Declaration Requirement Removed from First Nation Consultation Procedures

On June 10, 2015, the Alberta Energy Regulator (AER) released a revised version of the Joint Operating Procedures for First Nations Consultation on Energy Resource Activities (Procedures) and Bulletin 2015-20. While the original Procedures remain largely intact, changes were made to section 2.3 — First Nations Impacts and Mitigation Table and section 4 — AER Application Requirements. The main impact of these changes is that the First Nations Consultation Declaration form (Declaration) that was originally contemplated under the Procedures has been replaced by a less onerous “application supplement”.
On February 4, 2015, the AER released the Procedures, detailing how the AER and the Aboriginal Consultation Office (ACO) would administer and coordinate their respective operations on matters relating to First Nations consultation. However, in late February 2015, the AER released Bulletin 2015-10, which delayed both the implementation of the application requirements and the Declaration. For more information on the Procedures, see our February 2015 Blakes Bulletin: Procedures Introduced to Administer and Coordinate First Nation Consultation.
The original Procedures referenced the Declaration, which required project proponents to swear that the First Nations Impacts and Mitigation Table “accurately document[ed] the potential adverse impacts on the existing rights of aboriginal peoples […] or their traditional uses.” The nature of this affirmation may have caused some concern to industry, and the AER (presumably in response to those concerns) has replaced the Declaration with the application supplement in the revised Procedures. 
The application supplement requires proponents to identify, among other things, whether First Nations consultation was required, and if it was, to fill out the First Nations Impacts and Mitigation Table, listing:
  • Which First Nations were consulted
  • Any potential adverse impacts on Aboriginal Peoples’ existing rights or their traditional uses identified during consultation
  • Any mitigation measures proposed by the Applicant during consultation
Once complete, a company representative must execute the application supplement and state that “the impacts and mitigation table is correct to the best of [his/her] knowledge” and that the representative “will advise the AER as soon as practical if [he/she] become[s] aware of information that amounts to a material change to the information provided in [the] supplement.” 
Additionally, sections 2.3 and 4 of the revised Procedures clarify that the application supplement is not required for activities that are excluded from consultation in Appendix C of The Government of Alberta’s Guidelines on Consultation with First Nations on Land and Natural Resource Management. Further, section 4 of the revised Procedures has been simplified and confirms that all AER applications under the specified enactments must include the above outlined application supplement starting July 1, 2015.
While the revised Procedures have not changed the prescribed interaction between the AER and the ACO, they have changed the nature of the affirmation that Applicants must make on their First Nations Impacts and Mitigation Table. Changing the statement associated with the table should go some way to alleviating the concerns that many industry members had with the former sworn Declaration.
For further information, please contact:
David Hansford         403-260-9642
or any other member of our Environmental & Aboriginal Law group.

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