Tansi Nîtôtemtik,
This week we are discussing the Crown’s duty to consult. Today’s post looks at ten little-known, yet telling, facts about Alberta’s policies on consultation with First Nations and Metis Settlements on land and natural resource management and associated guidelines.[1]
#10 Alberta maintains confidential maps of the areas it believes each First Nation and Metis Settlement uses for the exercise of Treaty and Aboriginal rights.
Alberta maintains maps of the areas it believes are used by members of each First Nation and Metis Settlement for the practice of their Treaty or Aboriginal rights. Alberta will direct consultation with a community where a government decision (often a natural resource project) could adversely impact the continued exercise of rights in each community’s consultation map area.[2] The maps are developed by the Government of Alberta using information about where Treaty and Aboriginal rights are being practiced by community members.
The maps are confidential. Project proponents, such as an oil and gas company or even another First Nation, can ask the government who they will need to consult, based on the maps, on a project-by-project basis.
#9 The consultation area maps used by Alberta can change over time.
As of 2019, but likely still today, when Alberta receives new information from communities about where their members are practicing their Aboriginal or Treaty rights, the province may update (or expand) the consultation area maps to include those areas.
#8 Alberta’s policies make no commitment to ensuring the areas delineated in its consultation maps are the same as what the communities consider to be their “traditional territory”.
This is a particular point of contention for some communities.
#7 Alberta’s consultation maps do not correspond to where Indigenous community members have the right to exercise their Treaty and Aboriginal rights.
For example, every member of Alexis First Nation has the right to hunt anywhere in Alberta given the constitutional amendments found in the 1930 Natural Resources Transfer Agreement.[3] Most assuredly, prior to 2019, and likely still today, the consultation map for Alexis First Nation does not cover the whole province of Alberta.
#6 Unlike some projects under federal jurisdiction, all decisions concerning the adequacy of Crown consultation on energy projects in Alberta are made by government bureaucrats.
Where any activity triggers the Crown’s duty to consult and requires approval from the Alberta Energy Regulatory (AER), the resulting consultation process will be managed by the Government of Alberta’s Aboriginal Consultation Office (ACO).[4] The ACO will direct the level (low, medium or high) of consultation required, as contemplated by the Court in Haida [5]. The ACO will also determine if any consultation was “adequate.”[6]
Alberta’s policies stand in stark contrast to the federal process. Under federal jurisdiction, the decision regarding whether consultation is adequate for some projects, such as for the Trans Mountain pipeline expansion, is made by the federal Cabinet.[7]
In practice, as of 2019, but likely still today, Alberta’s rules mean there is little to no involvement of top decision-makers in decisions about whether consultation has been adequate.
Artwork: Alex Janvier's Sunset
#5 There is no requirement in the Alberta policies or guidelines that Indigenous groups must be consulted concerning reclamation plans for large projects, such as oil sands mines.
Many communities want more say in how environmental reclamation proceeds in Alberta.
#4 Alberta’s consultation policies do not address the cumulative effects of development on Treaty or Aboriginal rights.
The policies do not address cumulative effects.
The policy guidelines state that stewardship of the province’s natural resources is the responsibility of the Ministry of Alberta Environment and Sustainable Resources (mostly likely now the mandate of the new Ministry of Environment and Protected Areas).[8] This Ministry is largely responsible for regional planning. While the guidelines recognize that regional planning may require consultation, and cumulative effects management is considered in Alberta’s regional planning framework, it is unclear when First Nations will be consulted on cumulative effects. Meanwhile, only two regional plans out of seven proposed for the province are in place today.[9] Some regions have seen no work on the plans at all.
Many First Nations feel like their concerns about the cumulative effects of development associated with individual projects or groups of projects go unheard.
#3 There is no requirement in the Alberta policies that project proponents provide capacity funding to communities when consultation is required.
While Alberta encourages project proponents to provide capacity funding to communities they consult, this is not required.
#2 Alberta provides communities with negligible capacity funding.
In Budget 2023, the Alberta government devotes $7 million in funding to Indigenous communities for consultation capacity.[10] Given the number of First Nations and Metis Settlements in Alberta, this likely means between $85,000 to $125,000 received by each community. Alberta does provide some one-off funding for some government projects.
This is barely enough to keep lights on in an office space, let alone ensure that natural resource and other projects uphold Treaty and Aboriginal rights of a given community.
#1 No Metis communities in Alberta were recognized as having a right to be consulted until 2015.
The policy on consultation with Metis Settlements was put in place in 2015.[11] This is eleven years after the province recognized the existence of Métis harvesters with constitutionally protected Aboriginal rights in Alberta since initial negotiations with the Métis Nation of Alberta on recognizing harvesting rights were concluded in 2004.[12]
Negotiations with the Métis Nation of Alberta to implement an off-settlement Metis Consultation Policy in Alberta, started in 2014, were unilaterally cancelled by the province in 2019, shortly after the United Conservative Party was elected.[13]
Since 2019, the Government of Alberta has recognized potentially rights-bearing Metis communities in Fort McKay and Lac Ste. Anne for the purposes of consultation.[14]
…
Hopefully, this top ten list has given readers a taste of some of the areas in which Alberta’s consultation policies need improvement if Alberta is to live up to its Treaty and constitutionally mandated promises to Indigenous peoples. The list could easily have been a top 100.
Until next time,
The Reconcili-ACTION YEG Team
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[1] Alberta, Indigenous Relations, The Government of Alberta’s Policy on Consultation with First Nations on Land and Natural Resource Management, 2013 (Policy, 1 April 2020), online(pdf): Government of Alberta <www.open.alberta.ca> [https://perma.cc/7J3P-SQ9E] [First Nations]; Alberta, Indigenous Relations, The Government of Alberta’s Policy on Consultation with Metis Settlements on Land and Natural Resource Management, 2015 (Policy, 1 April 2020), online (pdf): Government of Alberta <www.open.alberta.ca> [https://perma.cc/R3LB-BQHJ] [Metis Settlements]; Alberta, Indigenous Relations, The Government of Alberta’s Guidelines on Consultation with First Nations on Land and Natural Resource Management, July 28, 2014 (Guidelines), online(pdf): Government of Alberta www.open.alberta.ca [https://perma.cc/FY23-P9HT] [Guidelines].
[2] First Nations, supra note 1 at 8.
[3] See R v Badger, [1996] CanLII 236 (SCC) at paras 33, 100, [1996] 1 SCR 771.
[4] Guidelines, supra note 1 at 4.
[5] See Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 [Haida].
[6] Guidelines, supra note 1 at 4.
[7] See Tsleil-Waututh Nation v Canada (Attorney General), 2018 FCA 153.
[8] Guidelines, supra note 1 at 4.
[9] Government of Alberta, “Regional Planning Indicators” (Accessed 21 March 2023), online: Land-use Framework Progress Reporting <www.lufereporting-esrd.hub.arcgis.com> [https://perma.cc/NLL3-BPXY].
[10] Alberta, Indigenous Relations, Ministry Business Plan Indigenous Relations (Budget, 2023), online: Government of Alberta <www.open.alberta.ca> [https://perma.cc/Z3X7-LSRM].
[11] Metis Settlements, supra note 1.
[12] See R v Kelley, 2007 ABQB 41.
[13] Métis Nation of Alberta Association v Alberta (Indigenous Relations), 2022 ABQB 6.
[14] Alberta, Indigenous Relations, Metis Consultation Contacts (27 February 2023), online(pdf): Government of Alberta <www.alberta.ca> [https://perma.cc/PSE9-BUE7].