Although formally approved by Cabinet in the fall of 2015, The Government of Alberta's Policy on Consultation with Metis Settlements on Land and Natural Resource Management (the Metis Settlements Consultation Policy) came into force and was publicly released on March 31, 2016. The Metis Settlements Consultation Policy was released together with The Government of Alberta's Guidelines on Consultation with Metis Settlements on Land and Natural Resource Management (the Metis Settlements Consultation Guidelines). The Metis Settlements Consultation Policy and Guidelines are similarly modeled after the Government of Alberta's policy and guidelines related to First Nations consultation, as a result there is significant overlap between the two sets of documents. This overview is intended to highlight the key elements of the Metis Settlements Consultation Policy and specific areas of difference between it and the Government of Alberta's policy and guidelines in relation to First Nations consultation.

Key Elements

The Metis Settlements Consultation Policy applies to members of the eight Metis Settlements established under the Metis Settlements Act and to strategic and project-specific Crown decisions that may adversely impact the continued exercise of those members' harvesting or traditional use activities. Matters that may fall within the Metis Settlements Consultation Policy include: provincial regulations, policies, and plans; and, decisions about specific developments, dispositions, or actions to manage land, water, air, forestry, or fish and wildlife, that may adversely impact Metis Settlements members' harvesting or traditional use activities. In Alberta, there exist a number of Metis communities outside of the eight Metis Settlements which are not included within the scope of the Metis Settlements Consultation Policy. These other communities are recognized in other Government of Alberta documents, such as Metis Harvesting In Alberta. The exclusion of these communities from the Metis Settlements Consultation Policy means that the policy and procedures outlined therein are not necessarily applicable to all Metis consultation in Alberta.

The Metis Settlements Consultation Policy indicates that consultation will occur when: (a) Alberta has real or constructive knowledge of Metis Settlement members' harvesting or traditional use activities; (b) Alberta is contemplating a decision relating to land or natural resource development; and (c) Alberta's decision has the potential to adversely impact the continued exercise of Metis Settlement members' harvesting or traditional use activities. The Metis Settlement Consultation Policy indicates that meeting a duty to consult requires flexibility and responsiveness and, accordingly, the Metis Settlements Consultation Guidelines assign level 1, 2 or 3 of consultation depending upon the presence of specific factors. The Metis Settlements Consultation Guidelines also include sector-specific consultation matrices to assist in consultation planning based upon knowledge of the physical impacts of certain activities. The consultation matrices and levels of consultation set out in the Metis Settlements Consultation Guidelines match those established by Alberta for First Nations consultation.

Under the Metis Settlements Consultation Policy, the Alberta Consultation Office (ACO) manages all aspects of consultation, including directing, monitoring and supporting the consultation activities of any Government of Alberta departments, project proponents and Metis Settlements. While Alberta will directly consult with Metis Settlements in certain circumstances,1 procedural aspects of consultation will be delegated to project proponents in most cases, particularly where the preliminary assessment indicates that the scope of consultation is limited. Metis Settlements carry dual obligations under the Metis Settlements Consultation Policy to: (a) be timely in responding to consultation efforts and in providing specific information on how a project or initiative may adversely impact their harvesting or traditional use activities; and, (b) identify a single point of contact to serve as the authorized consultation representative. As with Alberta's policy and guidelines for First Nations consultation, under the Metis Settlements Consultation Policy the ACO is responsible for deciding the adequacy of consultation for activities requiring Alberta Energy Regulator approval(s) and, in all other cases, it is to provide a recommendation to the Crown decision-maker as to whether consultation is adequate.

Consultation may reveal the need for accommodation. Under the Metis Settlements Consultation Policy, the primary goal of accommodation will be to avoid, minimize, or mitigate adverse impact of a Crown decision on Metis Settlement members' harvesting or traditional use activities.

Differences From First Nation Consultation Policy

The Metis Settlements Consultation Policy recognizes that members of the Metis Settlements in Alberta do not hold treaty rights, but may hold some Aboriginal rights. Specifically, the Metis Settlements Consultation Policy indicates that some Metis Settlement members use land (unoccupied Crown land or other lands to which they have access) for harvesting (fishing, hunting, and trapping for food) in accordance with applicable and existing Aboriginal rights within the meaning of section 35 of the Constitution Act, 1982. In contrast, Alberta's First Nations consultation policy is premised upon Treaty rights protected by section 35 of the Constitution Act, 1982. Both the Metis Settlements Consultation Policy and Alberta's First Nations consultation policy recognize traditional uses that are not existing section 35 rights, but are nonetheless important to their respective communities and are to be considered in consultation.

Capacity funding and transparency in the consultation process are highlighted in the Metis Settlements Consultation Policy just as they were in Alberta's First Nation consultation policy. However, while Alberta's First Nations policy expressly referred to an industry levy to support these elements of consultation, the Metis Settlements Consultation Policy makes no such reference. At present, the Metis Settlement Consultation Policy simply states that "Alberta will develop a program and provide funding to increase the consultation capacity of Metis Settlements".

Similar to Alberta's First Nation consultation policy, the Metis Settlements Consultation Policy carves out a number of matters to which it will not apply (i.e., leasing and licensing of Crown minerals, unauthorized access to private lands, Crown decisions on policy matters that are unrelated to land and natural resource management, and emergency situations). One additional carve-out from the application of the Metis Settlement Consultation Policy that is not included in Alberta's First Nations consultation policy pertains to Crown decisions about natural resource development dispositions on Metis Settlement lands that are already subject to a statutory regime and agreement (i.e., Metis Settlements Act and Co-Management Agreement). As the Metis Settlements Act applies to all Settlement lands (and provides for a framework to address dispositions on Settlement lands), the Metis Settlement Consultation Policy will not be applicable to any such lands.