Part C Continued: Coordinating the Duty to Consult with EA
When resource development is at issue, EAs have emerged as the government’s preferred vehicle for satisfying its duty to consult (Craik at 35). In recognition of this reality, there is a significant effort within the federal and provincial governments to coordinate these processes. This is manifested through various guidelines, offices, departments, and policies that aim to integrate the Crown’s consultation obligations within EA.
The sections below consider this interaction. First, the Report provides an overview of the various systems used to coordinate EA with the duty to consult. With this framework in place, the Report then details how these systems successfully integrate land stewardship approaches, and what obstacles hinder the achievement of this goal.
a. Federal Systems to Coordinate the Duty to Consult and EA
1. Federal Guidelines
Indigenous and Northern Affairs Canada (soon-to-be Indigenous Services Canada) coordinates, trains, and supports other federal departments in understanding the duty to consult (Canada, Indigenous and Northern Affairs Canada, Government of Canada and the Duty to Consult (Ottawa: Indigenous and Northern Affairs Canada, 2016) online: <https://www.aadnc-aandc.gc.ca/eng/1331832510888/1331832636303>). This includes educating federal departmental staff on the Aboriginal Consultation and Accommodation - Updated Guidelines for Federal Officials to Fulfill the Duty to Consult (Canada Aboriginal Affairs and Northern Development Canada, Aboriginal Consultation and Accommodation: Updated Guidelines for Government Officials to Fulfill the Duty to Consult (Policy Guidelines) (Ottawa: Aboriginal Affairs and Norther Development Canada, 2011), online: <http://www.aadnc-aandc.gc.ca/DAM/DAM-INTER-HQ/STAGING/texte-text/intgui_1100100014665_eng.pdf> [Federal Guidelines]).
The Federal Guidelines outline Crown practices for Indigenous consultation. Among other things, they direct departments to engage in consultation early in project development, to consider funding Indigenous communities to allow effective consultation, and consider the unique needs of remote communities (Thomson, Jeffery, The Duty to Consult and Environmental Assessments: A Study of Mining Cases from across Canada, MEnvSc Thesis, University of Waterloo faculty of Science, 2015) [unpublished] online: <https://uwaterloo.ca/next-generation-environmental-assessment/sites/ca.next-generation-environmental-assessment/files/uploads/files/jeff_thomson_thesis.pdf> [Thomson] at 12). All government departments, including the Canadian Environmental Assessment Agency, are responsible for integrating the Federal Guidelines into their day-to-day activities.
These existing processes must, however, allow for “appropriate and meaningful consultation…throughout all stages of the activity” (Federal Guidelines, Guiding Principle 6). Where existing processes cannot satisfy this standard throughout the lifecycle of the project, additional consultation activities may be needed (Thomson at 24; Federal Guidelines Guiding Principle 6).
They also dictate that, while the duty of consultation rests with the Crown, “procedural” aspects of consultation may be delegated to third parties. These procedural aspects include, for example “information sessions or consultations with Aboriginal groups, mitigation measures and other forms of accommodation, etc.” (Federal Guidelines, Guiding Principle 7).
2. The Canadian Environmental Assessment Agency's Role
Addressing Indigenous concerns is expressly part of the CEAA mandate (s 4(1)(d), s 5(1)(c), 105(g). When dealing with environmental issues, the Agency operates as the Crown Consultation Coordinator. In this role, the Agency integrates the Government of Canada's Aboriginal consultation into the EA process. This includes:
- Identifying Indigenous groups whose potential or established rights may be adversely affected by the proposed project;
- Inviting identified Indigenous groups to provide comments;
- Providing Indigenous groups with information about the project and the EA process;
- Providing funding to assist eligible Indigenous groups in preparing for and participating in consultation activities through a Participant Funding Program;
- Considering the feedback provided by Indigenous groups during the consultation process, including any concerns or issues raised, prior to any decisions being final; and
- Identifying mitigation and accommodation measures that may be required to address issues raised during the consultation process.
(Canada, Canadian Environmental Assessment Agency, Aboriginal Consultation in Federal Environmental Assessment (Government of Canada, 2016) online: <https://www.canada.ca/en/environmental-assessment-agency/programs/aboriginal-consultation-federal-environmental-assessment.html>).
3. Participant Funding
The Agency provides funding for individuals, non-profit organizations, and Indigenous groups who want to participate in federal EAs. The objective of this program is to allow for effective participation and ensure that the potential effects of any project are taken into consideration, and in particular the concerns of Indigenous peoples.
To be eligible, an applicant must meet at least one of the following criteria:
- have a direct, local interest in the project, such as living or owning property in the project area;
- have community knowledge or Indigenous traditional knowledge relevant to the environmental assessment;
- plan to provide expert information relevant to the anticipated environmental effects of the project, and/or
- have an interest in the potential impacts on the project on treaty lands, settlement lands, or traditional territories and/or related claims and rights.
(Canada, Canadian Environmental Assessment Agency, Participant Funding Application for an Environmental Assessment (Ottawa: Government of Canada, 2017) online: <https://www.canada.ca/en/environmental-assessment-agency/services/public-participation/participant-funding-application-environmental-assessment.html>).
b. Alberta Systems to Coordinate the Duty to Consult and EA
1. The Alberta Consultation Guidelines and Alberta Consultation Policy
Consultation with Alberta First Nations is governed by
- The Alberta Consultation Policy (Alberta, The Government of Alberta’s Policy on Consultation with First Nations on Land and Natural Resource Management (2013) (Alberta, The Government of Alberta’s Policy on Consultation with First Nations on Land and Natural Resource Management (Policy) (Alberta, 2013) online: <http://indigenous.alberta.ca/documents/GoAPolicy-FNConsultation-2013.pdf?0.225320417088124> [Alberta Consultation Policy]);
- The Alberta Consultation Guidelines (Alberta, The Government of Alberta’s Guidelines on Consultation with First Nations on Land and Natural Resource Management – July 28, 2014 Alberta, The Government of Alberta’s Guidelines on Consultation with First Nations on Land and Natural Resource Management (Guidelines) (Alberta, 2014) online: <http://indigenous.alberta.ca/documents/First_Nations_Consultation_Guidelines_LNRD.pdf.pdf?0.18964671553674162> [Alberta Consultation Guidelines; and
- The Proponent Guide (Alberta, The Government of Alberta’s Proponent Guide to First Nationals Consultation Procedures for Land Dispositions (Alberta, The Government of Alberta, 2015) online: <http://indigenous.alberta.ca/documents/ProponentGuide-FirstNationsConsultation-ProceduresLandDispositions.pdf?0.4805502842646092)> [Proponent Guide].
Separate polices and guidelines exist to govern consultation with Métis communities (click here and here). Collectively, the Alberta Consultation Policy and the Alberta Consultation Guidelines are meant to clarify obligations, set forth stakeholder responsibilities, and provide concrete direction on what is required prior to and during the First Nations consultation process. The Proponent Guide provides specific directions and timelines for consultations.
The Alberta Consultation Policy outlines the province’s overarching obligations and approach to consultation. A copy of the Alberta Consultation Policy is available here. Relevant Excerpts from the Alberta Consultation Policy are available at the Index of this Report here.
The Alberta Consultation Guidelines provide specifics on how stakeholders are to proceed with a particular consultation. They lay out specific procedures to follow and demonstrate how Alberta views successful consultation. Specifically, they set out:
- when the Duty to Consult is triggered;
- the roles and responsibilities on each stakeholder;
- how the ACO can support the consultation process;
- stages of consultation;
- timelines for each stage of consultation; and
- provide sector specific matrices that dictate the extent of consultations required.
Like its federal counterpart, the Alberta Consultation Guidelines outlines the province’s expectation that proponents to handle the procedural components of consultation. This includes:
- Contacting potentially impacted First Nations;
- Presenting and explaining the proposed project to First Nations; and
- Modifying project plans as a result of feedback from First Nations (Alberta Consultation Guidelines at 8).
Timelines are very important to ensure adequacy of consultation. The Proponent Guide provides detail on timelines for consultation. These timelines are available here. It encourages proponents to build a relationship with potentially impacted Indigenous communities. They are required to coordinate with the ACO to provide potentially impacted Indigenous communities with an information package, and to follow up with impacted groups to get feedback. Proponents are expected to discuss mitigation and accommodation efforts to avoid or mitigate any impacts or concerns that they have.
2. Alberta Consultation Office
The ACO operates under the Minister of Aboriginal Relations. It determines when the need for consultation, as well as its scope. The ACO also supervises all consultation related activities, and determines the accommodation required. (Calgary Chamber of Commerce, The Consultation Conundrum: Examining Aboriginal Consultation in Alberta, (Calgary) online: <http://www.calgarychamber.com/sites/default/files/Calgary%20Chamber%20-%20Aboriginal%20Consultation%20Report.pdf> [Calgary Chamber] at 4).
The ACO has signed a joint operating procedure with the Alberta Energy Regulator to ensure that consultations are conducted smoothly. The joint operating procedure provides a matrix to determine when and to what extent consultation is required. A copy of this matrix is available here. Joint Operating Procedures for First Nations Consultation on Energy Resource Activities. (Alberta, Alberta Energy Regulator and the Government of Alberta, Joint Operating Procedures for First Nations Consultation on Energy Resource Activities (Alberta, Alberta Energy Regulator, 2015) online: < https://www.aer.ca/documents/actregs/JointOperatingProcedures.pdf>).
3. First Nations Consultation Capacity Investment Program
All First Nations in Alberta can receive a core investment that builds their capacity in any consultation related activities specifically regarding land and natural resource management. It can cover any costs associated with Consultation Office staff, which includes salary, training, and travel, and any interim consultants or technicians.
The Alberta government also planned on creating an Aboriginal Consultation Levy, which would have empowered the government to collect and pool money from proponents and redistribute it in the form of grants to First Nations and other indigenous groups. However, Indigenous groups were not consulted in the creation of this system. They were given no say in the administration, calculation, or distribution of these funds. Due to mass opposition from Indigenous groups, this proposed levy has not been implemented (Canadian Press, The, “Alberta Government Moves to Repeal Contentious Aboriginal Consultation Bill” Edmonton Sun (3 May 2-16) online: <http://edmontonsun.com/2016/05/03/alberta-government-moves-to-repeal-contentious-aboriginal-consultation-bill-2/wcm/f7f11ce9-5401-4c40-b41e-9c6ff4c8ee5a>).