New Proponent Guide To First Nations And Métis Settlements Consultation Released By Alberta Government

In December 2019, the Government of Alberta (GoA) updated The Government of Alberta's Proponent Guide to First Nations and Métis Settlements Consultation Procedures (the "2019 Guide"), which took effect on January 2, 2020. The 2019 Guide is the fourth edition of the guide, and contains notable changes from its previous 2016 version.

The 2019 Guide prescribes the procedures and requirements for proponent consultation with First Nations and Métis Settlements for activities falling under the purview of the Alberta Energy Regulator (AER). The consultation guidance relates to activities under the Public Lands Act, the Water Act, the Environmental Protection and Enhancement Act, as well as section 8 of the Mines and Minerals Act.

The 2019 Guide is the third prong of Alberta's strategy for fulfilling its duty to consult with First Nations and Métis Settlements on activities that may affect their aboriginal rights. The first two prongs are the GoA's consultation policy documents and guidelines to consultation documents. The 2019 Guide notes that the order of authority for these documents in the case of a conflict is: 1) Policies, 2) Guidelines, and 3) 2019 Guide.

A recent Alberta Court of Appeal case, Athabasca Chipewyan First Nation v Alberta, 2019 ABCA 401, confirmed the use of these documents to guide consultation. The Athabasca Chipewyan First Nation challenged the authority of the Aboriginal Consultation Office (ACO) to make determinations related to the Crown's duty to consult. The Court found that, although not a grant of legal authority, the consultation policies act as "guides [to] the ACO in fulfilling the Crown's responsibilities in this area…[and are] supplemented by other policy documents which guide the ACO's operations and relationship with the AER statutory decision-making process".

The 2019 Guide forms an essential part of the GoA's strategy for meeting its constitutional duty to consult, although much of the consultation work will fall to the proponents. Proponents should, therefore, understand and implement the 2019 Guide's requirements and procedures during consultations with First Nations and Métis Settlements.

The 2019 Guide

The 2019 Guide is organized into three parts: (1) pre-consultation assessment, (2) proponent-led consultation ("information sharing and exploring concerns"), and (3) adequacy assessment submission and review.

During the pre-consultation assessment, a proponent will submit its pre-consultation...