Consultation Guidelines FAQ

Q. When did Alberta’s First Nations Consultation Policy and the Guidelines come into effect?

The Government of Alberta’s First Nations Consultation Policy on Land Management and Resource Development was released on May 16, 2005. The operational Consultation Guidelines came into effect on September 1, 2006 and were revised on November 14, 2007 based on First Nations and industry stakeholder feedback during the first full year of implementation. Alberta continues to monitor the efficiency and effectiveness of the consultation process and is taking a proactive approach as experience with First Nations consultation in the province evolves, as highlighted by the province’s ongoing review of the First Nations Consultation Policy and Guidelines. Court decisions also continue to provide the government with guidance in developing the consultation process.  

Q. When is First Nations consultation required? 

Alberta has a policy commitment to consult where the Crown’s land management and resource development decisions may adversely impact First Nations Rights and Traditional Uses of public lands. This includes First Nations constitutionally protected rights to hunt, trap and fish for food on unoccupied Crown land. 

Q. Who did Alberta work with to develop the First Nations consultation process? Were First Nations engaged in this process?

In developing both the Policy and Guidelines, Alberta made concerted efforts to involve First Nations and industry in the process. Alberta worked with both First Nations and industry to dialogue on the Policy and Guidelines. Since 2003, Alberta has engaged in hundreds of meetings with First Nations in all Treaty areas, as well as industry stakeholders, to strengthen the consultation initiative. Alberta strongly believes this input greatly contributed to developing the consultation process by expressing the interests and issues of both First Nations and industry.

Q. How is the Alberta government coordinating the consultation initiative across ministries?

One of the guiding principles in the Policy is that Alberta’s consultation practices will be coordinated across ministries. The ministry of Aboriginal Relations leads Alberta’s cross-ministry First Nations consultation initiative. The departments of Energy, Sustainable Resource Development, Environment and Culture and Community Spirit have developed ministry-specific Consultation Guidelines to fully implement the Policy and carry out Alberta’s duty to consult. Each ministry has dedicated consultation units and staff tasked with implementing the Policy and Guidelines according to its ministry mandate.

Alberta has also created the Aboriginal Consultation Coordination Group (ACCG) to ensure consistency on consultation issues and initiatives across government departments, as required by the Policy. Aboriginal Relations leads the ACCG, which is comprised of representatives from the following ministries:

• Energy
• Transportation
• Sustainable Resource Development
• Justice
• Environment
• Infrastructure
• Culture and Community Spirit
• Tourism, Parks and Recreation
• Municipal Affairs
• Land-use Secretariat
• Aboriginal Relations

The ACCG reports to the Deputy Ministers’ Committee on Aboriginal Consultation which is represented by Deputy Ministers from the above ministries. Alberta is also taking steps to improve coordination of the consultation initiative through increased cross-ministry sharing of consultation-related information and enhancement of Alberta’s internal staff consultation training strategy in applying the Policy and Guidelines. 

Q. How is Alberta coordinating its consultation activities with the federal government?

Alberta and Canada are currently developing a joint federal-provincial Memorandum of Understanding (MOU) on Aboriginal consultation. Once finalized, the MOU will help both Alberta and Canada deal more efficiently with resource development approval activities that involve both jurisdictions. The MOU will lead to increased information-sharing and consistent decision-making across both jurisdictions to help better harmonize and coordinate federal and provincial consultation practices.

Q. What mechanisms are in place to ensure coordination of referrals when a project must be reviewed by, or requires approval from, more than one ministry?

While the ACCG is the body responsible for coordinating consultation across ministries, the specific number of ministries involved in approval processes depends on the scope of a particular project. Decision-making responsibilities and determinations of adequate First Nations consultation for a specific project may lie with various Alberta government ministries. Through the ACCG, Alberta is working to ensure that consultation across affected ministries is conducted in a coordinated and consistent manner. Decision-making ministries also continue to seek opportunities to work closer together on projects needing approval from multiple ministries.

Q. Who is responsible for carrying out the consultation?

While it is Alberta’s, and not industry’s, duty to consult, the province delegates procedural aspects of the consultation process to project Proponents, who are most familiar with how specific projects may adversely impact First Nations Rights and Traditional Uses. At all times, Alberta remains fully engaged in the substantive elements of the consultation process and will solely determine the adequacy of Proponent-led consultation efforts. When the Crown is the project Proponent, Alberta will lead consultation with First Nations where the province’s land management and resource development initiatives may adversely impact Rights and Traditional Uses

Q. How do project Proponents know which First Nations to consult with?

Clarifying which First Nations Proponents should notify and consult on specific projects is a concern shared by all parties in Alberta’s consultation process. Alberta encourages project Proponents to work with approving ministries to identify First Nations whose Rights and Traditional Uses may be adversely impacted by a proposed project.  Once specific First Nations are identified, Aboriginal Relations’ website contains contact information for all First Nations in Alberta (http://www.aboriginal.alberta.ca/).

Alberta’s ongoing engagement with First Nations is also helping Alberta to identify geographic areas where First Nations exercise Rights and Traditional Uses and may have an interest in being notified and consulted. Knowing which First Nations to notify and consult on specific resource development projects is a crucial step to effective and meaningful consultation.

Q. Who will judge the adequacy of consultation? At what point can a Proponent expect feedback on adequacy?

Determining the adequacy of consultation is a primary concern of Alberta, First Nations and industry. Although project Proponents are required to conduct procedural aspects of project-specific consultation, Alberta is ultimately responsible for final determinations of assessing consultation adequacy. As part of the standard review and approval process, Alberta will review the consultation information submitted by project Proponents for adequacy and completeness. Where applications are considered to be incomplete or inadequate, Proponents may be required to consult further with First Nations. Alberta will require Proponents to conduct additional consultation with First Nation communities when new information regarding potential adverse impacts on Rights and Traditional Uses becomes available to the province. Alberta will not issue a project approval until it is fully satisfied that Proponent-led consultation activities with potentially-impacted First Nations have been adequate.

For major projects requiring Environmental Impact Assessments (EIAs), Proponents can expect regular feedback and guidance on their consultation efforts throughout the application process. The province continually reviews Proponents’ consultation logs during the application process.

Q. Does Alberta’s consultation process affect existing regulatory approval timelines?

It is Alberta’s intention that those aspects of consultation delegated to Proponents will be conducted within the existing regulatory framework and timelines. This is stated in both the Policy and Guidelines. As a matter of best practice, Alberta strongly encourages Proponents to engage First Nations early on in planning proposed projects, where possible, before applications are made. This way, First Nations consultation would largely be completed before the applicable regulatory timelines are activated. Approval processes may be delayed if consultation is not deemed by Alberta to be adequate. 

Q. Why do First Nations have 21 calendar days for initial responses to Proponents’ consultation referrals?

Alberta appreciates the issue of timelines for consultation continues to challenge effective implementation of the consultation process within the context of project and regulatory timelines. To address this matter, a standard 21 day timeline for First Nations to express whether they have initial concerns with a proposed project was introduced in the Guidelines.

Upon written notification by Proponents, First Nations are expected to initially indicate their concerns with a proposed project within 21 calendar days. Once a First Nation has responded to a notification and identified potential adverse impacts, further consultation may then occur. If no concerns are put forward by a First Nation to a Proponent within 21 calendar days of receiving notification, normal regulatory project approval timelines will apply and the project may proceed without further notice to the First Nation.

Consultation ministry staff are available to assist both Proponents and First Nations with the notification process. Alberta continues to encourage strong working relationships between Proponents and First Nations to facilitate the consultation process.

Q.  How is the issue of accommodation currently addressed in the consultation process?

As stated in the Guidelines, accommodation can mean efforts to reconcile, adjust or adapt. Accommodation is a component of consultation with First Nations and is solely the responsibility of the Crown, not Proponents, and will be decided by Alberta on a case-by-case basis. Alberta recognizes that, in specific instances, consultation may reveal a duty to accommodate First Nations. Alberta’s regulatory approval processes will consider the efforts of Proponents to address First Nations’ concerns by making changes to projects aimed at minimizing impacts on Rights and Traditional Uses. 

Q. How is traditional use data integrated with First Nations consultation?

Specific information about a First Nation’s contemporary practices of traditional uses greatly aids Alberta in effective resource management decision-making and in the consultation process. Specific First Nations traditional use information provided to Alberta also helps the government protect significant sites from development and builds a foundation for future consultation activities. Alberta accepts, however, that not all traditional use data is suitable for sharing and will consider First Nations cultural beliefs in this regard. 

Q. What happens in cases of overlaps involving more than one First Nation’s areas of interest for consultation purposes?

Proponents should expect that First Nations’ areas of interest for consultation will overlap from time to time for a particular proposed project.  In those circumstances, Proponents may need to notify more than one First Nation for consultation purposes. Alberta strongly encourages Proponents to develop priorities for consultation with affected First Nations geared to relevant factors, including project magnitude and duration and specific Rights and Traditional Uses practiced by one or more First Nations in a given project area. Appropriate ministry contacts are available to provide guidance on which First Nations to notify and consult on specific projects.

Q. What is Alberta doing to address the issue of consultation fees charged by First Nations to bring clarity and consistency to this matter for all parties?

The government recognizes that some First Nations have developed fees structures to recover the costs of participating in consultation to support their capacity. Alberta is aware consultation fees are a concern for all parties and is taking steps to address this matter. Alberta does not require compliance with First Nations consultation policies, protocols or guidelines, including those which specify the levying of consultation fees. Provision of economic opportunities or other financial investment for First Nations is a business decision by Proponents and not a part of Alberta’s consultation process.

Alberta does recognize that several First Nations have developed their own consultation documents and encourages, but does not require, Proponents to be aware of these for building relationships with First Nations. Proponents are required to adhere to Alberta’s Policy and Guidelines when notifying and consulting with First Nations whose rights may be adversely affected by resource development activities. Alberta will continue to rely on the Consultation Policy and Guidelines when determining the adequacy of consultation processes undertaken by project Proponents. 

Q. What is Alberta doing to build consultation capacity in First Nations communities?

Alberta’s First Nations Consultation Capacity Investment Program (FNCCIP) funds First Nations’ involvement in the consultation process with industry and the provincial government. Program funding helps facilitate implementation of the Policy and Guidelines by:

• building consultation structures (e.g. single point of contact);
• assisting First Nation communities to participate in Alberta’s consultation processes and provide input on the Policy and Guidelines;
• building relationships and partnerships among First Nations, industry, and government; and
• improving government-to-government relations.

Q. How does Alberta determine FNCCIP funding levels allocated to each First Nation?

Alberta provides core amounts of funding to First Nations based on the level of resource development occurring near their communities and the potential for projects to adversely impact Rights and Traditional Uses. While Alberta’s economic situation has recently resulted in a reduction of the FNCCIP, all First Nations in the province are still receiving a core level of consultation capacity funding. Supplemental funding under the program - although somewhat reduced - is still available to those First Nations experiencing high volumes of resource development requests and activity

Q. Does Alberta’s consultation process include dispute resolution provisions?

Yes. Upon request of either First Nations or Proponents, Alberta may provide direction to effectively resolve disputes regarding consultation-related matters. Officials from participating consultation ministries will review the nature of the disagreement and decide if consultation has been adequate. They will then make a decision on approval or non-approval based on the facts presented and any additional information obtained.

The goal of consultation is to avoid or mitigate potential adverse impacts on First Nations’ Rights and Traditional Uses. It should be noted, however, that Alberta’s consultation process does not require agreement by either First Nations or Proponents.

Q. Why is Alberta reviewing the First Nations Consultation Policy and Guidelines on Land Management and Resource Development now?

Alberta is honouring its commitment in the May 2005 Consultation Policy to fully review the Policy four years after implementation. The Consultation Guidelines are also being reviewed so that Alberta can assess its approach to First Nations consultation and make any necessary changes to the overall consultation process. Alberta is engaging both First Nations and industry in the review. The review will help ensure important principles from recent Court decisions and developments in the consultation process are reflected in the Policy and Guidelines.

Alberta is working with Treaty 6, 7 and 8 representatives in a Policy review sub-table under the Protocol Agreement on Government-to-Government Relations, and with the industry Guidelines Advisory Group. In addition, Alberta is meeting with individual First Nations and industry representatives wishing to provide direct feedback on the Policy and Guidelines during the review period. Alberta also recently met with the Alberta Urban Municipal Association and the Alberta Association of Municipal Districts and Counties, which are now also providing input during the Policy and Guidelines review. Alberta believes that, collectively, this dialogue will help strengthen the Policy and Guidelines and lead to an improved consultation process for First Nations, industry and all Albertans.

Q. When does Alberta expect to release a revised Consultation Policy and Guidelines?

Following completion of the review process, and upon Cabinet approval, Alberta anticipates release of a new Policy and Guidelines in 2012. Alberta is committed to concluding the review process to ensure feedback from all interested parties has been considered to strengthen the current Policy and Guidelines.

Q.  What is Alberta's position on Métis Consultation?

Alberta recognizes the constitutionally protected aboriginal rights of Métis communities and will consult with Métis peoples where there may be potential adverse impacts to credibly-asserted aboriginal rights. The strength of the asserted right, and its potential to be adversely affected, will inform the scope and nature of the consultation undertaken. The province will determine, on a case-by-case basis, whether consultation is necessary with Métis communities who may credibly assert constitutionally protected rights.