Canada: Alberta's Policy On Consultation With First Nations On Land And Natural Resource Management, 2013

Last Updated: September 12 2013
Article by Alison J. Gray and David A. McGillivray

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.


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.


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.


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.


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" ( 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.

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.

Alison J. Gray
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.