Bulletin – First Nations Consultation – Application Requirements
On February 4, 2015, the AER announced the release of the Joint Operating Procedures for First Nations Consultation on Energy Resource Activities, including new application requirements arising from two ministerial orders on aboriginal consultation from the Minister of Energy and the Minister of Environment and Sustainable Resource Development. These new procedures affect requirements for applications under specified enactments (including the Mines and Minerals Act, Part 8; the Water Act, and the Environmental Protection and Enhancement Act).
Although the AER originally planned for these changes to come into effect on March 2, 2015, the AER released Bulletin 2015-10 on February 26, 2015, indicating that implementation of the declaration requirement and the application requirements would be delayed until further notice.
The new procedures expand upon The Government of Alberta’s Guidelines on Consultation with First Nations on Land and Natural Resource Management, by describing four internal Aboriginal Consultation Office (“ACO”) and AER procedures based on AER application type and ACO consultation requirements.
Bulletin 2015-04 provides the following highlights of the new procedures:
(a) The ACO’s determination of consultation adequacy is required before the AER can make a final decision under the specified enactments.
(b) 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.
(c) For an application for which the ACO has determined no consultation was required, the applicant must submit a copy of the pre-consultation assessment with its application to the AER. The AER will process the application after confirming that consultation was not required. (Pre-consultation assessments are submitted in the same manner as the First Nations Consultation Declaration (see next section).)
(d) For an application requiring First Nations consultation, the applicant must submit a First Nations impacts and mitigation table to the AER. (This table is to be included in the First Nations Consultation Declaration (see next section).) The table is to contain information about any potential adverse impacts of the proposed energy resource activity on existing rights of aboriginal peoples as recognized and affirmed under Part II of the Constitution Act, 1982, and on traditional uses as defined in The Government of Alberta’s Policy on Consultation with First Nations on Land and Natural Resource Management, 2013. The information in the table will come from the consultation records already required and verified by the ACO. No new information is required.
(e) For Enhanced Approval Process (“EAP”) applications under the Public Lands Act, the applicant conducts consultation and seeks an adequacy assessment from the ACO before applying to the AER. Statements of concern received by the AER from a First Nation or other aboriginal group are provided to the ACO.
(f) For non-EAP applications under the Public Lands Act, and applications under the Water Act and the Environmental Protection and Enhancement Act, the AER receives the application and begins its technical review while consultation is ongoing. 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 possibly provided advice on mitigating impacts to Treaty rights and traditional uses.
(g) For applications requiring extensive consultation, 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 regulatory decision. The ACO will provide the AER with a report that provides the ACO’s assessment of consultation adequacy and that may contain advice to the AER on mitigating impacts to Treaty rights and traditional uses.
(h) If the AER holds a hearing on an application, the ACO may observe and may provide a hearing report to the AER containing advice on any impacts to Treaty rights and traditional uses that were raised during the hearing and not previously addressed by the consultation process.
