigenous peoples.

More Detailed Procedures

The revised JOP provides further clarification on the interactions between the ACO and AER at key points in the regulatory process.

ACO Report

The ACO continues to have an obligation to prepare a report to inform the AER of a decision on consultation adequacy, and whether actions may be required to address potential adverse impacts on Treaty rights and traditional uses. The AER may not make a decision on an application until the ACO report is received, unless the activity or application does not require consultation.

AER Hearing

A hearing on an application may be scheduled by the AER before the ACO report is complete. If a hearing is scheduled, the ACO may observe the hearing and may provide a hearing report, which will contain the ACO's findings on consultation adequacy and whether actions may be required to address potential adverse impacts on Treaty rights and traditional uses. The hearing report will typically be prepared within 20 business days, but the deadline may be extended. If the ACO elects to issue a hearing report, the AER may not make a decision until it is received.

Joint Review Panel

If a Joint Review Panel ("JRP") is established for projects that require provincial approval and a federal impact assessment, the ACO process is determined by the functions that the JRP will fulfill. If the JRP is making the decisions for the AER, the ACO Extensive ("Process 3") requirements will apply. If the JRP is only making recommendations for a subsequent AER decision, the ACO requirements will be determined on a case-by-case basis.

FNC Application Supplement

The revised JOP discusses the FNC application supplement and its role in the regulatory process in much greater detail. The FNC application supplement is a form that a proponent will submit to the AER to provide information about the potential adverse effects of the proposed energy activity on the rights of Indigenous peoples and on traditional uses. In order for an AER application to be accepted, the FNC application supplement provided must indicate that consultation has reached the requisite stage (i.e., completed or concurrent consultation) within the consultation process.

Consultation Requirements for AER Renewals or Amendments

If a proponent seeks to renew or amend an AER decision, the JOP now expressly states that this may trigger the duty to consult. In these cases, the AER will require the proponent to apply to the ACO for a pre-consultation assessment, unless the activity is listed in Appendix C of The Government of Alberta's Guidelines on Consultation with Métis Settlements on Land and Natural Resource Management, 2016 (PDF). If consultation is required, the applicable process outlined in the JOP must be followed.

Changes to Public Lands Act Applications

Previously, for applications under the Public Lands Act ("PLA"), proponents were required to have an ACO adequacy decision prior to submitting an application to the AER (i.e., "Process 2", where consultation is completed when the application is submitted). Under the revised JOP, the consultation stage required is dependent on the disposition type and the activity being applied for, as outlined in Table A2 of the Public Lands Administration Regulation (PDF).

The effect of this change is that proponents are no longer required to have an ACO adequacy decision prior to submitting PLA applications to the AER. Proponents can now choose whether to follow "Process 2" or "Process 3" (where concurrent consultation is acceptable).

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