Alberta Government Releases Guidelines to Clarify First Nations Consultation Process

On July 28, 2014, the Government of Alberta (Alberta) issued its Guidelines on Consultation with First Nations on Land and Natural Resource Management (the Guidelines). The Guidelines supplement the Policy on Consultation with First Nations on Land and Natural Resource Management (the Policy), which was issued in August 2013. While the Policy provides a general overview of the consultation process, the intent of the Guidelines is to outline specific consultation procedures that should be followed.

The Guidelines replace the previous 2007 document, which outlined separate consultation procedures for each government department. The new Guidelines provide a centralized process that applies to all strategic and project-specific decisions that have the potential to adversely impact First Nations’ Treaty rights and traditional uses. The Guidelines came into effect on the date of their release and apply to any consultation process initiated after their release. This bulletin summarizes the procedures outlined in the Guidelines.

Roles and Responsibilities in the Consultation Process

Alberta recognizes that a duty to consult First Nations exists when three factors are present:

  1. Alberta has a real or constructive knowledge of a right.
  2. Alberta is contemplating a decision relating to land and natural resource management.
  3. Alberta’s decision has the potential to adversely impact the continued exercise of the right.

When the duty to consult is engaged, it triggers various roles and responsibilities for Alberta, project proponents, the Alberta Energy Regulator (AER), and First Nations:

  • Alberta: The duty to consult rests with Alberta. Alberta has created the Aboriginal Consultation Office (ACO) to provide consultation management services, which include providing pre-consultation assessments, advice and direction through the consultation process, and a decision or recommendation on consultation adequacy.
  • Project proponents: Alberta may delegate certain procedural aspects of consultation to the project proponent, namely, contacting First Nations, presenting and describing project plans, and modifying project plans in response to concerns raised during consultation. The Guidelines indicate that a “proponent’s guide to consultation” is presently being developed to further clarify this process.
  • AER: Under section 21 of the Responsible Energy Development Act, the AER has no jurisdiction to assess the adequacy of Crown consultation. However, the ACO will work closely with the AER to ensure that any necessary consultation occurs prior to the AER’s decision.
  • First Nations: First Nations are expected to respond to notifications of proposed decisions or activities to advise whether their Treaty rights or traditional uses may be affected. First Nations are also expected to work with Alberta and project proponents to avoid, minimize, or mitigate project impacts to their rights.

Process and Timelines for Consultation

The Guidelines outline six broad stages of consultation:

  1. Pre-consultation assessment: When a request is received, the ACO will conduct a preliminary assessment of the project to determine if consultation is required.
  2. Information sharing: After receiving a request, the ACO will consider the project information and any available information regarding Treaty rights and traditional uses in the project area to determine whether consultation is required, and if so, at what level.
    • Determining the level of consultation: The level of consultation relates to the nature of the project and its potential impacts on Treaty rights and traditional uses. It dictates the scope of the consultation and what steps are necessary:
      Level 1 projects require “streamlined” consultation, which involves notification with an opportunity for the First Nation to respond;
    • Level 2 projects require “standard” consultation, which involves notification with an opportunity for the First Nation to respond and required follow-up by the proponent; and
    • Level 3 projects require “extensive” consultation, which involves preparation of a consultation plan, notification with an opportunity for the First Nation to respond, and required follow-up by the proponent.
  3. Exploring concerns: Once a proponent has provided an information package to the First Nation and followed-up as needed, the proponent is encouraged to consider options to avoid, minimize, or mitigate impacts to Treaty rights and traditional uses. Exploration of those concerns should be thoroughly documented in the consultation record, and when consultation adequacy is assessed it will take into account the proponent’s efforts to address First Nation concerns.
  4. Verifying the consultation record: Proponents must send a copy of the consultation record to the First Nation for review.
  5. Determining consultation adequacy: For AER approvals, the ACO is responsible for determining whether consultation is adequate. In other cases, the ACO will provide a recommendation to the Crown decision-maker as to whether consultation is adequate.

Depending on the level of consultation that is required, the timelines for each stage may vary. However, the Guidelines recognize that timelines may need to be extended in certain circumstances.

Appendices to the Guidelines provide “sector-specific consultation matrices” as a planning tool for proponents and to support transparency with First Nations. The matrices identify the nature of an activity and its potential impact, and propose the depth of consultation that may be required in the absence of other factors.

Alberta indicates that the Guidelines may be updated annually to incorporate feedback from government ministries, First Nations and proponents. 

* Hannah Roskey is an associate in the Litigation & Dispute Resolution practice group in the Calgary office of Fasken Martineau DuMoulin LLP. A significant portion of Hannah’s practice involves assisting project applicants in regulatory proceedings.

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