On August 16, 2013, Alberta officially released its First Nations Consultation Policy 2013, which will replace the existing policy dated May 16, 2005.
The Consultation Policy 2013 is expected to take effect once Alberta's new Aboriginal Consultation Office is operational, likely in the fall of 2013.
Some highlights of the new Consultation Policy are set out below.
Reporting to the Minister of Aboriginal Relations, a newly established Consultation Office will manage all aspects of the consultation process, including:
- Policy development and implementation
- Pre-consultation assessment
- Management and conduct of the consultation process
- Assessment of Crown consultation adequacy
- Consultation capacity-building initiatives with First Nations
- Measures to protect the transparency and integrity of the consultation process
Where a project involving land management and resource development is proposed, the Consultation Office will conduct a preliminary assessment to determine:
- Whether consultation is required
- Which First Nations to notify
- The level of required consultation
- Whether procedural aspects of the consultation can be delegated to project proponents
The Consultation Policy will also apply to strategic decisions made by the province. Strategic consultation will be defined in the Operational Guidelines accompanying the policy, once they are finalized.
Consultation corporate guidelines
The province has announced it will adopt Corporate and Operational Guidelines to clarify and direct the consultation process. Draft Corporate Guidelines have been released together with the new Consultation Policy.
The draft Corporate Guidelines include a draft Consultation Process Matrix that categorizes projects and developments as follows:
- Projects or activities with no adverse impact on treaty rights or traditional uses where no further action is required.
- Projects or activities potentially resulting in low adverse impacts on treaty rights or traditional uses.
- Projects or activities potentially resulting in significant or permanent adverse impacts on treaty rights or traditional uses.
Where the Consultation Office's preliminary assessment categorizes a project as Level Two, it will normally delegate procedural aspects of consultation to the proponent. The Consultation Office will generally consult directly with First Nations where a Level Three consultation is indicated.
Both the new Consultation Policy and the Draft Corporate Guidelines indicate that consultation will generally occur within the applicable statutory and regulatory timelines and in accordance with the Corporate Guidelines. Depending on the impact to a First Nation's treaty rights and traditional uses and other factors, consultation may take days or months.
The Consultation Process Matrix sets out basic timelines for various steps in the process from pre consultation assessment until the final Crown decision has been made. The Consultation Process Matrix also lists the various conditions that may extend these deadlines.
Agreements with First Nations
The new Consultation Policy states that Alberta is prepared to enter into specific consultation process agreements with First Nations to clarify the process. Any such agreements will be consistent with the province's new Consultation Policy.
The Consultation Policy encourages proponents to be aware of First Nation consultation protocols and policies, but does not require proponents to comply with them during the consultation process. Where there is a conflict with a First Nation's consultation protocol, the provincial Consultation Policy will prevail.
The negotiation of project impact benefit agreements between First Nations and proponents remains optional and is not a mandatory requirement of consultation.
The province has committed to developing a program to increase capacity funding for First Nations and to fund that program through an industry levy.
Under the Aboriginal Consultation Levy Act, SA 2013, c A-1.2, which has not yet been proclaimed into force, there will be a compulsory levy and disclosure process. Industry proponents will be required to provide the Consultation Office with all consultation-related agreements signed with First Nations, along with proponents' consultation logs. First Nations may also be asked to provide their consultation records.
Alberta will publish this information on an aggregate basis, but has committed to keeping consultation agreements confidential and not disclosing them beyond provincial staff except as required by law. Sanctions will be developed for any proponents who fail to comply with this disclosure process.
Matters not subject to the Consultation Policy
The province has confirmed the Consultation Policy does not apply to leasing and licensing of Crown oil and gas/mineral rights. Development of such rights involving surface land issues will trigger the Consultation Policy. It is not clear if the province's commitment to increase its emphasis on strategic consultation will impact disposition of Crown oil and gas/mineral rights in certain cases.
The Consultation Policy will not apply to private lands where First Nations do not have access to exercise treaty rights and traditional uses.
Alberta Energy Regulator
The Consultation Office will work closely with the new Alberta Energy Regulator to ensure that adequate consultation occurs for decisions on energy project applications before the Regulator. The Regulator has no jurisdiction with respect to assessing the adequacy of Crown consultation.
Norton Rose Fulbright Canada LLP
Norton Rose Fulbright is a global legal practice. We provide the world's pre-eminent corporations and financial institutions with a full business law service. We have more than 3800 lawyers based in over 50 cities across Europe, the United States, Canada, Latin America, Asia, Australia, Africa, the Middle East and Central Asia.
Recognized for our industry focus, we are strong across all the key industry sectors: financial institutions; energy; infrastructure, mining and commodities; transport; technology and innovation; and life sciences and healthcare.
Wherever we are, we operate in accordance with our global business principles of quality, unity and integrity. We aim to provide the highest possible standard of legal service in each of our offices and to maintain that level of quality at every point of contact.
Norton Rose Fulbright LLP, Norton Rose Fulbright Australia, Norton Rose Fulbright Canada LLP, Norton Rose Fulbright South Africa (incorporated as Deneys Reitz Inc) and Fulbright & Jaworski LLP, each of which is a separate legal entity, are members ('the Norton Rose Fulbright members') of Norton Rose Fulbright Verein, a Swiss Verein. Norton Rose Fulbright Verein helps coordinate the activities of the Norton Rose Fulbright members but does not itself provide legal services to clients.
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.