On February 4, 2015, the Alberta Energy Regulator (“AER”) and the Aboriginal Consultation Office (“ACO”) released the Joint Operating Procedures for First Nations Consultation on Energy Resources Activities (the “Operating Procedures”).
The Operating Procedures set out a framework to administer and coordinate the operations of the ACO and AER on matters relating to First Nations consultation for energy resource activities in Alberta. The Operating Procedures are required under the revised Aboriginal Consultation Direction (Ministerial Order 105/2014) issued on October 31, 2014, which applies to applications made to the AER under specified enactments, including the Environmental Protection and Enhancement Act, the Public Lands Act, the Mines and Minerals Act (part 8), and the Water Act. The Operating Procedures are to work in conjunction with The Government of Alberta’s Policy on Consultation with First Nations on Land and Natural Resource Management, 2013 and The Government of Alberta’s Guidelines on Consultation with First Nations on Land and Natural Resource Management.
The Operating Procedures outline four processes for consultation and coordination between the proponent, the AER, the ACO and First Nations. These processes are triggered by the level of consultation required by the ACO, ranging from no consultation, streamlined consultation, and standard consultation to extensive consultation, and the type of application to be submitted by the proponent. For applications where the ACO requires consultation, proponents must submit to the AER a “First Nations Impacts and Mitigation” table, which is to identify and describe potential adverse impacts to the rights of aboriginal people and proposed mitigation measures.
In clarifying the ACO’s role in the consultation process, the Operating Procedures state that the ACO’s determination of consultation adequacy is required before the AER can make a final decision under the specified enactments. Further, the ACO may provide advice to the AER in cases where the ACO believes impacts to Treaty rights and traditional uses need to be considered by the AER. In the event the AER holds a hearing to consider an application, the ACO may attend, observe, and produce a “hearing report” containing advice to the AER on impacts to Treaty rights and traditional uses raised during the hearing.
The Operating Procedures also require that a “First Nations Consultation Declaration” be completed and submitted to the AER as part of the application process. The declaration requires proponents to 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”. The declaration is to be completed and submitted to the AER as part of any application for which the ACO determines consultation is required, and is to include the First Nations Impacts and Mitigation table described above.
The Operating Procedures come into effect on March 2, 2015.
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