February 2011 marked the four year anniversary of the Framework Agreement . The Agreement sets out that the parties will use best efforts to reach a Memorandum of Understanding (MOU) within six years of signing the Framework Agreement, with an Accord to follow within three years of the approved MOU.
Complex negotiations such as these require patience and perspective. The initial timelines were ambitious and it is now clear that reaching an Accord will take longer.
The parties began with an in depth scoping of the topics and associated issues with a concentrated focus on governance, wildlife, forestry, fisheries and land. Topic-specific working groups were then established as needed.
One of the first priorities of the Main Table was to negotiate a process to address the Crown's duty to consult with the Mi'kmaq on proposed activities that have the potential to adversely impact aboriginal rights including title and treaty rights.
On August 31, 2010, after a three-year pilot period, the thirteen Mi'kmaq communities, through the Assembly of Nova Scotia Mi'kmaq Chiefs, signed an historic agreement with the Governments of Canada and Nova Scotia. The Mi'kmaq-Nova Scotia-Canada Consultation Terms of Reference lays out a process for the parties to follow when governments wish to consult with the Mi'kmaq.
The courts have confirmed that the Mi'kmaq of Nova Scotia have rights protected under Section 35 of the Constitution Act. The nature and extent of those rights, as well as the responsibilities and authorities of governments with respect to those rights, remain largely undefined. In some cases, they remain before the courts.
Nova Scotia would prefer to resolve legal uncertainty regarding constitutional rights through negotiation, not by the courts. Courts deal with matters of law but have no mandate to address other issues.
Since signing the Framework Agreement, the 13 First Nations in Nova Scotia have devoted much time and effort to working as an aggregate body through the Assembly of Nova Scotia Mi'kmaq Chiefs (the "Assembly"). The Assembly meets monthly and as needed for issue-specific discussions. Nova Scotia supports the Assembly's governance aspirations and believes that this Province has the potential to be a leading national example for effective aggregate models of governance.
Wildlife was an early priority of the Main Table with moose as the primary focus of discussion. A Moose Working Group was established with representation from all three parties.
The Unama'ki Institute of Natural Resources (UINR) leads the initiative for the Mi'kmaq together with the Mi'kmaq Rights Initiative (Kwilmuk Maw-Klusuaqn Negotiation Office (KMKNO). Provincial representatives include staff from the Department of Natural Resources, Nova Scotia Environment and the Office of Aboriginal Affairs. Federal involvement includes Parks Canada and Aboriginal Affairs and Northern Development Canada (AANDC).
The first goal of the Moose Working Group was to raise Mi'kmaq and public awareness about issues related to moose. The Mi'kmaq hired a coordinator to start the dialogue in Mi'kmaq communities and Mi'kmaq Hunter Advisory Groups have been established to further facilitate communication efforts. The Department of Natural Resources also established three full-time Aboriginal Conservation Officers. These efforts have fostered an environment of understanding and greatly improved the relationship between native and non-native hunters and enforcement alike.
Tia'muwe'l Netuklimkewe'l. Unama'ki Moose Harvesting According to Netukulimk
In August 2009, after extensive Mi'kmaq community consultation, the Assembly approved the Tia'muwe'l Netuklimkewe'l - Unama'ki Moose Harvesting According to Netukulimk Guidelines. At this time the Guidlines are voluntary, however, as Mi'kmaq community education and consultation continue it is the vision of the Assembly that these guidelines become mandatory.
By directly involving resource managers, the Moose Working Group has enhanced on-the-ground relationships and serves as a forum to explore measures that can provide a foundation for the future wildlife provisions of an accord. Collectively, the working group is exploring new areas such as Mi'kmaq focused hunter education workshops, customary law approaches for regulatory offences related to moose harvesting and collaborating on moose management in the Cape Breton Highlands.
In December 2006, the Supreme Court of Canada released decisions confirming that the Mi'kmaq have an Aboriginal right to harvest wood for domestic purposes such as firewood and housing. The court also said that this right needs to be exercised in a responsible manner and is subject to certain rules. A Foresty Working Group was established to look at management approaches for Mi'kmaq domestic harvest, recognizing that longer term managment issues and Mi'kmaq interests in forest economic opportunities would also be reviewed.
The Donald Marshall fishing case brought Mi'kmaq fishing rights into the national spotlight. The Supreme Court of Canada confirmed that the Mi'kmaq have a treaty right to fish for a moderate livelihood. Other court cases have also confirmed Aboriginal rights to fish for food, social and ceremonial purposes. While the fishery is predominantly within federal jurisdiction, the Province has responsibilities for aquaculture, the regulation of fish buyers and processors, and sport fishing.
The parties are collaborating to achieve clarity on Mi’kmaq rights and governance aspirations for the fishery. This will involve coming to a long term understanding of how Mi’kmaq rights to fish for a moderate livelihood and for food, social and ceremonial fisheries will be exercised in harmony with commercial and recreational fisheries and be reconciled with provincial and federal jurisdictions.
The Mi'kmaq of Nova Scotia claim Aboriginal title to the lands and waters of Nova Scotia and adjacent areas of the offshore, and maintain that they did not give up their land rights through treaty, voluntary cession, or otherwise. In Canada, there have been several legal decisions regarding Aboriginal title, including Calder (1973), and Delgamuukw (1997). In Nova Scotia, aspects of Aboriginal title were considered by the Supreme Court of Canada in the Joshua Bernard and Stephen Marshall et al. case (2005). The Made-in-Nova Scotia Process will be informed by the various court decisions. However, the parties agree that court decisions need not restrict their ability to make broader policy choices and enter into practical arrangements as they seek solutions to a range of land issues.
The Province is seeking Mi’kmaq advice respecting the selection, acquisition, designation, management, and use of land to meet the Province’s 12% land protection goal pursuant to the Environmental Goals and Sustainable Prosperity Act.
One of the goals of this act is to protect 12% of Nova Scotia’s land base by 2015. Nova Scotia wants to ensure that Mi'kmaq rights are protected and that the Mi’kmaq perspective is considered. The parties have, therefore, formed the Mi’kmaq – Nova Scotia Protected Areas Selection and Management Technical Advisory Group comprised of representatives from the Mi'kmaq, Nova Scotia Environment, Department of Natural Resources and the Office of Aboriginal Affairs, to provide advice, information, and recommendations to the Province and the Assembly of Nova Scotia Mi’kmaq Chiefs with respect to the protected areas initiative.
What's on the Horizon for the Made-in-Nova Scotia Process?
The Mi’kmaq, Nova Scotia and Canada continue to build consensus on the content of a future Accord and will continue to work toward a Memorandum of Understanding as a priority of the Main Table. Exploring interim/incremental arrangements will also continue to be a priority of the Main Table Negotiations, with particular emphasis in areas where work has begun such as wildlife, lands, and governance.After centuries of no dialogue, this is the first time that the Mi’kmaq of Nova Scotia and governments have had meaningful conversation on such a wide array of social, economic, cultural and governance issues. The Made-in-Nova Scotia Process has contributed substantially to creating stable and respectful relationships on rights matters among the parties. While differences remain, respect has grown, trust is on the rise and the parties are engaged in consistently meaningful and constructive dialogue on important issues.