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
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.
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.
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
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.
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.
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