Canada: Alberta Finalizes First Nation Consultation Guidelines

On July 28, 2014, the Government of Alberta released the final version of its Guidelines on Consultation with First Nations on Land and Natural Resource Management (Guidelines). The Guidelines, and the Government of Alberta's Policy on Consultation with First Nations on Land and Natural Resource Management, 2013 (Policy), replace its former 2005 policy and 2007 guidelines.

For industry, the primary effect of the new Guidelines appears to be the identification of anticipated levels of consultation for various activities within each industry sector, and the timelines within which consultation is expected to take place for each of these activities.

The new Guidelines and Policy are now in effect. For more on the Policy, see our November 2013 Blakes Bulletin: Centralizing the Duty to Consult: Alberta's New Aboriginal Consultation Office. Any consultation process underway prior to July 28, 2014 remains under the direction of the 2007 guidelines.

PURPOSE

The Guidelines, in conjunction with the Policy, are intended to provide clarity regarding the roles and responsibilities for each of the parties involved in First Nation consultation processes in Alberta (i.e., government, project proponents and First Nations). The Guidelines identify three goals to be met throughout First Nation consultation processes:

  • Gaining a better understanding of First Nations concerns regarding potential adverse impacts of a project on the exercise of treaty rights and traditional uses
  • Substantially addressing these concerns through a meaningful process
  • Developing positive working relations

Since consultation is fact-specific, the Guidelines only represent a starting point and highlight that the process must be flexible enough for the Government of Alberta to assess consultation requirements on a case-by-case basis.

The Guidelines will be reviewed every year to ensure that their goals and purposes continue to be in line with evolving needs and best practices.

BACKGROUND

Court decisions have established that the "Crown" (in this case the Government of Alberta) has a duty to consult – and potentially accommodate – First Nations when the Crown contemplates conduct that could have an adverse impact on the exercise of First Nation treaty rights. The Guidelines are stated to be intended to be consistent with this case law and to provide a practical approach to meeting the requirements established by the courts.

The Policy outlines that a duty to consult arises when:

  • The Government of Alberta has real or constructive knowledge of a right
  • The government contemplates making a decision relating to land and natural resource management
  • That decision has the potential to adversely impact the continued exercise of a treaty right

The Policy also provides that the Government of Alberta will consult with First Nations when traditional uses, which may not be formalized within treaties, have the potential to be impacted by Government decisions.

ROLES AND RESPONSIBILITIES

Although the duty to consult is the government's responsibility, the government may delegate certain aspects of the consultation process to other parties, including project proponents.

Aboriginal Consultation Office

In an attempt to strengthen the Government of Alberta's role in First Nations consultation processes, the government created the Aboriginal Consultation Office (ACO). The ACO is intended to provide a "consultant management service" to meet the needs of various other parties involved in consultation processes.

The ACO has an obligation to uphold the honour of the Crown while ensuring that a particular consultation process is followed correctly. The ACO is involved in most stages of the consultation process including providing advice or direction during the pre-consultation stage, providing advice or direction during the consultation stage, assisting with dispute resolution, evaluating consultation records, and providing an assessment of consultation adequacy.

Industry

A project proponent will be involved in the consultation process when the Crown has delegated procedural aspects of the duty to consult to the project proponent. These may include notifying and engaging with First Nations regarding a proposed project, identifying potential issues and providing options to mitigate or eliminate these issues.

The Guidelines encourage project proponents to engage with First Nations as early as possible in the pre-application stage of their proposed activities. The Guidelines also state that a project proponent may be required to repeat certain steps or take further steps to ensure that proper consultation has occurred. The government has indicated that it is planning on providing additional details on the administrative steps, submission standards and requirements for industry in the consultation process in a "proponent's guide to consultation."

First Nations

The responsibility of First Nations is to respond to notifications from a project proponent or the Crown. This response is intended to be in writing, to identify the location of the potential adverse impacts, and to clearly identify the potential adverse impacts on treaty rights and traditional land uses that require further consultation.

Once the consultation process is underway, First Nations are expected to engage and work with the Crown and project proponents on avoiding, minimizing, or mitigating impacts.

Alberta Energy Regulator

The Alberta Energy Regulator (AER) has jurisdiction for upstream oil, gas, oilsands and coal activities. The Responsible Energy Development Act expressly provides that the AER does not have the jurisdiction to assess the adequacy of Crown consultation; however, the Guidelines provide that the ACO is expected to work closely with the ACO to ensure that consultation occurs prior to a decision by the AER. The ACO, where appropriate, is also expected to provide the AER with advice relating to the mitigation of potential impacts to treaty rights and traditional uses. Statements of concern received by the AER from First Nations can also be provided to the ACO and the ACO may provide comments in response to the expressed concerns.

Further details on the interaction between the AER and the ACO is provided in Ministerial Order 141/2013, the Aboriginal Consultation Directive. The Guidelines also indicate that the AER and ACO are cooperatively developing joint operating procedures for administration and coordination of AER and ACO operations.

Other Government Agencies

Various other Government of Alberta entities will be involved in First Nation consultation processes depending on the type of activity that is being proposed. These include: Alberta Environment and Sustainable Resource Development (regional/provincial policies, regional/provincial plans and other planning initiatives); Alberta Culture, Historic Resources Management Branch (protection of historic resources); Alberta Tourism, Parks and Recreation (building or expanding parks, park management plans, new facilities within parks); Alberta Municipal Affairs (Special Areas land); Alberta Transportation (highway and bridge design); and Alberta Infrastructure (building or altering government-owned infrastructure). Details on their intended roles are provided in the Guidelines.

CONSULTATION PROCESS

The Guidelines identify six stages in the consultation process:

1. Pre-consultation Assessment

  • Intended to assess if consultation is required
  • Where consultation is required, the ACO will determine which First Nations should be consulted, the potential adverse effects of a project, the scope of the duty to consult and the level of consultation

2. Information Sharing

  • The ACO will review information about the proposed project including maps of the project area, proposed activities to be undertaken, information on treaty rights and traditional land use, and other relevant documents

3. Determining the Level of Consultation

  • The ACO will notify the project proponent of the First Nations groups to be consulted and the level of consultation required. The proponent must then follow the process and timelines according to the level of consultation assigned.

4.Exploring Concerns

  • Project proponents are expected to identify, consider and where applicable, mitigate any concerns expressed by First Nations with respect to treaty rights and traditional land use. Any concerns or issues should be properly documented in the consultation record. The ACO will consider the adequacy of the consultation, in part, based on the project proponent's efforts to identify and address concerns.

5. Verifying the Record of Consultation

  • Once the record of consultation is complete, the project proponent must send a copy to the relevant First Nations for review
  • The First Nations have the opportunity to comment on the record of consultation to both the project proponent and the ACO
  • Where gaps in consultation are identified, the ACO will work with the project proponent to address these gaps

6. Determining Consultation Adequacy

  • The ACO determines the adequacy of the consultation and reports to the AER or provides a recommendation to the Crown decision-maker

TIMELINES

The Guidelines provide processing timelines for the ACO, although the timelines are subject to revision depending on the circumstances of each case. The Guidelines also set out response times for First Nations following project notification and timelines for responses by project proponents.

APPENDICES

Sector-Specific Consultation Matrices

Appendix A to the Guidelines outlines activities in various sectors that will require consultation. The sectors include forestry and fire management; transmission line and utility corridor geophysical; coal, minerals and quarries; pipelines; sand and gravel; and petroleum, natural gas and oilsands. Within each sector, various activities are identified as either low impact requiring streamlined consultation, moderate impact requiring standard consultation, or high impact requiring extensive consultation. Low impact activities are short in duration (less than two years), small in size (less than five hectares) and have low environmental impacts. Moderate impacts are moderate in duration (more than two years), moderate in size (more than five hectares) and have moderate environmental impacts. High impact activities have a duration of more than 10 years, are large in scale and size, have extensive environmental impacts, and require approval from various regulatory authorities.

Sector-Specific Activities That May Not Require Consultation

Appendix B identifies certain activities that may not require consultation. Generally, consultation may not be required if consultation has taken place within two years and the scope or footprint of the project has not changed; or amendment approvals or renewals are required with no changes to the original project. The Guidelines list different activities within the listed sectors from Appendix A that may not require consultation.

Non Sector-Specific Activities That Do Not Require Consultation

Appendix C lists a number of activities and applications that will not require consultation including an activity that is regulated by a code of practice under the Water Act or Environmental Protection and Enhancement Act; activities requiring temporary, short-term access to public land and are identified as "not requiring consultation" under the Temporary Field Authorization Guidelines; and adjustments, repairs, replacements, or maintenance made in the normal course of operations.

SUMMARY

For industry, the primary effect of the new Guidelines appears to be the identification of anticipated levels of consultation for various identified activities within each industry sector, and the timelines within which consultation is expected to take place for each of these activities. While some industry participants may not agree with these categorizations, in theory the identification of anticipated levels and timing should at least be useful as a frame of reference for the depth and timing of actual consultation. These categorizations may also be useful in clearly identifying a default position in the absence of engagement by a First Nation.

While these steps appear useful in general terms, ultimately the Policy and Guidelines will only achieve their objectives if the ACO is able to perform its roles in a consistent, predictable manner, and in line with the timing and expectations set out in the Guidelines. As acknowledged in the Guidelines, equally important is the coordination of roles of the ACO and the AER. Without efficient and effective coordination in this area, not only will the objectives of the Policy and Guidelines not be met but, in many cases, the regulatory objectives underlying the Responsible Energy Development Act and the creation of the AER will also not be met.

Ultimately, the Guidelines are only one part of Alberta's continuing policy development in this area. By indicating that the Guidelines will be subject to annual review, the Guidelines themselves highlight that they are simply a current iteration of what is expected to be an ongoing evolution of government policy and approaches in this continually changing area. Stay tuned.

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.

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