Written by Alison J. Gray and David A. McGillivray
On August 16, 2013, the Government of Alberta ("Alberta") released its Policy on Consultation with First Nations on Natural Resource Management, 2013 (the "Policy").1 The Policy is the product of extensive consultation with First Nations, industry, municipalities, and other stakeholders. It is intended to strengthen the First Nation consultation process for all parties involved and to ensure that Alberta effectively meets its legal duty to consult.
The Policy will take effect once Alberta's Consultation Office becomes operational, which is predicted to occur in the Fall of 2013.
The Policy applies to strategic and project- specific Crown decisions that may have an adverse impact on Treaty rights and traditional uses on provincial Crown lands. The Policy also contemplates that Alberta may enter into specific consultation process agreements with individual First Nations to bring further clarity to the consultation process. Matters that fall within the Policy include:
- provincial regulations, policies, and plans that may adversely impact First Nations Treaty rights and traditional uses; and
- decisions on projects relating to oil and gas, forestry, and other forms of natural resource development that may adversely impact First Nations Treaty rights and traditional uses.
Duty to Consult
In terms of the content of the duty to consult, the Policy assigns Level 1, 2 or 3 to a project depending upon the presence of specific factors. A project will be assigned Level 1 where it is expected to have no adverse impact on Treaty rights and traditional uses, Level 2 where it is expected to have low adverse impact, and Level 3 where it is expected to have a significant adverse impact. When a project is assessed to be Level 1 no consultation will be required, with Level 2 some consultation will be required but it will be delegated to project proponents, and Level 3 will require a greater degree of consultation and must be carried out directly by Alberta.
To assist in determining the level of consultation, Alberta also published draft Corporate Guidelines for First Nations Consultation Activities (the "Corporate Guidelines"), which includes a draft consultation matrix that outlines the consultation process for each of the three levels of consultation depending upon an activity's potential impact on First Nation rights. The Policy also contemplates, in addition to the draft consultation matrix, the development of operational matrices to provide guidance in identifying when and what degree of consultation will be required in any given set of circumstances.
The Policy outlines a number of noteworthy components of Alberta's new First Nation's consultation regime. In this regard, the Policy includes completely new initiatives that depart from Alberta's former consultation policies as well as a number of provisions designed to give greater clarity to the consultation process. Specifically, as discussed below, the Policy establishes a Consultation Office and clarifies the roles of key parties, modifies Alberta's capacity funding regime and creates an industry levy, takes measures to enhance transparency, and clarifies jurisdiction over matters of consultation in the context of project development.
Establishment of a "Consultation Office" and Clarification of the Role of Alberta, First Nations and Project Proponents
Alberta is establishing a Consultation Office that will report to the Minister of Aboriginal Relations. The Consultation Office's mandate will be to satisfy Alberta's duty to consult through management of all aspects of consultation.2
Alberta will only consult directly with First Nations in certain circumstances;3 consultation will be delegated to project proponents in most cases. The Consultation Office will delegate "procedural aspects" of consultation where the preliminary assessment indicates that the scope of consultation for a given project is limited.4 Such a determination will be made with reference to the operational matrices to be included in the Corporate Guidelines. The Consultation Office will remain engaged in the consultation process and will manage all aspects of consultation for those projects requiring Level 3 consultation (projects expected to have significant adverse impacts on First Nations' Treaty rights or traditional uses).
The Policy recognizes that some First Nations have developed their own unique consultation protocols and specifically encourages project proponents to be aware of such protocols. However, the Policy does not require compliance with First Nations' consultation protocols when carrying out consultation, and where there is a conflict between the Policy and a First Nation's consultation protocol, the Policy and/or the Corporate Guidelines will prevail.
The roles and responsibilities of various interested parties in the context of a delegated consultation are set out in the Policy. Alberta, through the Consultation Office, is responsible for:
- conducting a pre-consultation assessment, determining notification requirements, considering the response of proponents to consultation and determining if such response (i.e. mitigation etc.) is adequate, accommodation;5 and
- reporting the decision to impacted First Nations along with follow up.
First Nations have an obligation to:
- be timely6 in their response to the Crown's efforts to consult and with providing Alberta or a proponent with specific information on how the project may adversely impact the exercise of Treaty rights and traditional uses;
- report concerns regarding consultation as soon as possible; and
- provide Alberta with a single point of contact to serve as the First Nation's authorized consultation representative that may be contacted by Alberta or the proponent as the case may be.
Where the consultation process has been delegated to a proponent:
- such consultation must be done adequately as determined by the Consultation Office;
- notification must be provided to First Nations early in the planning process to ensure that concerns are considered; and
- proponents are expected to discuss project specific issues with First Nations and develop strategies to address them.
Capacity Funding and Industry Levy
The Policy contemplates that Alberta will develop a program to increase capacity funding to First Nations through an industry levy. The Consultation Office will be responsible for managing and distributing such funding to First Nations. In cases where consultation is not delegated to industry proponents, Alberta will fund consultation.
The Corporate Guidelines specify that, in the absence of a cooperative arrangement to ensure the integrity of the consultation process between the subject parties, Alberta will rely on compulsory disclosure of all consultation-related agreements signed by First Nations as an outcome of consultation processes along with consultations logs. Based upon this information Alberta will publish aggregated consultation information monthly; however, recognizing that disclosure of consultation-related agreements may harm relations between parties such agreements will be kept strictly confidential by Alberta.
The Policy clarifies that the Alberta Energy Regulator (the "Regulator") has no jurisdiction to assess the adequacy of Crown consultation. In this regard the Consultation Office will work in conjunction with the Regulator to ensure that any necessary consultation is carried out for decisions on energy project applications within the Regulator's mandate.
The Policy also recognizes that First Nations may be exercising Treaty rights or traditional uses on federal Crown land. In such circumstances, the federal Crown will assume First Nation consultation obligations, but Alberta may be obligated to consult First Nations where provincial Crown decisions could impact federal Crown lands.
The Policy and the Corporate Guidelines are designed to give greater clarity and to rationalize the First Nations consultation process in Alberta. For industry, this is a welcome step, as it should bring greater efficiency without compromising Alberta's consultation obligations or First Nations rights. In this regard, the Policy should provide proponents with a clearer understanding of what is expected of them in the consultation process.
The ability for the Policy to be successfully implemented and for it to ultimately withstand legal scrutiny will depend on how the Policy is applied and, specifically, whether the Policy can be tailored to ensure individual and circumstance specific consultation with a First Nation whose rights may be adversely impacted by Crown decisions on resource development.
- The Policy appears to limits its application to "First Nations" which does not generally include Métis; however, Alberta's Aboriginal Relations website indicates that Alberta "will consult with Métis peoples where there may be potential impacts to credibly-asserted aboriginal rights" (http://www.aboriginal.alberta.ca/573.cfm). As such, there is some uncertainty whether the Policy will apply to Alberta's consultation activities with Métis.
- The Consultation Office will carry out the following: policy development and implementation; pre-consultation assessments; management and execution of the consultation process; assessment of consultation adequacy; consultation capacity building exercises with First Nations; and measures to protect the transparency and integrity of the consultation process.
- The Policy lists the following circumstances where direct consultation by Alberta will be warranted: when Alberta undertakes strategic initiatives with the potential to adversely impact Treaty rights and traditional uses; when Alberta acts as a project proponent; and when a project requires Level 3 consultation as set out in the draft Corporate Guidelines.
- The following procedures may be delegated to project proponents including: providing First Nations with plain language information on project scope and location; identifying potential short- and long-term adverse project impacts; meeting with First Nations to discuss their concerns; Developing potential mitigation strategies to minimize or avoid adverse impacts; implementing mitigation measures, as directed; and summarizing for both Alberta and First Nations, consultation efforts.
- While the Crown is responsible for accommodation, the Policy indicates that project proponents will in any event have a role to play in identifying and implementing mitigation measures.
- It is noteworthy that the draft consultation matrix outlines specific timelines for each stage of consultation, presumably in an effort to ensure the consultation process is carried out in a timely way.