Ontario’s “Aboriginal Consultation Guide for Preparing a Renewable Energy Approval (REA) Application” which provides guidance and direction on the Aboriginal consultation requirements for renewable energy projects under Ontario Regulation 359/09 under the Environmental Protection Act was finalized on September 4, 2013.
According to the Guide, “Aboriginal consultation is a mandatory regulatory requirement for applicants of projects requiring a REA, other than class 2 wind facilities. For the purposes of this guide, Aboriginal communities include First Nation and Métis communities. This guide is intended to stress the importance of applicants engaging the Aboriginal communities about proposed renewable energy projects in ways that will be meaningful and in ways that facilitate effective and timely information exchange.”
The Guide sets out minimum requirements for proponents. It does not predict, limit or control what Aboriginal communities may do in response. Nor does it necessarily follow that courts will agree that aboriginal interests have been adequately consulted and accommodated, even by a proponent who has attempted to follow the Guide.
Like the rest of the Renewable Energy Approval process, this Guide does not apply to waterpower, even though waterpower projects are often more likely to have adverse effects on aboriginal interests. This is another example of the urgent need for waterpower projects to be subject to the same rules and processes as other renewable energy projects.
The Process for Aboriginal Consultation under O. Reg. 359/09 is:
1. Prepare a draft of the Project Description Report (PDR)
2. Obtain Aboriginal Consultation list
3. Provide Notices
4. Distribute draft PDR to communities
5. Hold 1st public meeting
6. Integrate comments
7. Circulate report summaries
8. Discuss and work with communities; integrate comments
9. Provide draft project documents to communities
10. Discuss and work with communities; integrate comments
11. Hold final public meeting
12. Integrate comments
13. Prepare REA application
14. Submit REA application and inform communities