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New Consultation Policy and Guidelines for Métis Settlements in Alberta

Posted in Aboriginal, Constitutional Law, Consultation, Project Development, Project Permitting, Regulatory, Regulatory Compliance
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On April 4, 2016, the Government of Alberta (“GoA”) implemented its first formal consultation process between the government, project proponents, and Métis Settlements with the release of The Government of Alberta’s Guidelines on Consultation with Métis Settlements on Land and Natural Resource Management, 2016 (“Guidelines”) and The Government of Alberta’s Policy on Consultation with Métis Settlements on Land and Natural Resource Management, 2015 (“Policy”)The Guidelines and Policy apply to the eight Métis Settlements created under the Alberta-Métis Settlements Accord, but do not apply to consultations with other Métis groups in Alberta.

The Métis consultation process is closely modeled after the current First Nations consultation policy and guidelines which came into effect in 2013. The GoA has said that development of the Policy aligns with its commitment to implement the objectives and principles of the United Nations Declaration on the Rights of Indigenous People (“UNDRIP”). For more information on UNDRIP, see our previous blog post.

The Guidelines provide for consultation on strategic and project-specific decisions that have the potential to adversely impact Métis Settlement members’ harvesting or traditional use activities. Decisions that trigger consultation could include regulatory changes, infrastructure and facility development, policy development and planning initiatives. The Guidelines are intended to clarify the expectations of parties engaged in the consultation process and provide an overview of the procedures to follow. The process, however, is meant to be flexible enough to allow the GoA to assess consultation requirements on a case-by-case basis.

Under the Guidelines, the GoA is responsible for overseeing and managing the substantive aspects of consultation. This includes: a) whether consultation is triggered; b) the depth of the consultation; c) providing notice to the Métis Settlement; d) considering information to the specific project; and, e) assessing accommodation. Similar to consultation requirements with First Nations, the GoA may delegate procedural aspects but retains the sole responsibility for overseeing the overall consultation process and ensuring that the proponent’s consultation activities comply with the Policy and Guidelines.

The Guidelines also include two appendices. The appendices provide further information for sector-specific consultation. Generally, if consultation was deemed adequate within the past two years or if amendments and renewals are within the scope of the original approval, consultation may not be required.

Involvement of the Alberta Energy Regulator

For activities requiring Alberta Energy Regulator (“AER”) approval, the Aboriginal Consultation Office (“ACO”) will manage the consultation process for the GoA. Interaction between the ACO and AER will be described in a new Ministerial Order and the ACO and AER will either create or update the existing joint operating procedures to set out the operations of the ACO and the AER on matters relating to Métis Settlements consultation. Once consultation has been completed, the ACO will decide whether consultation was adequate and provide that decision to the AER. The Guidelines provide that the ACO will work closely with the AER so that consultation requirements for applications made to the AER will occur prior to the AER’s regulatory decision.

Timelines

Generally, the GoA assessment of consultation adequacy will occur within statutory and regulatory timelines, depending on the specifics of the proposed project or initiative, consultation timelines may vary. Through the delegation process, project proponents may be required to notify and engage with Métis Settlements to discuss project-specific issues and possible mitigation. Proponents are encouraged to notify and consult with Métis Settlements as early as possible in the pre-application stage and must document their consultation activities. The consultation record is shared with Métis Settlements and GoA staff.

The Guidelines provide timelines for three levels of consultation, depending on whether the project has a low, moderate or high impact. The Métis Settlement has between 15-20 days to respond to notification and the consultation process may last anywhere from 15 to 60 days.

Comparison to Consultation with First Nations

The Guidelines are comparable to The Government of Alberta’s Guidelines on Consultation with First Nations on Land and Natural Resource Management, July 28, 2014. The purposes of both guidelines are similar and the primary goal of accommodation remains to avoid, minimize, or mitigate adverse impacts of a Crown decision. There are not substantive differences between the two policies and guidelines.

In terms of the stages of consultation, proponents can continue to follow the same process with Métis Settlements as they have been following with First Nations. The consultation process is identical in both guidelines.

As noted at the outset, the Policy and the Guidelines only apply to consultations with Alberta’s eight Métis Settlements. Although reports have suggested that the GoA is discussing consultation processes with other Alberta Métis groups, this announcement does not apply to those groups, or shed any light on whether or how the GoA will approach consultations with them.