On August 16, 2013, the Alberta Government released its new Policy on Consultation with First Nations on Land and Natural Resource Management. The Policy is expected to come into effect this fall and will replace the prior Policy, which was adopted in 2005. A draft of the new Policy was circulated for review and comment earlier this year.
Like its predecessor, the new Policy aims to provide a framework for consultation between First Nations and the Crown on strategic and project-specific decisions that may adversely impact treaty rights or traditional uses. However, there are also significant differences between the new and old Policies. This bulletin highlights some of the most notable changes.
Under the 2005 Policy, each government department developed its own processes to consult with First Nations. Now, Alberta has committed to establishing a new centralized "Consultation Office", which will manage all aspects of consultation. The Consultation Office will report directly to the Minister of Aboriginal Relations.
The 2005 Policy did not categorize projects into "levels". The new Policy establishes three different project or activity "levels". The Consultation Office will conduct a pre-consultation assessment of each proposed project or activity and, depending on the scope, will determine the level of consultation required in the particular circumstances.
Level 1 projects or activities are those expected to result in no adverse impacts on treaty rights or traditional uses, and therefore require no consultation with First Nations. Level 2 projects or activities are those anticipated to have low adverse impacts on treaty rights or traditional uses. Level 3 projects or activities are those that result in significant or permanent impacts on treaty rights or traditional uses.
The level of consultation required for Level 2 and Level 3 projects has not been prescribed yet, but will be elaborated upon in forthcoming Operational Guidelines.
Under the 2005 Policy, deadlines were set on a project-specific basis. The new Policy sets out timelines for each stage of consultation depending on the project level. However, these timelines are flexible and may be extended in various circumstances, including when amendments are made to a project, when hearings are required, when provincial and federal regulatory processes must be complied with, and when First Nations or other consulting parties involved provide information beyond what was anticipated in the Consultation Office's pre-consultation assessment.
Corporate and Operational Guidelines
Alberta has also released a draft of the Corporate Guidelines for First Nations Consultation Activities, which are intended to provide industry with more precise standards for consultation with First Nations. As indicated above, Operational Guidelines, which are supposed to further clarify these details, are still outstanding. The finalized Corporate Guidelines and new Operational Guidelines should provide a clearer picture of how the Policy will play out in practice.
A draft Consultation Matrix has also been released. The Matrix is actually a flowchart which briefly outlines the requirements and timelines for each stage of consultation for Level 1, 2 and 3 projects or activities. A prior version of the Matrix provided examples of projects that would fall under each level, but in the most recent draft, those examples have been removed.
Alberta Energy Regulator
Under the Responsible Energy Development Act, the new Alberta Energy Regulator has no jurisdiction to assess the adequacy of consultation. However, the new Policy states that the Consultation Office will work closely with the Alberta Energy Regulator to ensure that any necessary consultation occurs on project applications that fall within the Alberta Energy Regulator's mandate. How this relationship will work in practice remains to be seen.
The new Policy indicates that Alberta will develop a program to provide First Nations with the funding necessary to engage in the consultation process. This program will be financed by a levy placed on industry. The new Aboriginal Consultation Levy Act, which was recently passed by the Legislature but has not yet come into force, will provide further detail on this program.
Disclosure of Consultation-Related Agreements
The draft of the Policy that was circulated earlier this year required project proponents to disclose their consultation-related agreements with First Nations to the Consultation Office or face potential sanctions. That requirement has now been removed from the Policy and relocated to the draft Corporate Guidelines. The Corporate Guidelines indicate that Alberta will rely on the disclosure process included in the Aboriginal Consultation Levy Act in order to obtain copies of all signed consultation-related agreements, as well as consultation logs. Alberta intends to publish aggregated information obtained from these documents "regularly", while still keeping the agreements confidential.
The overall aim of the new Policy is to streamline the consultation process and provide industry and First Nations with clearer standards and uniform timelines for consultation activities. Certain First Nations have already expressed their objections to the new Policy in the media. Further developments are expected before the Policy is brought into force.
View the Policy.
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.