Alberta Aboriginal Alberta Aboriginal Consultation ProcessConsultation Process

Dave Coish, Dave Coish, Aboriginal Consultation Unit, SRDAboriginal Consultation Unit, SRD

Presentation to the CAPFPresentation to the CAPFFebruary 9, 10, & 11, 2010February 9, 10, & 11, 2010

OutlineOutline of Presentationof Presentation

History and general introduction to First History and general introduction to First Nations consultation in AlbertaNations consultation in Alberta

Guiding PrinciplesGuiding Principles Alberta’s duty and delegated consultationAlberta’s duty and delegated consultation Role of the proponentRole of the proponent Role of the CrownRole of the Crown Key pointsKey points

Alberta’s Aboriginal PeoplesAlberta’s Aboriginal Peoples

Approx 170,000 people of First Approx 170,000 people of First Nations ancestry live in AlbertaNations ancestry live in Alberta

Three Treaty areas (Treaties 6, Three Treaty areas (Treaties 6, 7 and 8).7 and 8).

47 First Nations, 8 Métis 47 First Nations, 8 Métis Settlements, Inuit, and off Settlements, Inuit, and off settlement Métissettlement Métis

b. Constitutional Act, 1930b. Constitutional Act, 1930The Natural Resources Transfer Agreement The Natural Resources Transfer Agreement

(NRTA)(NRTA) BEFORE 1930 PUBLIC LAND IN ALBERTA BEFORE 1930 PUBLIC LAND IN ALBERTA

WAS ADMINISTERED BY DOMINION OF CANADAWAS ADMINISTERED BY DOMINION OF CANADA

12. In order to secure to the Indians of the Province the continuance of 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, the supply of game and fish for their support and subsistence, Canada agrees that the laws respecting game in force in the Canada agrees that the laws respecting game in force in the Province from time to time shall apply to the Indians within the Province from time to time shall apply to the Indians within the boundaries thereof. provided, however, that the said Indians shall boundaries thereof. provided, however, that the said Indians shall have the right, which the Province hereby assures to them, of have the right, which the Province hereby assures to them, of hunting, trapping and fishing game and fish for food at all seasons 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 of the year on all unoccupied Crown lands and on any other lands to which the said Indians may have a right of access. to which the said Indians may have a right of access.

Section 35, Constitution Act, Section 35, Constitution Act, 19821982

““THE EXISTING ABORIGNAL AND THE EXISTING ABORIGNAL AND TREATY RIGHTS OF THE TREATY RIGHTS OF THE

ABORIGINAL PEOPLES OF CANADA ABORIGINAL PEOPLES OF CANADA ARE HEREBY RECOGNIZED AND ARE HEREBY RECOGNIZED AND

AFFIRMED.”AFFIRMED.”

Aboriginal Consultation Aboriginal Consultation Evolution through Case LawEvolution through Case Law

Three leading SCC Consultation CasesThree leading SCC Consultation Cases- Sparrow (Infringement) - Sparrow (Infringement) - Haida Nation & Taku River (asserted rights) - Haida Nation & Taku River (asserted rights) - Mikisew Cree First Nation (taking up of lands)- Mikisew Cree First Nation (taking up of lands)

All three cases confirm Alberta’s obligation to consult where All three cases confirm Alberta’s obligation to consult where projects/decisions have the potential to adversely impact First projects/decisions have the potential to adversely impact First Nations treaty rightsNations treaty rights

Aboriginal Consultation Aboriginal Consultation Evolution through Case LawEvolution through Case Law Sparrow Decision:Sparrow Decision:

The SCC - Defines what constitutes an infringementThe SCC - Defines what constitutes an infringement The SCC – Defines how an infringement can be justifiedThe SCC – Defines how an infringement can be justified

Haida & Taku Decisions:Haida & Taku Decisions:The SCC - Obligation to consult arises; Scope & Objective of The SCC - Obligation to consult arises; Scope & Objective of

consultation; Delegation of aspects of consultation consultation; Delegation of aspects of consultation

Mikisew Decision:Mikisew Decision:The SCC: Defined the “taking up of lands” by the Crown; the The SCC: Defined the “taking up of lands” by the Crown; the

threshold for consultation; Notice to First Nationthreshold for consultation; Notice to First Nation

Alberta’s Duty to ConsultAlberta’s Duty to Consult

Alberta’s First Nations Consultation Policy Alberta’s First Nations Consultation Policy ((20052005) and Guidelines () and Guidelines (2006 & revised 20072006 & revised 2007) on ) on Land Management and Resource Land Management and Resource Development are Alberta’s direction on Development are Alberta’s direction on how to implement the consultation process how to implement the consultation process as defined by case lawas defined by case law

Two Aspects to the Two Aspects to the Consultation ProcessConsultation Process

S. 35 Common law requirements – Honour of the Crown

Potential to adversely impact Treaty Rights.

Impacts to Treaty land Entitlements

Legal Duty

Make informed decisions

Improve and create working relations with those affected

Risk management

Good Governance / Policy Reasons

Consultation ProcessConsultation Process Alberta may carry out the duty to consult, or Alberta may carry out the duty to consult, or

delegate certain procedural aspects of delegate certain procedural aspects of consultation to the project proponentconsultation to the project proponent

Even when some aspects are delegated, Alberta Even when some aspects are delegated, Alberta remains fully engaged in the substantive aspects remains fully engaged in the substantive aspects of consultation, and carries the legal liability for of consultation, and carries the legal liability for ensuring adequacy of consultationensuring adequacy of consultation

Delegated ConsultationDelegated Consultation

Aspects of Consultation ProcessAspects of Consultation Process ResponsibilityResponsibility

Determine if the proposed activity has the potential to Determine if the proposed activity has the potential to adversely impact First Nations Treaty Rights or traditional adversely impact First Nations Treaty Rights or traditional usesuses

AlbertaAlberta

Determine which First Nations should be consultedDetermine which First Nations should be consulted AlbertaAlberta

Present project to First Nations, record concerns, discuss Present project to First Nations, record concerns, discuss modifications to project to address concernsmodifications to project to address concerns

Project ProponentProject Proponent

Submit a consultation summary to Alberta with a copy to Submit a consultation summary to Alberta with a copy to First NationFirst Nation

Project ProponentProject Proponent

Review and judge adequacy of consultation as presented Review and judge adequacy of consultation as presented in the consultation summaryin the consultation summary

AlbertaAlberta

Make decision regarding project approval, and advise Make decision regarding project approval, and advise project proponent and First Nationsproject proponent and First Nations

AlbertaAlberta

Role of the ProponentRole of the Proponent

Provide a plain language description of the Provide a plain language description of the project including maps and contact informationproject including maps and contact information

Identify potential adverse impacts to First Identify potential adverse impacts to First Nations Treaty Rights & Traditional UsesNations Treaty Rights & Traditional Uses

Initiate meetings early in the processInitiate meetings early in the process

Role of the Proponent (cont’d)Role of the Proponent (cont’d) Develop strategies to avoid or mitigate identified Develop strategies to avoid or mitigate identified

potential adverse impactspotential adverse impacts

Record all efforts at consultation including Record all efforts at consultation including concerns brought forward and how these were concerns brought forward and how these were addressedaddressed

Submit a consultation summary to Alberta for Submit a consultation summary to Alberta for adequacy reviewadequacy review

Role of the CrownRole of the Crown(during the delegated aspects of consultation)(during the delegated aspects of consultation)

To ensure the Proponent's consultation is consistent with the To ensure the Proponent's consultation is consistent with the Policy and GuidelinesPolicy and Guidelines

To respond to questions from the Proponent and the First To respond to questions from the Proponent and the First NationNation

To make recommendations to the Proponent's consultation To make recommendations to the Proponent's consultation plan, as necessaryplan, as necessary

To provide assistance and direction when differences arise To provide assistance and direction when differences arise between the Proponent and the First Nationbetween the Proponent and the First Nation

To determine the adequacy of the consultation at the end of To determine the adequacy of the consultation at the end of the processthe process

AccommodationAccommodation

Consultation is about process, accommodation Consultation is about process, accommodation is about action – making changes to plansis about action – making changes to plans

When accommodation is required, the Crown When accommodation is required, the Crown must balance aboriginal concerns reasonably must balance aboriginal concerns reasonably with other societal interests  (Haida, para. 50)with other societal interests  (Haida, para. 50)

Key PointsKey Points

Consultation with First Nations is requiredConsultation with First Nations is required Alberta has the legal & policy responsibility for Alberta has the legal & policy responsibility for

consultationconsultation The proponent meets with First Nations to listen The proponent meets with First Nations to listen

to, and if possible, address concernsto, and if possible, address concerns The proponent provides a consultation summary The proponent provides a consultation summary

to Albertato Alberta Alberta judges adequacy of consultation and Alberta judges adequacy of consultation and

makes decisionmakes decision

Questions?Questions?

Dave Coish Dave Coish

Phone: 780-644-8733Phone: 780-644-8733

Email: Dave.Coish@gov.ab.caEmail: Dave.Coish@gov.ab.ca