Significant Changes Announced for Aboriginal Consultation in Alberta

On April 2, 2013, the Government of Alberta released a revised draft of its First Nations consultation policy, corporate guidelines and consultation matrix for review and comment. This policy calls for significant changes to Alberta’s Aboriginal affairs regime for resource development by establishing an Aboriginal Consultation Office to manage all aspects of consultation and by making substantial changes to the consultation process.

Through this policy, Alberta will take on a greater role in the Aboriginal consultation process. It will attempt to address concerns raised by First Nations, industry, municipal associations and other stakeholders regarding the uncertainty of the consultation process. A discussion paper on Aboriginal consultation released by the government last fall also sparked a great deal of feedback from stakeholders. The consultation policy and corporate guidelines provide an overview of the roles and responsibilities of parties throughout the consultation process. The consultation matrix identifies categories of impacts for specific activities, as well as timelines and expectations for consultation.

The policy applies to decisions by the Alberta government on projects relating to natural resource development (including oil and gas and forestry) and to provincial regulations that may adversely affect First Nations. On application from a project proponent, the Consultation Office will conduct a pre-consultation assessment and assign a project to one of three consultation levels, which have increasing requirements depending on the significance of potential adverse impacts on treaty rights or traditional uses. The Consultation Office will manage the consultation process, on the basis of information submitted by the project proponent and First Nations, and make a final decision regarding the adequacy of consultation. Noteworthy aspects of this policy are detailed below.

Disclosure of Consultation-Related Agreements

The consultation policy requires the disclosure of agreements between industry and First Nations, which we believe would include Impact Benefit Agreements. Agreements will be kept confidential by the government; however, there is no mention of allowing project proponents or First Nations to not disclose a confidential agreement or a portion of an agreement that is confidential to the government. Keeping the agreements confidential may also be challenging for the government. Sanctions will be developed for proponents who fail to comply with the disclosure requirements. These requirements will likely be contentious for some First Nations and companies.

Consultation Levy

Alberta will develop a program to increase capacity funding to First Nations and to fund that program through a levy on industry. The Consultation Office will be responsible for managing and distributing this funding to First Nations. It is unclear from the policy how the consultation levy will be calculated.

Coordination

The consultation policy states that the Consultation Office will work closely with the new Alberta Energy Regulator to ensure that any needed consultation occurs for decisions on energy project applications within the new regulator’s mandate. The regulator’s governing legislation states that it has no jurisdiction to assess the adequacy of Crown consultation.

The consultation policy may apply to provincial Crown decisions that have an adverse impact on the exercise of treaty rights on federal Crown lands. The new Consultation Office should consider how to coordinate its consultation efforts with the federal government.

Prescribed Timelines

The consultation matrix sets out timelines for consultation steps taken by First Nations and proponents as well as for Crown decisions. In some cases, the prescribed timelines appear to be ambitious. For example, the Consultation Office will determine if consultation is triggered up to 10 working days after receiving an application for an assessment from a project proponent. In all cases, the Consultation Office will have the authority to modify the specified timelines.

Conclusion

This policy will result in substantial changes to the consultation process in the course of resource development. Many matters outlined in the policy, including the Consultation Office, timelines, consultation matrix and consultation adequacy, will be expanded in forthcoming operational guidelines and consultation-related directives. The Minister of Aboriginal Affairs has requested all comments on the draft policy from interested stakeholders to be submitted on or before May 3, 2013.

The policy can be found here.