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Alberta’s Metis Consultation Framework

On April 4, 2016, the Government of Alberta (“GoA”) released The Government of Alberta’s Policy on Consultation with Metis Settlements on Land and Natural Resource Management, 2015 (the “Policy”) as well as The Government of Alberta’s Guidelines on Consultation with Metis Settlements on Land and Natural Resource Management, 2016 (the “Guidelines”). Additional information on the Policy and the Guidelines including the text of each can be found here.

The modest aim of this post is to outline some of the key features of the Policy and Guidelines as they relate to energy project proponents.

Alberta Metis Settlements

The term “Metis” refers to people of mixed European and indigenous heritage who developed their own customs, way of life, and recognizable group identity separate from their settler or indigenous ancestors. Metis people are expressly included within the definition of “aboriginal peoples of Canada” in section 35 of the Constitution Act, 1982. Accordingly, Metis practices that were historically important features of these distinctive communities and that persist today as integral elements of Metis culture are constitutionally protected. According to the Alberta Indigenous Relations website, approximately 5,000 people live on the eight Metis Settlements in the province which collectively cover 1.25 million acres in the central and northern part of the province.

Policy and Guideline Highlights

The stated objective of the Policy is to establish a meaningful consultation process to address potential adverse impacts to Metis Settlement members’ harvesting or traditional use activities. The Guidelines are intended to clarify expectations of all parties participating in the consultation process including project proponents, the Aboriginal Consultation Office (the “ACO”), Metis Settlements, and government agencies.

According to the Policy, and consistent with Supreme Court of Canada decisions on Aboriginal consultation, the GoA policy is to consult with Metis Settlements when:

  1. GoA has real or constructive knowledge of Metis Settlement members’ harvesting or traditional use activities;
  2. GoA is contemplating a decision relating to land and natural resource management; and
  3. a GoA decision has the potential to adversely impact the continued exercise of Metis Settlement members’ harvesting or traditional use activities.

The Policy, therefore, will impact not only strategic resource planning decisions made by the GoA, but also project specific decisions including land dispositions, facility and pipeline approvals, and water use authorizations. It will not, however, apply to leasing or licencing Crown mineral rights.

Borrowing from the GoA’s approach to consultation with First Nations, the Guidelines establish a framework for determining the level of consultation required based on the impact of the project and the sensitivity of the affected location. The level of consultation informs how deep the consultation should be, what process steps are required, and the timelines for completing consultation.

The Policy lists a number of “guiding principles” which it considers will lead to meaningful consultation. These guiding principles will generally not surprise energy project proponents who are accustomed to engaging with First Nations. In some cases, the guiding principles provide reassurance regarding the GoA position on consultation. Notably, the guiding principles include the following:

  • Consultation will take place with the Metis Settlements, not their individual members;
  • GoA will consult with honour, respect, and good faith, with a view to reconcile Metis Settlement members’ harvesting and traditional use activities with the GoA’s 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;
  • Metis Settlements have a reciprocal onus to respond with any concerns specific to the anticipated Crown decision in a timely and reasonable manner and work with Alberta and project proponents to resolve issues as they arise during consultation;
  • Consultation does not give Metis Settlements or project proponents a veto over Crown decisions nor is the consent of Metis Settlements or project proponents required as part of Alberta’s Consultation process.

The Policy and Guidelines contemplate direct consultation by the GoA as well as GoA delegation of procedural aspects of consultation. In either case, the ACO will “direct, monitor and support consultation activities”. ACO support includes providing staff to assist with consultation, advising both Metis Settlements and proponents when disputes arise, and evaluating consultation records. Energy project proponents will recall that the Alberta Energy Regulator (“AER”) has no authority under the Responsible Energy Development Act to assess the adequacy of Crown consultation. In matters before the AER, the ACO will make a consultation adequacy determination and advise the AER of its decision.

For their part, project proponents may need to carry out certain tasks if the GoA decides to delegate procedural aspects of the consultation process. The Guidelines state that “proponents are encouraged to notify and consult with Metis Settlements as early as possible in the pre-application stage”, “document their consultation activities, share their consultation record with Metis Settlements and provincial staff and advise the GoA of any issues that arise”. The Policy and Guidelines identify a number of consultation activities that may be passed to proponents, such as providing Metis Settlements with plain language information on the project, meeting with Metis Settlements to discuss their concerns, developing and implementing mitigation strategies, and preparing consultation records.

Finally, the Guidelines state that “although the optimal outcome of consultation is that all consulting parties reconcile interests, agreement of all parties is not required for consultation to be adequate”.

Comments for Energy Project Proponents

The Policy and Guidelines closely model the GoA’s approach to engaging with First Nations in Alberta and will be familiar to many project proponents. They serve as a useful starting point for setting expectations on how consultation will proceed and the roles of each party. However, they are just that – a starting point.

The Guidelines acknowledge that consultation must remain flexible. They do not state, however, whether Metis Settlements will be consulted on how the Policy will be implemented in any given case. Further, while the Policy and Guidelines clearly contemplate delegating consultation activities to proponents, there is no commitment by the GoA to communicate the fact of delegation to the concerned Metis Settlements.

Clear communication at every stage of the consultation process is important to avoid delays as the process unfolds. Proponents should ensure from the outset when they undertake delegated consultation activities, such as in-person meetings, that the Metis Settlement representatives understand the consultation activities were delegated and are meant to contribute to fulfilling the Crown’s duty to consult.

Alberta’s Metis Consultation Framework

Daniels v. Canada: Métis and non-status Indians fall under Parliament’s legislative authority

On April 14, 2016, the Supreme Court of Canada (SCC) rendered its decision in Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12.

Members of the Dentons Canada LLP Aboriginal Law practice addressed the significance of the decision in their latest Insights post. You can find that post here.

Daniels v. Canada: Métis and non-status Indians fall under Parliament’s legislative authority

Estimating Upstream GHG Emissions

On Saturday, March 19, 2015, the Department of Environment and Climate Change Canada (“ECCC“) published its proposed methodology for estimating the upstream greenhouse gas (“GHG“) emissions associated with “major oil and gas projects” undergoing federal environmental assessments (“proposed methodology“) in the Canada Gazette.

The Government of Canada (“GOC“) announced in late January that it intended to “restore confidence in Canada’s environmental assessment processes”. Dentons’ commentary on that announcement can be found here. As part of that announcement, the GOC articulated five principles for how it would exercise its discretionary decision making authority for projects undergoing federal environmental assessments. Among the five principles was a commitment to assess “upstream greenhouse gas emissions linked to projects under review”. The proposed methodology published in the Canada Gazette has not yet been finalized. Interested parties, including industry stakeholders, have 30 days from the publication date (until April 18) to comment on the proposed methodology.

The proposed methodology begins by providing a definition of what ECCC considers “upstream” for the purposes of its estimating GHGs associated with a project. It then sets out two parts of its proposed approach to assessing upstream GHG emissions.

Defining “upstream”

The proposed methodology defines “upstream” to be all industrial activities from the point of resource extraction to the project under review. Apparently anticipating questions on what this definition means for crude oil pipeline projects, ECCC gives several examples of “upstream” activities for such projects:

  • Extraction – crude oil and gas wells and oil sands mining and in situ facilities;
  • Processing – field processing and upgrading, if occurring;
  • Handling – products transfer at terminals; and
  • Transportation – any pipeline operation in advance of the project.

The activities considered “upstream” would depend on the project under review.

The Proposed Methodology

We are told that the assessment of upstream GHGs will consist of two parts. The first part is a relatively straight forward quantitative estimation of emissions released from upstream production associated with the project. The second part is a more opaque “discussion” of the project’s potential impact on Canadian and global GHG emissions.

The quantitative component of the assessment will focus on emissions from upstream activities “exclusively linked” to the project being assessed. How ECCC will decide whether something is “exclusively linked” to a project is unclear. The quantitative assessment will not include “indirect emissions” which, for the purposes of the proposed methodology, would include matters such as manufacture of equipment and fuels “produced elsewhere”.

The quantitative assessment begins by determining expected throughput of each “component” (e.g. heavy oil and diluent as separate components) in the product stream. ECCC will rely on project proponent data for this information. Though not expressly stated, information contained in a publicly available application, such as one filed with the National Energy Board would likely be considered.

Next, each product component will be assigned an emission factor using ECCC emissions data, among other information sources. Because different product components will involve different extraction, processing, handling and transportation activities, the emissions factors applied in a given assessment would reflect those differences.

Multiplying the emissions factor for a given component by the throughput of that component (taking into account a vaguely defined “adjustment”) provides the upstream emission for a given component. Upstream emissions for each component would then be totaled to provide the upstream emissions for the entire project.

The second stage to the proposed methodology is a “discussion” that is intended to accomplish two objectives. First, the discussion will assess conditions under which the upstream emissions associated with the project could be expected to occur even without the project. Second, the discussion will consider the potential impact of the project’s emissions on overall Canadian GHG emissions and on Global GHG emissions.

To inform the discussion, ECCC will examine current production levels, the trajectory of future production with and without the project, as well as potential markets for future resource production.

The next stage of the “discussion” is to evaluate “technical and economic potential” for alternatives to be used in absence of the proposed project. The proposed methodology then considers the various alternatives and “discusses the potential implications for Canadian and Global upstream GHG emissions”.

The outstanding issues

When the GOC first articulated the five principles, including the commitment to assess direct and upstream greenhouse gas emissions, its stated intention was to provide greater certainty on how it would exercise its discretion on projects undergoing a federal environmental assessment. This proposed methodology, once finalized, will give proponents some understanding of how ECCC will assess upstream emissions. However, proponents are arguably no closer to understanding how the GOC will exercise its discretion on individual projects.

The proposed methodology gives only a high level overview of how upstream GHGs will be assessed and is vague in a number of respects. For instance, it is not clear how “the technical and economic potential for alternative modes of transportation” will be evaluated. If a proposed pipeline has more “economic potential” or is considered safer than the hypothetical rail alternative, will that tilt the scale in favour of the proposed project for the purposes of an upstream GHG assessment? The proposed methodology also includes a fleeting reference to comparing emissions intensity between Canadian and non-Canadian crude oil sources. What crude oil sources will be used as the comparator or how “upstream emissions” from those non-Canadian-sources will be quantified is anyone’s guess.

The most significant issue outstanding from the perspective of a project proponent is the lack of guidance on how the National Energy Board, ECCC, or the Governor in Council, as the case may be, will exercise its discretion to approve or recommend approval of a project based on its GHG emissions. Will projects be given a green light regardless of the upstream GHGs they facilitate? At the other end of the spectrum, will any increase in Canadian or global GHG emissions from a project be enough to delay or halt a proposed project? The true answer presumably lies somewhere in the middle. The problem from the prospective of a proponent contemplating a substantial investment is that there is no way to assess this potential roadblock.

 

Estimating Upstream GHG Emissions