Alberta Aboriginal
Consultation Process
Presentation to the CAPF
February 9, 10, & 11, 2010
Dave Coish,
Aboriginal Consultation Unit, SRD
Outline of Presentation
 History and general introduction to First
Nations consultation in Alberta
 Guiding Principles
 Alberta’s duty and delegated consultation
 Role of the proponent
 Role of the Crown
 Key points
Alberta’s Aboriginal Peoples
 Approx 170,000 people of First
Nations ancestry live in Alberta
 Three Treaty areas (Treaties 6,
7 and 8).
 47 First Nations, 8 Métis
Settlements, Inuit, and off
settlement Métis
b. Constitutional Act, 1930
The Natural Resources Transfer Agreement
(NRTA)
BEFORE 1930 PUBLIC LAND IN ALBERTA
WAS ADMINISTERED BY DOMINION OF CANADA
12. In order to secure to the Indians of the Province the continuance of
the supply of game and fish for their support and subsistence,
Canada agrees that the laws respecting game in force in the
Province from time to time shall apply to the Indians within the
boundaries thereof. provided, however, that the said Indians shall
have the right, which the Province hereby assures to them, of
hunting, trapping and fishing game and fish for food at all seasons
of the year on all unoccupied Crown lands and on any other lands
to which the said Indians may have a right of access.
Section 35, Constitution Act,
1982
“THE EXISTING ABORIGNAL AND
TREATY RIGHTS OF THE ABORIGINAL
PEOPLES OF CANADA ARE HEREBY
RECOGNIZED AND AFFIRMED.”
Aboriginal Consultation
Evolution through Case Law
Three leading SCC Consultation Cases
- Sparrow (Infringement)
- Haida Nation & Taku River (asserted rights)
- Mikisew Cree First Nation (taking up of lands)
All three cases confirm Alberta’s obligation to consult where
projects/decisions have the potential to adversely impact First
Nations treaty rights
Aboriginal Consultation
Evolution through Case Law
Sparrow Decision:
The SCC - Defines what constitutes an infringement
The SCC – Defines how an infringement can be justified
Haida & Taku Decisions:
The SCC - Obligation to consult arises; Scope & Objective of
consultation; Delegation of aspects of consultation
Mikisew Decision:
The SCC: Defined the “taking up of lands” by the Crown; the
threshold for consultation; Notice to First Nation
Alberta’s Duty to Consult
Alberta’s First Nations Consultation Policy
(2005) and Guidelines (2006 & revised 2007) on
Land Management and Resource
Development are Alberta’s direction on
how to implement the consultation process
as defined by case law
Two Aspects to the
Consultation Process
Legal Duty



S. 35 Common law
requirements – Honour
of the Crown
Potential to adversely
impact Treaty Rights.
Impacts to Treaty land
Entitlements
Good Governance / Policy
Reasons

Make informed decisions

Improve and create
working relations with
those affected

Risk management
Consultation Process
 Alberta may carry out the duty to consult, or
delegate certain procedural aspects of
consultation to the project proponent
 Even when some aspects are delegated, Alberta
remains fully engaged in the substantive aspects
of consultation, and carries the legal liability for
ensuring adequacy of consultation
Delegated Consultation
Aspects of Consultation Process
Responsibility
Determine if the proposed activity has the potential to
adversely impact First Nations Treaty Rights or traditional
uses
Alberta
Determine which First Nations should be consulted
Alberta
Present project to First Nations, record concerns, discuss
modifications to project to address concerns
Project Proponent
Submit a consultation summary to Alberta with a copy to
First Nation
Project Proponent
Review and judge adequacy of consultation as presented
in the consultation summary
Alberta
Make decision regarding project approval, and advise
project proponent and First Nations
Alberta
Role of the Proponent
 Provide a plain language description of the
project including maps and contact information
 Identify potential adverse impacts to First
Nations Treaty Rights & Traditional Uses
 Initiate meetings early in the process
Role of the Proponent (cont’d)
 Develop strategies to avoid or mitigate identified
potential adverse impacts
 Record all efforts at consultation including
concerns brought forward and how these were
addressed
 Submit a consultation summary to Alberta for
adequacy review
Role of the Crown
(during the delegated aspects of consultation)
 To ensure the Proponent's consultation is consistent with
the Policy and Guidelines
 To respond to questions from the Proponent and the
First Nation
 To make recommendations to the Proponent's
consultation plan, as necessary
 To provide assistance and direction when differences
arise between the Proponent and the First Nation
 To determine the adequacy of the consultation at the end
of the process
Accommodation
 Consultation is about process, accommodation
is about action – making changes to plans
 When accommodation is required, the Crown
must balance aboriginal concerns reasonably
with other societal interests (Haida, para. 50)
Key Points
 Consultation with First Nations is required
 Alberta has the legal & policy responsibility for
consultation
 The proponent meets with First Nations to listen
to, and if possible, address concerns
 The proponent provides a consultation summary
to Alberta
 Alberta judges adequacy of consultation and
makes decision
Questions?
Dave Coish
Phone: 780-644-8733
Email: Dave.Coish@gov.ab.ca