On April 4, 2016, the Government of Alberta (“GoA”) released The Government of Alberta’s Policy on Consultation with Metis Settlements on Land and Natural Resource Management, 2015 (the “Policy”) as well as The Government of Alberta’s Guidelines on Consultation with Metis Settlements on Land and Natural Resource Management, 2016 (the “Guidelines”). Additional information on the Policy and the Guidelines including the text of each can be found here.
The modest aim of this post is to outline some of the key features of the Policy and Guidelines as they relate to energy project proponents.
Alberta Metis Settlements
The term “Metis” refers to people of mixed European and indigenous heritage who developed their own customs, way of life, and recognizable group identity separate from their settler or indigenous ancestors. Metis people are expressly included within the definition of “aboriginal peoples of Canada” in section 35 of the Constitution Act, 1982. Accordingly, Metis practices that were historically important features of these distinctive communities and that persist today as integral elements of Metis culture are constitutionally protected. According to the Alberta Indigenous Relations website, approximately 5,000 people live on the eight Metis Settlements in the province which collectively cover 1.25 million acres in the central and northern part of the province.
Policy and Guideline Highlights
The stated objective of the Policy is to establish a meaningful consultation process to address potential adverse impacts to Metis Settlement members’ harvesting or traditional use activities. The Guidelines are intended to clarify expectations of all parties participating in the consultation process including project proponents, the Aboriginal Consultation Office (the “ACO”), Metis Settlements, and government agencies.
According to the Policy, and consistent with Supreme Court of Canada decisions on Aboriginal consultation, the GoA policy is to consult with Metis Settlements when:
- GoA has real or constructive knowledge of Metis Settlement members’ harvesting or traditional use activities;
- GoA is contemplating a decision relating to land and natural resource management; and
- a GoA decision has the potential to adversely impact the continued exercise of Metis Settlement members’ harvesting or traditional use activities.
The Policy, therefore, will impact not only strategic resource planning decisions made by the GoA, but also project specific decisions including land dispositions, facility and pipeline approvals, and water use authorizations. It will not, however, apply to leasing or licencing Crown mineral rights.
Borrowing from the GoA’s approach to consultation with First Nations, the Guidelines establish a framework for determining the level of consultation required based on the impact of the project and the sensitivity of the affected location. The level of consultation informs how deep the consultation should be, what process steps are required, and the timelines for completing consultation.
The Policy lists a number of “guiding principles” which it considers will lead to meaningful consultation. These guiding principles will generally not surprise energy project proponents who are accustomed to engaging with First Nations. In some cases, the guiding principles provide reassurance regarding the GoA position on consultation. Notably, the guiding principles include the following:
- Consultation will take place with the Metis Settlements, not their individual members;
- GoA will consult with honour, respect, and good faith, with a view to reconcile Metis Settlement members’ harvesting and traditional use activities with the GoA’s mandate to manage provincial Crown lands and resources for the benefit of all Albertans;
- Consultation requires all parties to demonstrate good faith, reasonableness, openness, and responsiveness;
- Metis Settlements have a reciprocal onus to respond with any concerns specific to the anticipated Crown decision in a timely and reasonable manner and work with Alberta and project proponents to resolve issues as they arise during consultation;
- Consultation does not give Metis Settlements or project proponents a veto over Crown decisions nor is the consent of Metis Settlements or project proponents required as part of Alberta’s Consultation process.
The Policy and Guidelines contemplate direct consultation by the GoA as well as GoA delegation of procedural aspects of consultation. In either case, the ACO will “direct, monitor and support consultation activities”. ACO support includes providing staff to assist with consultation, advising both Metis Settlements and proponents when disputes arise, and evaluating consultation records. Energy project proponents will recall that the Alberta Energy Regulator (“AER”) has no authority under the Responsible Energy Development Act to assess the adequacy of Crown consultation. In matters before the AER, the ACO will make a consultation adequacy determination and advise the AER of its decision.
For their part, project proponents may need to carry out certain tasks if the GoA decides to delegate procedural aspects of the consultation process. The Guidelines state that “proponents are encouraged to notify and consult with Metis Settlements as early as possible in the pre-application stage”, “document their consultation activities, share their consultation record with Metis Settlements and provincial staff and advise the GoA of any issues that arise”. The Policy and Guidelines identify a number of consultation activities that may be passed to proponents, such as providing Metis Settlements with plain language information on the project, meeting with Metis Settlements to discuss their concerns, developing and implementing mitigation strategies, and preparing consultation records.
Finally, the Guidelines state that “although the optimal outcome of consultation is that all consulting parties reconcile interests, agreement of all parties is not required for consultation to be adequate”.
Comments for Energy Project Proponents
The Policy and Guidelines closely model the GoA’s approach to engaging with First Nations in Alberta and will be familiar to many project proponents. They serve as a useful starting point for setting expectations on how consultation will proceed and the roles of each party. However, they are just that – a starting point.
The Guidelines acknowledge that consultation must remain flexible. They do not state, however, whether Metis Settlements will be consulted on how the Policy will be implemented in any given case. Further, while the Policy and Guidelines clearly contemplate delegating consultation activities to proponents, there is no commitment by the GoA to communicate the fact of delegation to the concerned Metis Settlements.
Clear communication at every stage of the consultation process is important to avoid delays as the process unfolds. Proponents should ensure from the outset when they undertake delegated consultation activities, such as in-person meetings, that the Metis Settlement representatives understand the consultation activities were delegated and are meant to contribute to fulfilling the Crown’s duty to consult.