On August 16, 2013 the Government of Alberta (“Alberta”) issued a Policy on Consultation with First Nations on Land and Natural Resource Management, 2013 (the “New Policy”). This New Policy will replace the existing policy issued in 2005 (the “Existing Policy”). One of the most significant changes in the New Policy is the establishment of an Alberta Aboriginal consultation office. The New Policy will not come until effect until the Alberta Aboriginal consultation office is operational. Until that time the Existing Policy remains in effect.
While one can argue the merits of different aspects of the New Policy, what is important is that both the Existing Policy and the New Policy are important steps towards codification of the process to be used to fulfill the Crown’s duty to consult. This provides greater certainty regarding both the process and the result than having the issue addressed on an ad hoc basis and leaving it to the courts to pronounce on the sufficiency of consultation on a case by case basis.
Alberta states that it intends to use the New Policy to reconcile the constitutionally protected rights of First Nations with other societal interests to address adverse impacts on First Nations Treaty rights and traditional uses through a meaningful consultation process. In addition to the New Policy, Alberta also issued draft Corporate Guidelines for First Nations Consultation Activities (the “Draft Corporate Guidelines”). The purpose of the Draft Corporate Guidelines is to provide parties to the consultation process with direction on and standards for consultation activities to increase transparency with respect to Alberta’s consultation initiatives. The Government of Alberta had previously issued Consultation Guidelines on Land Management and Resource Development in 2007 (the “Existing Guidelines”) to provide guidance with respect to the Existing Policy.
This commentary provides a comparison between the New Policy and the Existing Policy. The significant changes in the New Policy include:
- Further definition of the roles of the Crown, First Nations and project proponents in consultation;
- Establishment of an Alberta Aboriginal consultation office
- Development of a consultation matrix with consultation levels and timelines;
- Development of a capacity funding program through an industry levy
- Guidance on use of consultation protocols developed by First Nations; and
- Clarification that neither First Nations nor project proponents have a veto over Crown decisions.
This comparison, in turn, provides grounds to further assess any required changes to consultation practices with respect to activities that may be subject to consultation with First Nations.
Brief Summary of the New Policy
Alberta seeks to “reconcile First Nations’ Treaty rights and First Nations’ traditional uses with Alberta’s mandate to manage provincial Crown lands and resources” through the New Policy. Management and development of provincial Crown lands and natural resources may be subject to a duty to consult and, if appropriate, accommodate the rights and interests of First Nations. The New Policy recognizes a duty to consult where the following three factors are present:
- Alberta has real or constructive knowledge of a right;
- Alberta’s decision relating to land and natural resource management is contemplated; and
- Alberta’s decision has the potential to adversely impact the continued exercise of a treaty right.
The New Policy will apply to strategic and project-specific decisions of the Crown that may adversely impact First Nations’ exercise of Treaty rights and traditional uses. This includes Crown decisions relating to:
- Provincial regulations, policies, and plans that may adversely impact First Nations Treaty rights and traditional uses; and
- Decisions on projects relating to oil and gas, forestry, and other forms of natural resource development that may adversely impact First Nations Treaty rights and traditional uses.
Comparison between the Policy and the Existing Policy
There are a number of important differences between the New Policy and the Existing Policy that may change the way in which the Crown and proponents consult with First Nations. Some of the important differences that we have identified are discussed below.
Roles and Responsibilities in Consultation and the Consultation Office
The Crown - The Alberta Aboriginal Consultation Office
One of the key changes in the New Policy is the establishment of an Alberta Aboriginal consultation office. Under both the Existing Policy and the New Policy Alberta is responsible for managing the consultation process. However, under the New Policy this will be accomplished through the establishment of an Aboriginal consultation office. Under the Existing Policy management over consultation was accomplished through a coordinated effort by a number of different departments. The Existing Guidelines were divided into separate parts for Alberta Energy, Alberta Environment, Alberta Sustainable Resource Development, and Alberta Tourism, Parks, Recreation and Culture. Under the New Policy an Aboriginal consultation office will manage all delegated aspects of consultation.
The consultation office will first conduct a preliminary assessment to determine whether the duty to consult is triggered for all projects or initiatives concerning land management or development using the Draft Corporate Guidelines. The consultation office will determine which First Nations must be notified with respect to a project and will require proponents to provide First Nations with reasonable time to respond with specific concerns about the potential adverse impacts of a project. The consultation office will also remain engaged in the consultation process when it delegates procedural aspects of consultation.
The Draft Corporate Guidelines further outline how the consultation office will carry out the above-noted responsibilities. The New Policy states that forthcoming operational guidelines will provide further direction by setting out minimum standards for delegated aspects of consultation, in addition to specific timelines and a range of Crown-management activities. Depending on how it is implemented, the New Policy may also provide for a more streamlined consultation process.
First Nations will continue to have a number of obligations in the consultation process under the New Policy, including timely sharing of information and communication, and providing a single point of contact. First Nations are required to provide Alberta or proponents, as applicable, with information regarding potentially adverse impacts a project or activity may have on their Treaty rights or traditional uses and to report consultation concerns to Alberta as soon as possible.
The expectations of First Nations under the Existing Policy appear to be more onerous. For example, under the Existing Policy, First Nations are required to provide alternate solutions for resolving a particular issue when raising concerns to Alberta or proponents regarding a proposed development. First Nations are also required to initiate sessions for Alberta and the project proponent to increase awareness of their rights and traditional uses.
The Project Proponent
Consistent with the Existing Policy, under the New Policy the Crown may delegate procedural aspects of consultation to project proponents. Project proponents may include industry or municipal governments. Responsibility for assessing the adequacy of consultation will remain with Alberta through the consultation office. However, proponents may be required to notify potentially affected First Nations of project plans and to discuss project-specific issues that arise with First Nations in addition to strategies to address the concerns discussed. The Existing Policy only requires project proponents to make documentation and other information related to consultation available to Alberta on request. Under the New Policy project proponents will always be required to summarize their consultation effort to clearly demonstrate how adverse impacts on the exercise of Treaty rights and traditional uses will be mitigated.
The Consultation Matrix
The Existing Policy recognizes that the depth of consultation required may vary based on the extent to which a Crown decision may adversely impact Treaty rights and traditional use. However, Alberta has now set out defined levels of consultation based on the potential severity of an adverse impact on the exercise of Treaty rights and traditional use. The Draft Corporate Guidelines include a consultation matrix (the “Consultation Matrix”) that sets out three possible levels of consultation as well as timelines for the consultation process.
The consultation office will decide whether an activity should be classified as Level 1, 2 or 3. A Level 1 activity involves no adverse impact on Treaty rights or traditional uses and no consultation is required. A level 2 activity is one that may result in low adverse impacts on Treaty rights or traditional uses. The consultation office will manage the consultation process for a Level 2 activity and the proponent will carry out the procedural aspects of consultation. A Level 3 activity is one that may result in a significant or permanent adverse impact on Treaty rights or traditional uses. Alberta will undertake consultation with respect to a Level 3 activity. Alberta will also consult directly with First Nations when it undertakes strategic initiatives with the potential to adversely impact Treaty rights or traditional uses and in cases where it acts as a project proponent.
The Existing Guidelines do not contain classifications for activities that dictate whether the proponent or Alberta will be responsible for consultation. Additionally, save for the requirement that First Nations contact the proponent within twenty-one days of being notified of a project, the Existing Guidelines do not expressly include timelines for consultation. The Policy, in conjunction with the Draft Corporate Guidelines, may provide increased clarity as to the proponent's and Alberta’s respective roles in consultation and may serve to clarify expectations with respect to timing in the consultation process.
Capacity Funding and Levy on Industry
The Policy states that Alberta will develop a program to increase capacity funding to First Nations. The program will be funded through a levy on industry. The consultation office will manage and distribute this funding to First Nations. Additionally, the Policy notes that Alberta will solely fund government-led consultation for Crown projects.
This levy on industry to support capacity funding is not included in the Existing Policy. The Policy states that the levy and its resulting funding will contribute to transparency of the consultation process by increasing consultation capacity of First Nations. It is also open to First Nations and project proponents to discuss entering into project impact benefits agreements.
Other Important Clarifications
The Existing Policy focuses on consultation with First Nations when decisions “infringe” First Nations’ existing Treaty or other constitutionally protected rights. Consistent with more recent Aboriginal law court decisions, the New Policy has been updated to focus on consulting with First Nations to address potential “adverse impacts” on First Nations’ Treaty rights and traditional uses.
In the New Policy Alberta acknowledges that, in addition to the consultation guidance set forth in the New Policy and the Draft Corporate Guidelines, some First Nations have developed their own consultation protocols. Alberta states that it encourages proponents to be aware of these protocols. However, Alberta does not require proponents to comply with these consultation protocols while consulting with First Nations. In the event of a conflict between a First Nation’s consultation protocol and the New Policy or the Draft Corporate Guidelines, the New Policy and Draft Corporate Guidelines will prevail.
The New Policy also clarifies that the Crown’s duty to consult does not give First Nations or proponents a veto over Crown decisions. Consent of First Nations or proponents is not required as part of Alberta’s consultation process.