Aboriginal Consultation Guide for preparing a Renewable Energy Approval (REA)

Foreword

This Aboriginal Consultation Guide for preparing a Renewable Energy Approval (REA) Application provides direction for applicants, and contains an overview of the REA process for Aboriginal consultation pursuant to Ontario Regulation 359/09 Renewable Energy Approvals under Part V.0.1 of the Act (O. Reg. 359/09). This guide supports the Crown’s commitment to meeting its duty to consult and, in combination with O. Reg. 359/09, outlines certain procedural aspects of consultation delegated to applicants through the REA application process. This guide describes the obligations of the Crown and applicants for Renewable Energy Approvals. It also offers considerations in conducting consultation activities to help applicants carry out more effective consultation.

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.

This guide is designed to complement O. Reg. 359/09 and technical guidance as well as the Ministry of Natural Resource’s Approval and Permitting Requirements Document for Renewable Energy Projects. If applicants are uncertain of the provincial requirements for developing a renewable energy project in Ontario, they are asked to please contact the Renewable Energy Facilitation Office (REFO) of the Ministry of Energy.

The Aboriginal Consultation Guide for preparing a Renewable Energy Approval (REA) Application supports the development of a complete REA submission under provincial regulations. Applicants are encouraged to contact the federal government to find out more about any potential federal requirements (e.g. Canadian Environmental Assessment Act, Fisheries Act) that may apply to their project.

Please note that this guide does not apply to persons engaging in waterpower projects. Waterpower projects are governed by separate processes, permits or approvals under a number of different statutes such as the Environmental Assessment Act, the Ontario Water Resources Act, and the Lakes and Rivers Improvement Act.

1. Introduction

1.1 REA Pre-submission requirements

In order to proceed with a renewable energy project applicants are required to obtain a Renewable Energy Approval (REA) under the Environmental Protection Act, in accordance with the rules set out in Ontario Regulation 359/09 (O. Reg. 359/09). A renewable energy project includes all of the activities related to the construction, installation, use, operation, changing or retiring of a renewable energy generation facility.

O. Reg. 359/09 outlines the REA application requirements which include a variety of reports and technical studies as well as consultation requirements that are dependent on the type and class of renewable energy generation facility. Consultation with Aboriginal communities is one pre-submission activity.

The REA application process is applicant-driven and it is up to the applicant to plan and coordinate pre-submission activities such as studies and consultation.

O. Reg. 359/09 and the Ministry of the Environment’s Technical Guidance for Renewable Energy Approvals, located on the Ministry of the Environment’s website, can provide applicants with more information on the necessary technical studies and reports, as well as additional public/municipal consultation activities and approvals that may be required for the proposed renewable energy project.

Additional provincial permits and approvals

While the REA is an approval that consolidates a number of permits previously issued for such facilities, there may be additional processes, separate from the REA process, which could apply depending on the unique features of the proposed project. For example, if a proposed REA facility is located on land managed by the Ministry of Natural Resources or the Ministry of Infrastructure permissions from these ministries to use the land are required. These processes may include additional Aboriginal notification or consultation that are not replaced by REA consultation requirements. If a proposed facility is on land managed by the Ministry of Natural Resources or Ministry of Infrastructure, applicants are encouraged to contact the respective ministries to find out more information on these requirements before beginning the REA process.

Applicants should discuss the project as a whole including all related approvals and permits with the Aboriginal communities.

1.2 Duty to consult & accommodate within the REA process

The Supreme Court of Canada has determined that the constitutional protection accorded Aboriginal rights and treaty rights under section 35 of the Constitution Act, 1982 requires the Crown to consult and where appropriate accommodate Aboriginal peoples when it has knowledge of an existing or asserted Aboriginal or treaty right, and contemplates conduct that may adversely affect the right in question. Throughout this guide, where reference is made to Aboriginal or treaty rights, this reference is intended to include both existing and asserted rights.

The duty to consult generally has both information and response components. The nature of the consultation required will vary with the strength of the assertion or the nature of the existing right, and the potential impacts on the exercise of the Aboriginal or treaty rights in question. This legal duty to consult rests with the Crown and the Crown is ultimately responsible for ensuring that the duty has been met. However, through O. Reg. 359/09 and this guide, the Crown is delegating procedural aspects of consultation to applicants.

Through O. Reg. 359/09 and this guide, the Ministry of the Environment has built flexible processes to capture the different degrees of consultation that may be required for a renewable energy project depending on the existing or asserted Aboriginal or treaty rights in question and the severity of any potential impacts on the exercise of those rights.

The ministry retains the discretion to require or undertake additional consultation steps or processes where required to satisfy the duty to consult. These circumstances will be identified by the Ministry of the Environment and may include one or more of the requirements outlined in Section 3 of this guide.

REA applicants should familiarize themselves with requirements and best practices that lead to effective consultation and relationship building, some of which are outlined in this guide. Additional resources are also provided at the end of this document.

1.3 Objectives of Aboriginal consultation

Courts have confirmed that consultation includes the following activities:

• Providing information to the Aboriginal communities about the proposed project;
• Obtaining information on potentially impacted rights;
• Listening to any concerns raised by the Aboriginal community;
• Responding to concerns by, for example, avoiding, minimizing and/or mitigating adverse impacts on Aboriginal or treaty rights; and
• Establishing whether accommodation is required.

In addition, consultation can lead to community support for the proposed project, access to a growing Aboriginal labour force, partnerships on current and future projects and a productive and ongoing relationship with local Aboriginal communities.

1.4 General roles in consultation

O. Reg. 359/09 and this guide establish a process to formally integrate the views of Aboriginal communities into the applicant’s planning and decision making for renewable energy projects in Ontario. In order to integrate a variety of views, applicants, the Ministry of the Environment on behalf of the Crown and Aboriginal communities all have a role to play to ensure that concerns are identified and potential adverse impacts or potential negative environmental effects are avoided, minimized and/or mitigated. All parties must act in good faith in order to engage in meaningful consultation.

Role of the applicant

The applicant is required to complete the following procedural aspects of consultation with Aboriginal communities:

• Provide a draft Project Description Report that is sufficiently detailed for the ministry to develop the REA Aboriginal community consultation list;
• Seek the Ministry of the Environment’s direction on which communities to consult;
• Notify and share information with communities about the project to assist them in identifying any potential adverse impacts on their Aboriginal or treaty rights as well as potential negative environmental impacts;
• Engage directly with the Aboriginal communities to identify how potential adverse impacts on rights could be avoided, minimized and/or mitigated;
• Document and report back on consultation efforts in the manner required under O. Reg. 359/09 and this guide;
• If required by the Ministry of the Environment, prepare an Aboriginal Consultation Plan and progress updates (see Section 3 of this guide); and
• Conduct any additional consultation as directed by the ministry.

Due to the volume of consultation requests received and the possible limits on their human and financial resources, some Aboriginal communities may find it challenging to participate in consultation. Some communities may request additional resources and/or financial assistance to facilitate their involvement in the consultation process. Applicants will generally be expected to cover the reasonable costs associated with those aspects of the consultation process that have been delegated to them through the REA regulation and processes outlined in this guide. Where additional costs are anticipated or requested, applicants may contact the Ministry of the Environment for further direction.

What costs are reasonable will often depend on the complexity of the project, the nature of the rights and the nature of the project’s potential impacts on those rights. Generally, an applicant should assess the reasonableness of the proposed costs considering the nature of the information being shared and collected and how it helps to inform and advance the consultation process and the development of the project. Examples of costs that may be reasonably associated with the delegated aspects of the consultation process can include, but are not limited to:

• Preparing information, technical and other materials in plain, non-technical language;
• Translating information, technical documents and other materials (e.g., into Aboriginal languages);
• Making technical support available (for example, by offering to have staff explain a report) so that an Aboriginal community can better understand and review information and studies related to the project; and
• Holding meetings or other forums to gather information from Aboriginal communities (associated meeting costs

Also see section 5.6 of this guide regarding the consideration of a community’s capacity.

Where funding is provided to a community, for example, to conduct an independent review of a technical study, the applicant should:

• Review the findings of the study;
• Discuss the study with the community; and
• As part of the consultation report, describe how the findings of the study and the discussions with the community were considered. (see also section 4.1 and Appendix B in this guide on preparing the Consultation Report)

Role of the Ministry of the Environment

While certain procedural aspects of the Crown’s duty to consult with Aboriginal communities are delegated to applicants, the ministry remains responsible for ensuring that the Crown’s duty to consult is met, and maintains an oversight function of an applicant’s consultation activities. The ministry will undertake the following:

• Identify for the applicant the Aboriginal communities to be consulted and the rational for consultation (i.e. potential for an impact on Aboriginal or treaty rights or may have an interest in any potential negative environmental effects);
• Provide direction on the extent of consultation that will be required;
• Provide an opportunity for direct communication between the Aboriginal communities and the ministry;
• Provide direction on any requirements for additional consultation;
• Provide direction and follow-up where an Aboriginal consultation plan or progress update(s) are required;
• Provide direction to the applicant and monitoring to help facilitate consultation;
• Notify the Aboriginal communities when a REA application has been submitted and follow-up with the Aboriginal communities to clarify information;

Accommodation, where required, involves a process of balancing of interests. Accommodation may involve taking steps to avoid irreparable harm or to minimize the adverse effects of a proposed government action or decision on Aboriginal or treaty rights. While the Crown is responsible for ensuring any duty to accommodate that may arise is fulfilled, applicants can play an important role in discussing, arriving at and implementing appropriate measures to avoid or minimize the potential adverse effects of a project.

Role of the Aboriginal communities

The courts have indicated that the role of the Aboriginal communities in consultation is to:

• Participate in the process so that any necessary consultation can proceed in a reasonable timeframe; and
• Articulate the nature and basis for any concerns, including the nature of any potential adverse impact on rights, and possible options to avoid, minimize or mitigate those impacts.

2. Requirements for Aboriginal consultation under the REA regulation

2.1 Regulatory requirements for Aboriginal consultation

The Ministry of the Environment is responsible for administering and enforcing the REA regulation (O. Reg. 359/09). As part of the decision making process, the ministry must ensure that the Crown’s duty to consult, together with any statutory consultation obligations, have been met.

The ministry expects applicants to incorporate appropriate 'Considerations in Conducting Consultation Activities,' outlined in Section 5 of this guide into the consultation process or activities required under the REA regulation.

2.2 Obtain an Aboriginal community consultation list from the Ministry of the Environment (s. 14)

Upon receipt of a draft copy of the Project Description Report and the request for an Aboriginal consultation list, the ministry, on behalf of the Crown, will review the nature and location of the proposal, and provide a list of the Aboriginal communities that applicants are required to consult as part of the REA process outlined in O. Reg. 359/09.

Applicants should provide sufficient detail in the draft Project Description Report to enable the ministry to create an Aboriginal consultation list. For more information on how to prepare a Project Description Report, please refer to the Ministry of the Environment’s Technical Guidance for Preparing a Renewable Energy Approval Application.

The Aboriginal consultation list provided to applicants by the ministry will include and list separately the Aboriginal communities that, in the opinion of the Director:

1. Have constitutionally protected Aboriginal rights, either established or asserted, which may be adversely impacted by the proposed project; and/or
2. May have an interest in any negative environmental effects of the proposed project.

Aboriginal and treaty rights are collective and applicants must consult with communities. Community contact information will be provided to applicants by the ministry.

Before distributing notices, applicants may wish to inquire of communities whether they have designated specific staff who should also receive notices and REA reports/summaries (such as consultation coordinators) in addition to the contact provided by the ministry. Applicants are advised to incorporate additional contacts as directed by the community contact identified by the Ministry of the Environment.

Applicants are reminded that the ministry requires that they carry out the regulatory requirements under O. Reg. 359/09 with the community as identified by the ministry. Applicants should seek advice from the ministry if the contact identified by the ministry has delegated the consultation to occur with a representative outside the community, such as a tribal council, another Aboriginal community, organization or consultant.

The REA regulatory requirements, relating to Aboriginal consultation, apply whether a community is identified by the ministry to be consulted based on a potential impact to their Aboriginal or treaty rights or because they may have interest in any negative environmental effects of the proposed project.

A reassessment of the Aboriginal consultation list provided by the ministry may be necessary when new information becomes available such as greater clarity on the scope of the project and potential impacts or new assertions have been made known to the Crown.

2.3 Ministry of the Environment makes initial contact with the Aboriginal communities

Once the Aboriginal consultation list has been prepared and sent to applicants, the ministry will also send a notice to each Aboriginal community on the list. The purpose of this notification is to inform the community that an applicant will be approaching them to discuss a proposed project. The notification will also establish a direct line of communication between the community and the ministry by identifying an individual at the ministry who can be contacted by the community with any comments or questions as the applicant engages in the consultation activities required under O. Reg. 359/09 and this guide.

This notification will be accompanied by information about the REA process to help prepare the community to engage in discussions with the applicant.

2.4 Provide notices to the Aboriginal communities (s. 15(6))

Applicants are required to deliver a Notice of Proposal to Engage in the Project and Notice(s) of the Public Meetings (if applicable) to every Aboriginal community on the Aboriginal consultation list.

Before providing notice to any Aboriginal communities that are not on the list provided by the Director an applicant should contact the ministry.

Along with the notices delivered to the Aboriginal communities, applicants should provide, where information is available, the following:

• A description of the nature and scope of the project;
• The potential negative effects of the project on the environment, including their geographic scope. This can include, but is not limited to, effects on ecologically sensitive areas, water bodies, wetlands, forests or habitat of species at risk, habitat corridors and cultural heritage sites (e.g. known archaeological sites);
• A description of other provincial or federal approvals that may be required for the project to proceed;
• Whether the project is on privately owned or Crown managed land;
• A timeframe in which they intend to submit a completed REA application;
• An indication of the applicant’s availability to discuss the process and provide further information about the project;
• The applicant’s contact information; and
• Any additional information that might be helpful to the community.

Applicants are also required to publish the notices in any local Aboriginal newspapers or any newspapers published by each Aboriginal community on the Aboriginal consultation list, if available and it is reasonable to do so. The notices must be delivered and published at least 30 days before the first public meeting is held.

It is recommended that applicants follow up with the Aboriginal communities to confirm receipt of the Notice of Proposal to Engage in the Project and Notice(s) of the Public Meetings.

2.5 Distribute the draft of the project description report and hold first public meeting (s. 16(2))

The consultation process under the REA regulation requires an applicant to hold at least two public meetings (except for farm-based bio-energy and Class 2 wind facilities). These meetings are general public meetings and not Aboriginal specific; however individuals from listed Aboriginal communities may attend.

At least 30 days prior to the first public meeting applicants are required to give a copy of the draft of the Project Description Report to the Aboriginal communities that received notice of the meeting and make copies of the draft of the Project Description Report available in the community, if the community agrees.

Applicants are encouraged to update the Project Description Report that was used to request the REA Aboriginal consultation list before distributing it to listed communities.

2.6 Seek comments from the Aboriginal communities on draft documents (s. 17(1))

Before the final public meeting, applicants are required to seek input from the Aboriginal communities on draft versions of the documents required to be made available for the public before the final public meeting and before such documents are made available to the public. They are also required to provide to each Aboriginal community on the Aboriginal consultation list:

• An updated draft of the Project Description Report;
• Any information the applicant may have on any potential adverse impacts the project may have on Aboriginal or treaty rights;
• A summary of each document required as part of the REA application;
• A written request asking the Aboriginal community to provide in writing:
  • Any information available to them that should be considered when preparing the project documentation;
  • Any information the community may have about any potential adverse impacts on their Aboriginal or treaty rights; and
  • Any suggested measures for avoiding, minimizing or mitigating potential adverse impacts.

Applicants are to consider all comments and feedback received from the Aboriginal communities and encouraged to incorporate and/or update information in the draft materials that are then made available to the public prior to the final public meeting.

Applicants of farm-based, bio-energy projects that are not required to hold public meetings are required to undertake the steps noted above at least 30 days prior to submitting an REA application to the Director.

2.7 Update draft documents, provide draft documents to the Aboriginal communities and hold the final public meeting (s.16(5))

At least 60 days before the final public meeting applicants are required to:

• Make available paper copies of all the draft reports, studies and assessments that are to form part of the application in any Aboriginal community on the Aboriginal consultation list, if the community agrees; and
• Distribute these documents to each Aboriginal community that was provided the project notice.

The timelines noted above represent the minimum regulatory requirements. Applicants are encouraged to consider the Aboriginal community’s capacity in order to allow sufficient time for the Aboriginal communities to comment.

The draft documents will reflect the technical studies and information about how the project has changed, if it has, based on consultation to date, but remain flexible enough in order to incorporate any further changes that result from the final public meeting or subsequent Aboriginal consultation.

Farm-based, bio-energy facilities

Applicants of farm-based, bio-energy projects are required to provide documents to Aboriginal communities at least 30 days prior to submitting an REA application to the Director.

2.8 Communicating with the Aboriginal communities (s. 17(2))

Applicants are required to communicate with the Aboriginal communities about their interests in the potential negative environmental impacts of the proposed project and the potential adverse impacts to Aboriginal or treaty rights as well as any measures for avoiding, minimizing or mitigating adverse impacts.

Aboriginal consultation is most effective when approached as an opportunity to build a trusting and respectful relationship in order to create a basis to discuss and potentially enhance the project. Applicants should be responsive to the concerns raised by the Aboriginal communities, though particular attention must be given to any comments related to potential adverse impacts on Aboriginal and treaty rights.

Aboriginal communities identified by the Ministry of the Environment as being interested in the potential negative environmental effects of the project may assert an adverse impact on an Aboriginal or treaty right. If an applicant becomes aware of a rights assertion of this nature by a community they should contact the Ministry of the Environment. Applicants should continue communicating and document these discussions in the Aboriginal consultation section of the Consultation Report.

2.9 Working with the communities to address their concerns

Applicants should try to work cooperatively with Aboriginal communities to propose measures that address concerns raised, whether those concerns relate to the potential adverse impact on Aboriginal or treaty rights or potential negative environmental effects of the project. Applicants are also expected to inform the community about how their concerns were considered and whether the proposal was altered in response.

In an attempt to avoid, minimize or mitigate any potential adverse impacts on Aboriginal or treaty rights, applicants are encouraged to work with Aboriginal communities in ways that lead to creative and flexible solutions. There are a number of ways this can be accomplished, including, but not limited to:

• Modify facility design to reduce or prevent potential adverse impacts on the exercise of a right (e.g. changing location of access roads and/or infrastructure or modify construction timelines to accommodate community activities such as hunting season);
• Conduct further studies with respect to the activities that the community has identified as being adversely impacted;
• Commit to establishing ongoing monitoring of environmental effects and report the results of this on-going monitoring to the community, perhaps through some form of a community liaison committee or similar entity; and/or
• Develop a contingency plan that is to be implemented should the potential adverse impacts are greater than expected.

Consultation can provide applicants and Aboriginal communities an opportunity to hear different perspectives and opinions which can inform the planning of a project and the design of a facility. Unfortunately, circumstances may arise where parties find themselves at an impasse. Parties should bring this situation to the attention of the Director. The ministry will work with the parties with the intention of developing mutually agreeable solutions.

In some cases, the Aboriginal community and the applicant’s discussions may lead to partnerships or economic opportunities (e.g. employment opportunities, direct awards for contract services, etc.). These arrangements are not required under O. Reg. 359/09, however such arrangements may be a mutually beneficial way of reflecting the relationship developed through the consultation process, serve to move the applicant’s overall business interests forward and result in a beneficial long term relationship with the Aboriginal community. It is important to understand that a business arrangement is not a replacement for meeting the Aboriginal consultation process outlined in this guide and O. Reg. 359/09.

3. Additional requirements

3.1 Additional consultation may be required

The Director may determine that Aboriginal consultation, beyond the REA regulatory requirements, is required in order for the Crown to discharge its duty to consult. Subsection 17(4) of O. Reg. 359/09 allows the Ministry of the Environment to require an applicant to conduct further consultation, including consultation with Aboriginal communities beyond the requirements set out in O. Reg. 359/09.

Subsection 47.4(2) of the Environmental Protection Act also gives the Director the discretion to require an applicant to submit plans, specifications and information or to conduct studies, tests or experiments relating to the proposed renewable energy project. In addition, the Director may determine that it is appropriate for the Crown to assume responsibility for consultation activities being carried out by the applicant or increase the ministry’s direct interaction with the Aboriginal communities.

Where possible, applicants will be informed if there will be additional consultation requirements in respect of the proposed project when the Director provides the Aboriginal consultation list. However, during the consultation process, information could come to light that suggests additional Aboriginal consultation is required. Although the Director may not have identified this at the outset, it may lead to the Director requesting an applicant to undertake particular steps to address the need for additional consultation.

These additional consultation requirements can include or be informed by:

• Working with the ministry to develop an Aboriginal Consultation Plan;
• Providing consultation progress updates to the ministry; and/or
• Following the direction provided by the ministry after its review of:
  • A consultation progress update; or
  • Information received directly from an Aboriginal community.

The Director is most likely to require these additional steps for projects where the project location is an area where the Crown has knowledge that an Aboriginal community is exercising rights and where the proposed project has the potential to have a significant adverse impact on the exercise of those rights. Examples may include, but are not limited to:

• Large scale wind facilities that are expected to have significant environmental impacts, and are proposed to be located on Crown land where one or more Aboriginal communities are known to exercise an Aboriginal or treaty right to hunt;
• Anaerobic digestion or thermal treatment facilities where the proposed discharge of effluent into a water body may adversely impact an Aboriginal or treaty right to fish.

3.2 Developing an Aboriginal consultation plan

The requirement for applicants to create and discuss a Consultation Plan provides for more direct ministry involvement and monitoring of the consultation process where the situation warrants it. When the Ministry of the Environment requires an applicant to create a Consultation Plan it serves as a dialogue between the ministry and the applicant, in particular for projects that in the ministry’s view have the potential for significant impacts on Aboriginal or treaty rights.

A Consultation Plan should reflect that an applicant understands the potential complexities and extent of consultation activities that may be required to achieve meaningful consultation. The Ministry of the Environment will review a draft of the plan in order to provide appropriate direction.

The following elements are to be reflected in all Consultation Plans required by the ministry and provided separately for each Aboriginal community on the REA consultation list:

• Project information
• Community Contact Information
• Process for Sharing Information – To reflect that the applicant understands the potential complexities and extent of consultation that may be required in a particular circumstance, a description of the proposed steps and specific activities planned and/or discussed with the Aboriginal community is to be provided and must reflect:
  • How the applicant proposes to provide accessible information to the Aboriginal community about the proposed project;
  • How the applicant proposes to obtain information on potentially impacted rights; and
  • How options to mitigate, avoid, manage impacts on rights will be developed with and communicated to the community.
• Timeline or Schedule of Anticipated Activities (may include a budget of any anticipated associated costs)
• Progress Reporting
  • How and when an applicant intends to report back to the ministry and when in the consultation process the applicant may anticipate needing further ministry direction or involvement.

In developing a Consultation Plan, applicants should consider including a summary of any consultation carried out to date, if any. Applicants are advised to consider any preferred community consultation processes and a community’s capacity when proposing a timeline or schedule. Plans may evolve over time and applicants should be flexible and allow for changes in both process and timelines to reflect new information.

Particularly where requested by the community, the Ministry of the Environment recommends that Aboriginal consultation, as well as Aboriginal consultation plans, provide for separate meetings with each Aboriginal community to discuss each community’s specific issues related to the project.

3.3 Crown input on the Aboriginal consultation plan

Ministry review of a Consultation Plan can assist an applicant by providing appropriate information on the expectations of the ministry that relate specifically to the project and the Aboriginal communities identified. Once an applicant believes their Aboriginal consultation plan is sufficient, they are expected to contact the Ministry of the Environment so that the ministry can review and provide input on the proposed plan.

3.4 Aboriginal consultation progress update(s)

The applicant may be required to provide one or more progress update(s) to the Ministry of the Environment. Progress update(s) are expected to occur at the milestones identified in the consultation plan or otherwise specified by the Director. The Director may request one or more progress updates, even if an Aboriginal consultation plan is not required.

Progress updates should include the type of information that is required in the Consultation Report as outlined in Section 4.1 of this guide, including:

• A summary of communications with the Aboriginal communities;
• Any information provided by an Aboriginal community in response to the request for information to be considered in the project do cumentation;
• Any information provided by an Aboriginal community about adverse impacts on Aboriginal or treaty rights and measures for mitigating adverse impacts; and
• Indication of how the applicant considered adverse impacts and how these concerns may be addressed, including any attempts to mitigate adverse impacts on Aboriginal or treaty rights.

The ministry will review the update(s) and may, depending on the information contained in a progress update:

• Request a meeting with an applicant and/or an Aboriginal community to discuss consultation to date;
• Require an applicant to engage in specific Aboriginal consultation activities;
• Follow-up directly with an Aboriginal community to clarify information or concerns; and/or
• Request changes to the Consultation Plan, if a plan was required.

It is expected that respectful engagement will occur and all participants will approach discussions in good faith. There may be situations where involvement by the ministry is helpful in order to facilitate meaningful dialogue. The ministry will make the determination as to the level of its involvement on a case by case basis. The approach and role of the ministry, in these circumstances, may be discussed with the applicant and/or the Aboriginal community.

4. Preparing and submitting a REA application

4.1 Preparing the consultation report (s.13, Item 2 of Table 1)

A REA application requires a Consultation Report to meet the complete submission requirements. The Consultation Report will be considered by the Director when determining whether a project should be approved.

The purpose of the Consultation Report is to:

1. Document consultation in order for the Ministry of the Environment to determine if an application meets the consultation requirements outlined in O. Reg. 359/09 and this guide and is complete; and
2. Provide a record of comments and information received through consultation and document how these comments were considered, including whether the project was modified as a result of the comments heard.

The section of the Consultation Report that discusses Aboriginal consultation is required to contain the following information:

• Evidence that the information required to be distributed to the Aboriginal communities identified by the ministry was distributed according to O. Reg. 359/09;
• A summary of the communication with the Aboriginal communities, which includes:
  • any information provided by an Aboriginal community in response to the applicant’s request for information;
  • any information the community provided on its Aboriginal or treaty rights and any information on the potential adverse impacts on those rights;
  • any information the community provided regarding measures for avoiding, minimizing or mitigating those potential impacts;
  • any information regarding any resources and/or funding offered, requested and/or provided to the Aboriginal communities.
• Whether and how;
  • Comments made by the Aboriginal communities were considered;
  • The proposed project and REA reports were altered to reflect comments from the Aboriginal communities and comments received at the final public meeting.
• The section of the Consultation Report that discusses Aboriginal consultation should also contain the following information:
  • The rationale behind any proposed mitigation option(s) to address potential impacts on Aboriginal or treaty rights or potential environmental effects;
  • The rationale behind any proposed mitigation option(s) to address potential environmental effects;
  • The degree to which the Aboriginal communities were involved in developing any mitigation options; and
  • The rationale why any proposal from an Aboriginal community for mitigation was or was not accepted by the applicant.

Aboriginal consultation should be documented in a clearly identified section of the Consultation Report. It is expected that the applicant will provide the ministry with detailed and well organized information. Consultation reports should provide detailed information separately for each Aboriginal community to facilitate review and should relate to only the project under consideration in an applicant’s REA application. Although it is recognized that applicant’s may be discussing a number of different projects with the same community, a REA consultation report should only set out the consultation that occurred for the project that is the subject of the current application being sought.

The Consultation Report should include a written summary of consultation conducted with each Aboriginal community identified by the ministry and appended documentation such as copies of notices, written comments received any meeting summaries or notes and any other communications or correspondence. Applicants should be sensitive and aware of any Aboriginal community concerns regarding confidentiality and sensitive information (also see section 5.7 of this guide).

When including reference documents such as attachments or appendices, ensure that they are clearly labelled and referenced. Applicants may want to consider creating different chapters for each community on the Aboriginal consultation list and using charts to summarize the information required above.

To guide applicants in preparing their Aboriginal Consultation reports, a Sample Table of Contents for a Consultation Report on Aboriginal Consultation is provided in Appendix B.

4.2 Submitting an application to the Ministry of the Environment

Upon receipt of an REA application, the Ministry of the Environment will screen the application to ensure it meets complete submission requirements of O. Reg. 359/09, and if complete, the Ministry of the Environment will accept it for a technical review. Proponents should provide a final copy of the Consultation Report directly to each Aboriginal community on the Aboriginal consultation list at the same time that they submit an REA application to the ministry.

When assessing whether the application meets the requirements the Director will ask the following questions:

• Has the mandatory consultation taken place, including the requirements outlined in Section 2 (and Section 3, if applicable) of this guide?
• Are consultation activities clearly outlined in the Aboriginal consultation section of the Consultation Report?

If the REA application is not deemed complete, it will be returned to the applicant indicating the regulatory requirements that were not met in the application.

If an applicant has not received a response from an Aboriginal community to requests for information, such as that required under s.17(2), and follow-up to written requests have been attempted, also with no responses, it may be advisable to seek guidance from the ministry prior to submitting an REA application.

4.3 Notice of environmental registry posting provided to the Aboriginal communities

As part of the Ministry of the Environment’s public consultation requirements under the Environmental Bill of Rights,1993, the ministry will post a proposal notice on the Environmental Registry when a REA application has been accepted for technical review.

Once the proposal is posted on the Environmental Registry an applicant is required to publish a notice in a local newspaper notifying members of the public the REA application has been accepted for a technical review as well as making final copies of the REA application materials, including the Consultation Report, available on its website if the applicant has a website^{footnote 1[1]}. This provides the public with an opportunity to review the REA application and submit comments to the ministry on the proposed REA project.

Upon posting a proposal and before the ministry makes a decision on the application, the Ministry of the Environment will also send a letter to each Aboriginal community on the Aboriginal consultation list informing them that the mandatory requirements set out in the REA regulation have been completed. The letter will also request that they advise the ministry of any outstanding concerns they have with the project and to confirm the status and outcome of consultation activities reported by the applicant.

Applicants and Aboriginal communities should be aware that a REA application, at this stage, has not undergone a technical review. The posting on the Environmental Registry of a submission is not an indication that a decision has been made to provide an approval. Further information and/or clarification may be required by the ministry during this review; including additional information or requirements regarding any Aboriginal consultation.

4.4 Ministry of the Environment makes a decision

After a technical review of an application, the ministry’s Director may, if in his or her opinion it is in the public interest to do so, issue or refuse to issue a REA.

When assessing the adequacy of Aboriginal consultation the Director may ask the following questions:

• Was the community provided with appropriate, timely and sufficient information to understand the project?
• Was the community provided with a reasonable opportunity to discuss any potential impacts on Aboriginal or treaty rights or other concerns?
• Was the applicant responsive to the comments received from the Aboriginal communities?
• Were concerns and any potential impacts on Aboriginal or treaty rights identified by the Aboriginal communities appropriately considered?
• Was the Aboriginal community appropriately informed about how the concerns and/or potential impacts were considered?
• Does the community have any outstanding concerns?
• Were any measures to avoid, manage and/or mitigate any potential negative environmental effects of the project taken or proposed?
• Were any measures to avoid, manage and/or mitigate any potential adverse impacts on the exercise of Aboriginal or treaty rights taken or proposed?

If the Director is of the view that the consultation, including proposed mitigation measures, is not sufficient, further consultation may be required or the application may be refused.

Once a decision is made in respect of an application, applicants will be notified and a decision notice for the REA will be placed on the Environmental Registry, initiating a 15 day appeal period. The Director will also provide all consulted Aboriginal communities with a letter informing them of the decision notice posted on the Environmental Registry.

4.5 Implementation

It should be noted that, where warranted, the ministry may impose restrictions in response to information revealed in the consultation through the inclusion of terms or conditions on a REA. In some circumstances, these terms or conditions may be determined to be a form of accommodation. For example, the Director may require that construction activities be conducted in a manner or at a time that avoids or causes the least possible disruption to a species that is hunted or harvested by an Aboriginal community. These conditions could include requirements that are designed to mitigate impacts on the rights or interests of the Aboriginal communities or negative environmental effects.

The terms and conditions could also include a requirement that an applicant establish an appropriate vehicle to continue engagement with communities throughout the lifecycle of the project.

Applicants are encouraged to discuss potential options that should be considered regarding if and how the community would like to be kept informed of the project during construction, operation and decommissioning. This ongoing commitment will be considered by the Ministry of the Environment but will not, in and of itself, satisfy the consultation requirements of O. Reg. 359/09 and this guide.

5. Considerations in conducting consultation activities

5.1 Building a relationship takes time

Applicants should recognize and build time into the consultation process to allow for the fact that Aboriginal communities may wish to consult with different groups within their own communities and may, for example, look to Elders, Chief and Council, or individual community members to provide guidance on environmental issues and concerns.

Leaving ample time for additional research, where required and consultation activities will help to provide the communities adequate time to consider and identify any concerns that they may have with the project. Leaving appropriate time for consultation will also support the process by allowing all parties sufficient time to develop solutions or any mitigation measures to address the concerns raised by Aboriginal communities.

Interaction through information sessions, written correspondence, and/or meetings with Aboriginal communities will set the stage for developing positive working relationships that may well extend through the life of the project.

5.2 Understand the community

Ontario’s First Nations and Métis communities are diverse in terms of cultural and linguistic heritage. Understanding the history and complexity of the First Nation or Métis community and the uniqueness of each individual community is important in developing a respectful and productive relationship. Learning more about the communities on the Aboriginal consultation list, including their cultural and world views, events that are taking place (such as elections or community hunts) as well as their particular concerns, in addition to providing information to the Aboriginal communities on the applicant and the proposed project, may help mutual understanding and build stronger relationships.

The better prepared an applicant is the easier it will be to anticipate and understand any concerns with the proposed project a community may have. This will allow for better informed project decisions early in the development process. In addition to cultural considerations, learning about the community’s past or present experiences with other renewable energy or natural resource developments may give insight into some of the potential concerns the community may have, allowing for a stronger relationship with the community.

5.3 Establish respectful and collaborative consultation processes

It is imperative to provide potentially affected communities with the information needed to encourage open, meaningful dialogue that addresses their interests and concerns. It is expected that applicants will encourage community involvement by being open minded and flexible as well as respecting the community’s capacity and needs.

Applicants are expected to be respectful and aware that some communities may have developed tools, such as consultation protocols, policies or processes that provide guidance on how they would prefer to structure the dialogue. The Ministry of the Environment recognizes that applicants may have reasons for considering an Aboriginal community’s consultation protocol, policy or process to advance their own business interests. It should be noted that some protocols or policies may seek to impose principles or obligations that are beyond what the law in Ontario currently requires.

In reviewing a consultation protocol, policy or process, applicants are reminded that they remain obligated to address and report on the REA consultation process outlined in O. Reg. 359/09 and this guide. Applicants are encouraged to contact the ministry for guidance or clarification when considering a particular community protocol, policy or process and its relationship to the REA consultation process.

In addition, as part of the consultation process, applicants may want to:

• Co-ordinate consultation requirements for other approvals that may be required in respect of the project;
• Discuss with a community whether they wish to host a project meeting; and
• Provide additional relevant project documentation when requested by the community.

5.4 Consider the community’s interests

Aboriginal communities can have a range of interests and views to offer, as well as vast knowledge and experience that can add value to a project. Aboriginal communities have long had a historical connection with the land and may also be able to contribute to the studies required under O. Reg. 359/09. Applicants conducting community visits should be flexible, responsive, sensitive, and prepared.

When conducting consultation it is important to note that it is a two-way process applicants will be educating the community on the project, and the community will be educating applicants on their interests, concerns and rights. Through this process the Ministry of the Environment anticipates that applicants will listen to and address concerns and proposals presented by the Aboriginal communities, and that participants are working to come to mutually beneficial solutions.

While the applicant is responsible for ensuring the community has accessible information such that the community can understand the nature of the potential impacts of the project and can meaningfully engage in the consultation process, they may also want to consider the community’s other interests in the project. For example, a community may want to be involved in any studies undertaken, partner on the project, or ensure that the project provides jobs for the community. Considering all the possibilities can help prepare for discussions with communities on these topics. Gaining insight into how the community may be approaching the project can help to solidify relations with the community and facilitate the consultation process.

Applicants may wish to discuss with the community any means for building capacity within the community regarding the specific renewable energy project being proposed, but also in terms of renewable energy in general. Building capacity within the community may reap rewards for any future projects in the area and build lasting and respectful relationships.

5.5 Use appropriate communication techniques and tools

When providing project notification and discussing the project with communities, applicants are encouraged to use appropriate communication techniques and tools.

Some members of the Aboriginal communities may not speak English or French as their first language. When providing project notification, sharing project reports, and discussing the project, applicants are encouraged to take language preferences into account by ensuring materials are translated and/or providing translation services when appropriate.

In addition to using Aboriginal-run or Aboriginal community newspapers, consider other forms of communication including community radio, websites and other tools when distributing notice about the project, consultation meetings, and REA reports. Since a number of communities have radio stations, it is recommended that applicants contact the community to find out if and where these may exist.

The location of the proposed project will also affect how applicants communicate with a community. When consulting with northern or remote communities, it is important to take into consideration the timing and scheduling of meetings and the time required to attend project information meetings for community members.

It is highly recommended that applicants follow up after providing the required written notices and reports with phone calls and face-to-face meetings. Follow-up phone calls and meetings may help ensure progress with consultation. As most communities will be looking to see that applicants are interested in developing a relationship, personal meetings will help to build the relationship and demonstrate good faith.

5.6 Consider capacity

A community may not have the resources to effectively participate in the consultation process without some support. A community may request support to make materials accessible which may include requests for third party or expert review, translation or consulting services. They may also request financial support for their participation in the consultation process. Applicants should consider reasonable requests and may seek the input of the Crown on such requests.

5.7 Recording and Using Aboriginal Information

Applicants should thoroughly document the consultation process. Clear and concise documented records have proven valuable to avoid misunderstandings, and to provide a means to structure progress on agreed-to plans. An important aspect of the REA submission will be documenting consultation.

The Ministry of the Environment recognizes that concerns about ownership and confidentiality of sensitive information or knowledge can be an obstacle and disincentive to Aboriginal communities in identifying or sharing certain information with applicants. Applicants should be aware and familiarize themselves with any Aboriginal community standards or procedures on the collection or use of this knowledge and should discuss and respect the communities' wishes regarding what information can be shared and how it can be used for the project. Applicants should share with Aboriginal communities the reporting requirements they have under O. Reg. 359/09 so that communities are aware that information reported by the applicant can become public information.

Before implementing any recording methods (video, audio, or notes), it is recommended that applicants discuss with communities the various options, ensuring sensitivity to their wishes and that communities are comfortable with the chosen method.

Freedom of Information and Protection of Privacy Act (FIPPA)

Applicants should also note that a complete REA application and any accompanying materials will be submitted to the ministry. The Ministry of the Environment is subject to the Freedom of Information and Protection of Privacy Act (FIPPA) and, despite efforts to maintain confidentiality, may nonetheless, in certain circumstances, be compelled to disclose records in its control which may include information that has been collected during consultation.

As some Aboriginal communities may consider the information that they share with applicants as confidential, applicants are strongly encouraged to discuss any concerns with Aboriginal communities early and ensure that the information provided to the public and the Ministry of the Environment respects the community’s wishes for confidentiality while providing enough detail for the ministry to evaluate the sufficiency of the consultation undertaken.

Appendix A

REA Aborginal consultation requirements

Appendix B

Sample table of contents

Report on aboriginal consultation

Applicants are advised to review Section 4.1 of this guide as well as the Technical Guide for Renewable Energy Projects when preparing an Aboriginal Consultation Report. Note that an Aboriginal Consultation Report should track information separately for each Aboriginal community consulted.

Executive summary – should include a brief summary of the information in the Project Description Report:

• the proposed project and location;
• potential environmental impacts anticipated; and
• Aboriginal communities contacted.

Section A – Communities engaged and information provided to Aboriginal communities

• Communities identified by the ministry - differentiated on whether identified based on the proposed project’s potential impact on Aboriginal or treaty rights or identified for potential interest in negative environmental impact of the proposed project.
• Summary of information distributed to communities -include all regulatory required information provided (e.g. ‘Notice of Proposal to Engage in the Project’, notices for public meetings, draft versions of all materials required for the REA application, summary of the technical reports, written requests for information, etc.) Include a summary of any resources and/or funding offered, requested and/or provided to the Aboriginal community by the Applicant.

Section B – Summary of information obtained from Aboriginal communities

• Summary of information provided by an Aboriginal community – include,as appropriate, one section with any information provided on potential impacts on Aboriginal or treaty rights and another section on potential negative environmental impacts of the proposed project. If no response was received, outline any measures taken to follow-up with the Aboriginal community.

Section C – Summary of response to concerns heard

• How comments were considered - include any discussions with communities on potential measures for addressing potential impacts, how you have incorporated any advice or direction received from the ministry and rationale behind any proposed mitigation option(s) to address potential impacts on Aboriginal or treaty rights or potential environmental effects of the project.

Section D – Outstanding concerns and path forward

• Summary of outstanding concerns (if any) - include the degree to which Aboriginal communities were involved in developing any options to address outstanding concerns and the rationale why, for example, any community proposal for mitigation was or was not accepted by the applicant.
• On-going dialogue - include a summary of any agreement, discussion or plans for on-going dialogue with the Aboriginal communities if an REA is granted.
• Conclusion

Section E – Appendix – Supporting documents

• Include evidence of delivery of REA regulatory required documents to be distributed, such as registered mail receipts and copies of this correspondence sent.
• Any correspondence sent or received, including emails, phone logs, etc.

Appendix C

There are a variety of resources available to help applicants with Aboriginal consultation. Applicants may want to consider talking with other renewable energy applicants regarding their experiences or hire an Aboriginal affairs consultant to help with the process. By reviewing some of the materials below, applicants may be able to gain a greater understanding and sensitivity to the issues they may face through the consultation process.

Government Resources

Ontario Ministry of Aboriginal Affairs, the website contains useful information where applicants can find out more about demographics and current land claims, including a map of the area in question.

Ontario Ministry of Aboriginal Affairs, Draft Guidelines for Ministries on Consultation with Aboriginal Peoples Related to Aboriginal Rights and Treaty Rights.

Ontario Ministry of Energy, Renewable Energy Facilitation Office (REFO), REFO is Ontario’s one-window to find out more about the requirements for renewable energy projects. They can be contacted at REFO@ontario.ca or via phone at 1-877-440-7336 or within the GTA at 416-212-6582.

Ontario Ministry of the Environment, the website contains technical guidance and forms for completing a renewable energy approval application as well as general information about current REA applications received by the Ministry.

Ontario Ministry of Natural Resources,

• Ministry of Indigenous Relations and Reconciliation
• Draft guidelines for ministries on consultation with Aboriginal peoples related to Aboriginal rights and treaty rights
• Renewable Energy Facilitation Office

These websites contains a vast amount of information and technical guides on renewable energy, including permitting and approvals, site release process, conducting bird and bat studies and a renewable energy atlas and maps. Contact information for field offices is also available.

Ontario Ministry of Tourism, Culture and Sport, the website contains guidance on addressing the cultural heritage component of the REA, including information on archaeological and heritage assessments.

Ontario Power Authority, the OPA manages the Feed-In Tariff Program which includes an Aboriginal price adder. The OPA website also provides information on the Aboriginal Energy Partnership Program which supports First Nation and Métis participation in renewable energy projects.

Ontario Financing Authority, the Aboriginal Loan Guarantee Program supports Aboriginal participation in renewable energy projects.

Aboriginal Affairs and Northern Development Canada,

Indigenous and Northern Affairs Canada

These websites contain a range of useful information and resources related to national aboriginal organizations, claims and treaties, environment and natural resources sector as well as regional based information.

Natural Resources Canada, The Canadian Geographic Names database allows for searches based on geographical areas that can identify local environmental features and reserves.

The Statistics Canada website provides information on Canada’s Aboriginal Languages.

Internet & Other Information for Aboriginal Consultation

First Nation Consultation and Accommodation: A Business Perspective, Submission to the New Relationship Management Committee.

Assembly of First Nations, AFN has produced educational material that can help provide applicants with a great appreciation of First Nations history and culture. Two documents applicants may want to review include: Top 10 Misconceptions About Aboriginal People and Tradition and Education: Towards a Vision of our Future.

Chiefs of Ontario (COO), COO is a First Nation political organization composed of the Grand Chiefs of the four political territorial organizations (PTO) and a representative of the independent First Nations. The website provides contact information for Ontario’s First Nations and PTOs. The Chief’s of Ontario (and Environmental Assessment Technical Working Group) has also developed the First Nations Environmental Assessment Toolkit.

Historic Saugeen Métis, the Historic Saugeen Métis are located in Southampton, Ontario.

Métis Nation of Ontario, the MNO is a political organization that promotes the common cultural, social, political and economic well-being of Métis who live within Ontario. The website provides information on governing structures, community councils and culture.

Métis National Council, is a Canada-wide organization that provides information on specific aspects of Métis Nation governance.

Notzke, Claudia (1994) Aboriginal Peoples and Natural Resources in Canada is a book that can help applicant understand more native perspectives on natural resource management, including approaches to water, fisheries, forests, wildlife and land.

Red Sky Métis Independent Nation, Red Sky Métis Independent Nation has administrative offices in Thunder Bay and runs a number of programs to help its members and the community at large.

Rogers, Edward and Smith Donald (1994). Aboriginal Ontario: Historical Perspectives on the First Nations is a set of 17 essays on the history of Ontario’s native people, providing a view into their varied and complex history.

Walter and Duncan Gordon Foundation, The Foundation has published the IBA Community Toolkit: Negotiation and Implementation of Impact and Benefit Agreements (2010), which provides general information on the negotiation of impact and benefit agreements.

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