Aboriginal Law: The Duty to Consult on the East Coast

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Aboriginal Law: The Duty to Consult on the East Coast

June 6, 2016

By Jeffery Callaghan, at McInnes Cooper

Each Provincial government is under the legal duty to consult; the manner in which each carries out its legal duty to consult differs depending on the Provincial context.

New Brunswick. Consultation in NB is often complicated by the large number of varying interests at play, the fact that the Peace and Friendship Treaties are still being interpreted, the presence of two Nations (the Mi’gmag and the Wolastoqiyik), and the relative regionalization of the 15 First Nations communities located across the province.

Each of the First Nation communities in NB has its own elected government. The level of cooperation between the 15 separate First Nations communities in NB with respect to consultation has been dynamic. Chiefs of 14 of these communities had, for a number of years, worked together under one representative assembly for certain purposes, including to negotiate procedural matters of consultation. However, there is now generally a focus by community leadership on separate representation or collaboration within their respective Nations (Mi’gmag or Wolastoqiyik).

In November 2011, the Province adopted the Government of New Brunswick Duty to Consult Policy. This policy outlines actions that may “trigger” the duty to consult, such as those involving resource management, Crown Land management, land use and environmental regulation, and other regulations, policies, plans, and procedures that may negatively impact the traditional use of Crown land and resources. Per the Policy, the Aboriginal Affairs Secretariat is responsible for ensuring that consultation occurs. The Secretariat can work with First Nations, legal counsel, regulatory authorities and other parties to assess the risk of infringement on proven or asserted Aboriginal or treaty rights, define the scope of the consultation process, and determine whether the duty to consult has been fulfilled.

Nova Scotia. Consultation with First Nations in NS is undertaken by the Nova Scotia Office of Aboriginal Affairs. Eleven of the 13 Mi’kmaq Nations in NS are represented by the Assembly of Nova Scotia Mi’kmaq Chiefs.

The Mi’kmaq-Nova Scotia-Canada Consultation Terms of Reference and the Government of Nova Scotia Policy and Guidelines for Consultation with the Mi’kmaq of Nova Scotia set out a detailed consultation process, including a discussion of the role of project proponents or third parties. The Province has also created a Proponents’ Guide to assist developers with engaging the First Nations, using Benefit Agreements, and managing the roles and responsibilities of all parties involved in the consultation process. Nova Scotia and Canada also signed a Memorandum of Understanding on Cooperation Regarding Duty to Consult outlining three areas of ongoing work: coordination of consultation; information sharing; and capacity building.

Newfoundland and Labrador. Consultation with the Labrador Inuit, through the Nunatsiavut Government, is undertaken according to the detailed processes set out in the Labrador Inuit Land Claims Agreement. The Agreement grants the Labrador Inuit extensive rights including ownership interests and financial revenues from some subsurface rights, and control over fishing and aquaculture in the Labrador Inuit Lands and the greater Settlement Area. The Agreement also imposes approval processes, IBA requirements, and/or compensation agreement negotiation processes for almost every type of development, including subsurface resource exploration, water use, and development of non-renewable resources in the marine area.

There are ongoing negotiations between the government of NL and the Labrador Innu Nation that seek to reach an agreement similar to the Labrador Inuit Land Claims Agreement. Until then, however, the NL government has committed to consultation with the Innu Nation and with other First Nations groups in the Province in accordance with the 2013 Aboriginal Consultation Policy on Land and Resource Development. The Consultation Guidelines promised in that policy have yet to be released; however, the policy provides a brief overview of the Provincial government’s responsibilities and expectations of project proponents with regard to the consultation process.

Notably, the Inuit of Labrador and the Nunavik Inuit of Quebec signed an Overlap Agreement in 2005 resolving their overlapping land claims in northern Labrador and offshore areas adjacent to northern Labrador and northern Quebec. This Agreement allows for reciprocal land use by the Labrador Inuit and the Nunavik Inuit. Although the NL government isn’t a party to the Agreement, it impacts on land use in Labrador and was incorporated into the Labrador Inuit Land Claims Agreement Act via amendment in 2010.

Prince Edward Island. In 2012, the PEI Provincial government and the Mi’kmaq of PEI (represented by the Chiefs of both First Nations) signed the Mi’kmaq-Prince Edward Island-Canada Consultation Agreement. This Agreement created the Mi’kmaq Consultation Unit, which is appointed by and reports to the Chiefs of the two First Nations though the Mi’kmaq Confederacy of PEI (MCPEI).

PEI has also adopted a Provincial Policy of Consultation with the Mi’kmaq outlining the process for consultation with the MCPEI. This policy places responsibility on each Provincial government department to determine whether its actions or decisions will trigger the duty to consult and requires Deputy Ministers to designate individuals in each department to be the primary contact on consultation matters. An Aboriginal Affairs Secretariat is also available to assist with the consultation process.

Please contact your McInnes Cooper lawyer or any member of our McInnes Cooper Aboriginal Law Team to discuss this topic or any other legal issue.

McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.

© McInnes Cooper, 2016. All rights reserved. McInnes Cooper owns the copyright in this document. You may reproduce and distribute this document in its entirety as long as you do not alter the form or the content and you give McInnes Cooper credit for it. You must obtain McInnes Cooper’s consent for any other form of reproduction or distribution. Email us at publications@mcinnescooper.com to request our consent.

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