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Work in Progress

 
INTRODUCTION

As described elsewhere on our website, much has been accomplished on our journey toward finalizing our Gespe’gewa’gi claims process and negotiations.  However, our work is far from over.  This section describes what is going on right now.
 

DEVELOPING A FRAMEWORK AGREEMENT 

Policy guidance from the Canadian Government sets out six steps or stages that have to be accomplished in order to successfully negotiate a claims process. The third stage is described this way:  

"In this stage, the parties (who have agreed to formally talk) will develop a Framework Agreement (FA). The FA will identify the areas of common interest that will eventually be negotiated in the claim’s process."
 
Presently, we are in this third stage. The Mi’gmaq process has evolved into discussions have resulted in a draft FA with the Crown and Québec.  The draft is ready to ask the leadership of Mi’gmaq Mawiomi, Canada and Québec to approve the draft.
 
What is a Framework Agreement?
 

 
The final FA will describe the main areas that will then be talked about in depth during the later stages of our claims negotiations (for example, forest resources and fishing and hunting rights, among others).
 
Here are links to some existing Framework Agreements that you may wish to look at:
 

 Environment for Discussions

Now is the appropriate time to ensure that the parties (federal, provincial and Mi’gmaq) who are working on this process have clear and transparent mandates, roles and procedural guidelines. 
 
The aim for this stage is to agree on issues and interests while further developing a relationship of reconciliation and co-existence based on the long-time spirit of peace and friendship.
 
It is important to note that the Framework Agreement discussions will be entered into “without prejudice” on any party’s part.  This means:
 
As part of an attempt to settle a dispute or troublesome issue, the parties can make statements without prejudice.  When this is done, the contents of their statements cannot be put into evidence later on without the consent of all parties. So, if statements made without prejudice relate to an offer or a compromise on an issue, then such statements cannot be used later on as evidence that they were admissions or final offers of anything.
 
If we had entered into this stage without having the above principle in place, the three parties would not have been able to be as frank and open in their discussions. So, it is very important that the three parties agreed to stick to this principle at the beginning.
 
The Nutewistoq
 
The leadership of the Mi’gmawei Mawiomi has named a Nutewistoq (meaning "Speaker") whose mandate is to facilitate the work of both the leadership of the Mi’gmawei Mawiomi and the official Negotiations Circles, including the Mi’gmaq Mgnigng (see below).  The Nutewistoq has the responsibility to directly support all of the negotiation processes of the claim, including developing a Framework Agreement.  Thus, the Nutweistoq has a significant level of intergovernmental interaction and liaison responsibilities with Mi’gmaq leadership, with Canada, and with the province of Québec.
 
The Role and Members of the Mi’gmaq Mgnigng
 
The leadership of the Mi’gmawei Mawiomi has given the Mi’gmaq Mgnigng (who represent the Mi’gmaq interests at the tripartite table) the responsibility to carry on the discussion of topics that have to be considered in the Framework Agreement.  
 
The three Mi’gmaq representatives on the Mgnigng are:
 
  • Troy Jerome, Executive Director,  Mi’gmawei Mawiomi Secretariat, who is serving as the Nutewistoq, 
      
  • Terri Lynn Morrison, Associate Director of Intergovernmental Relations for the Mi’gmawei Mawiomi Secretariat,

         and
      
  • Richard Jeannotte, outside Legal Counsel to the Mi’gmawei Mawiomi Secretariat.
 
The Mi’gmaq Mgnigng: 
 
  • explores topics and issues with Mi’gmaq leadership and among the three claim parties using the megite’taqann ("principle-based") approach,
      
  • seeks help and support of a diverse group of Mi’gmaq experts, Elders, linguists and technicians to get a comprehensive understanding of the topics and issues,

               and 

  • informs and consults with Gespe’gewa’gi community members systematically throughout the development of the Framework Agreement. 

As noted elsewhere on our site, the other members of the Mgnigng include representatives of the Government of Canada and the Government of Québec.


Community Information Sessions

A series of Community Info Sessions have been taking place in 2010 and 2011. The Nutewistoq and the staff or the Mi’gmawei Mawiomi Secretariat are coordinating these meetings. The sessions are being held at various locations in all three Gespe’gewa’gi communities in Québec. The Chiefs and Councils are extending invitations to all Gespe’gewa’gi Mi’gmaq community members to attend. The goals of these sessions are to:
 
  • better inform the members of our communities about the Framework Agreement (FA), 
  • encourage members to bring their views for discussion,  
       

                  and

  • answer questions from community members about the FA and the claims process generally
 
CLAIMS PROCESS AND NEGOTIATIONS WEBSITE
 
In addition to information sessions and meetings with community groups, another way of informing community members and others about the claims process is through this MMS website that you are viewing. 
 
One of the main purposes of this site is to keep our viewers up to date with what is happening about the Gespe’gewa’gi claims process and negotiations.  Our site is a “work in progress,” which will keep changing and giving you fresh information as we go along.
 
 
SIDE TABLES
 
Under the terms of the document Niganita’suatas’gl Ilsutagan (NI), the three parties can agree to establish side tables to discuss specific topics that potentially have an impact on our rights and title to Gespe’gewa’gi. The first side table, on “Consultation and Accommodation, (C&A)” was established in 2009.
 
The First Side Table ~ Consultation and Accommodation
 
Following the tripartite signing of the NI, the three negotiating parties agreed to establish a side table on Consultation and Accommodation (C&A). In 2009, the Mgnigng carried out this directive. 
 
Background about the Side Table
 
Supreme Court of Canada decisions make it clear that, when a government considers action (for example, resource development or exploitation) in a territory over which Aboriginal people have asserted their rights and title, that government has a duty to consult and accommodate Aboriginal interests. This is a Constitutional duty that protects asserted Aboriginal rights, title, treaties and interests from Crown or third-party activities that can impact on those rights. 
 
Thus far, the Crown and Québec have largely ignored or denied C&A.
 
In October 2008, Chief Claude Jeannotte, then Chair of the Migmawei Mawiomi Steering Committee, presented a document on behalf of the MM entitled Special Brief to the BAPE Commission. (Bureau D’audiences Publiques Sur L’environnement). Although the brief was particularly concerned with an impact study of the windmill farm in the Montagne Sèche region of the Gaspé Peninsula, a number of statements sum up the Mi’gmaq position with respect to C&A:
 
  • “Firstly, the duty to consult and accommodate the Native Peoples exists from the moment a representative of the Crown has knowledge, concrete or attributed, of the possible existence of a title or ancestral rights and is considering taking steps that could have prejudicial effect on these rights or this title. On that basis, consultations of aboriginal communities must start as early as possible.
      
  • Secondly, the extent of the duty to consult depends on the preliminary evaluation of the strength of the evidence supporting the existence of the claim of right or title and of the seriousness of the potential prejudicial effects on the right or the title. 
  • Thirdly, the duty requires the Crown to truly and in good faith consult the Aboriginal peoples involved and that it be willing to modify its plans in light of the data collected during the process. 
  • In any case, when the claim rests on a piece of evidence which, at first sight is solid, and that the decision that the government intends to make could significantly prejudice the rights of that claim, the duty to accommodate could require adopting measures to avoid irreparable prejudice or reduce the impact of prejudice until a definite decision has been rendered on the underlying claim.”

Report about C&A in Gespe’gewa’gi

Because of concerns about the duty of C&A, the Migmawei Mawiomi approved a project to look into its leadership’s understanding of the status of C&A across Gespe’gewa’gi. The goal was to come up with a proper strategy for future C&A. 

Legal and community consultants were hired in 2009 and they developed a report, Consultation and Accommodation in Gespe’gewa’gi. The report covers: 

  • a review of the law of C&A,
     
  • Mi’gmaq rights at issue and certain projects and developments in the territory that are already causing concern,
  • identification of the most important government decisions-makers and private-sector developers, 
  • how notification of Mi’gmaq people takes place, if at all, and what consultation methods are being used, if any,
  • community experiences to date, 
  • needs for future capacity and funding,
                        and
  • comments on the form that the C&A process should take in the future.
 The report was tabled with the Mgnigng Tripartite Table in May 2009. The Mgnigng team has requested official responses from Canada and from Québec.
 
Guidance from Canada about C&A
 
Canada provided guidance about C&A in a document released in February of 2008.  The document released by the Government of Canada is entitled Aboriginal Consultation and Accommodation - Interim Guidelines for Federal Officials to Fulfill the Legal Duty to Consult. The stated purpose of this document is:
 
  • “…to provide practical advice and direction to federal departments and agencies regarding the legal requirement for the Crown to consult with Aboriginal groups and, where appropriate, accommodate their interests. The Interim Guide lines aim to provide steps and pointers for federal departments and agencies when assessing whether consultation with Aboriginal groups is needed on a legal basis and, if so, how to get organized for consultations and what is needed to ensure that meaningful consultation is carried out…” 
Guidance from Québec about C&A
 
The Government of Québec has provided guidance about C&A. It released its Interim Guide for Consulting the Aboriginal Communities – Updated in 2008 which says in part:
 
  • “…The guide proposes guideposts intended for the various government departments and agencies whose activities could infringe certain Aboriginal rights claimed by the Aboriginal communities, without these rights having necessarily been defined or proven. 
      
  • More concretely, the document provides general guidelines, the purpose of which is to make more operational the constitutional duty incumbent upon the Government of Québec to consult the Aboriginal communities.  It also specifies the notion of accommodation which arises, in some cases, from the duty to consult.  
  • By setting guideposts for the government’s activities, the guide aims to facilitate the reconciliation of the interests of the Québec State and those of Aboriginal communities, while avoiding, wherever possible, compromising the rights and interests claimed in a credible manner by these Aboriginal Communities until such time as agreements are reached to specify the scope of their Aboriginal rights and the procedures of the consultation…”
 
ADVISORY CIRCLES
 
The Mgnigng realizes that our communities have vast human resources that can assist and counsel our Mi’gmaq negotiators as the claim process goes forward. Thus, a number of Advisory Circles are envisioned.
 
Nestuapuga’tijig Gisigu’g (Elders’ Circle) 
 
The Nestuapuga’tijig Gisigu’g is an advisory group whose purpose is to support the Gespe’gewa’gi claims process and negotiations.  Its objectives are to: 
 
  • bring together a team of Elders, knowledge holders and Mi’gmaq linguists whose purpose is to advise the claims process on matters related to Mi’gmaq culture, traditions, laws, oral history, legends, and language,
                 and
 
  • ensure that Mi’gmaq knowledge (including our culture, traditions, language, ceremonies, laws and history) are central to the negotiations and the claim process.
 Specifically, the Nestuapuga’tijig Gisigu’g is:
 
  • advising and guiding the development of the Mi’gmaq worldview perspective during the negotiations process,  
      
  •  providing direction, advice, and recommendations to the two negotiating circles, the Gigto’qiNigan’pugultijig and the Mgnigng, as well as other advisory groups that form,        

                   and 

  • leading spiritual and cultural events and ceremonies.

The Nestuapuga’tijig Gisigu’g is composed of the following representatives:

  •  an elected Chairperson, 
      
  • Elders and traditional knowledge holders from the three Migmawei Mawiomi member communities,
  • Mi’gmaq linguists,
  • the Nutewistoq or his/her designate,
         and
 
  • resource persons as required.

The Nestuapuga’tijig Gisigu’g intends to meet a minimum of four times per year. They will also meet to deliberate on matters that arise during the negotiations process, or at a sub-table level as required. 

 At the first Nestuapuga’tijig Gisigu’g meeting, in September of 2009, the Nutewistoq presented a discussion about the Nm’tginen, the Niganita’suatas’gl Ilsutagan (NI), the Gespe’gewa’gi Claim Map, and the role of the Mi’gmaq Saqamawuti in the claims process.  
 
At this initial meeting, the Nestuapuga’tijig Gisigu’g established their Terms of Reference. The TORs state that they will: 
 
  • have open communication at several levels (internally within the group as well as with the leadership) by sharing more about the claim process with their communities, and being a part of this process, not just be looking on,
  • think as a Mi’gmaq Nation rather than a community and work together as a nation,
  • hold members in great respect for their knowledge, 
  • see youth representation integrated into their meetings,
            and
 
  • keep the three community Chiefs and Councils aware of their work by providing them with meeting summaries. 
In October of 2009, at the second meeting of the Nestuapuga’tijig Gisigu’g, additional work was done: 
 
  • a Mi’gmaq name for the Elders’ Advisory circle was agreed upon.  The group moved to change the name from Mgnigng Elders’ Circle to Nestuapuga’tijig Gisigu’g, 
  • the Nutewistoq advised that the Government of Québec wants to see more evidence to prove the Mi’gmaq title exists in Gespe’gewa’gi,
  • discussion was held about naming the six stages in the claims process with Mi’gmaq names,
                 and
 
  • it was decided that decisions coming out of Nestuapuga’tijig Gisigu’g meetings would be made through the Mi’gmaq way of engaging the talking circle method.  Everyone in the circle gives his/her input about an issue, after which a unanimous decision ismade by the whole circle.  
 
CONCLUSION
 
Now is an exciting time for the Gespe’gewa’gi claims process and negotiations.  We have the preliminary work behind us. Our structures for operating (the negotiating circles, some advisory groups, professional administrative support, etc.) are in place.  
 
Real people have been appointed to real roles.  We have established a comfortable, respectful environment for face-to-face discussions among the tripartite representatives.  
 
We are ready to conclude the next step, the Framework Agreement.   TWith the recently-create draft Framework Agreement, we are making steady progress toward completing this stage.
 
 
 LEARN MORE
 
Read more about the Mi’gmaq megite’taqann, meaning “principle based approach”
 
 
Read Chief Claude Jeannotte’s entire Special Brief to the BAPE Commission (Bureau D’audiences Publiques Sur L’environnement)