Alberta Revises Internal Procedures for Addressing First Nations and Métis Settlement Consultation

On October 31, 2018, the Alberta Aboriginal Consultation Office (ACO) and the Alberta Energy Regulator (AER) released revised Joint Operating Procedures for First Nations and Métis Settlement Consultation on Energy Resource Activities (Procedures). These Procedures address coordination of activities between the ACO and AER concerning consultation with First Nations and on Métis Settlements. For more information on the Procedures please see our February 2015 Blakes Bulletin: Procedures Introduced to Administer and Coordinate First Nation Consultation.

The amended Procedures will be of interest to businesses engaged in energy resource activities in Alberta. The Procedures provide insight into the interaction between the ACO and AER on Indigenous consultation during the regulatory process.

Since Alberta uses a bifurcated model to satisfy its obligations to Indigenous people, there is an additional need for businesses to be aware of the interactions between the ACO, which is responsible for Indigenous consultation, and the AER, which isn’t responsible for Indigenous consultation but oversees the formal regulatory process. This bifurcation creates divisions of responsibilities and seams that can create additional risks that do not exist in other models. For example, in Athabasca Chipewyan First Nation v. Alberta, the ACO determined that there wasn’t a duty to consult the Athabasca Chipewyan (ACFN) because the proposed activity would not adversely affect their rights. However, in the subsequent AER process, the AER determined that the ACFN would be directly and adversely affected, raising questions about the ACO’s determination. For more on this decision, please see our April 2018 Blakes Bulletin: Court Confirms Power of Alberta Aboriginal Consultation Office to Decide Who Gets Consulted.

REVISIONS

The ACO and AER initially released the Procedures in February 2015 and subsequently amended them in June 2015. On October 31, 2018, the ACO and AER released the most recent version of the Procedures. These revisions revamp the format of the Procedures with the intent to make them more user-friendly and to facilitate more effective and efficient collaboration.

While the revisions do not change the substantive aspects of the existing processes, they do include a new section on the roles and responsibilities of each of the ACO and the AER. The revisions also provide an expanded and clarified definition section and provide clarity on various reports and processes, including the ACO consultation adequacy decision and hearing report, the file number for consultation application supplement, and regarding consultation requirements for AER renewal or amendment applications. In addition to formal interactions between the ACO and the AER under the Procedures, the Procedures encourage the AER and ACO staff to informally engage one another to coordinate the processing of files or applications.

PUBLIC LANDS ACT APPLICATIONS

The Procedures also revise the application requirements for over 60 Public Lands Act applications administered by the AER (as identified in Table 2 of the Public Lands Administration Regulation). Previously, prior to submitting any of these applications to the AER, proponents were required to obtain a decision from the ACO concluding that consultation with potentially adversely affected First Nations or Métis Settlements was adequate. Under the revised Procedures, a proponent may submit its application to the AER concurrently with the consultation process, or alternatively, may continue to submit its application to the AER once consultation has been completed.

The effect of this change is that proponents are no longer required to treat consultation with First Nations and Métis Settlements and the AER application process as sequential steps, which may reduce the overall timeline for these applications and improve the efficiency and effectiveness of the regulatory process.

CONCLUSION

The revisions to the Procedures primarily address internal government processes; however, they play an important role in satisfying the Alberta government’s obligations to Indigenous people regarding energy resource activities involving First Nations and Métis people on Métis Settlement lands. To the extent that the revised Procedures help reduce risks arising as a result of the interaction between the ACO and the AER in their respective capacities, the revisions should be welcome.

The Alberta government is currently finalizing its Métis consultation policy in areas outside Métis Settlements. As a result, it is expected that further procedures will be implemented between the ACO and AER regarding these consultation efforts once the Métis consultation policy is finalized.

For further information, please contact:

Lindsey Mosher             403-260-9618

or any other member of our Aboriginal Law or Energy Regulatory groups.

Blakes and Blakes Business Class communications are intended for informational purposes only and do not constitute legal advice or an opinion on any issue.

We would be pleased to provide additional details or advice about specific situations if desired.

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