The Government of Ontario recently finalized a document that offers guidance and direction for proponents of renewable energy projects for consulting with Indigenous communities.
As of September 2013, renewable energy project applicants will look to the Aboriginal Consultation Guide for Preparing a Renewable Energy Application to follow the proper guidelines for consulting Aboriginal groups, a process that is mandatory for all renewable energy projects apart from class 2 wind facilities.
The Renewable Energy Application (REA) process under Ontario Regulation 359/09 of the Environmental Protection Act consolidates a number of previous permits for renewable facilities.
The newly released guide describes the obligations of the Crown and applicants in the consultation process. While the legal duty to consult Indigenous groups rests with the Crown, through the guide and regulation the Crown is delegating consultation to project applicants.
The guide offers applicants advice for more effective consultation, while stressing the importance of engaging Indigenous communities, “in meaningful ways that facilitate effective and timely information exchange”.
It is important to note that the guidelines offered are the minimum requirements for proponents in terms of consultation and that other processes such as reports and technical studies are required under the REA process. Other consultation processes may also be required, depending on the complexity and scope of the project. The guide applies only to provincial regulations; federal agencies may have additional requirements if the project is being proposed for land that overlaps jurisdictions. (As with other REA processes, the requirements do not apply to applications dealing with waterpower.)
In the guide and regulation, the term Indigenous communities includes First Nations and Métis communities.
The Supreme Court has established the Crown’s duty to consult and where appropriate accommodate Indigenous peoples when it is aware of an existing or asserted right or treaty right, or when conduct is being considered that may adversely affect those rights. The same stipulations apply for consultation in either case.
The duty to consult has both informational and responsive aspects—applicants must provide information to Indigenous communities as well consider potentially impacted rights. When hearing concerns from Indigenous communities, proponents must respond to concerns by avoiding, minimizing or mitigating adverse impacts, and establishing whether or not accommodation is needed.
The guide lays out the duties of the different parties—the Crown, the applicant and Indigenous communities—in the consultation process:
- The role of the applicant is to follow the procedural aspects of consultation, and provide resources and reasonable financial assistance to facilitate the involvement of Indigenous groups who might otherwise find it difficult to participate in the consultation process.
- The role of the Ministry of Environment is to ensure the Crown’s duty to consult and accommodate is met, and to provide oversight on the process. The Ministry also gives support in terms of providing direction, identifying which communities to consult, follow-up, etc.
- The role of Indigenous communities in the consultation process relate to participating in the process in a reasonable timeframe, articulating the nature of concerns and potential impacts on rights, and identifying possible options to minimize or mitigate these.
The ultimate goal of these processes is to formally integrate the views of Aboriginal communities into an applicant’s planning and decision-making for renewable energy projects in Ontario.
The following are the consultation steps identified in the guide:
- The proponent prepares a draft of the Project Description Report (PDR).
- Acquire a list of Indigenous Communities that must be consulted from the Ministry of Environment.
- The Ministry makes initial contact with Indigenous communities.
- The proponent provides notices to Indigenous communities, as well as copies of the PDR.
- The proponent holds the first public meeting.
- The proponent updates the draft information with comments and feedback received from Indigenous communities.
- The proponent then distributes report summaries to the Indigenous communities.
- The proponent is then expected to work with the communities and integrate comments into the report.
- Draft documents are revised and updated by the proponent, and then again provide to the communities.
- The proponent holds the final public meeting.
- The project document is once again updated and revised with comments received.
- Finally, the proponent prepares and submits an REA application.
- Following the application submission, the proponent must continue to work with communities to keep them updated and informed.
Within the guide the Ministry of Environment makes the provision for requiring extra consultation steps in order to discharge the Crown’s duty to consult. Extra consultation is most likely to arise in situations when the Crown is aware of an Indigenous community exercising its rights, and where a project has the potential to impact those rights. In these cases, the proponent might be required to develop a consultation plan.
In all instances, an accurate record of information received from Indigenous communities must be included in the final application, along with any provisions made by the applicant.
The last part of the guide provides advice to proponents on building relationships with Indigenous communities, aiming to understand the communities, and considering their interests and capacity in order to establish a respectful and collaborative consultation process that will benefit both parties.
When considering an application, the government will consider a proponent’s adherence to the requirements included in the guide and regulation. But even by following all the recommendations and requirements, there are no assurances that projects will be approved under the REA process. What is not in doubt is that the burden of the process now rests with the applicant.