On Wednesday, May 8, the Alberta government introduced Bill 22, the Aboriginal Consultation Levy Act, in the Alberta Legislature. Bill 22 is being introduced as part of the Alberta government’s overhaul of regulatory and Aboriginal consultation processes in the province.
Consultation Levy Fund Established
Bill 22 would establish a Consultation Levy Fund, which would be used to make grants to First Nations and other aboriginal groups to assist them in developing capacity to participate in Crown consultations. Under section 3 of Bill 22, proponents undertaking provincially-regulated activities will have to pay a consultation levy to the government. The amount of the levy is not set out in Bill 22; it will be set by regulations yet to be released. Payment of the levy would be required for proponents seeking approvals under the Environmental Protection and Enhancement Act, the Forests Act, the Historical Resources Act, Part 8 of the Mines and Minerals Act, the Public Lands Act and the Water Act. Bill 22 would also allow the Alberta government to pass regulations extending the consultation levy obligation to other provincial statutes as well.
The Minister of Aboriginal Relations would be allowed to access the Consultation Levy Fund for grants to First Nations and other identified Aboriginal groups to help them develop capacity to participate in and meet the costs of Crown consultation associated with approvals under the designated statutes. The Consultation Levy Fund may also be used “to pay the costs of administering this Act”.
Mandatory Disclosure of Private Agreements with Aboriginal Groups
Bill 22 would allow the Minister to require proponents to disclose to the Alberta government agreements they have entered into with Aboriginal groups that provide capacity funding for consultation. These agreements have until now been negotiated on a confidential basis due to their commercial and competitive sensitivity. Under Bill 22, disclosure of these agreements is apparently intended to help the Alberta government determine how much funding it should provide to First Nations and other identified Aboriginal groups, by indicating how much those groups are already receiving from industry. The Minister will have a very broad discretion in determining what needs to be disclosed. Under section 8, the Minister can require a proponent to provide any information “including third party personal information, records and other documents, including copies of agreements related to consultation capacity and other benefits pertaining to provincial regulated activities”. Proponents would have very little ability to challenge disclosure orders of the Minister: under section 9, all decisions of the Minister under Bill 22 are final and binding and not subject to review.
Details to be Set Out in Regulations
Bill 22 is short, containing only 11 sections. The details of the Consultation Levy Fund and its administration will be left to regulations to be passed by the Alberta government. As those regulations have not yet been released, Bill 22 leaves a number of questions unanswered:
- how much proponents will have to pay, and how that will be determined for different types of projects, different sizes of projects or projects that trigger greater consultation requirements;
- whether the consultation levy will also be intended to cover costs incurred by the Alberta government in consulting with First Nations and other Aboriginal groups, including the cost of establishing and staffing a Consultation Office with the consultation officials required to implement Crown-led consultations, as part of “the costs of administering this Act”;
- whether the Consultation Levy Fund will be used only to support Crown-led consultations with First Nations, or whether it will be available for proponent-led consultations as well;
- which Aboriginal groups other than First Nations may be eligible for funding from the Consultation Levy Fund, and how the Alberta government will identify those groups; and
- the extent to which the disclosure requirement under section 8 will apply to benefits agreements with Aboriginal groups, in addition to consultation capacity funding agreements. The reference to “agreements relating to consultation capacity and other benefits” in subsection 8(1) of Bill 22 suggests that the Minister will be able to compel disclosure of benefits agreements, even those which do not provide for capacity funding. This appears to go beyond the disclosure contemplated under the proposed Policy on Consultations with First Nations on Land and Resource Development (the “proposed Consultation Policy”), which refers only to disclosure of agreements under which First Nations receive consultation capacity funding from proponents.
At the same time, Bill 22 does appear to answer some questions. The proposed Consultation Policy only applies, as the name suggests, to consultations with First Nations. However, the references to “other identified Aboriginal groups” in Bill 22 suggest that the Alberta government is preparing to expand consultations beyond First Nations to other Aboriginal groups, such as Métis or non-status Indians, as well. In addition, despite the creation of the Consultation Levy Fund, Bill 22 clearly contemplates that proponents will continue to provide consultation capacity funding directly to First Nations and other Aboriginal groups; if not there would be no need to empower disclosure of funding arrangements.
As with the Responsible Energy Development Act and the proposed Consultation Policy, significant elements are left to be addressed later through regulations. Those regulations will be key to determining how the proposed consultation levy will affect project proponents, how effective the Consultation Levy Fund will be in improving consultation capacity for Aboriginal groups in Alberta, and how it will affect Aboriginal groups’ expectations for capacity funding from proponents.