Toronto: The Ontario Ministry of the Environment (MOE) recently released its Draft Aboriginal Consultation Guide for preparing a Renewable Energy Approval Application (the Guide). The following observations are excerpted from a technical bulletin published by Borden Ladner Gervais LLP.
“This long anticipated guidance … provides direction for consultation with Aboriginal communities during the Renewable Energy Approval (REA) process, pursuant to the Environmental Protection Act, and Ontario Regulation 359/09. … The consultation requirements prescribed by the Regulation and further described in the Guide create mandatory obligations for project proponents of certain renewable energy projects in order to ensure that Aboriginal (First Nation and Métis) communities are consulted in keeping with the Crown’s Duty to Consult.
“Before granting an REA, it is the MOE’s responsibility to ensure the Crown’s Duty to Consult is fulfilled. The Guide is intended to assist project proponents to understand the aspects of consultation that are being delegated by the Crown. … The Guide states that it is the proponent’s responsibility to design and conduct consultation with Aboriginal communities in order to successfully prepare an REA application and that it is the proponent’s responsibility to pay for the reasonable costs of the consultation process. The MOE will review and approve consultation plans prepared by the proponent and has the discretion to require further consultation by the proponent or may undertake additional consultation itself. …
“The second step for the proponent is to provide a Notice of Proposal to Engage in the Project and Notices of Public Meetings. Notices have to be published in certain locations depending on the nature of the project … The third step of the consultation process involves holding a minimum of two public meetings. At least 30 days before the first public meeting, the draft Project Description Report must be given to applicable Aboriginal communities. At least 60 days before the final public meeting, proponents must make the revised draft Project Description Report available to those Aboriginal communities.
“The meetings are noted in the Guide as an opportunity to meaningfully engage with the community with respect given to its members ideas and concerns about the project. … The Guide notes that the purpose of the consultation process is to make Aboriginal communities fully aware of the project, understand any concerns and find means to avoid, minimize or mitigate any potential adverse effects. In doing so, the Guide notes a number of ways this can be accomplished, including:
• modifying the project design to reduce or prevent the adverse effects on the exercise of the right;
• conducting further studies or committing to establishing ongoing monitoring of environmental effects;
• developing a contingency plan in the event the adverse effects are greater than anticipated; or
• committing to a long-term relationship, which may involve regular community meetings. …
“(T)he Guide provides that, in some situations, the MOE may determine that further consultation is required. This is likely to occur in projects where there is a significant adverse impact on the exercise of Aboriginal or treaty rights. … It is possible that a proponent will become aware of a rights assertion in the process of the consultation. If that is the case, the Guide suggests contacting the MOE for further guidance. … It is important to note that there may be additional requirements depending on the nature of the project, imposed by either the Ministry of Natural Resources, the Ministry of Infrastructure or possibly other branches of Government. The Guide requires that all such requirements be discussed with the Aboriginal communities in the consultation.
“Finally, the Guide requires a Consultation Report be prepared and provided by the proponent to the MOE, in order to allow the MOE to determine if the REA application has met the regulatory requirements and provide a record of the consultation that took place.
BLG concludes in part by saying “While the Guide provides additional detail to project proponents of renewable energy projects regarding the nature of their obligation to consult with Aboriginal communities, the precise nature of the consultation to be undertaken will need to be assessed and implemented on a case by case basis.”
For more information please see the bulletin published by Borden Ladner Gervais LLP titled “Ontario Issues Draft Aboriginal Consultation Requirements For Certain Renewable Projects” by Adam Chamberlain, Partner, and Kelly Farish, Student-at-Law, or access the document on the IPPSO FACTO website.