Legal challenge pending on Aboriginal Consultation Levy Act

First Nations are seeking legal advice on Bill 22, the province’s Aboriginal Consultation Levy Act.

“Treaty rights are not being fully recognized. It’s not just about hunting, fishing and trapping. This is about governance and nation to nation partnership, it’s about developing models for co-management and co-governance of our lands and resources,” said Eriel Deranger, spokesperson for Athabasca Chipewyan First Nation Chief Allan Adam.

The ACFN is joined by the Assembly of Alberta Treaty Chiefs in examining Bill 22 in light of Sect. 35 of the Constitution Act, which sets out Aboriginal and Treaty rights.

“We are conducting an analysis of the province’s latest proposal, which includes a legal review to ensure case law is respected and advanced,” said Treaty No. 7 Grand Chief Charles Weaselhead in a news release.

The Aboriginal Consultation Levy Act controls if and how consultation for development on First Nations reserve lands is to be carried out. It establishes a process matrix that outlines the time period for consultation required depending on the type of development; establishes moneys that will be provided to First Nations in order to carry out consultation; creates a consultation office, which reports directly to the minister of Aboriginal Relations and which determines if consultation is required; and offers no recourse for appeal of a decision rendered by the minister responsible.

In April, the government introduced its draft consultation policy, “The Government of Alberta’s Policy on Consultation with First Nations on Land and Natural Resource Management, 2013.”  First Nations took exception to the policy, which led to Bill 22, not only for what it contained but for how the policy was developed. First Nations were not consulted in the drafting of the policy.

While feedback was provided by First Nations, Deranger says the government only took into consideration one concern: First Nations no longer have to disclose existing agreements with proponents of development.

“That (requirement) put some First Nations in some really strange situations because these are private agreements … and some of these agreements happened long before certain leaderships,” said Deranger.

But all the other red flags are still there, she says.

“Impossible timelines” have been established. The matrix sets out a process that must be met within 10 to 45 working days, depending on the development project. Circumstances are specified under which timelines may be extended. However, says, Deranger, with overworked staff and underfunding, First Nations will have a hard time meeting that timeframe, especially First Nations that are located in the heavy-resource development areas of the province.

“The four communities in the Fort McMurray area are so inundated with applications that it’s almost impossible for them to keep up with the current loads,” said Deranger. “This is actually more favourable for industry because they want to speed up these processes.”

However, the process matrix does specify circumstances under which timelines may be extended.

Also of concern is the lack of recourse available to First Nations if they are not in agreement with a decision rendered by the consultation office. As well, under the Responsible Energy Development Act, the Alberta Energy Regulator has no jurisdiction to assess the adequacy of consultation.

“Currently if there’s a decision made regarding a project, you can challenge it … within tribunal settings and directly to the provincial government and industries,” said Deranger. “But with this new policy, they’ve taken that away and the only way to challenge decisions is through the courts.”

Not only is the legal process costly, she says, but it is lengthy. By the time the First Nation has its day in court, development could already have begun on the land in question.

The next step, according to Alberta Aboriginal Affairs is consultation with First Nations, industry and other stakeholders “in working sessions critical to effective policy implementation,” says the department’s website.

Deranger says it is not time to move into the implementation phase, but doesn’t expect the government to postpone.

Alberta Aboriginal Affairs says the new policy will not be implemented until the consultation office is operational, which is expected to happen this fall.