What does consultation mean for the Settlements?
Alberta’s Metis Settlements Consultation Policy was passed in December 2015 and implemented in April 2016. This means that the Government of Alberta is now requiring industry to consult with Metis Settlements when their proposed project has the potential to negatively impact how Metis Settlements use the Crown lands outside their Settlement area. Typically, this means that the Settlement consultation coordinator or officer will receive notice of a proposed project and will need to work with the Settlement land users, Council, and membership to assess what kind of impact the project might have for the community. They then need to negotiate with the industry proponent to try to minimize any potential impacts, usually by modifying the project plan or schedule. While the consultation process itself is not about economic opportunities or benefits, it can in some cases lead to a good relationship with industry proponents or the opportunity for the Settlement to participate in land development projects via jobs, contracts, or even partnerships.
The Consultation Policy does not result in every Settlement being consulted on every proposed project; the government uses traditional land use information provided by the Settlement to help it determine whether or not consultation is required. The more traditional land use information the Settlement can provide to the government, the more the Settlement will be consulted and have a say in what is happening on the lands outside their Settlement area. This is why it is so important for Settlement members to work with their consultation coordinator or officer to help them map out where the Settlement has used the land in the past and where it continues to do so.
In 2004, the Supreme Court of Canada released its decision in the Haida Nation v. British Columbia case. This case was about whether or not the government (the “Crown”) was required to consult with Aboriginal communities before making decisions that could negatively impact the Aboriginal rights of those communities. The Haida Nation was successful in proving that the British Columbia government had a responsibility to consult with them before making decisions about lands and natural resource development. The court said that this responsibility of the government, also known as the Crown’s “duty to consult” was rooted in a basic principle of the “Honour of the Crown” which goes back to the establishment of British sovereignty in this country. The Haida Nation v. British Columbia decision defined consultation as a process of reconciliation where the Crown’s sovereignty must take into consideration and address the claims, rights and interests of the Aboriginal communities who were here before. This case set the standards for when the Crown has a “duty to consult” and how consultation should occur.
Since 2004, there have been other Supreme Court cases that have expanded on the Haida decision and have both widened and narrowed the scope of the Crown’s duty to consult. Canada and the provinces have responded to the Supreme Court’s direction by developing consultation policies and guidelines that explain how and when they will consult with Aboriginal communities. In Alberta, up until recently, the provincial consultation policy applied only to First Nations; Metis communities, including the Settlements, were not consulted except in special circumstances.
During the negotiation of the Alberta/Metis Settlements Long Term Arrangements Agreement (LTA), the Metis Settlements successfully lobbied for a Metis Settlements consultation policy. Schedule “I” of the LTA commits Alberta and the Metis Settlements to the following:
- Complete the conduct and assessment of historical presence and activity research (community history and traditional land use study
- Enter into good faith discussions regarding the development of a Government of Alberta Metis Settlements Consultation Policy
- Once a Consultation Policy is developed and approved, the Minister of Indigenous Relations will provide consultation capacity funding to each Settlement
- Provide a maximum of $9.7 million over the term of the LTA (2013 – 2023) for consultation initiatives
The parties agreed that the agreements and arrangements made under Schedule “I” will survive the expiry or early termination of the LTA. This means that after 2023, the Government of Alberta will continue to consult with Metis Settlements. It also means the province will continue to provide consultation capacity to individual Settlements once the $9.7 million of LTA funds runs out.