“There will likely be a number of options in terms of how the duty to consult is met,” says APPrO Executive Director Jake Brooks. “The legal interpretations of the duty are still being worked out, so the area is still quite fluid,” he notes, “but it looks like the Crown will be able to organize its affairs in different ways to meet its obligations, considering the great diversity of specific situations.” Some of these options could include the government sharing its consultation activities with other agencies, or even in some cases delegating parts of its responsibilities to other agencies and to private developers.
Cherie Brant, a lawyer who represents the First Nations Energy Alliance (FNEA), is encouraging both power project developers and First Nations to review the current consultation process proposed in the Ontario Power Authority’s RES III RFP to see whether it meets their needs. “First Nations communities want assurances that the process will be fair and robust and that they will have time to respond to the proposed development and adequately address potential impacts. On the other hand, power project developers are likely to be more concerned about the impact increased consultation obligations will have on project timelines and the bottom line. A third perspective has emerged, the First Nations Proponents, who are both Aboriginal communities and project proponents. What they are looking for are mechanisms which strike a balance between these two opposing views.” The membership of the FNEA is largely made up of First Nations proponents. The FNEA is “principally a group of First Nations communities who see renewable energy as a means to further local economic development and stability within First Nations territories,” she says, noting that, “the FNEA focuses on supporting First Nations proponents and on identifying obstacles and barriers to development within energy policy and regulation.”
Although the duty to consult has only recently been established in Canadian law, it is quickly becoming a major consideration in the development of new power projects located in areas traditionally used by Aboriginal people. The duty to consult is a legal obligation on the government to ensure that a certain standard of consultation with Aboriginal people has been met before development of resources, including power projects, can proceed. Exactly what is necessary to meet the standard of consultation is a key question that is still being worked out. The issues get further complicated by the fact that the consultation obligation permeates each stage of the energy development process, from the high level planning of the Integrated Power System Plan (IPSP), to Transmission Leave to Construct applications, and through to the individual projects in RFPs or Standard Offer Contracts.
The Ontario Power Authority, while not a Crown agency by definition, has its own requirements to consult Ontarians in general, and now it also has the added responsibility of undertaking the Crown’s consultation obligations in connection with the IPSP itself. One of the evidentiary portions of the OPA’s IPSP evidence before the Ontario Energy Board specifically relates to consultation with First Nations and Métis. The IPSP evidence was filed in August 2007 and since then, the OPA has been directed by the Minister of Energy on two additional occasions to address potential duty to consult obligations. On August 27, 2007, the Minister issued the 2000 MW Renewable Energy Supply directive that included a specific direction to the OPA to “develop guidelines and processes to ensure that appropriate consultation with First Nations and Métis peoples takes place.” More recently, on September 17, 2008, Minister Smitherman directed the OPA to revisit its IPSP and undertake an “enhanced process of consultation with First Nations and Métis communities in light of potential duty to consult obligations” and directed that “the principle of Aboriginal partnership opportunities be considered in matters of both generation and transmission.” When the final RES III contract was released, it contained the most comprehensive expectations ever specified for project developers, in terms of their prior consultations with First Nations and Métis groups.
Brant, who is with the Toronto law firm of Gardiner Roberts LLP, is working to advance the FNEA’s goal of reaching solutions that balance all parties’ interests. “FNEA members are proponents and are working to build bridges in the energy industry — not add obstacles,” she says, “There is a gap in the consultation process between what the OPA has done with its IPSP and what developers will do with their RFPs. That gap, from our perspective, is context and this is the key element that is missing from the overall process. … Not all First Nations have the necessary industry experience to properly evaluate complex energy proposals. To date, the most significant stumbling block to successful consultations on the IPSP has been the general failure to ensure that First Nations understand the IPSP within the context of proposed energy projects and within the context of their communities and traditional territories.”
Drawing from Chief Justice McLachlin’s decision in the Haida case, Brant explains that “the duty should be viewed with the goal of promoting reconciliation due to the Crown’s assertion of sovereignty over Aboriginal people and de facto control of land and resources.” She adds, “[T]his perspective informs the FNEA’s efforts to provide options and solutions to fill this gap.” Brant poses an interesting question to the OPA and to developers: In light of IPSP and RFP consultation requirements, would it not be more efficient for everyone if the OPA was to invite developers to play a role in the OPA’s IPSP consultations with First Nations?
From Brant’s perspective, this alternative would create consistency, provide the necessary context that is the key to successful consultations and may satisfy developers’ early RFP consultation requirements. In principle, such increased involvement by the OPA and developers could build strong relations, clear away certain issues more quickly and facilitate a mechanism for discussion outside the pressures and competition of the RFP process. “We know that many of the projects identified in the IPSP will not necessarily go all the way to development, and we know that plans will undoubtedly change as they unfold. Nevertheless, there is value in building relationships with First Nations communities outside competitive processes and those relationships will enable the streamlining of a development cycle that seems to be lengthening at a time when efficiencies couldn’t be more important.”
However, there are unresolved issues with the approach being recommended by Brant. First of all, it remains to be determined exactly how developers would be involved in this early form of consultation suggested by Brant and to what extent would developers want the OPA to disclose information on their behalf, absent their participation. How could developers be sure they wouldn’t be duplicating work they might have to do later? Would developers lose a competitive edge in their RFPs if they talked about their projects at an early stage? Brant explains that the new IPSP directive from Minister Smitherman will necessarily involve consultations on this issue and it appears that power project proponents, First Nations and Métis will have the opportunity to weigh in on the elements of an “enhanced consultation” process.
Some APPrO members who are working with First Nations groups with power projects proposed in their traditional areas have begun considering this question. One of the responses coming forward has been to take a cautious approach to any arrangements related to sharing the duty to consult with government. “Responsible developers will always want to consult with affected communities before starting new projects,” Brooks says. “But for a developer to take on consultation duties that are essentially a government obligation risks creating uncertainty over the character of its own consultations.”
The Ontario Power Authority, when it released its Request for Proposals for new renewables on August 22 (RES III), notified industry players that consultation with Aboriginal communities was taking on greater importance than ever before. Part of the RFP includes a section on consultation with aboriginal communities and a paper outlining guidelines and general expectations for consultation with aboriginal communities. Proponents are responsible for determining the need for consultation and must provide a letter with their application showing the result of their communication with government officials on the need to consult before proceeding with their projects. In some situations, proponents may be obliged to enter into an agreement with the Crown about consultation.
The RES III RFP says the duty to consult “falls on the Crown, but the Crown may delegate procedural aspects of consultation to Proponents. The central feature of the consultation process under the RES III Contract is a requirement, where necessary, that successful Proponents enter into an agreement with the Crown in relation to consultation on the Contract Facility, which sets out consultation responsibilities of the Crown and expressly delegates procedural consultation responsibilities to the Proponent. Where the Crown determines that such an agreement with the Crown is required, such agreement will include a consultation plan to be agreed upon between the Proponent and the Crown and attached in a schedule to the agreement. It is the Crown’s expectation that the plan will focus on how the Proponent will fulfill its delegated responsibilities in the course of complying with existing regulatory approval processes.”
Proponents are expected to look into the aboriginal presence in the area of their projects and find out if there are any aboriginal rights, either established or claimed, that could be affected by their proposed development. An extensive list of questions in this regard must be answered as part of every proponent’s response to the RES III RFP.
In the end, it seems like the duty to consult is an evolving area that developers and government agencies will need to watch closely, and possibly become more involved in, in the near future.
See also OPA document on consultation, July 2008
For more information, see http://firstnationsenergyalliance.org/ .