Land Based Investment (LBI) Interim First Nations Information Sharing Guidelines 2010

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1 Land Based Investment (LBI) Interim First Nations Information Sharing Guidelines 2010 Under ILMB Board direction, the natural resource agencies are developing a common set of procedures for consulting with First Nations. The new procedures and associated guidance documents help steer the Land Based Investment program First Nations information sharing and consultation process. The 2011/12 First Nations Information Sharing Guidelines for the Land Based Investment program will be finalized over the next few months. These interim guidelines are intended for FIA-LBIP and FFT Recipients under the Land Based Investment program. The proposed approach is an effort to bridge the good work and relationships that have been built to date and maintain business continuity with a more efficient and effective model that is consistent with government s direction for coordinated consultation. The described approach is not intended to replace or supersede the development of relationships, process agreements or treaties between the Province and First Nations. The Province may delegate certain, procedural aspects of consultation. Recipients are responsible for carrying out the information sharing component of consultation with First Nations with support and leadership of the Ministry of Forests and Range ( MFR ) Authorizations and First Nations Consultation ( AFNC ) Branch staff who reside in the districts. Several tools and templates are under development to assist with information sharing. Consultation Matrix describes the recommended level of information sharing required for each Land Based Activity Referral Letter Template Land Based Investment Activity Referral Map Template Contact list of Authorizations and First Nations Consultation Branch staff in the district Information Sharing Summary Template Generally, it is expected that Recipients contact the AFNC Branch staff in the district early in the process, to get guidance on the suggested level of consultation and other relevant information from a preliminary assessment prior to commencing information sharing. For example, where a signed agreement such as an FRO/FRA is in place with specific expectations for information sharing, that process supersedes these Information Sharing Guidelines. Recipients must have District Manager confirmation that information sharing was adequate prior to work commencement. Roles and Responsibilities: The AFNC Branch staff in the district are responsible for:

2 1) Providing guidance to LBI Delivery staff and Recipients on the appropriate level of information sharing and the broader consultation process required, 2) Performing a preliminary assessment and supplying relevant information about the First Nation s aboriginal interests to the Recipient, 3) Carrying out further consultation with the First Nation(s) as required (for example, when comments from the First Nation cannot be addressed by the Recipient, or when projects require a higher level of consultation than originally considered appropriate and it is more suitable for government to step in), 4) Reviewing the documentation of information sharing from the Recipient and complete a consultation rationale checklist, 5) Confirming, documenting and informing the Recipient regarding the adequacy of the information sharing and, whether the District Manager is satisfied with the consultation process, 6) Providing a prompt response on the adequacy of the information sharing to the LBI Delivery staff and Recipient, and 7) Notifying the Proponent and First Nation of the final decision. The Land Based Investment Recipients (including FFT Recipients) are responsible for: 1) Checking the LBI program Consultation Matrix for recommended level and timeframe for information sharing, 2) Obtaining guidance and relevant information gathered for the preliminary assessment from the AFNC Branch staff in the district prior to information sharing, 3) Providing a complete Information Sharing package containing the Referral Letter, Workplan (for batched information sharing) and/ or treatment plans and site maps to First Nations as early as possible, 4) Following the current process for Information Sharing outlined in the FN Information Sharing Guidelines and any additional direction given by the District with regard to the suggested level of consultation, type and appropriate recommended action(s). 5) Ensuring that the LBI Staff in the region and the AFNC Branch staff in the district are invited to participate in any meetings with a First Nation, 6) Documenting and summarizing the information sharing correspondence for the AFNC Branch staff in the district, and 7) Documenting the decision by the District Manager or designate that the information sharing has been adequate. A clear statement is required in PINES/ FIRS to indicate that the information sharing requirements have been completed as required and that a confirmation of adequacy was received from the District. Where funds are administered through the Regional Project Manager, the LBI staff in the Regions are responsible for: 1) Overseeing the development of the work plan and information sharing process of the Recipient, 2) Leading meetings with First Nations as required, and 3) Liaising with the AFNC Branch staff in the district to provide the technical expertise as required Interim Process: The interim process for First Nations Information Sharing is project-based. Under the LBI program, Land Based Investment Rationales are no longer eligible for funding. FIA- LBIP and FFT Recipients should

3 follow existing processes for First Nations Information Sharing 1, along with the additional guidance provided in this document. The Recipients must ensure that they: Consult with the AFNC staff prior to beginning information sharing, to obtain guidance and relevant information from the preliminary assessment. Guidance from the District supersedes the LBI Consultation Matrix and Guidelines, Apply the new LBI Consultation Matrix and Information Sharing package templates appropriately, Make efforts to gain efficiency by batching information sharing on projects and reducing the number of follow up meetings required, Follow the response times in the consultation matrix, unless instructed otherwise by the District, Inform and invite the AFNC Branch staff in the district and the LBI staff in the Region to any meetings requested by a First Nation, and Notify the AFNC Branch staff in the district and the LBI staff in the Regions if information sharing develops into requests for deeper consultation and Preliminary Field Reviews. Carry over projects from FIA-LBIP Carry-over projects are those projects that were initiated in previous years and are not yet completed. It is assumed that these projects originally had completed and adequate First Nations Information Sharing and consultation processes. Approved carry over projects must have First Nations Information Sharing completed prior to commencement ONLY if: i. It is a new phase (info sharing has not been conducted), ii. There is significant change to the original project and the potential impact to aboriginal interests (if unsure, check with AFNC Branch staff in the district). If information sharing is required follow the Consultation Matrix for recommended information sharing level and timeframes, and check with the AFNC Branch staff in the district. Accommodation: The Province may be required to take steps to accommodate where: A proposed activity will adversely impact an aboriginal interest; or, There is likely an infringement of a proven aboriginal right or title or treaty right. Recipients must make an effort to address First Nations concerns to minimize or mitigate impacts. Accommodation may take many forms. It may involve negotiating to change a boundary or the timing of an activity. It involves a process of seeking compromise in an attempt to harmonize conflicting interests; 1 FFT First Nations Information Sharing and Consultation Guidelines on/fn_info_share.pdf FIA-LBIP Land Base Investment Rationale and Information Sharing with First Nations

4 however, a commitment to the process does not require a duty to agree it requires good faith efforts to understand and address each other s concerns. Recipients must consult with AFNC Branch staff when they receive a request for economic compensation for participating in information sharing (such as commenting on Referrals), Preliminary Field Reviews, and in cases where agreement cannot be reached. Consultation Matrix: Levels of Information Sharing/ Consultation Level 1: Planning and First Nations Information Sharing Level 1 refers to the procedural delegation of information sharing conducted by third parties. The Information Package consists of a comprehensive list of all Planned Activities for the upcoming fiscal year and the proposed locations of those planned activities. This information is shared with First Nations contacts. At Level 1, no follow up with First Nations contacts is expected by the Recipient. If a First Nation contacts the Recipient or the Crown it is expected that any questions or concerns raised will be responded to and communications will be documented before any projects commence work. Level 2: Available upon Request Level 2 refers to the procedural delegation of information sharing conducted by third parties suitable when projects involve the technical gathering of data used to augment future projects (such as Wildlife Studies, Forest Health Overviews, and longer term monitoring projects). The Recipient is expected to include these kinds of projects in the Information package sent to First Nations. It is also expected that the Recipient will provide copies of the final studies / prescriptions / maps or other deliverables upon request from a First Nation group. Level 3: Notification Level 3 or a Notification process refers to the procedural delegation of information sharing conducted by third parties and will typically involve information sharing with the provision of a timeframe for First Nation response. At Level 3, the Recipient shares copies of maps and treatment descriptions to First Nations when available. Level 4: Expedited Normal consultation Level 4 involves an expedited process. To qualify for expedited timeframes, there must be a compelling rationale based on Public Safety or Environmental Risk. A rationale for reduced comment period must be acceptable to the District Manager. Level 5: Normal Consultation Level 5 involves a Normal Consultation process which typically extends over a 60 day period. At Level 5, the Recipient is expected to:

5 Share information, provide targeted treatment timeframes and actively follow up with First Nations. At a minimum, the following discussion points should be covered: o The information package was received, o The information package was clear and provided enough detailed information for the First Nation, o Questions or concerns about the package or proposed activities. Accommodate aboriginal interests by adequately addressing technical forestry questions and concerns at an operational level, and by utilizing options to award work as available, Meet with First Nations if requested and invite the AFNC Branch staff in the district and the LBI staff to participate in those meetings. It is further expected that the Recipient will document communications which substantiate efforts made to share information, and how any questions or concerns were addressed and if any changes were made to address specific concerns. Level 6: Deep consultation Deep Consultation requires the MFR to be invited to meetings held with First Nations. MFR will lead the process which may involve accommodating aboriginal interests and seeking resolution to satisfactorily mitigate concerns. These steps may involve economic accommodations and collection of specific assessments pertaining to aboriginal interests. In Deep Consultation, the Recipient is expected to follow the Normal consultation process and to be actively involved in: Finding alternative treatment regimes to support resolution of issues, Developing specific information sharing and business practices to meaningfully address First Nations concerns (Best Practices Guideline), Participating in consultation meetings as required by the Crown.