Changes to First Nations Consultation in Alberta

On April 2, 2013, Alberta released a draft of The Government of Alberta's Policy on Consultation with First Nations on Land and Natural Resource Management, 2013 (the "Draft Policy").¹ The Government's deadline for comments on the Draft Policy is May 17, 2013.

The Draft Policy evolved from a Discussion Paper published by the province in 2012 (the "Discussion Paper"). The Discussion Paper identified the following general stakeholder concerns: the extent to which Alberta delegates consultation to industry proponents; a lack of clarity with respect to Alberta's consultation expectations of all parties; and inadequate capacity funding for First Nation involvement in the consultation process.

To supplement the Draft Policy, Alberta published draft Corporate Guidelines for First Nations Consultation Activities (the "Corporate Guidelines") and a draft First Nations Consultation Matrix (the "Consultation Matrix").² The Corporate Guidelines are designed to provide consulting parties with direction and standards for consultation activities while the accompanying Consultation Matrix establishes three levels of consultation depending upon an activity's potential impact on First Nation rights.

Collectively, the Draft Policy, Corporate Guidelines and Consultation Matrix would make four key changes which are discussed below. All four changes depart significantly from the current policies in Alberta,³ as well as from consultation policies found in other provinces.

Key Aspects of the Draft Policy

1. Disclosure of Consultation-Related Agreements

The Draft Policy requires project proponents to provide "all consultation-related agreements signed with First Nations as an outcome of consultation processes". The Draft Policy is uncertain as to how industry should distinguish "consultation-related" agreements from many other types of agreements that it might make with First Nations or their development corporations. Despite this uncertainty, the Draft Policy states that sanctions will be developed and applied to those industry proponents that fail to submit consultation-related agreements. The Draft Policy commits to maintaining the confidentiality of such agreements, but indicates that Alberta will publish aggregated information on a regular basis.⁴

2. Establishment of a "Consultation Office"

The Draft Policy establishes a centralized Consultation Office "to manage all aspects of consultation". In particular, the Consultation Office will be involved in administering the Corporate Guidelines and the accompanying Consultation Matrix.

Alberta will only consult directly with First Nations in certain circumstances.⁵ Consultation will otherwise be delegated (by the Consultation Office) to project proponents, although the Draft Policy indicates that the Consultation Office will "remain engaged in the consultation process" by assessing the adequacy of consultation and providing direction in respect of mitigation efforts. The extent of delegation permitted under the Draft Policy will vary relative to the extent of potential adverse impacts on First Nation rights and the scope of the project proponent's activity.

Operational guidelines pursuant to the Draft Policy are forthcoming and will provide additional detail on minimum standards for consultation activities delegated to project proponents, Crown management activities and consultation timelines.

3. Capacity Funding and Industry Levy

Alberta has historically provided capacity funding to First Nations to allow them to more effectively participate in certain consultation processes. As stated in the Discussion Paper, First Nations as well as industry stakeholders advised Alberta that such funding was inadequate to enable First Nations to fulfill their obligations within the consultation process. The Consultation Office will be responsible for the management of an industry levy program, providing capacity funding to First Nations groups. The Draft Policy does not provide any other details on the industry levy program, but does note that Alberta will solely fund consultation in respect of Crown projects.

4. Jurisdiction

The Draft Policy notes that the new Alberta Energy Regulator (the "Regulator") will have no jurisdiction to assess adequacy of Crown consultation associated with Treaty rights set out in the Constitution Act, 1982 (as stated at section 21 of the incoming Responsible Energy Development Act). The Draft Policy notes that the Consultation Office will work closely with the Regulator to ensure consultation occurs in respect of applications for energy projects within the Regulator's jurisdiction.

The Draft Policy recognizes that some First Nations may be exercising their First Nation rights on federal Crown Land. In these cases, generally it is the federal Crown that will assume consultation obligations. However, the Draft Policy acknowledges that Alberta may have to consult with First Nations where provincial Crown decisions may impact federal Crown lands (including Indian reserves).

Next Steps

The Draft Policy raises many questions. Further clarification is required in order to fully determine implications for participants in First Nations consultation activities.

Information on how to provide comments to the Minister of Aboriginal Relations by May 17, 2013 can be found at: http://www.aboriginal.alberta.ca/1.cfm.

Notes

1.  The Draft Policy appears to limit its application to "First Nations" which does not generally include Métis.  However, information provided on Alberta's Aboriginal Relations website indicates that Alberta "will consult with Métis peoples where there may be potential adverse impacts to credibly-asserted aboriginal rights". Therefore, there is some uncertainty as to whether the Draft Policy will apply to Alberta's consultation activities with Métis.
2. The Draft Policy, Corporate Guidelines and Consultation Matrix can be found at: http://www.aboriginal.alberta.ca/1.cfm.
3. As set out in the Government of Alberta's First Nations Consultation Policy on Land Management and Resource Development, May 16, 2005 and Alberta's First Nations Consultation Guidelines on Land Management and Resource Development (originally completed September 2006 and updated November 17, 2007).
4. This appears to be a shift from the commentary in the Discussion Paper, which noted the possibility of public disclosure of agreements entered into by industry proponents and First Nations.  The Discussion Paper stated that public disclosure of such agreements would "assure increased transparency and accountability in the consultation process".
5. The Draft Policy lists the following three circumstances as ones in which Alberta will directly consult with First Nations: 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 Corporate Guidelines.