In July 2019, through Bulletin 2019-10, the Commission announced that it will review its processes and procedures to ensure that the application requirements for consultation with First Nations and Métis are clear. Initial feedback received from Indigenous groups and industry indicated strong support for clear application requirements, alignment with the Alberta government's consultation process and more opportunities for external participation. Based on this feedback, the AUC has decided to separate development of Indigenous consultation processes and procedures from the Rule 007 review project to allow more time for discussion. Also, the scope of the Commission's review of Indigenous consultation processes and procedures will include Rule 020: Rules Respecting Gas Utility Pipelines. The Commission's goal is to have updated processes and procedures with clear Indigenous consultation application requirements completed by the fall of 2020. As interim measures, the Commission put in place interim consultation and information requirements for applicants announced in Bulletin 2019-20.
Interim consultation and information requirements
A utility project applicant must develop a participant involvement program that includes Indigenous groups if there is a potential for the project to impact to Aboriginal and treaty rights as provided in Section 35 of the Constitution Act, 1982. While this is not an entirely new requirement, Rule 007 and Rule 020 do not currently specify how Indigenous consultation should occur in the context of a participant involvement program.
The following interim consultation and information requirements codify existing best practices and will apply to all new transmission lines, substations, power plants, hydro projects, industrial system designations and gas utility pipelines filed on or after January 1, 2020.
1. If the Alberta government, through the Alberta Consultation Office (ACO) or otherwise, directed consultation for related approvals (i.e., Public Lands Act, Water Act, Environmental Protection and Enhancement Act, Historical Resources Act, Government Organization Act, etc.) the applicant must provide:
2. If the Alberta government, through the ACO or otherwise, indicated that a pre-consultation assessment was not required, the applicant must provide a copy of that direction.
3. If advice from the Alberta government was not sought by the applicant, the applicant must summarize the steps it took to identify and consult with Indigenous groups. Applicants are encouraged to use the Alberta government's Landscape Analysis Indigenous Relations Tool (LAIRT) to inform their decisions about consultation. If no steps were undertaken to identify and consult with Indigenous groups, the applicant must provide an explanation for that decision.
4. If consultation with Indigenous groups was undertaken, the applicant must provide a summary of that as part of the participant involvement program.
For more information about the participant involvement program requirements refer to Rule 070 and Rule 020. The following are a few key highlights from Rule 070 and Rule 020, as well as a few best practice recommendations for proponents.
It is paramount that effective communications take place with Indigenous groups whose rights may be directly and adversely affected by a proposed utility project so that concerns may be raised, properly addressed, and if possible, resolved. In its participant involvement program, the applicant is expected to consider how to effectively communicate and interact with Indigenous groups.
Notification to an Indigenous group should be provided to the official consultation contact(s) and by the method identified on the ACO website.
Comprehensive project-specific information must be developed and made available to all Indigenous groups included in the participant involvement program. The minimum information requirements are outlined in the Appendix A1 of Rule 007 and Section 2.3 of Rule 020.
The applicant must allow notified Indigenous groups a minimum of 14 calendar days to receive, consider and respond to the participant involvement program for the proposed project prior to filing a utility application. The Commission encourages applicant to be sensitive to the timing constraints and capacity challenges of Indigenous groups when developing and implementing its participant involvement program.
The applicant must keep a log containing information on the dates notification occurred or was attempted, whether project information was provided, and to whom the project information was given, as well as any follow-up discussions. The applicant should attempt to address concerns raised about the proposed project during consultation. When submitting an application, the applicant must indicate any outstanding objections or concerns that it is aware of, attach a written summary of the outstanding objections or concerns, and its responses and follow-up to these objections and concerns. The applicant must retain documentation of potential mitigation for concerns or objections that were received through the notification and follow-up process prior to filing an application. The applicant is also expected to document commitments made during its participant involvement program and have a process in place to monitor and follow-up on those commitments.