Alberta's Policy on Consultation with First Nations on Land and Natural Resource Management, 2013

by Bennett Jones LLP
Contact

On August 16, 2013, the Government of Alberta ("Alberta") released its Policy on Consultation with First Nations on Natural Resource Management, 2013 (the "Policy").1 The Policy is the product of extensive consultation with First Nations, industry, municipalities, and other stakeholders. It is intended to strengthen the First Nation consultation process for all parties involved and to ensure that Alberta effectively meets its legal duty to consult.

The Policy will take effect once Alberta's Consultation Office becomes operational, which is predicted to occur in the Fall of 2013.

Application

The Policy applies to strategic and project- specific Crown decisions that may have an adverse impact on Treaty rights and traditional uses on provincial Crown lands. The Policy also contemplates that Alberta may enter into specific consultation process agreements with individual First Nations to bring further clarity to the consultation process. Matters that fall within the Policy include:

  • 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.

Duty to Consult

In terms of the content of the duty to consult, the Policy assigns Level 1, 2 or 3 to a project depending upon the presence of specific factors. A project will be assigned Level 1 where it is expected to have no adverse impact on Treaty rights and traditional uses, Level 2 where it is expected to have low adverse impact, and Level 3 where it is expected to have a significant adverse impact. When a project is assessed to be Level 1 no consultation will be required, with Level 2 some consultation will be required but it will be delegated to project proponents, and Level 3 will require a greater degree of consultation and must be carried out directly by Alberta.

To assist in determining the level of consultation, Alberta also published draft Corporate Guidelines for First Nations Consultation Activities (the "Corporate Guidelines"), which includes a draft consultation matrix that outlines the consultation process for each of the three levels of consultation depending upon an activity's potential impact on First Nation rights. The Policy also contemplates, in addition to the draft consultation matrix, the development of operational matrices to provide guidance in identifying when and what degree of consultation will be required in any given set of circumstances.

The Policy outlines a number of noteworthy components of Alberta's new First Nation's consultation regime. In this regard, the Policy includes completely new initiatives that depart from Alberta's former consultation policies as well as a number of provisions  designed to give greater clarity to the consultation process. Specifically, as discussed below, the Policy establishes a Consultation Office and clarifies the roles of key parties, modifies Alberta's capacity funding regime and creates an industry levy, takes measures to enhance transparency, and clarifies jurisdiction over matters of consultation in the context of project development.

Establishment of a "Consultation Office" and Clarification of the Role of Alberta, First Nations and Project Proponents

Alberta is establishing a Consultation Office that will report to the Minister of Aboriginal Relations. The Consultation Office's mandate will be to satisfy Alberta's duty to consult through management of all aspects of consultation.2

Alberta will only consult directly with First Nations in certain circumstances;3 consultation will be delegated to project proponents in most cases. The Consultation Office will delegate "procedural aspects" of consultation where the preliminary assessment indicates that the scope of consultation for a given project is limited.4 Such a determination will be made with reference to the operational matrices to be included in the Corporate Guidelines. The Consultation Office will remain engaged in the consultation process and will manage all aspects of consultation for those projects requiring Level 3 consultation (projects expected to have significant adverse impacts on First Nations' Treaty rights or traditional uses).

The Policy recognizes that some First Nations have developed their own unique consultation protocols and specifically encourages project proponents to be aware of such protocols. However, the Policy does not require compliance with First Nations' consultation protocols when carrying out consultation, and where there is a conflict between the Policy and a First Nation's consultation protocol, the Policy and/or the Corporate Guidelines will prevail.

The roles and responsibilities of various interested parties in the context of a delegated consultation are set out in the Policy. Alberta, through the Consultation Office, is responsible for:

  • conducting a pre-consultation assessment, determining notification requirements, considering the response of proponents to consultation and determining if such response (i.e. mitigation etc.) is adequate, accommodation;5 and
  • reporting the decision to impacted First Nations along with follow up.

First Nations have an obligation to:

  • be timely6 in their response to the Crown's efforts to consult and with providing Alberta or a proponent with specific information on how the project may adversely impact the exercise of Treaty rights and traditional uses;
  • report concerns regarding consultation as soon as possible; and
  • provide Alberta with a single point of contact to serve as the First Nation's authorized consultation representative that may be contacted by Alberta or the proponent as the case may be.

Where the consultation process has been delegated to a proponent:

  • such consultation must be done adequately as determined by the Consultation Office;
  • notification  must be provided to First Nations early in the planning process to ensure that concerns are considered; and
  • proponents are expected to discuss project specific issues with First Nations and develop strategies to address them.

Capacity Funding and Industry Levy

The Policy contemplates that Alberta will develop a program to increase capacity funding to First Nations through an industry levy. The Consultation Office will be responsible for managing and distributing such funding to First Nations. In cases where consultation is not delegated to industry proponents, Alberta will fund consultation.

Enhancing Transparency

The Corporate Guidelines specify that, in the absence of a cooperative arrangement to ensure the integrity of the consultation process between the subject parties, Alberta will rely on compulsory disclosure of all consultation-related agreements signed by First Nations as an outcome of consultation processes along with consultations logs. Based upon this information Alberta will publish aggregated consultation information monthly; however, recognizing that disclosure of consultation-related agreements may harm relations between parties such agreements will be kept strictly confidential by Alberta.

Jurisdiction

The Policy clarifies that the Alberta Energy Regulator (the "Regulator") has no jurisdiction to assess the adequacy of Crown consultation. In this regard the Consultation Office will work in conjunction with the Regulator to ensure that any necessary consultation is carried out for decisions on energy project applications within the Regulator's mandate.

The Policy also recognizes that First Nations may be exercising Treaty rights or traditional uses on federal Crown land. In such circumstances, the federal Crown will assume First Nation consultation obligations, but Alberta may be obligated to consult First Nations where provincial Crown decisions could impact federal Crown lands.

Conclusions

The Policy and the Corporate Guidelines are designed to give greater clarity and to rationalize the First Nations consultation process in Alberta. For industry, this is a welcome step, as it should bring greater efficiency without compromising Alberta's consultation obligations or First Nations rights. In this regard, the Policy should provide proponents with a clearer understanding of what is expected of them in the consultation process.

The ability for the Policy to be successfully implemented and for it to ultimately withstand legal scrutiny will depend on how the Policy is applied and, specifically, whether the Policy can be tailored to ensure individual and circumstance specific consultation with a First Nation whose rights may be adversely impacted by Crown decisions on resource development.

Notes

  1. The Policy appears to limits its application to "First Nations" which does not generally include Métis; however, Alberta's Aboriginal Relations website indicates that Alberta "will consult with Métis peoples where there may be potential impacts to credibly-asserted aboriginal rights" (http://www.aboriginal.alberta.ca/573.cfm). As such, there is some uncertainty whether the Policy will apply to Alberta's consultation activities with Métis.
  2. The Consultation Office will carry out the following: policy development and implementation; pre-consultation assessments; management and execution of the consultation process; assessment of consultation adequacy; consultation capacity building exercises with First Nations; and measures to protect the transparency and integrity of the consultation process.
  3. The Policy lists the following circumstances where direct consultation by Alberta will be warranted: when Alberta undertakes strategic initiatives with the potential to adversely impact Treaty rights and traditional uses; when Alberta acts as a project proponent; and when a project requires Level 3 consultation as set out in the draft Corporate Guidelines.
  4. The following procedures may be delegated to project proponents including: providing First Nations with plain language information on project scope and location; identifying potential short- and long-term adverse project impacts; meeting with First Nations to discuss their concerns; Developing potential mitigation strategies to minimize or avoid adverse impacts; implementing mitigation measures, as directed; and summarizing for both Alberta and First Nations, consultation efforts.
  5. While the Crown is responsible for accommodation, the Policy indicates that project proponents will in any event have a role to play in identifying and implementing mitigation measures.
  6. It is noteworthy that the draft consultation matrix outlines specific timelines for each stage of consultation, presumably in an effort to ensure the consultation process is carried out in a timely way.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Bennett Jones LLP | Attorney Advertising

Written by:

Bennett Jones LLP
Contact
more
less

Bennett Jones LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.