Alberta has undertaken numerous initiatives to reform and streamline its regulatory processes for natural resource development, including the adoption of REDA, the Responsible Energy Development Act. In conjunction with those efforts, Alberta recently released its new Policy on Consultation with First Nations on Land and Natural Resource Management, 2013 (Policy). While the Policy is not implemented yet, the Aboriginal Consultation Office (ACO) described in the Policy has been set up and is anticipated to be fully operational by November 30, 2013. The ACO is already co-ordinating efforts to finalize Corporate Guidelines on Consultation, and a Consultation Matrix, both of which have been released in draft form. The goal of the ACO, the Policy and related initiatives is to centralize and standardize consultation to the benefit of all parties: government, industry and First Nations.
It has been nearly 10 years since the Supreme Court of Canada declared that the Crown has a duty to consult Aboriginal Peoples before making decisions that may impact their asserted or existing treaty or aboriginal rights. The Court also declared that while industry proponents have no free-standing duty to consult, the Crown may delegate consultation procedures to proponents. In those 10 years, all affected parties, and the courts, have been working out how the duty applies in practice. Alberta's Policy is its latest effort to provide direction to those involved in consultations.
THE APPLICATION OF THE NEW POLICY
The Policy applies to "strategic and project-specific Crown decisions" regarding land and natural resource management, including:
- Provincial regulations, policies, and plans.
- Decisions on projects relating to oil and gas, forestry, and other forms of natural resource development.
- In some cases, provincial Crown decisions relating to or impacting federal Crown lands.
Item (1) is notable given that past efforts to consult on such matters have been limited. The Policy does not apply to the leasing and licensing of rights to Crown minerals, private lands not subject to the exercise of treaty rights and traditional uses, policy matters unrelated to land and natural resource management, and emergency situations that may impact public safety and security. Nor does it specifically apply to Métis, although presumably the general principles remain relevant.
THE ABORIGINAL CONSULTATION OFFICE
The ACO is key to the eventual implementation of the Policy. The ACO has been largely staffed with officials formerly at Alberta's Ministry of Environment and Sustainable Development. The ACO will manage all aspects of First Nations consultation, including policy development, pre-consultation assessment, management and execution of the consultation process, assessment of consultation adequacy and consultation capacity-building initiatives with First Nations. Of these roles, perhaps the most significant is assessment of consultation adequacy: the ACO is the final governmental arbiter of whether Alberta has fulfilled its duty to consult First Nations. This is significant in light of section 21 of REDA, which provides that the new Alberta Energy Regulator has no jurisdiction to assess the adequacy of Crown consultation. (For more on the Regulator, see our November 2012 Blakes Bulletin). In practice, proponents can expect to remain responsible for fulfilling most consultation activities, to the satisfaction of the ACO.
RESPONSIBILITIES IN DELEGATED CONSULTATION
The Policy describes the responsibilities of the participants in the consultation process:
- The ACO will conduct a pre-consultation assessment, determine notification requirements, decide whether delegated activities were performed adequately, accommodate First Nations where necessary, and report decisions.
- First Nations are required to be timely in responding to consultation efforts and in communicating specific information to Alberta or proponents regarding potential impacts of a project on treaty rights and traditional uses. First Nations are obliged to report any consultation concerns as soon as possible, and to provide a single point of contact to serve as an authorized consultation representative for Alberta and proponents.
- Proponents must notify potentially affected First Nations early in project planning to allow reasonable time for their concerns to be considered, discuss project-specific issues that arise with First Nations, and implement strategies in order to address those concerns, all as directed by the ACO.
LEVELS OF CONSULTATION
The Policy establishes three "levels" of consultation. The ACO will conduct a pre-consultation assessment of each proposed project and, depending on the scope, will determine the level of consultation required. The levels are:
- Level 1. Projects expected to have no adverse impact on First Nations' rights: no consultation required.
- Level 2. Projects anticipated to have low adverse impacts on First Nations' rights: procedural aspects will be carried out by the project proponent.
- Level 3. Projects expected to result in significant or permanent adverse impacts: Alberta will undertake consultation directly.
Unless there is a significant change from past practice, most projects will fall into Level 1 or Level 2. Along with the new Policy, Alberta has released draft Corporate Guidelines for First Nations Consultation Activities (Guidelines) and a draft Consultation Process Matrix (Matrix) outlining the detailed consultation process required for each of the three Levels.
The draft Matrix sets timelines for each stage of consultation depending on the assigned level. Timelines are not absolute, however, and may be extended where the project is amended, hearings are required, or if First Nations provide unexpected information. In practice, it will be difficult to meet the timelines without prior efforts by proponents to engage First Nations. The draft Guidelines and draft Matrix are the subject of ongoing consultation by Alberta with industry and First Nations' representatives. These documents are expected to be finalized and implemented in spring 2014.
The Policy, along with the recently enacted Aboriginal Consultation Levy Act, provide that Alberta will develop a program to increase capacity funding to First Nations to facilitate engagement in the consultation process. This program will be financed by an industry levy. The funds will be distributed to First Nations by the ACO. Where Crown projects are involved, the funding will be sourced from the government, not the industry levy. Details of the funding (including how much will be available, when, and how it will be accessed) remain to be revealed.
DISCLOSURE OF INDUSTRY-ABORIGINAL AGREEMENTS
The draft Guidelines, pursuant to the Aboriginal Consultation Levy Act, enable the ACO to require proponents to disclose capacity and benefits agreements with First Nations. Both industry and aboriginal representatives have expressed concerns regarding these powers. Thus far, the government's response is that the agreements will be kept confidential, and information only published in aggregate. There is also a suggestion that proponent and First Nations parties to such an agreement may jointly provide other documentation to the ACO to satisfy its goal of transparency.
The establishment of the “one-window” ACO, as well as the Policy, Guidelines and Matrix, should give all parties greater regulatory certainty – a goal which has been particularly elusive in this area of the law. The centralization of all consultation decisions in one office will also create significant pressure on both proponents and First Nations to follow the ACO's directives during the engagement process. Failure to do so would presumably influence the eventual decision, by that same office, as to the adequacy of consultation. Once the ongoing consultations are complete and Regulations implement the Policy, all affected parties will be in a better position to assess whether the certainty goal has been achieved.