Proponent Guide Presentation - Alberta Aboriginal Relations

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Alberta Government first nations
consultation process
Calgary, alberta
November 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
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
2 Acting,1 Position Filled
4 Acting, 3 Positions Filled
3 positions Filled
1 Acting, 6 Positions Filled
Operations Section Leads
Region Leads
* Some Approval Specialists and Consultation Advisors still to be hired in next couple of weeks
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 [email protected]
Regan Smith - Aboriginal Relations
(403) 297-6329 [email protected]
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
10
15
5
10
Approximately number of GoA working days on second
follow-up with First Nation if no response.
Number of GoA working days First Nations have to
review the RoC
For EIA Extensive consultation: Where First Nations
respond to the notification consultation is expected to
be completed within the applicable regulatory
timelines.
5
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 Assessment
Old 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 period
21-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 Nation
If 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
[email protected] 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/researchpermitmanageme
ntsystem/OPaC.aspx
5. Proponent Consultation - Information Package
Old Process
Clear identification of any known potential
short- and long-term adverse impacts to First
Nations Rights and Traditional Uses
Proponent Guide
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; and
o 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
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