Canada: Changes To First Nations Consultation In Alberta

On April 2, 2013, Alberta released a draft of The Government of Alberta's Policy on Consultation with First Nations on Land and Natural Resource Management, 2013 (the "Draft Policy").1 The Government's deadline for comments on the Draft Policy is May 17, 2013.

The Draft Policy evolved from a Discussion Paper published by the province in 2012 (the "Discussion Paper"). The Discussion Paper identified the following general stakeholder concerns: the extent to which Alberta delegates consultation to industry proponents; a lack of clarity with respect to Alberta's consultation expectations of all parties; and inadequate capacity funding for First Nation involvement in the consultation process.

To supplement the Draft Policy, Alberta published draft Corporate Guidelines for First Nations Consultation Activities (the "Corporate Guidelines") and a draft First Nations Consultation Matrix (the "Consultation Matrix").2 The Corporate Guidelines are designed to provide consulting parties with direction and standards for consultation activities while the accompanying Consultation Matrix establishes three levels of consultation depending upon an activity's potential impact on First Nation rights.

Collectively, the Draft Policy, Corporate Guidelines and Consultation Matrix would make four key changes which are discussed below. All four changes depart significantly from the current policies in Alberta,3 as well as from consultation policies found in other provinces.

Key Aspects of the Draft Policy

1. Disclosure of Consultation-Related Agreements

The Draft Policy requires project proponents to provide "all consultation-related agreements signed with First Nations as an outcome of consultation processes". The Draft Policy is uncertain as to how industry should distinguish "consultation-related" agreements from many other types of agreements that it might make with First Nations or their development corporations. Despite this uncertainty, the Draft Policy states that sanctions will be developed and applied to those industry proponents that fail to submit consultation-related agreements. The Draft Policy commits to maintaining the confidentiality of such agreements, but indicates that Alberta will publish aggregated information on a regular basis.4

2. Establishment of a "Consultation Office"

The Draft Policy establishes a centralized Consultation Office "to manage all aspects of consultation". In particular, the Consultation Office will be involved in administering the Corporate Guidelines and the accompanying Consultation Matrix.

Alberta will only consult directly with First Nations in certain circumstances.5 Consultation will otherwise be delegated (by the Consultation Office) to project proponents, although the Draft Policy indicates that the Consultation Office will "remain engaged in the consultation process" by assessing the adequacy of consultation and providing direction in respect of mitigation efforts. The extent of delegation permitted under the Draft Policy will vary relative to the extent of potential adverse impacts on First Nation rights and the scope of the project proponent's activity.

Operational guidelines pursuant to the Draft Policy are forthcoming and will provide additional detail on minimum standards for consultation activities delegated to project proponents, Crown management activities and consultation timelines.

3. Capacity Funding and Industry Levy

Alberta has historically provided capacity funding to First Nations to allow them to more effectively participate in certain consultation processes. As stated in the Discussion Paper, First Nations as well as industry stakeholders advised Alberta that such funding was inadequate to enable First Nations to fulfill their obligations within the consultation process. The Consultation Office will be responsible for the management of an industry levy program, providing capacity funding to First Nations groups. The Draft Policy does not provide any other details on the industry levy program, but does note that Alberta will solely fund consultation in respect of Crown projects.

4. Jurisdiction

The Draft Policy notes that the new Alberta Energy Regulator (the "Regulator") will have no jurisdiction to assess adequacy of Crown consultation associated with Treaty rights set out in the Constitution Act, 1982 (as stated at section 21 of the incoming Responsible Energy Development Act). The Draft Policy notes that the Consultation Office will work closely with the Regulator to ensure consultation occurs in respect of applications for energy projects within the Regulator's jurisdiction.

The Draft Policy recognizes that some First Nations may be exercising their First Nation rights on federal Crown Land. In these cases, generally it is the federal Crown that will assume consultation obligations. However, the Draft Policy acknowledges that Alberta may have to consult with First Nations where provincial Crown decisions may impact federal Crown lands (including Indian reserves).

Next Steps

The Draft Policy raises many questions. Further clarification is required in order to fully determine implications for participants in First Nations consultation activities.

Information on how to provide comments to the Minister of Aboriginal Relations by May 17, 2013 can be found at:


1 The Draft Policy appears to limit its application to "First Nations" which does not generally include Métis.  However, information provided on Alberta's Aboriginal Relations website indicates that Alberta "will consult with Métis peoples where there may be potential adverse impacts to credibly-asserted aboriginal rights" ( ). Therefore, there is some uncertainty as to whether the Draft Policy will apply to Alberta's consultation activities with Métis.

2 The Draft Policy, Corporate Guidelines and Consultation Matrix can be found at:

3 As set out in the Government of Alberta's First Nations Consultation Policy on Land Management and Resource Development, May 16, 2005 and Alberta's First Nations Consultation Guidelines on Land Management and Resource Development (originally completed September 2006 and updated November 17, 2007).

4 This appears to be a shift from the commentary in the Discussion Paper, which noted the possibility of public disclosure of agreements entered into by industry proponents and First Nations.  The Discussion Paper stated that public disclosure of such agreements would "assure increased transparency and accountability in the consultation process".

5 The Draft Policy lists the following three circumstances as ones in which Alberta will directly consult with First Nations: 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 Corporate Guidelines.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.