Environmental, Indigenous and Natural Resources Blog

On August 16, 2013, the Government of Alberta released its new Policy on Consultation with First Nations on Land and Natural Resource Management dated June 3, 2013 (the “Consultation Policy”), as well as revised drafts of the Corporate Guidelines for First Nations Consultation Activities (the “Draft Corporate Guidelines”), and the First Nations Consultation Matrix (the “Draft Consultation Matrix”).

The Consultation Policy will not take effect until the Aboriginal Consultation Office is operational, which is anticipated to occur this fall. The current Consultation Policy (May 16, 2005) and Consultation Guidelines (November 14, 2007) will remain in effect, with necessary modifications, until the Consultation Office is up and running and new operational guidelines have been released. Until then, engagement with First Nations, industry and other stakeholders will continue on key features of the Consultation Policy, including the Consultation Office, the operational guidelines, the Aboriginal consultation levy and provisions on consultation process agreements.

With the release of the Consultation Policy, the Government of Alberta is poised to take the next steps, including finalizing the Draft Corporate Guidelines, Draft Consultation Matrix and operational guidelines, in implementing its new approach to consultations with First Nations.

New Consultation Policy

The Consultation Policy does not represent a significant departure from the draft released for public comment in April. Minor amendments have been made to clarify the interconnectivity between the scope of the Consultation Policy and Aboriginal rights, including the following addition to the Guiding Principles associated with meaningful consultation:

Alberta will solicit, listen carefully to, and seriously consider First Nations’ concerns with a view to substantially address potential adverse impacts on Treaty rights and traditional uses.

The Consultation Policy now provides for annual discussions in separate engagements with First Nations, industry and other stakeholders. The April draft stated that the policy would be reviewed periodically on a government-to-government basis.  Given the continuing evolution in case law and expectations associated with Aboriginal consultations, more frequent opportunities to review and comment on the Government’s approach to Aboriginal consultation is a positive change.

Perhaps the most significant change is the addition of a Transparency of Process section, which anticipates the Aboriginal Consultation Levy Act (Bill 22). This Act received Royal Assent on May 27, 2013, but is not yet in force.  For more information on the Aboriginal Consultation Levy Act see our Project Law Blog on Bill 22.  The Consultation Policy states that the consultation levy has been established to assist in transparency and increase consultation capacity of First Nations and notes that the option to enter into project impact benefit agreements is still open for project proponents and First Nations.  While the provisions in the Consultation Policy on transparency are innocuous enough, the supporting measures set out in the Draft Corporate Guidelines (see below) may be more controversial.

Draft Corporate Guidelines and Consultation Matrix

Along with the Consultation Policy, the Government of Alberta has also released revised versions of the supporting corporate guidelines and consultation matrix.  Unlike the Consultation Policy, these documents are still considered to be drafts subject to further revision.  The Draft Corporate Guidelines and Draft Consultation Matrix remain largely unchanged from the April drafts.  Two changes are however worthy of note.

• The Draft Corporate Guidelines also include a new Transparency of Process section, which will be implemented to support the Transparency of Process provisions of the Consultation Policy.  The Draft Corporate Guidelines indicate that the Government of Alberta is willing to negotiate consultation process agreements with individual First Nations.  However, where a cooperative arrangement cannot be developed, Alberta will rely on the compulsory disclosure mechanisms provided under the Aboriginal Consultation Levy Act. Proponents will be required to provide the Consultation Office with all consultation-related agreements signed with First Nations in conjunction with the consultation logs.   This change addresses one area of uncertainty with respect to Alberta’s plan to implement the Aboriginal Consultation Levy Act.
• The Draft Consultation Matrix, unlike the previous April draft, does not include specific examples of the projects that fall within the scope of each of the three levels of consultation, instead the new Draft Consultation Matrix states that details relating to the relevant projects/activities “will be included in forthcoming operational matrices.”

The new Consultation Policy and the Draft Corporate Guidelines and Draft Consultation Matrix supersede the previous drafts of these guidance documents released for public comment in April.  This latest release has provided increased clarity to industry and First Nations about the Government’s approach and expectations for Aboriginal consultations.  However, important steps remain to be taken in implementing the new approach, including finalizing the Draft Consultation Guidelines and Draft Consultation Matrix, drafting the forthcoming operational guidelines, consolidating the Government’s consultation responsibilities in the Consultation Office, and confirming details about the cost and administration of the consultation levy.