Background

In our February 27, 2015 blog posting (found here), we alerted industry participants to new application requirements set out in the Joint Operating Procedures for First Nations Consultation on Energy Resource Activities (found here) (Joint Operating Procedures). These new requirements were scheduled to come into force March 2, 2015. They included the completion and submission of a First Nations Consultation Declaration Form (Declaration) to the AER as part of any application under the “specified enactments” (defined in the Responsible Energy Development Act as the Mines and Minerals Act [Part 8], Public Lands ActWater Act, and Environmental Protection and Enhancement Act) for which First Nations consultation was required (as determined by the Aboriginal Consultation Office, or ACO). The Declaration included an impacts and mitigation table summarizing the consultation.

In our March 23, 2015 blog posting (found here), we reported that in accordance with Bulletin 2015-10 (found here), the AER advised that it was delaying implementation of the Declaration and application requirements set out in the Joint Operating Procedures “until further notice”. The Bulletin went on to confirm that other application requirements would continue to apply, including the requirements for aboriginal consultation, as outlined in The Government of Alberta’s Guidelines on Consultation with First Nations on Land and Natural Resource Management (Consultation Guidelines), and the report by the Aboriginal Consultation Office (ACO) containing the ACO’s findings on consultation adequacy. There was no indication in Bulletin 2015-10 as to the reason for, or anticipated length of, the delay in the Joint Operating Procedures taking effect.

We had commented in our March 23 blog posting that this indefinite delay marked a departure from what had been a swift and significant ongoing evolution of the regulatory framework governing First Nations consultation for energy development in Alberta (a summary of that evolution may be found in our prio​r blog posting).

Update

In Bulletin 2015-20, released June 10, 2015, the AER Advised that section 4 of the Joint Operating Procedures had been revised. Effective July 1, 2015, for all AER applications under the specified enactments (except applications for those activities set out in Appendix C of the Consultation Guidelines), an “application supplement” (Supplement) on First Nations consultation is required. The Supplement replaces the Declaration. In the Supplement, the applicant must identify, among other things, whether First Nations consultation was required. If so, a First Nations impacts and mitigation table must be completed and included (which was previously the case with the Declaration), summarizing the First Nations that were consulted, any potential adverse impacts identified during consultation, and any mitigation proposed. The Supplement is found on the AER’s website (found here) and further instruction as to its completion is included within the Supplement itself, as well as within Bulletin 2015-20.