Alberta Government first nations consultation process

Calgary, albertaNovember 6, 2014

PRESENTATION OUTLINE

ACO Goals for these Presentations

How Participants Feedback can make a Difference

Understanding the ACO

Changes in ACO for 2014

How will ACO avoid Major Delays in Consultation Process

How has the ACO dealt with Inconsistencies

Differences of AER and ACO Processes - SOC’s

Guidelines Review (Recent changes, Process, Timelines, Levels, Matrices)

Proponent Guide (Recent Changes & Guide Review)

Common Errors – Assessment Requests and Consultation Summaries

ACO GOALS FOR THESE SESSIONS

HOW CAN YOUR INPUT IN THESE SESSIONS MAKE A

DIFFERENCE?

ABORIGINAL CONSULTATION OFFICE

What is the Aboriginal Consultation Office?

The ACO, administered by the Ministry of Aboriginal Relations, was established to provide consultation management services to meet the needs of GoA ministries, First Nations, the Alberta Energy Regulator (AER), and project proponents in a way that is efficient, coordinated, and consistent.

2014/15 SEASON

Changes in 2014

2014/15 SEASON

How will the ACO avoid major consultation delays and inconsistencies?

2013 VERSUS 2014 ACO STAFFING - OPERATIONS

* Some Approval Specialists and Consultation Advisors still to be hired in next couple of weeks

Positions 2013 2014

Consultation Advisors 10 18*

Assistant Consultation Advisors 2 4

Approval Specialists 3 17*

Operations Director Acting Position Filled

FNC Team Lead Acting Position Filled

FNC Region Lead None Position Filled

Operations Section Leads Region Leads

2 Acting,1 Position Filled

4 Acting, 3 Positions Filled

3 positions Filled1 Acting, 6 Positions Filled

APPROVAL SPECIALISTS (AS) AND

CONSULTATION ADVISORS (CA) Understanding the responsibilities of an AS and CA Get to know the Approval Specialist and Consultation Advisor in

your area

APPROVAL SPECIALISTS

CONSULTATION ADVISORS

ABORIGINAL RELATIONS WEBSITE

THINGS TO COME

LEVY UPDATE

WHAT ABOUT METIS CONSULATION

OUT-OF-PROVINCE FIRST NATIONS NON-STATUS FIRST NATIONS

ACO AND AER STATEMENT OF CONCERN

PROCESSES

AER Contacts:

Elizabeth Grilo: Senior Advisor, Authorizations Branch

(403) 297-3571 Elizabeth.grilo@aer.ca

Regan Smith - Aboriginal Relations

(403) 297-6329 regan.smith@aer.ca

CONSULTATION GUIDELINES

Consultation Guideline Correction

A First Nation response to a notification package should include a written submission to the proponent with a copy to the ACO staff member identified on the file, quoting a First Nation consultation number, if applicable

Now Reads: A First Nation response to a notification package should include a

written submission to the proponent, quoting a First Nation consultation number, if applicable

DOES THE NEW GUIDELINES AFFECT CONSULTATIONS THAT STARTED PRIOR TO

JULY 28, 2014?

THE PROCESS

Common Question at these Sessions Requirements on:

Consultation Fees Trapper - Consultation and/or Fees Site Visits Metis Consultation/Engagement

LEVELS OF CONSULTATION

Level 1 – Streamlined Consultation“Old Notification without Follow-up”

Level 2 – Standard Consultation“Old Notification with Follow-up”

Level 3 – Extensive Consultation- Non Environmental Impact Assessment (EIA)- EIA

TIMELINES

Internal Consultation Process Timelines

Pre-consultation Assessment (if documentation is complete)Level 1 – 4 GoA working days (old used to be 2 days)Level 2 – 4 GoA working days (old used to be 2 days)Level 3 – 10 GoA working days

Adequacy Assessment (if summary documentation is complete)Level 1 – 10 GoA working days (old used to be 5 days)Level 2 – 10 GoA working days (old used to be 5 days)Level 3 – 20 GoA working days

Levels of Consultation - Timelines

Level 1,Streamlined

Level 2, Standard

Level 3, Extensive

Number of GoA working days First Nations to respond to project notification.

15 15 20

Where First Nations respond to notification, consultation should be complete within GoA working days of response to notification

15 20 60 (or substantially underway)

Approximately number of GoA working days on first follow-up with First Nation if no response.

N/A 5 10

Approximately number of GoA working days on second follow-up with First Nation if no response.

10 15

Number of GoA working days First Nations have to review the RoC

5 5 10

For EIA Extensive consultation: Where First Nations respond to the notification consultation is expected to be completed within the applicable regulatory timelines.

MATRICES

In all cases the GoA retains discretion to modify the level of consultation. There may be modifications to the level of consultation required, based on the characteristics of the project, including location, scale, duration and intensity.

For example, if a project is cited proximate to a known First Nation traditional use site, consultation may be assessed at a higher level, or if the expected duration is significantly shorter than the average, then consultation may occur at a lower level..

SENSITIVITY OF A LOCATION COULD CHANGE A LEVEL OF CONSULTATION

Factors May include: History of Use

Level of Contemporary Use

Presence of Ceremonial Sites

Other values to indicated the importance of the site for Treaty Rights and Traditional Uses

WHEN IS CONSULTATION NOT REQUIRED?

Forestry Temporary Roads - Where previously consulted at GDP level

Power line and vegetative control easements that overlap existing dispositions with <5 meter new cut

Non-intensive 3D or 2D Geophysical programs

Coal, Minerals and Quarries – Programs on existing linear disturbances or disturbed areas or previously approved programs/dispositions

Pipeline Installations (PIL) or replacement on a lease and located on an existing disposition

Bored Pipelines

Sand & Gravel - SME’s (Activities that are temporary usually under 90 days with landuse <640 acres

CLARIFICATION REGARDING TFA’S

 Do all TFA’s go through the FNC Process?

Not all TFA’s go through the FNC process. The TFA’s that do not require consultation as per the PLAR Tables (TFA Tables) can proceed directly for approval from ESRD or AER.

What level do TFA’s get assessed?

For TFA’s that do require consultation, will go through the FNC process. The table does not indicate the level of consultation required. Information in our matrices is used to determine the appropriate level of consultation.

PROPONENT GUIDE TO CONSULTATION WITH FIRST NATIONS

September 3, 2014

Replaces Procedural Steps for Consultation with First Nations

1. Creating an Assessment Request

2. Completing an Assessment Request Old Process Proponent Guide

Added: A map that clearly illustrates the location of the proposed project in relation to any easily identified or commonly known landmarks (e.g., settlements, rivers, lakes, roads)A site map that clearly illustrates the nature, scope, and magnitude of the proposed activity (e.g., basic linear measurements and aerial dimensions, existing and proposed facilities, means of access and egress)

Provide documentation of previous consultation efforts related to the specific FNC activities within the current assessment request, to prove prior consultation has been completed.

Added: Include the previous FNC number if available, and note whether this application is part of a larger strategic (e.g., EIA) consultation.

Added: In the Client Remarks section, include associated approvals required for the project that have already been issued (e.g., WA/EPEA), or a note indicating that this FNC number is in support of a WA/EPEA project that is not yet approved.

Added: The ACO’s direction and decisions will be based only on the activities submitted.

Added: NOTE: The proponent is to reference the FNC number for all subsequent consultation submissions related to the file (to the AER, the ACO, and the First Nations).

3. Assessment Request Submission

Old Process Proponent Guide

Once the proponent has submitted the Assessment Request, the proponent will not be able to add new activities or edit the FNC case file until GoA reviews the case file and provides a recommendation

Proponent can made some amendment changes in EDS prior to Pre-Consultation Assessment

No Buffers Can include 100 meter buffer surrounding proposed projects

Area or Linear distance of the project Area (in hectares) or linear distance (in kilometres and hectares) of the project, with all areas being inclusive of the site plan (new and existing clearing/cut)

Written instructions on “To and From” on Maps Added a Sample Map in Guide

Linear activities (ex. LOC, PLA, etc.): sketch plan including routing and distance

Added (in kilometres and hectares)

Proponent shall contact the First Nation (i.e., official consultation contact) at least two times within the response period

Follow-up’s more specified around day 5 and day 10

4. Pre-consultation AssessmentOld Process Proponent Guide

If consultation is not required, the assessment will indicate the following: No Consultation Required

Added: You will receive a reason why no consultation required. Not specifically shown in guide

Naming change for Levels (ie)Notification with no follow-up Level 1: Streamlined consultation

Naming Change of days for notification period21-day period 15 GoA working days

More Extensive Consultation This type of consultation will be subject to a consultation plan. Consultation plan information will be discussed at the time of Pre-Consultation Assessment

The proponent will be directed in the Pre-Consultation Assessment to contact a designated Consultation Advisor for consultation plan approval and further direction. • 20 GoA working days to respond to project • Notification. consultation should be substantially

underway or completed within 60 GoA working days of response to notification

• First Nations 10 days to review the consultation record

Additional Attempts - These additional attempts should be around the mid-point and at the end of the response period

More Specific. Example - If no response is received within approximately 5 GoA working days, the proponent will follow up with the First NationIf no response is received within approximately 10 GoA working days of the initial notification, the proponent will follow up a second time with the First Nation

ALBERTA CULTURE HRV 4c LISTINGS

Pre-consultation Assessment - ACO will strive to advise proponents of Alberta Culture requirements if applicable.

ACO and consultation required to meet Alberta Culture’s requirements will proceed concurrently.

The adequacy decision provided by the ACO is not dependent to Alberta Culture’s process.

If the project area submitted by a proponent includes sites classified by Alberta Culture’s Listing of Historic Resources as HRV 4c, these sites contain a cultural historic resource and may require avoidance and/or consultation with First Nations.

HRV 4c overlap, proponents should contact Valerie K. Knaga at (780) 431-2371 or valerie.k.knaga@gov.ab.ca to inquire as to whether consultation will be required per Alberta Culture procedures.

Proponents may also apply online for Historical Resources Act approval at http://culture.alberta.ca/heritage/resourcemanagement/archaeologyhistory/researchpermitmanagementsystem/OPaC.aspx

5. Proponent Consultation - Information Package

Old Process Proponent Guide

Clear identification of any known potential short- and long-term adverse impacts to First Nations Rights and Traditional Uses

Removed: In policy, but not in guidelines

Added: The information package must be submitted electronically as one PDF document or in hard copy by registered mail to each First Nation. It requires the following items:

1. FNC number and WA and/or EPEA application numbers, if applicable

2. A note that this project may be proximal to a HRV4c site

Added: Detailed sketches of each activity and overall project plans with ATS legal locations representing the project

Added: A description of the GoA or regulatory authorization being sought (e.g., WA, EPEA, Public Lands Act, Forest Act)

Added: Refused to pick up package - If the First Nation does not pick up a notification package within 5 GoA working days of the first verifiable delivery attempt, the ACO will consider the notification package as received

NOTE: If we have no verification and the First Nation indicates they never received the package, then proponents will be directed to re-send the package and re-initiate consultation

5. Proponent Consultation - Record of Consultation (ROC)

Old Process Proponent Guide

Added: Using the ROC log template. The ROC log must be used to ensure consistency across the province. Any format other than the form on this website will be rejected.

Added: Supporting documentation should be referenced in the ROC log and included as PDF uploads in the submission.

Added: The proponent must use the First Nations consultation contacts list and the prescribed consultation contact methods identified on the AR website. Use of any other list or method of contact will not be accepted and will result in a determination of Incomplete Consultation.

Added: The ROC review period begins the next GoA working day following the verifiable ROC delivery date. (ie on 6th day)

Added: If the proponent’s consultation record has errors and omissions, the ACO directs the proponent to make the required changes and send the revised ROC to the First Nation and the FNC unit inbox. The ACO considers the revised ROC as final. Proponents should wait for the prescribed First Nation ROC review period to elapse prior to submitting the final ROC log to the ACO (FNC unit inbox) and a request for an adequacy decision NOTE: The ROC review period is not reset for the revised ROC (see notes for further explanation)

ROC Tips

The ROC tells the story of your consultation – Don’t leave out important information that could cause a rejection of adequacy

Do not add filler information that has no consultation relevancy

Follow-up’s should include information that you are seeking the First Nation’s concerns. This includes meetings and site visits

If you follow up by phone, send an email of the conversation or that you left a voicemail

Make sure you close the loop

Indicate that you concluded consultation for the purpose of applying for the disposition

Create a checklist to ensure the ROC matches requirements and the Level of consultation

6. Submitting Consultation Results for Review

Old Process Proponent Guide

Added: Naming convention - Failure to do so will cause the file to be rejected

Added: Documentation must be submitted as one PDF file per First Nation for Verification of Delivery of Notification package, Supporting Document, ROC Log, ROC Log Verification, Letter of No Concern (if applicable)

Added: Proponents must not submit duplicate emails/email chains

Added: For consultation summaries that are complex or extensive, or that may need additional clarification, proponents may be required to include a summary statement containing:o Key topics of discussion and the concerns and issues raised;o Proposed avoidance and mitigation strategies; ando Remaining points of disagreement and reasons why

NOTE: If there is a large document such as a technical review, create a separate PDF of that document

Added: Level 3: Extensive consultation: Proponents should contact the Consultation Advisor assigned to their project for further direction regarding submission requirements

7. Determination of Consultation Adequacy

Old Process Proponent Guide

Added: The ACO will consider, at a minimum, whether the following factors have been addressed:

Were all identified First Nations provided project information and given an opportunity to participate in the consultation process?

Did the proponent provide project-specific information within a reasonable time before approvals were required or the project was scheduled to start?

If the First Nation provided specific information about how the proposed project may adversely impact their Treaty rights and traditional uses, did the proponent make reasonable attempts to avoid and/or mitigate those impacts?

Does the proponent indicate how they intend to mitigate any potential adverse impacts to the exercise of Treaty rights and traditional uses?

If the consultation wasn’t complete, the rest of the First nation files were not reviewed. This could mean it being bounced back more than once

A full review will occur outlining all the inadequate items

Regulatory Consultation versus Disposition Consultation

EPEA application and/or WA application (i.e., regulatory consultation, of which a lands disposition was a part) has been previously deemed adequate, an assessment request must still be submitted to the FNC unit to determine whether further consultation is necessary. Specific details of the project should be included in the Client Remarks section.

In addition, the proponent must provide evidence that the lands disposition being applied for was included as part of the consultation adequacy decision under EPEA/WA application. This evidence should be in the form of materials (maps, plain language document, etc.) presented to First Nations identified in the consultation pre-assessment for EPEA/WA applications.

When applying for an EPEA/WA approval, proponents should contact the EPEA/WA coordinator to set up a meeting with the associated government departments. Proponents will then work directly with the ACO to carry out Level 3 extensive consultation. Once a decision is issued deeming consultation adequate for EPEA/WA, proponents must note in the Client Remarks section of the assessment request that consultation for this associated disposition (MSL, SML etc.) was previously deemed adequate under EPEA/WA application. Proponents should include the project name and a copy of the adequacy decision letter that was received along with the assessment request submission.

Level 3 Consultation Letter is sent to the proponent (Duty to consult, require a plan, plan requirements)

The proponent is referred to a Consultation Advisor

A consultation plan specific information should include:

Project proponent contact information

A list of specific First Nations to be consulted

Plain language project specific information

Delivery methods for notification and the information package and the follow up process

Any available information regarding potential adverse impacts to Treaty rights and traditional uses

Timelines and schedules for consultation activities

Procedures for reporting progress and results; documentation of meeting minutes correspondence and supporting documents

Level 3 Consultation Draft consultation plan submitted to CA

Questions, comments and recommendations for revisions

Plan doesn’t have to be approved by First Nation

Letter approving plan submitted to proponent

Instructions provided for Bi-monthly reporting

Review of Bi-monthly reports to monitor consultation activities to ensure consultation is being conducted adequately

Bi-monthly reports shared with First Nations

CA may forward report to other Ministries involved in the consultation

CA may request proponent provide additional information or supporting documentation

PROJECT RENEWALS

The duty to consult may be triggered if a project renewal gives rise to potential adverse impacts to Treaty rights or traditional uses

This will be determined by the ACO on case-by-case basis as per the Guidelines

PROJECT AMENDMENTS

Project may require adjustments to the land applications since dispositions, wells, and access roads have to be moved for various reasons

To ensure that consultation captures the potential for slight amendments or realignments due to mitigation attempts, the proponent can include buffers up to 100 metres surrounding proposed projects during consultation

If proponents choose to include a buffer zone on a project they are planning to consult on, the buffer zone must be included as part of the overall project footprint when submitting the assessment request

The buffer zone has to be identified on the submitted map as a separate boundary from the original planned footprint (see example below). This information must be indicated in the notification package that is sent to First Nations, including a clear explanation of the intent of the buffer zone

CLARIFICATION ON BUFFERS

The assessment will include the buffer area to determine which First Nations need to be consulted with

The assessment will exclude the buffer area to determine the level of consultation. Therefore, the level of consultation will not increase due to the buffer 

For other dispositions applied in future within the buffer, you will still be required to consult on those dispositions

 

LETTERS OF NO CONCERNS (LNC)Letters of No Concern (LNC)

LNC - at minimum the written submission must contain FN has no concerns or no objection to the project

On FN letterhead (or an email from a designated FN consultation contact)

FNC# is referenced

Date

Proponent name is referenced and clearly identified

Project is clearly identified by name and/or project description (PLA, MSL, LOC etc.) and/or legal land description(s)  is provided

Letter signed by Chief & Council or the duly designated consultation contact for the FN

What about conditions placed on the LNC?

Conditions that refer to outstanding concerns that are tied to site specific Treaty Rights or Traditional Uses will not be accepted as a valid LNC

Conditions that refer to general “Out of Scope" concerns can be accepted as a valid LNC

Conditions that refer to other outstanding issues (MOU's, Impact Benefit Agreements, guarantees of contract work, etc) are acceptable as a valid LNC

COMMON ERRORS THAT CAN CAUSE DELAYS & TIPS FROM APPROVAL

SPECIALISTS

ASSESSMENT REQUESTS

CONSULTATION SUMMARY REVIEW

PROPONENTS DUE DILIGENCE

CONTACT ACO ON OBVIOUS MISTAKES

MEANINGFUL CONSULTATION

Alberta will consult with honor, respect and good faith with a view to reconciling First Nations’ Treaty rights and traditional uses within its mandate to manage provincial Crown lands and resources for the benefit of all Albertans

Consultation requires all parties to demonstrate good faith, reasonableness, openness, and responsiveness

Alberta and project proponents will disclose clear and relevant information regarding the proposed development, decision or project to First Nations and allow reasonable time for review

It is expected that proponents will identify adverse impacts on Treaty rights and traditional uses to Alberta, and how they plan to mitigate those impacts

Questions&

Final Comments