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October 22, 2012 Dear Reviewer: In February 2012, the Land and Water Boards of the Mackenzie Valley (the Boards) released their Draft Engagement Policy (the Policy) and Draft Engagement Guidelines for Applicants and Holders of Water Licences and Land Use Permits (the Guidelines) for public comment. We received plenty of feedback. Concurrent to this review process, the Mackenzie Valley Environmental Impact Review Board and the Boards were undertaking an internal review of their collective contributions to Crown consultation under section 35 of the Constitution Act, 1982. Considering the results of the work conducted on consultation, and the feedback received on the Policy and the Guidelines, the Boards have developed, and are pleased to present, a comprehensive draft policy framework related to community engagement and Board consultation under the Mackenzie Valley Resource Management Act (MVRMA). The Boards’ framework contains three documents: •

Draft Community Engagement and Board Consultation Policy

Draft Community Engagement Guidelines for Applicants and Holders of Water Licences and Land Use Permits; and

Draft Reference Bulletin: Procedural Framework for Addressing the Adequacy of Crown Consultation.

Attached to this letter you will find a summary of how key issues raised during our public comment period have been addressed in the revised documents. We would appreciate any feedback that you have on these documents by 5:00 p.m. Monday, November 19, 2012. Send your comments to Sarah Elsasser: selsasser@wlwb.ca. Please note that once the documents have been approved by the Boards, plain language summaries and pamphlets will be developed and distributed. The Guidelines will also be integrated and highlighted in our Draft Guides to Land Use Permitting and Water Licencing. Sincerely,

Shannon Ward, MVLWB Senior Advisor - Strategy, Consultation and Communications

Sarah Elsasser, WLWB Working Group 1 Chair - Consultation and Engagement


Attachment 1: Guide to the Boards’ Revised Consultation and Engagement Policy Framework, Engagement Guidelines, and Reference Bulletin Boards’ Authority and Mandate 1. Boards’ Authority to Create Policy and Guidelines for Community Engagement under section 65 Industry reviewers, including the NWT Chamber of Mines, the Prospectors and Developers Association of Canada (PDAC), and BHP Billiton questioned the Boards’ authority under section 65 to create guidelines for engagement. The Boards, through the powers and authority granted to them under the MVRMA may not issue a licence, permit, or authorization for the carrying out of a proposed development unless the requirements of Part 5 of the MVRMA have been met.1 As a screener, the Boards must ensure that the concerns of Aboriginal people and the general public are taken into account, have regard to the protection of the social, cultural, and economic well-being of residents of the Mackenzie Valley and consider the importance of conservation to the well-being and way of life of the Aboriginal peoples of Canada, to whom section 35 of the Constitution Act, 1982 applies and who use an area of the Mackenzie Valley [see section 62(114)(c) and sections 115(b) and( c)]. The Boards have been granted the authority to establish policies and guidelines that assist them in fulfilling their mandates and responsibilities as screeners under the MVRMA. As such, the Boards have created the Policy and associated documents under the authority of section 65 of the MVRMA which states that, “Subject to the regulations, a board may establish guidelines and policies respecting licences, permits, and authorizations, including their issuance under this Part”.

2. The Boards’ Consultation Mandate As was noted by the Boards prior to the February 2012 public review, the first draft of the Policy and Guidelines did not address the Boards’ roles and responsibilities for consultation with Aboriginal organizations/governments, within the broader context of the Crown’s duty to consult. The Joint Mackenzie Valley Environmental Impact Review Board/Land and Water Board Consultation Steering Committee has since concluded its analysis of their respective mandates with regard to statutory consultation. The Land and Water Boards’ contributions are now

Part 5 describes the objectives and general process of screening, environmental assessment, and environmental impact review. The Boards are the primary screeners under the MVRMA.

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Attachment 1: Guide to the Boards’ Revised Consultation and Engagement Policy Framework, Engagement Guidelines, and Reference Bulletin

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described in the revised policy, titled, Community Engagement and Board Consultation Policy (the Policy). The Boards play a dual role in contributing to the duty to consult. •

First, the Boards have mandates to run the consultative processes outlined under various sections of the MVRMA that apply to consultation with Aboriginal peoples, with the objective of ensuring that the rights of Aboriginal people have been taken into consideration. The revised policy framework recognizes that the system established under the MVRMA is already very respectful of Aboriginal rights; in fact, it is constructed on this principle. As such, the Boards’ existing processes and the additional procedures introduced in the framework will, in most cases, be sufficient to ensure potential impacts to rights have been addressed.

Second, based on the review of recent court decisions and analysis of the MVRMA, the Boards must also—before issuing a permit—be confident that consultation has been adequate (see sections 7 and 8 of the Policy). If, in the Board’s opinion, consultation and accommodation have not been adequate, it may apply one of the remedies available to it, including directing additional engagement activities, further study, holding a hearing, applying terms and conditions to mitigate impacts, or refusing to issue a permit. To address this matter, the Boards will now, if requested during the course of a proceeding, rule on the adequacy of Crown consultation. The Boards have drafted a reference bulletin that describes the procedural approach that will be taken in these cases. It is anticipated that these requests for rulings are more likely to come from affected communities and Aboriginal organizations/governments in areas of the Mackenzie Valley where modern claims have yet to be settled.

Application of the Policy Framework 3. Clarity Regarding Who is an Affected Party under the Engagement Guidelines The revised Policy and the Guidelines clarify that the target of engagement processes is with the affected communities and Aboriginal organization(s)/government(s) representing rights holders in an affected community. The revised Guidelines give direction to proponents on identifying and verifying who is a potentially “affected community” and who the appropriate “Aboriginal organization/government” to contact may be. In the revised Guidelines, the Boards encourage proponents to use broader public participation/engagement approaches in larger communities (e.g. Inuvik, Norman Wells, Yellowknife, Hay River) and early engagement with other regulatory authorities to ensure it is being inclusive, and can assess—from a number of perspectives—the potential for impacts that may be a cause for broader public concern.

Attachment 1: Guide to the Boards’ Revised Consultation and Engagement Policy Framework, Engagement Guidelines, and Reference Bulletin

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4. Application to Government The revised Policy framework now recognizes that a government department applying to the Board for a permit or licence in its capacity as a Crown Agent has a legal obligation to ensure that it has consulted, and where appropriate, accommodated affected Aboriginal groups. Government departments managing projects that will require applications to a Board will also be required to submit an engagement plan and engagement record. It is expected that these submissions will be shaped by their respective governments’ applicable guidelines (e.g. Updated Guidelines for Federal Officials to Fulfill the Duty to Consult, March 2011; and the Government of the NWT’s Approach to Consultation with Aboriginal Governments and Organizations, 2007).

5. Application of the Guidelines to Holders of Existing Permits and Licences Any new applications to a Board (e.g. for a previously permitted activity/renewals, amendments, assignments, extensions) will be subject to the Guidelines and will need to detail any future engagement requirements. The Guidelines may also apply to existing permits and licences, depending on activities, submissions, or applications made in relation to those permits and licences.

Shared Roles and Responsibilities for Consultation 6. Responsibilities of the Engaged Aboriginal Organization/Government Most industry reviewers were critical of the draft Guidelines in that they were silent on the roles and responsibilities of the engaged party. In the revised draft Policy and Guidelines, we have taken some effort to discuss and distinguish the roles and responsibilities of all parties in contributing to the Crown’s duty to consult—including government departments, the Boards, industry, and the affected communities and Aboriginal organizations/governments. The Boards engagement criteria (which will be used to assess the adequacy of the submitted engagement record and plan if required) includes gauging the extent to which affected communities and Aboriginal organizations/governments were responsive to the engagement efforts made by proponents, as the case law has recognized a positive duty on the part of Aboriginal groups to not frustrate consultation activities.

Refinements to the Guidelines 7. Recognition of Regional or Community-Based Consultation Guidelines A number of reviewers pointed to the absence of information and respect given to existing community-based guidelines for industry consultation. This has been addressed in the revised Policy and Guidelines. The revised Guidelines encourage applicants to work directly with affected

Attachment 1: Guide to the Boards’ Revised Consultation and Engagement Policy Framework, Engagement Guidelines, and Reference Bulletin

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communities and Aboriginal organizations/governments in carrying out engagement planning and, where they exist, to do so within the framework of community-based guidelines for engagement.2

8. Focus on Submission Requirements and Boards’ Adequacy Criteria vs. Prescriptive Engagement We received feedback from all reviewers (industry, government, communities, and Aboriginal organizations/governments) on the overly “prescriptive” nature of the draft guidelines and the confusion between mandatory requirements for engagement activities, discretion of the Boards to set requirements, and engagement planning. The Boards’ policy remains that all applications require some level of engagement, and that the agreed-to engagement approach (the engagement plan) would ideally result from dialogue with affected communities and Aboriginal organizations/governments that is reasonable in consideration of the scope, scale, and nature of the project. The revised guidelines use a less prescriptive approach (see section 2 of the Guidelines) and instead offer suggestions for the level of effort appropriate, based on the Boards’ collective experiences. Consistent and clear submission requirements and application adequacy criteria Submission requirements have been clarified in the revised Guidelines. An engagement plan and an engagement record are required for all applications. If the submitted engagement record and engagement plan are signed off by the proponent and the affected communities or Aboriginal organization(s)/government(s), the Board will consider the submissions adequate. If they are not signed, the Boards will apply its adequacy criteria which will aim to assess what engagement was carried out and whether it was adequate and appropriate in the circumstance. The criteria are outlined in section 2.3 of the Guidelines and are derived from the Board’s consultation guiding principles of shared responsibility, appropriate disclosure, inclusiveness, and reasonableness (found in section 6 of the Policy).

Step-by-step guide to meeting the Boards’ requirements The revised Guidelines also provide the proponent with a simple, step-by-step process guide to assist everyone in meeting the Boards’ submission requirements (see section 3). These will be particularly useful—along with the information and tools in the appendices—for smaller companies that may not be experienced in the practice of engagement. The process guide provides information on how best to: •

Identify affected communities;

2

Currently, only the Akaitcho and the Gwich’in have any specific guidance for consultation at the regional level. The Akaitcho have developed and implemented Guidelines for Mineral Exploration. While not a requirement for adequate engagement by the MVLWB, these guidelines support the expectation that engagement on mineral exploration will result in executed Exploration Agreements. The Gwich’in Tribal Council provides some guidance to industry for consultation and access to Gwich’in private lands in its document, Land Management and Control Guidelines.

Attachment 1: Guide to the Boards’ Revised Consultation and Engagement Policy Framework, Engagement Guidelines, and Reference Bulletin

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• • • •

Initiate dialogue with Aboriginal organizations/governments; Determine the appropriate level of engagement required for different types of projects and applications; Develop and sign off on an engagement plan; and Prepare engagement requirements (the engagement plan and record) to the Board.

9. Increased Focus on Engagement Planning The revised Policy is now clear that all applications either will require an engagement plan or will need to reference an existing plan that has already been submitted and deemed adequate by a Board. The level of effort required to develop an engagement plan will again depend on initial dialogue and should be reasonable with regard to the scope, scale, location, and context of the proposed activity. For small projects with little anticipated impact or cause for public concern, the results of initial dialogue should reveal that the engagement planning effort will be relatively straightforward. The plan will need to outline how the applicant would deal with any unforeseen situations that might warrant notification or discussions with the community(ies) over the life of the permit (e.g. timber harvesting, small drill-hole operation in an uncontested area, or an area identified for general use in an approved or draft land use plan). For applications of a larger or more complex nature (e.g. advanced exploration, or mine, highway, or pipeline construction) and that likely requires a type A Water Licence, the engagement plan should outline how the applicant and the affected communities and Aboriginal organization/government will engage over the life of the project. This should be done by projecting and mapping out the basic stages of the project through to closure and reclamation. The Boards are committed to addressing engagement as they develop other guidelines for project planning (e.g. closure and reclamation plans and aquatic effects monitoring programs) that also will provide some general guidance on when community engagement would be appropriate and at which level. These can provide additional guidance on developing and revising the engagement plan for life of project. Appendix E of the revised Guidelines provides some simple, suggested frameworks for developing the appropriate type of engagement plan.

Implementation 10.Enforceability of an Engagement Plan A signed engagement plan or, in the case that it is unsigned, a plan that has been deemed acceptable by a Board under its engagement criteria, will be included as part of a Board’s Attachment 1: Guide to the Boards’ Revised Consultation and Engagement Policy Framework, Engagement Guidelines, and Reference Bulletin

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conformity check with a new application. As such, it is not the Board’s intention to enforce the engagement plan. If, during the course of a regulatory process, engagement issues are raised, the Board may require an engagement plan as a condition of a permit or licence, in which case the Board would monitor the effectiveness of the plan.

11.Implementing the Shared Responsibility of Consultation in the Mackenzie Valley For consultation to be effective, all parties need to do their part. The Boards recognize that other parties are currently thinking about consultation roles and obligations and what that means for organizational capacity at the community, regional, and federal/territorial level. Full implementation of the Guidelines and the Policy Framework will require broader discussions, both to formalize roles and responsibilities, and to ensure capacity requirements are addressed.

Attachment 1: Guide to the Boards’ Revised Consultation and Engagement Policy Framework, Engagement Guidelines, and Reference Bulletin

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