A Hard Look at Consultation and
Accommodation – Alberta and BC Report
Hannah Roskey
Insight Information Aboriginal Land Resource Management Forum
Toronto April 28 and 29, 2014
Overview
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Alberta First Nations Consultation Policy
Bill 22 – Aboriginal Consultation Levy Act
Assessing the Adequacy of Consultation
British Columbia – General Overview
British Columbia – Ktunaxa Nation v. BC (April 3, 2014)
Alberta Consultation Policy
• On April 2, 2013, Alberta Minister for Aboriginal Affairs
released three draft documents for review and comment:
• First Nation Consultation Policy
• First Nation Consultation Corporate Guidelines
• First Nation Consultation Matrix
Alberta Consultation Policy
• Consultation Policy applies to:
• First Nations only (not Métis)
• Both strategic and project-specific Crown decisions
• Does not apply to:
• Granting of Crown mineral rights
• Private lands that First Nations do not have access to for
exercising Treaty rights and traditional uses
• Crown decisions on policy matters not related to land and natural
resource management
• Emergency situations that may impact public safety and security
Alberta Consultation Policy
• Under previous 2005 Consultation Policy:
• First Nations had 21 calendar days to communicate their
concerns with a proposed project
• Other deadlines were project-specific
• Under new Consultation Policy:
• Each stage of consultation has a specified deadline
• Deadlines may be extended
Alberta Consultation Policy
• 2005 Policy:
• Government departments had their own consultation
processes
• New Policy:
• New centralized Aboriginal Consultation Office
Alberta Consultation Policy
• Aboriginal Consultation Office will undertake:
• Pre-consultation assessments
• Assessment of consultation adequacy
• Provision of capacity-building initiatives
• Collection and disclosure of consultation related financial
agreements between industry and First Nations
• Coordination with the Alberta Energy Regulator (AER) - the
new omnibus energy regulator in Alberta
Alberta Consultation Policy
• 2005 Policy:
• No “levels” of projects
• New Policy:
• 3 “levels” of projects, as well as a 4th category of Crowndriven projects
Alberta Consultation Policy
• 2005 Policy:
• Some government capacity funding
• New Policy:
• A consultation capacity building levy is being proposed for
industry, which will be managed and distributed by the
Aboriginal Consultation Office
• All “consultation related agreements” signed between
industry and First Nations will have to be disclosed to the
Consultation Office, or else project proponents will face
sanctions. They will be kept confidential, but “aggregated
information” will be published on a regular basis.
Alberta Consultation Policy
• In August 2013, the Government of Alberta’s Policy on
Consultation with First Nations on Land and Natural
Resources Management, 2013 was released
• Generally tracks draft Policy
• Shifts emphasis towards reconciliation, Crown’s duty as
defined in Mikisew Cree, and opportunity for consultation
on strategic decisions
• Corporate Guidelines and Consultation Matrix remain in
draft form
• New Policy not in effect until new Aboriginal Consultation
Office is fully established (spring 2014)
Bill 22 – Aboriginal Consultation Levy
Act
• Provisions for consultation levy
• Proponents must pay a consultation levy as set out in the
Regulations
• Levies and other moneys from government go into
Consultation Levy Fund
• Fund may only be used to make grants to assist in
developing capacity to participate in and meet the costs of
Crown consultation - and to pay the costs of administering
the Act
• Responsibility for and amount of levy under discussion, but
have not been finalized
Bill 22 – Aboriginal Consultation Levy
Act
• Provisions for filing of agreements with First Nations
8(1) The Minister may, in accordance with the regulations, require
a proponent to provide the Minister with information, including third
party personal information, records or other documents, including
copies of agreements relating to consultation capacity and other
benefits pertaining to provincial regulated activities, for one or both
of the following purposes:
(a) to assist in determining the amount of grants to be provided
to First Nations and other identified aboriginal groups;
(b) to plan or facilitate any required Crown consultation in
respect of regulated provincial activities.
Assessing the Adequacy of Consultation
•The AER does not have the jurisdiction to assess the
adequacy of Crown consultation with First Nations
Crown consultation with aboriginal peoples
21 The Regulator has no jurisdiction with respect to assessing the
adequacy of Crown consultation associated with the rights of
aboriginal peoples as recognized and affirmed under Part II of the
Constitution Act, 1982. (Responsible Energy Development Act)
•However, First Nation (and Métis) rights can satisfy the AER’s
standing test (e.g., rights may be directly and adversely
affected by a proposed development) and therefore First
Nations may still be involved in AER processes
Assessing the Adequacy of Consultation
• Government expects the Aboriginal Consultation Office to
make assessments of adequacy and then “feed in” to AER
process
• On November 26, 2013, the Minister of Energy issued
Ministerial Order 141/2013 – the “Aboriginal Consultation
Directive”
• Intended to ensure that the AER considers and makes
decisions in respect of energy applications in a manner that is
consistent with the work of the Government of Alberta in
meeting its consultation obligations associated with the
existing rights of Aboriginal people
• Direction gives eight specific directions to the AER and sets
up a process on Aboriginal consultation that the AER must
follow
British Columbia – General Overview
• BC continues to generate consultation-related jurisprudence
• Moulton/Behn (SCC)
• Inappropriate of self-help remedies but potential new
individually-oriented treaty right
• Louis (BCCA)
• Consultation related to brownfield developments
• Roger William (SCC under consideration)
• Aboriginal title and duty to consult regarding infringements of
Aboriginal title
• Northern Gateway and Kinder Morgan oil pipelines and
various LNG proposals may generate even further cases
British Columbia – Ktunaxa v. BC
• Ktunaxa Nation v. BC (April 3, 2014) (2014 BCSC 568)
• Case concerning proposed Jumbo ski resort and adequacy of
accommodation regarding spiritual rights (resort would cause
the Grizzly Spirit to leave the Jumbo Valley) and Charter right
to freedom of religion
• Ktunaxa argued that no accommodation was adequate so
permission to develop resort had to be denied
British Columbia – Ktunaxa v. BC
• Judge found consultation and accommodation to be
reasonable
• Assessed accommodation of spiritual right, but also considered in
context of entire consultation process and timeliness (lateness) of
claim by Ktunaxa
• Used test in Alberta v. Hutterian Brethren of Wilson Colony
(2009 SCC 37) to assess Charter claim
• Ktunaxa met first part of test (the claimant sincerely believes in a
belief or practice that has a nexus with religion)
• Didn’t meet second part since no direct interference with religious
practices (the impugned measure interferes with the claimant’s
ability to act in accordance with his or her religious beliefs in a
manner that is more than trivial or insubstantial)