A Hard Look at Consultation and Accommodation – Alberta and BC Report

1. 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

2. Overview • 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)

3. 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

4. Alberta Consultation Policy • Consultation Policy applies to: • First Nations only (not Métis) • Both strategic and project-specific Crown decisions • Does notapply 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

5. 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

6. Alberta Consultation Policy • 2005 Policy: • Government departments had their own consultation processes • New Policy: • New centralized Aboriginal Consultation Office

7. 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

8. Alberta Consultation Policy • 2005 Policy: • No “levels” of projects • New Policy: • 3 “levels” of projects, as well as a 4th category of Crown-driven projects

9. 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.

10. 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)

11. 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

12. 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.

13. 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

14. 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

15. 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

16. 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

17. 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)