On March 31, 2016, the Government of Alberta (Alberta) announced the release of the Guidelines on Consultation with Métis Settlements on Land and Natural Resource Management (the Guidelines). The Guidelines supplement the Policy on Consultation with Métis Settlements on Land and Natural Resource Management (the Policy), which was released in October 2015.
Alberta is the only Province with a legislated Métis land base. The Alberta Métis Settlements Act and its associated Regulations establish eight Métis Settlements, covering 1.25 million acres. The Policy provides a general overview of the consultation process with these Métis Settlements, while the Guidelines set out specific processes that should be followed.
The Guidelines came into effect on the date of their release and apply to any consultation process initiated after their release. They are virtually identical to the Guidelines on Consultation with First Nations on Land and Natural Resource Management (the First Nations Guidelines) that were issued by Alberta in July 2014.
Roles and Responsibilities in the Consultation Process
As it does with First Nations, Alberta recognizes that a duty to consult Métis Settlements exists when three factors are present:
- Alberta has real or constructive knowledge of Métis Settlement members’ harvesting or traditional land use activities;
- Alberta is contemplating a decision relating to land and natural resource management; and
- The decision has the potential to negatively impact the continued exercise of Métis Settlement members’ harvesting or traditional use activities.
When the duty to consult is engaged, it triggers a variety of responsibilities for the parties involved:
Alberta: The duty to consult rests with Alberta. However, all direction, monitoring, and support of consultation activities is provided through the Aboriginal Consultation Office (the ACO). The ACO’s role may include providing pre-consultation advice, providing direction during the consultation process, evaluating consultation records, and issuing an assessment of consultation adequacy.
Project Proponents: Alberta may delegate some procedural aspects of consultation to the project proponent, which may include notifying and engaging with Métis Settlements to discuss project-specific issues. Under the Guidelines, Project proponents are expected to document their consultation activities, share their consultation record with Métis Settlements and provincial staff, and advise Alberta of any issues that arise.
Alberta Energy Regulator (the AER): Alberta has sole responsibility to assess the adequacy of consultation with Métis Settlements. However, the ACO will work closely with the AER to ensure that any necessary consultation occurs prior to the AER’s decision. Direction on ACO and AER interaction will be described in an upcoming Ministerial Order. The Policy and Guidelines also apply to other regulators (e.g., the Alberta Utilities Commission), though internal procedures may vary.
Processes and Timelines for Consultation
The Guidelines outline six stages of consultation of Métis Settlements. The following is an overview of these stages, with detailed requirements and timelines found in the Guidelines:
- Pre-consultation assessment: When a request is received, the ACO will conduct a preliminary assessment to determine if consultation is required.
- Information Review: After receiving a request, the ACO will consider the project information received and any other available information regarding harvesting and traditional use activities in the project area to determine whether consultation is required, and if so, at what level.
- Determining the level of consultation: The ACO will provide direction on which Métis Settlements to consult, as well as the corresponding level of consultation. The level of consultation relates to the nature of the project and its potential impacts on harvesting and traditional use activities:
- Level 1 projects are assessed for “streamlined” consultation, which involves notification to the Settlement with an opportunity to respond;
- Level 2 projects are assessed for “standard” consultation, which involves notification to the Settlement with an opportunity to respond, and required follow-up by the proponent; and
- Level 3 projects are assessed for “extensive” consultation, which involves preparation of a consultation plan approved by the ACO, notification to the Settlement with an opportunity to respond, and required follow-up by the proponent. The level of consultation and any associated timelines may be revised as required.
- Exploring concerns: At this stage, project proponents should consider options to avoid, minimize, or mitigate adverse impacts on the harvesting or traditional use activities brought forward by the Métis Settlement. Exploration of these concerns should be documented in the record.
- Verifying the consultation records: Project proponents are expected to send a copy of the record of consultation to the Métis Settlement for review prior to submission to the ACO. If applied similarly to the First Nations Policy, if a letter of non-concern is received from the Métis Settlement, it may be sent to the ACO in lieu of the record of consultation.
- Determining the level of consultation: The ACO is responsible for deciding the adequacy of consultation for activities requiring AER approvals. In other cases, the ACO will provide a recommendation to the decision-maker as to whether consultation is adequate.
- Consultation with Métis Settlements and First Nations will be dealt with by the ACO concurrently. It will not be necessary for a proponent to submit separate requests to the ACO for Métis and First Nations consultation.
No Application to Non-Settlement Métis
Of note, neither the Policy nor the Guidelines apply to non-Settlement Métis that may also claim Métis rights under section 35 of the Constitution Act, 1982. Alberta received Cabinet mandate in late 2015 to engage with the Métis Nation of Alberta to develop similar processes for non-Settlement Métis. However, this engagement is in its very early stages. Until such processes are developed, Alberta has indicated that it will continue to consider consultation of non-Settlement Métis on a case-by-case basis.
Renewal of the First Nations Policy
Alberta has also committed to a renewal process for the First Nations Policy, which will likely result in revisions to the Policy and Guidelines for Métis Settlements.