Although third parties have no duty to consult with First Nations, the implementation of the Crown’s duty to consult may be delegated to third parties. The ultimate legal responsibility for meeting the requirements of meaningful and substantial consultation rests with the Crown, as the honour of the Crown cannot be delegated.
Alberta acknowledges that the province has a duty to consult and is accountable for consultations undertaken with First Nations where legislation, regulations or other actions have the potential to adversely impact Aboriginal and treaty rights, but it delegates some aspects of consultation to project proponents. This permanent delegation is neither valid nor legitimate, as project proponents have no treaty relationship with First Nations and owe no constitutional duties to Aboriginal peoples: The decision to delegate the responsibility for consultation is a matter of expediency. While the province accepts its role in managing consultation, it expects that project proponents will provide project-specific information to Alberta Environment and the potentially adversely impacted First Nation, develop and implement a First Nations consultation plan, and directly notify First Nations at existing public notice points. Alberta assumed that First Nations will take initiative in raising concerns and that project proponents will identify
strategies to avoid, mitigate, or accommodate adversely affecting First Nations rights and traditional uses.
First Nations take issue with the Crown taking such a “hands-off” approach to consultation. Proponents are self-interest and driven by profit motives with no constitutional obligation to protect Aboriginal and treaty rights. The honour of the Crown may be met if the Crown consults with First Nations and get their approval of the consultation process to be engaged in with third parties before any consultation with industry begins, and if the Crown maintains a supervisory role ensuring that consultation between third parties and First Nations are conducted according to the plan approved by First Nations. In this way industry would be charged with the responsibility for the technical aspects including full disclosure, environmental assessments, etc., and the Crown would maintain responsibility for meeting procedural requirements.
Alberta’s unwritten policy, directed by budgetary concerns, is to require First Nations to establish one-point consultation mechanisms for consultation with the province and the project proponent. At the province’s initiative, First Nations established Industry Relations Corporations (IRCs) and Alberta has been providing funding for their operation. IRC shareholders are typically band members and the CEO is often a member of the community. The staff of IRCs includes an environmental coordinator who reviews environmental assessments and an Elders’ coordinator who acts as a liaison between industry and the Elders and community members for consultation purposes. Rather than consulting with the community, industry proponents contact the First Nation’s IRC and conduct all consultations through the corporation. In theory IRCs facilitate communication between First Nations and industry, but the CEO and directors of the IRCs are not usually politically accountable to the community and
may not accurately reflect the views of the community, and thus the legitimacy of conducting consultation through IRCs is questionable.
After being notified of a development, First Nations must, according to the Guidelines, submit a valid statement of concern within the legislated submission period.
These concerns must relate to the issues within the Director’s authority and must relate directly to the proposed project. The person or entity filing the statement of concern must be directly affected by the activity.
This raises the concern of the capacity of First Nations to respond efficiently and effectively to protect their rights in the context of Alberta’s overheated and rapidly developing economy. The province of Alberta and some industry proponents are actively negotiating with First Nations in various parts of the province to simultaneously create certainty for industry and enhance the capacity of First Nations to participate in consultation. The financial and technical demands placed on First Nations to consult have overwhelmed many small communities. The lack of capacity to answer the demands of consultation portends a situation in which First Nations are vulnerable to being steamrolled by project proponents, particularly considering the time constraints created by the Guidelines.
The Guidelines outline additional steps to the authorization process under the Water Act. The guidelines apply, at the discretion of the Director, to large scale water diversion, wastewater, or water works projects and projects off-reserve that may have a potential to adversely impact First Nations rights and traditional uses on reserves.86
86 Alberta’s First Nations Consultation Guidelines on Land Management and Resource Development, September 1, 2006, Part IV at 1, accessed on-line at http://www.aand.gov.ab.ca/AANDFlash/Files/Albertas_Consultation_Guidelines.pdf .
Upon being provided with project specific information by the project proponent, Alberta Environment will assess whether the project requires First Nations consultation and, if so, will advise potentially adversely impacted First Nations of the proposed project and regulatory timeline.87 The project proponent will then be charged with the responsibility to develop a First Nations consultation plan to the satisfaction of the Director.
Consultation may include advertisements in First Nations newspapers, community postings, face-to-face meetings with elected leaders or their delegated representatives, or any other means to inform members of the First Nation about the proposed project.88 The project proponent is required to document their consultation efforts and outcomes, proposals for avoidance or mitigation, or where no agreement can be reached, written reasons. Alberta Environment will then make a final determination as to whether or not consultation was adequate, and if not, delay or deny regulatory approval. This begs the question of whether, if the consultation process itself was adequate, the First Nation could oppose the project. Given Alberta Environment’s history of almost never denying project approvals, it is unlikely that First Nations’ opposition alone, without a Court decision, could stop a project from proceeding.
6. Consultation Under the Water Act