Bulletin 2015-04

Bulletin 2015-04: Release of the Joint Operating Procedures for First Nations Consultation on Energy Resource Activities, Including New Application Requirements

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Release of the Joint Operating Procedures for First Nations Consultation on Energy Resource Activities, Including New Application Requirements

Feb 04, 2015

This bulletin announces the release of the Joint Operating Procedures for First Nations Consultation on Energy Resource Activities (Procedures), including new requirements for applications under the specified enactments (Mines and Minerals Act [Part 8], Public Lands Act, Water Act, and Environmental Protection and Enhancement Act). The new requirements come into effect on March 2, 2015.

On October 31, 2014, the minister of Energy and the minister of Environment and Sustainable Resource Development signed a ministerial order on aboriginal consultation (Energy 105/2014 and ESRD 105/2015). The order provides direction to the AER on matters relating to First Nations consultation.

Aboriginal consultation is a Crown responsibility, administered by the Aboriginal Consultation Office (ACO) within the Ministry of Aboriginal Relations. Applicants, however, are responsible for fulfilling the First Nations consultation requirements established by the ACO.

Procedures
The ACO and the AER have worked together since November 2013 to define detailed procedures for administering and coordinating the operations of both organizations to achieve the direction provided by the ministerial order. The Procedures is the result of those efforts.

The Procedures expands upon The Government of Alberta’s Guidelines on Consultation with First Nations on Land and Natural Resource Management by describing four internal ACO-AER processes based on the AER application type and ACO consultation requirements. Section 4 of the Procedures sets out new application requirements.

Highlights

  • The ACO’s determination of consultation adequacy is required before the AER can make a final decision under the specified enactments.
  • 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.
  • 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.)
    For an application requiring First Nations consultation, the applicant must submit a First Nations impacts and mitigation table. (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.
  • 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.
  • 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.
  • 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.
  • If the AER holds a hearing on an application, the ACO may observe and may provide a hearing report 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.

First Nations Consultation Declaration
Effective March 2, 2015, the First Nations Consultation Declaration form (declaration), available on the AER website, must be completed and submitted to the AER as part of any application for which the ACO determined consultation was required. The declaration is to include the First Nations impacts and mitigation table summarizing the First Nations that were consulted, any potential adverse impacts to the existing rights of aboriginal peoples or their traditional uses that were identified during consultation, and any mitigation proposed by the applicant during consultation.

Completed declarations are to be submitted after an adequacy decision is issued by the ACO using one of the methods described below. The name of the declaration document should contain "FN Declaration" and the relevant First Nations consultation (FNC) file number (e.g., FN Declaration FNC 201412345)

  • Public Lands Act, EAP applications: Upload the declaration to the Electronic Disposition System as "additional information" at the time the EAP application is submitted.
  • Public Lands Act, Non-EAP applications and Oil Sands or Coal Exploration Program applications: Send to AERSurfaceActivityApplication@aer.ca.
  • Mines and Minerals Act (Part 8) applications: Send to Exploration@aer.ca.
  • Environmental Protection and Enhancement Act and Water Act applications: Send to EPEA.WA.Applications@aer.ca.

The declaration is intended to be an interim measure to verify activity locations and to communicate to the AER the potential adverse impacts identified during consultation. It is intended that ACO and AER process and system changes over time will negate the need for the declaration. These changes would require a common ACO-AER submission standard and updates to the electronic systems used by the ACO and AER.

The declaration, Procedures, and ministerial order, as well as a list of frequently asked questions and answers, can be accessed through www.aer.ca > Rules & Directives > By Topic > Aboriginal Consultation.

Contact Information
The AER is the point of contact for industry on matters relating to the Procedures, including the application requirements. General inquiries about this bulletin can be made to inquiries@aer.ca or 1-855-297-8311.

The ACO is the point of contact for First Nations and Métis on matters relating to the

Procedures. The ACO provides staff contact information on its website at www.aboriginal.alberta.ca.

<original signed by>

Robert Wadsworth
Vice President Authorizations