What is the Responsibility of the Crown?
Recent Supreme Court decisions such as Taku, Haida, and Mikisew have clearly stated that the duty to consult arises whenever the province contemplates a development that may adversely impact Aboriginal interests. Alberta Environment has devised a plan for discharging the Crown’s legal duty by requiring industry proponents to submit plans for direct consultation with First Nations.
“the duty to consult and accommodate…flows from the Crown’s assumption of sovereignty over lands and resources formerly held by the Aboriginal group” the Crown is solely responsible for consultation and accommodation. The Crown is also legally responsible for “the consequences of its actions and interactions with third parties, that affect Aboriginal interests.” However, “[t]he Crown may delegate procedural aspects of consultation to industry proponents seeking a particular development; this is not infrequently done in environmental assessments.”
Under Alberta’s Consultation Guidelines, the project proponent is required to develop a consultation plan whenever a development is proposed. This plan must be approved by AENV and completed before approval is granted.
While this process may meet the province’s needs to fulfill its legal obligations, it presents problems for both industry proponents and First Nations.
For First Nations it means that they must consult with every project proponent, an overwhelming task that requires technical expertise, legal knowledge, and financial and human resources.
Contact us today and we can help you through the consultation process.