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- 1. The Made-in-Nova Scotia Process Twila Gaudet, Consultation Liasion Officer & Jennifer MacGillivary, Benefits Officer oneNS Coalition Millbrook, NS February 10, 2015
- 2. 2 Who is Kwilmu’kw Maw-klusuaqn Negotiation Office? The Mi'kmaq Rights Initiative/ Kwilmu’kw Maw-klusuaqn Negotiation Office (KMKNO) is the negotiations between the Mi'kmaq of Nova Scotia, the Province of Nova Scotia and the Government of Canada. The Initiative was developed by the Mi'kmaq, for the Mi'kmaq. Through these negotiations, we hope to finally implement our Rights from the Treaties signed by our ancestors in the 1700‘s. KMKNO has a Lead Negotiator, along with one senior Mi'kmaq Advisor and a staff of approximately 18 people who research archaeology, benefits, citizenship, consultation, energy, fisheries, governance, lands, and moose management.
- 3. 3 The Mission of Kwilmu'kw Maw-klusuaqn Negotiation Office is to address the historic and current imbalances in the relationship between Mi'kmaq and non-Mi'kmaq people in Nova Scotia and secure the basis for an improved quality of Mi'kmaq life. KMKNO will undertake the necessary research, develop consensus positions on identified issues, and create public and community awareness in a manner that supports the ability of the Assembly to fully guide the negotiations and the implementation and exercise of constitutionally protected Mi'kmaq Rights. KMKNO is committed to moving forward at a pace determined by the Mi'kmaq themselves, and to balancing individual First Nations autonomy with the collective Mi'kmaq identity, governance and decision making required to re-institute Mi'kmaq ways of operating. KMKNO Mission Statement:
- 4. 4 The Assembly of NS Mi’kmaq Chiefs • Comprised of all 13 NS Mi'kmaq Chiefs and other ex-officio members that include the Grand Chief, Grand Keptin, two District Chiefs and the AFN Regional Chief. • All consultation and negotiations decisions and directions are obtained at this level • Meets on a regular basis, often monthly • Allows the Chiefs to meet, discuss and debate Mi'kmaq Rights and Title and any other general policy issues/challenges that may affect them. • Community questions and concerns are brought to the Assembly by the Chief
- 5. 5 Five Pillars of Mi’kmaq Values • Created to layout the Vision, Mission and Values that would guide the negotiation process, once the Framework Agreement was signed. • With the use of planning exercises in 2004 and 2006, the Mi'kmaq Leadership developed and decided upon the vision, mission and five pillars that guided and assisted the Negotiation Team and the Negotiation Office. • These Values or Goals guided the Negotiation Process while the Framework Agreement was being reviewed and approved. • The Five Pillar document became one of the most important guiding mainstays of the negotiation process.
- 6. 6 Five Pillars… 1. To achieve recognition, acceptance and implementation and protection of treaty, title and other rights of the Mi’kmaq in NS; 2. To develop systems of Mi’kmaq governance and resource management; 3. To revive, promote and protect a healthy Mi’kmaq identity; 4. To obtain the basis for a shared economy and social development; and 5. To negotiate toward these goals with community involvement and support.
- 7. 7 Umbrella Agreement • Signed in June 2002 • Confirms that all three parties (Nova Scotia, Canada and the Mi'kmaq of Nova Scotia) are willing to enter into discussions regarding the definition, recognition and implementation of Mi'kmaq Rights, as well as the Terms of Reference for a consultation process
- 8. 8 Mi’kmaq-NS-Canada Framework Agreement • Began in late 2003. Signed on February 23, 2007. • Outlines the entire negotiation process; the types of things that will be negotiated; what we hope to achieve; the procedures and timelines. • Mi'kmaq Rights and land Title is protected during the negotiation through the legal clauses that ensure rights will not be prejudiced. • During the negotiation, research and meetings with the Mi'kmaq communities will occur. • Through the research component, the KMKNO will research a variety of options and approaches to current treaty issues such as land claims and self-governance, along with seeking direct input and directions from Mi'kmaq people. • The Chiefs will ensure that their Councils and communities are in agreement about the issues.
- 9. Consultation Terms of Reference In 2004 and 2005, the Supreme Court of Canada (SCC) handed down three landmark decisions that found the Crown (provincial and federal) has a duty to consult with Aboriginal peoples regarding decisions or taking actions that might adversely affect their established or potential Aboriginal rights and treaty rights (Haida and Taku, 2004, Mikisew Cree,2005). It was prior to the Supreme Court decisions, the governments of Nova Scotia and Canada, and the Mi'kmaq had agreed to develop a Consultation Terms of Reference (TOR) that would clearly lay out a process for Crown consultation with the Mi'kmaq. Through the TOR roles, responsibilities, actions and process were defined and agreed upon by all three parties. In 2007, through KMKNO, a Consultation Liaison Officer and Mi’kmaq Consultation Researcher were hired to coordinate the Assembly’s many consultation requests.
- 10. 10 • Ratified August 31st, 2010 • Approximately 300 Consultation files • Broad scope of projects, policies, strategies • Various stages of development • Established Consultation Tables (Energy, Mining, Fisheries, Lands) Consultation Terms of Reference
- 11. 11 Consultation Terms of Reference Positive Aspects: • Unique in its Development and Implementation • Commitment from 3 parties • Formal On –the – Record Process • Bringing Mi’kmaq Concerns to Various Government Departments
- 12. Consultation Terms of Reference Challenges: • Consultation Funding • Failure to consistently follow the TOR (DFO) • Archaeological concerns • Reactive Process – Time gaps and Legislative Timeframes • Communications and Education process
- 13. 13 Consultation Terms of Reference Accomplishments: • Monetary compensation for failure to consult • Improved procedures and protocol with depts • Mi’kmaq Renewable Energy Strategy, Energy Advisor, and Mi’kmaq Efficiency Program • Projects abandoned, boundaries changed and plans revised • Improved archaeology • Partnerships developed • Lands set aside exclusively for the Mi’kmaq (Irving, 12%, Bowater)
- 14. 14 Benefits from Projects for NS Mi’kmaq •Mi’kmaq assertion to Rights and Title to all lands and resources in the province •Expectation from the Assembly for inclusion and partnerships for all major initiatives in Nova Scotia •Development of MoU’s – funding to participate in projects •Negotiation of IBA’s – issues include training, apprenticeships, employment, procurement, business development, archaeology, revenue sharing •Lack of support provincially and federally present challenges – no requirement to work with Mi’kmaq
- 15. 15 •MRED Fund - Major Resource Energy Development Fund •$2 m from province (partial accommodation due to consultation breach), $3 m from federal - Investment in Mi’kmaq Energy projects •Encana Fund •$5 m accommodation from Encana related to Deep Panuke •Assembly administers the fund •Funding for projects •MoU’s •Precursor to IBA •Several signed •Include funding for Assembly • IBA’s • Several being negotiated Successes To-Date
- 16. 16 Mi’kmaq as Partners •Demographics – 2006 Census • 25% of the working age Aboriginal population was aged 15 – 24, 16% in non- Aboriginal •In NS median age of 25.4 vs 41.6 •NS is home to more than 24,000 Aboriginals •700 self-employed Aboriginals in Nova Scotia •Aboriginals rely more on public sector and less on private sector for employment •Unemployment 60.4% nationally for First Nations people – in NS on reserves it ranges from 7% to 40% •NS Mi’kmaq are an untapped and unsupported resource for Provincial success
- 17. 17 Wela’lioq - Thank You Questions? Twila – twilagaudet@mikmaqrights.com Jen – jmacgillivary@mikmaqrights.com 902-843-3880
Notas del editor
- The Umbrella Agreement set the stage for the CTOR and outlined the commitment to develop a Consultation Terms of Reference. The CTOR was necessary to set out the Principles and roles and responsibilities of the parties and the process of how the Crown would consult with the Mi’kmaq of Nova Scotia. The Made- In- Nova Scotia main table developed the CTOR and everyone agreed. The CTOR was clearly driven by the Mi’kmaq negotiation team long before the supreme court decisions.
- With the signing of the Framework agreement in February of 2007 the commitment to implementing a Consultation process was reaffirmed. The CTOR was trial run for almost 3 years before its implementation in August, 2010. The trial run allowed enough time to identify what worked and what didn’t. The CTOR underwent a vigorous review and revision process before its final ratification. Same challenges identified in the trial phase remain, but we are making positive steps forward. The CTOR is unique in its development, drafting and implementation. It is unique to Canada and world wide. There is not another like it and many other provinces are looking to implement similar processes. Over 200 files on a broad range of anything from a dam or highway refurbishment to the Maritime Link Project, an undersea electrical connection between Newfoundland and Labrador and Nova Scotia, that will provide NS with access to electricity from the Lower Churchill hydroelectric development in Labrador. The files range from projects to policies to regulatory and legislative change. Consultation advisory tables have been developed under the direction of the Portfolio/file Lead.
- The formal on the record process is necessary to document and determine where Mi’kmaq concerns have been addressed and properly accommodated. The process is needed in the event there is a breach of the constitutional duty and the Mi’kmaq must take legal action for unjust impacts on rights and title. As outlined in the CTOR there is an opportunity for the parties to go off the record to work through an issue toward finding a resolution. All parties must agree this is the approach. This option has been utilized and has resulted in a positive outcome, however this is not always possible. The process allows a coordinated approach for bringing Mi’kmaq concerns to various depts. and identifying ways of addressing those concerns. Some depts are more receptive than others. We continue to collaborate and work with the most challenging depts (CCH) and steps in the right direction are being achieved.
- A number of the challenges identified in the trial phase of the CTOR remain. We continue to press the province and the feds for funds to build capacity and help us work toward more meaningful consultation. May 24th, 1013, NS Premier and Minister of OAA announced a multi-year consultation funding agreement for the Mi’kmaq. The province committed to $500,000 for 4 years. Another first for NS! On another note the Feds pulled back funding. We continue to press depts to use the CTOR consistently when rights and title could be impacted. Some depts pick and choose (DFO) when to use the TOR. i.e. DFO uses the TOR for Species at Risk and the recreational salmon fishery, but will not consult on AFS/FSC. Legislative and regulatory timeframes continue to cause challenges. The more information upfront is helpful, allowing adequate time for consultation. Effective communication with our Mi’kmaq Communities often proves challenging. We continue to work to identify consultation community champions. We continue to provide training sessions to our Mi’kmaq organizations and smaller community groups as well as joint sessions to govt dept on the consultation process.
- Accommodation can take various forms including monetary compensation. We have experienced this in an off shore oil and gas exploration project (Deep Panuke) when DNR failed to consult on an easement required for the project. 2 million was received from the province and used to leverage another 3 from the feds for the MRED fund. (Jen talks more in her slides) We continue to work on improving and streamlining our protocols and procedures with govt dept to so that we work effectively toward meeting regulatory timeframes. We have also recieved funds from DNR for our Lands officer and a Forestry Strategy. Through consultation we were able to receive funds for a Mi’kmaq Renewable Energy Strategy which looks at the 13 Mi’kmaq communities and the power usage. It also identified renewable energy economic opportunities for the Mi’kmaq. The Mi’kmaq Efficiency Program also was developed and will provide refits for every house on reserve. Another first for NS! We continue to press for more diligent archaeological investigation before project development.
- Mi’kmaq of Nova Scotia WANT to participate in projects Often hear the Chiefs say they are not looking to block responsible development, but want to ensure meaningful participation and benefits for their communities The treaties in Nova Scotia are peace and friendship treaties, meaning that there was never any ceding of rights and title to the land and resources and the Mi’kmaq maintain their assertion to all lands and resources throughout the province – all of which is traditional territory From a benefits perspective, this means an expectation of intense and honest engagement from all proponents Both the proponent and the Nova Scotia Mi’kmaq have needs and things to offer – these agreements are meant to benefits both parties The first step we take in the development of these benefits agreements is the creation of a Memorandum of Understanding (MoU). These agreements outline the relationship that will be forged – including items of concern that will be addressed during agreement development Things like training, apprenticeships, employment, procurement opportunities, archaeology and revenue sharing are all highlighted in the MoU There is also an expectation that the proponent will provide funding to the Assembly of Nova Scotia Mi’kmaq Chiefs upon signing of the MoU. This funding will assist with our participation in the IBA development – allowing us to undertake independent research into the project, and look to boost staffing to ensure we have a project manager who can devote appropriate time to the negotiation of the IBA document Many proponents are willing to have these discussions, however it could work better. While we try to leverage the consultation process there is no requirement in Nova Scotia to work with the Mi’kmaq and the Chiefs are having discussions with provincial Ministers to address policy and legislative changes that will acknowledge the Mi’kmaq assertion to rights and title and compel ALL proponents to develop IBA type agreements with the NS Mi’kmaq
- The Mi’kmaq of Nova Scotia have achieved several notable successes in terms of “Benefits” in the past few years – may of which are direct results of accommodations received through consultation or a breach in consultation obligations by the crown The MRED was created when the Assembly of Nova Scotia Mi’kmaq Chiefs received $2 million from the Province of Nova Scotia as a partial accommodation from a breach of consultation. The Federal Government augmented this by an additional $3 million from their Major Resource Energy Development Fund and now the Assembly has a $5million fund that can be used for investment in Mi’kmaq Energy projects – this fund will be instrumental in realizing the wind projects that I will talk about on the next slide Likewise the Assembly received a $3million fund from Encana as an accommodation for a breach in consultation relating to the Deep Panuke offshore oil project The Assembly has developed a fund for education and training relating to employment in the offshore industry and it has so far been used to assist with training initiatives as well as Youth Trades Fairs, and assisting with youth participation in a National Science Fair where 3rd place finishes have been achieved multiple times As I mentioned earlier, we try to leverage the consultation process to develop relationships with proponents. This has so far led to the signing of several MoU’s and we have several IBA’s in varying stages of production – thus looking to ensure meaningful Mi’kmaq inclusion in our province’s future developments
- All statistics taken from the last long-form census of 2006, so admittedly the numbers are a bit out of date, but still provide information on trends Review key stats The Nova Scotia Mi’kmaq have a young and growing population – if as much focus was spent on addressing barriers to employment and participation in the wage economy as appears to be spent on streamlining immigration, the expected labour shortages in our province may be mitigated or at the very least lessened. Additionally, our communities are rural – a key focus of the Commission’s study, and if we can work together to find ways to develop our communities and engage our population together we will make NS a better place and a stronger economy.