Alberta’s Aboriginal Consultation Levy on Industry
On May 8, 2013, Bill 22 – Aboriginal Consultation Levy Act (Bill 22) was introduced in the Legislative Assembly of Alberta. Bill 22 passed Third Reading on May 15, 2013, and received Royal Assent on May 27, 2013. Bill 22 will come into force "on proclamation."
Substance of Bill 22
Bill 22 proposes to charge a levy to proponents (defined in Bill 22 as persons who undertake a provincially regulated activity) under the new Aboriginal Consultation Levy Act (Act) and regulations for the purposes of making grants to First Nations or other identified Aboriginal groups to "assist them in developing capacity to participate in, and in meeting the costs of, any required Crown consultation in respect of provincial regulated activities." Subsection 4(3) of Bill 22 states that the funds collected through the levy will also be used to pay for the costs of administering the Act.
Notable details of Bill 22 include:
- The regulations will prescribe the details of the amount(s) of the levy to be paid by proponents, the amount(s) and form of payment to Aboriginal groups (e.g., lump sum versus payments) and the conditions under which payments will be made (at the time of writing, no draft regulations were available for review).
- A Consultation Levy Fund will be established and may only be used to make grants to First Nations and other identified Aboriginal groups in respect of consultation, as well as to pay the costs of administering the Act.
- In accordance with the regulations, the Minister may require proponents to provide personal information, records and other documents, including confidential information and copies of agreements relating to consultation capacity and other benefits, in order to assist the Minister in determining the amount of grants and to plan and facilitate required Crown consultation.
- The regulations may provide for administrative penalties to enforce payment of levies or for failure to comply with a request for information.
- A decision of the Minister under the Act is final and binding, and is not subject to review.
Notably, Bill 22 says nothing about expectations on proponents outside of the context of Bill 22 – that is, if government provides consultation capacity funding to Aboriginal groups pursuant to Bill 22 and presumably based on some form of payment(s) made by a particular proponent, is that proponent expected to provide any additional funds to an Aboriginal group over and above what it has already paid by way of the consultation levy? Additionally, the payment of a levy under Bill 22 does not, by itself, deal with the expectations that Aboriginal groups may have what they ought to receive in terms of capacity funding. The Bill also contemplates that parties may be required by law to divulge the details of what would otherwise be confidential agreements (such as benefits agreements) between two private parties.
During the Third Reading of Bill 22 in the Legislative Assembly, the Minister of Aboriginal Relations noted that the idea for Bill 22 came up during discussions with First Nations and industry as part of the development of Alberta’s new First Nation Consultation Policy, available in draft format online. First Nations and industry had advised the government that the current capacity funding levels from Alberta were inadequate to enable First Nations to carry out their consultation obligations. However, opponents of Bill 22 argued that it could fundamentally change the relationship between the Crown, First Nations and proponents, and that the six-day review period between First and Third Reading was inadequate. Details of the recent legislative debate are available online on Hansard.
While Bill 22 is a novel effort by a provincial government to implement a source of revenues for consultation, the substance of Bill 22 will be in its regulations and it will be on that basis that its utility will likely be determined.