Co-operation Agreement between Alberta and Canada Review Feedback

This draft agreement is a huge progress in addressing many of the causes of delay in addressing energy and infrastructure project delivery and Indigenous Reconciliation.

Specifically, these clear provisions will enhance and help with achieving the objective of proper environmental impact assessment, speed of assessment, reduction in duplication and improve engagement and legal requirement on duty with First Peoples.

• Establishing early notification and information sharing obligations in clause 2, fundamental to creating the environment and speed for desired result. This is a best practice and should be adopted as a standard for all Provinces going forward.
• Issue management escalation ladder
• Provision for participant funding coordination
• Preservation of jurisdictional integrity for both the Federal government and Alberta.

However, there are other areas that need to be improved to ensure a seamless process with minimal negative impact and/or delays to a project and at the same time protect our environment and our legal obligation with our First Peoples.

Standards: Throughout the document, there is no defined standard but multiple clauses in different aspects references ‘standard’. These standards must be defined upfront to avoid the ambiguity it will create downstream and during implementation/use. There has to be well defined minimum acceptable standards.

We need to have in this agreement definitive

• What is acceptable standard
• Deference standard, for instance ‘primarily within Provincial jurisdiction’ is undefined. Vague deference standard.
• Minimum standard for Provincial assessment?
• Issues management acceptable standard is not defined.
• Permitting coordination provision lacks specificity.

Providing criteria for each of these standards including triggers will make this agreement execution workable.

Legal/First Nations/Indigenous right/duty to consult.

There UNDRIP and surrounding issues are not appropriately and visibly addressed and reconciled. We need to have a clear and agreed protocol such that we do not have legal challenges during project assessment with consequential delays that will derail the objective of this agreement. Indigenous consultation deferral to Alberta may become legally risky.

Enforcement Mechanism: There is presently no clearly defined dispute resolution remedy that can ensure elimination of potential legal dispute with corresponding delays to resolution. Even the termination clause provides insufficient transition protection, extending beyond 90 days may be more realistic.

For example, the issues management in clause 11 identify escalation protocol but no remedy when agreement is not reached. No binding arbitration or independent third-party resolution mechanism and no consequence for party that fails to abide. The Agreement is more aspirational than legally enforceable.