Legislation to assist First Nations risks discrimination

Alberta recently introduced the Aboriginal Consultation Levy Act to provide the Province with additional funds to balance the amount of public monies granted to assist First Nations and “other identified aboriginal groups”(which have not yet been identified) in planning and facilitating “any required Crown consultation in respect of regulated provincial activities.” Those activities include “an activity on Crown land for which an approval is required, or (ii) an activity prescribed or described by the regulations as a provincial regulated activity.”

Under section 3 of Bill 22, proponents undertaking provincially-regulated activities—defined as “an activity on Crown land for which an approval is required, or …described by the regulations as a provincial regulated activity—will have to pay a consultation levy to the government.

The mandatory levy will have to be paid by industry proponents for resource development projects and land management activities when there is a duty to consult with First Nations. The levy will be collected, managed and administered by the government, and will enable the Provincial government to balance the grant funding it provides to First Nations to assist them in developing capacity to participate in Crown consultations.

As Robin Campbell, Minister of Aboriginal Relations, indicated in the Legislature on May 14, 2013, “First Nations are very wary about divulging their information.” Nevertheless, Bill 22 provides that proponents may be required

“to provide the Minister with information, including third party personal information, records and other documents, including copies of agreements relating to consultation capacity and other benefits pertaining to provincial regulated activities”

Specifics detailing just what information will have to be divulged will be detailed in Regulations, yet to be drafted.

Failure to comply with a request for information, records or documents will be subject to administrative penalties to be meted out by the Minister; but those penalties have yet to be detailed in Regulations. A decision of the Minister under the Act is final and binding and not subject to review.

As a result of Bill 22, personal information arising out of the consultation process may be subject to disclosure. Given the nature and depth of consultations involved in resource development projects, the amount of personal information can be significant.

More fundamentally, as the Leader of the Opposition noted, “agreements for First Nations are going to be subject to disclosure, which is not the case for nonaboriginal landowners who have similar agreements with the energy companies.”

From the perspective of access to information, the Act requires annual reporting that summarizes the operation of the Fund during the preceding fiscal year. The Bill is silent, however, as to identifying grant recipients or funding particulars.

Bill 22 was introduced on May 8, 2013 and received third reading on May 15, 2013. Some might wonder how fulsome the debate could really be in such a short time, and whether our elected representatives fully considered the impact and hidden consequences of this legislation.

To read the full text of Bill 22 visit http://www.assembly.ab.ca/ISYS/LADDAR_files/docs/bills/bill/legislature_28/session_1/20120523_bill-022.pdf

To contact any Alberta MLA to comment on this or other government initiatives, visit http://www.assembly.ab.ca/net/index.aspx?p=mla_home

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