Duty to Consult

The Mi’gmaq have Aboriginal Rights and Title to the territory which is known in the Mi’gmaq language as Gespe’gewa’gi. We are formally asserting and specifying these Rights and Title through the land claim that the Mi’gmaq Mawiomi (MM) is currently seeking to settle.

* The courts have recognized that the crown, both federally anf provincially, has a duty to consult and accommodate First Nations, based on the honor of the Crown. Governments must provide affected First Nations with adequate notice and full information concerning the propose action and it’s potential impact on their rights. The refusal of the Crown to alter its position in a consultation process may evidence an unreasonable approach to the duty to consult and accommodate.

*Accommodation does not necessarily follow consultation. Where accommodation is necessary, the Crown must balance Aboriginal concerns reasonably with the potential impacts of the decision on the asserted right or title and with other societal interests. Accommodation will most clearly be required when a strong case exists for the First Nation claim, the consequences of the government’s decision will adversly affect that claim in a significant manner and steps are required to prevent irreparable harm or minimize the effects of infringement.

In 2008, the Government of Quebec issued their Interim Guidelines on Consultation. This interim document applies to all departments within the Québec government. It must be taken into acccount when government activities may affect the rights and interests claimed by Aboriginal communities, such as the development of their territory and natural resources.

The process of consultation may be fairly quick or quite lengthy. The timing depends on how complex the issue is and and how great the impact the affected Aboriginal group predicts.

After consultation, some form of accommodation may be negotiated between the affected Aboriginal group and the “promoter” (the developer) and/or by the government. Accommodation may reduce or remove some or all of the expected impacts.

Mi’gmaq Consultation Protocol

In October of 2004, the MMS drafted the Mi’gmaq Consultation Protocol. This draft document was the first step in laying out the fundamentals on how the Mi’gmaq expect ot be consulted. The protocol covers what consultation is and when and why external parties should consult. It outlines a clear consultation strategy, including:

setting clear aims,
asking key questions,
creating a statement of Intent,
encouraging the involvement of key participants, always including members of our First Nations communities as well as others,
choosing appropriate methods that reflect the values and culture of stakeholders,
providing background information equally to all parties,

and
maximizing First Nations participation.

With this as a starting point, the MM was ready to look seriously at the situation surrounding consultation in our territory of Gespe’gewa’gi.

Mi’gmaq Proclamation about C&A

For a long time, the leadership and people of Gespe’gewa’gi realized that almost no real consultation had been going on, particularly between the Aboriginal communities and the Government of Québec.

For the most part, Québec had been allowing requests for projects ~ often promoted by private-sector promoters ~ to go ahead on Mi’gmaq land and then just notifying our people “after the fact.” Québec had simply been ignoring Mi’gmaq rights and interests in our territory. This was and still is unacceptable and unlawful.

So, in June 2005, after much discussion, a historic proclamation was signed by the elected Chiefs of the eight Gespe’gewa’gi communities including the Chiefs of Listuguj, Gesgapegiag and Gespeg ~ the three communities that make up the Mi’gmawei Mawiomi. It was known as the Joint Proclamation of the Gespe’gewa’gigewei Saqamawuti on the Duty to Consult and Accommodate the Mi’gmaq.

Has Consultation Really Been Happening?

Following this signing, the Mi’gmawei Mawiomi approved a project to look carefully into its leadership’s understanding of the status of C&A all across Gespe’gewa’gi. The goal was to come up with specific details from the past and a proper strategy for future C&A, in line with the 2005 Joint Proclamation and the 2004 Mi’gmaq Consultation Protocol.

In April of 2009, the MM Tri-Councils met to discuss the whole issue of C&A. From the very frank and open responses of the leadership at this meeting, a team of community and legal consultants developed a report entitled Consultation and Accommodation in Gespe’gewa’gi.

This report::

reviewed the law of C&A,
pointed out the Mi’gmaq rights that were at stake and certain requests for projects and developments in the territory that were already cause for concern,

identified many of the most important government decisions-makers and private-sector developers,

went over how notification of Mi’gmaq people currently happens ~ if at all ~ and any consultation methods that may have been used,

gathered community experiences to date,

outlined needs for future capacity and funding to conduct and monitor C&A,

and

commented about how the C&A process might go better in the future.

With this kind of information in hand, the MM leadership was ready to move forward to establish more effective C&A methods based on the 2004 Mi’gmaq Consultation Protocol.

* exerpt: from the Best Pratices for Consultation and Accomodation, September 2009