Agreement details clear path on consultation

It’s taken close to four decades, but a process has now been put in place that means the Mi’kmaq people in Nova Scotia will be consulted on activities in the province that have the potential to impact them. The agreement is the only one of its kind in Canada.

The Made in Nova Scotia Process was signed Aug. 31 between the Mi’kmaq, the provincial government, and the federal government.

“This is a way of sitting down and talking about issues that we have. It’s a way we can address our concerns about Aboriginal rights and treaty rights,” said Chief Terrance Paul of the Membertou First Nation.

“It certainly wasn’t easy to get,” said Paul. “Right from day one there was a struggle over the language each level of government wanted in there. We pushed to make sure we could use language that protected us as much as possible.”

Paul said the agreement “is hopeful. I look at it as a progressive step, recognizing our Aboriginal and treaty rights.”

Paul and Paqtnkek Chief Gerard Julian signed the agreement as co-chairs of the Assembly of Nova Scotia Mi’kmaq Chiefs.

Paul, who has been chief for 27 years, said the process to consult has been discussed since the 1970s. The agreement that was signed addresses the direction set out by the Supreme Court of Canada in the 2004 Haida and Taku River rulings, in which the court ruled that both federal and provincial governments had the duty to consult and “where appropriate, accommodate when Crown conduct may adversely impact established or potential Aboriginal and Treaty Rights.”

The Made in Nova Scotia Process is part of the umbrella agreement signed with both levels of government in 2002. The three-prong agreement includes negotiating treaty rights in a number of areas and is a long-term process; a tripartite process for negotiating short-term projects for capacity building in such areas as education and environment; and now the duty to consult process.
“Consultation was supposed to be happening, but it wasn’t happening in all places,” said Paul.

The process is straight forward. The Canadian and Nova Scotia governments are to inform the Mi’kmaq of any development planned for their lands or Crown lands. Subject matters for negotiations are delineated in the Mi’kmaq-Nova Scotia–Canada Framework Agreement and include land and water; natural resources; parks, protected areas, and marine protected areas; sacred sites and archaeological resources; Mi’kmaq language and culture; and, resolution of claims for past infringement of Mi’kmaq rights and title.

The Terms of Reference set out for the Made in Nova Scotia Process requires the federal or provincial government to “provide to the Mi’kmaq all relevant information with respect to the proposed decision, activity or subject matter, and sufficient time to assess whether or not and the extent to which the decision, activity or subject matter may impact on established or asserted Mi’kmaq Aboriginal or treaty rights.”

Any concerns noted by the affected bands are to be communicated to the relevant level of government. The government takes into consideration the concerns and identifies potential ways to deal with those concerns and” if appropriate, providing financial consideration or other redress.”

“We would mitigate our concerns and see what benefits we can derive from (the development) if any. Then we would come to a conclusion where all the parties benefit,” said Paul.

The official consultation process is optional and “does not limit the ability of the parties to engage in consultation independent of the consultation process set out” in the Terms of Reference.

In a news release, Premier Darrell Dexter, who also serves as minister of Aboriginal Affairs for his government, referred to the agreement as a “single-window approach (which) makes life better for Nova Scotians because it helps the province make more informed decisions.”

The federal and provincial governments will fund the consultation process, providing money to the Assembly of Nova Scotia Mi’kmaq Chiefs, who will create and operate the consultation committees and participate in the consultation advisory group. The consultation advisory group is established by the parties involved in the process.