Interim Tripartite Agreement on Mi'gmaq Consultation and Accommodation

Purpose

1. This Agreement sets out a consultation process which may be used whenever Canada or Québec wishes to consult with the Mi'gmaq respecting any Aboriginal rights, including Aboriginal title, and treaty rights that the Mi'gmaq may have.

Mi'GmaweiMawiomi Secretariat (mms) Consultation and Accommodation Unit

2. The MMS Consultation and Accommodation Unit is established, appointed by and reports to the Mi'GmaweiMawiomi.

3. The Mi'gmaq shall participate in consultations under this Agreement through the MMS Consultation and Accommodation Unit. The MMS Consultation and Accommodation Unit shall act as a coordinator and conduit of information for the Mi'gmaq for the purpose of consultations.

4. The MMS Consultation and Accommodation Unit may inform Canada or Québec of any conduct in respect of which the Mi'gmaq want to be consulted on.

5. The MMS Consultation and Accommodation Unit has been mandated by the Chiefs and Councils of Gesgapegiag, Gespeg and Listuguj to act as their agent in the consultation process as described in sections 9 to 13.

6. Notwithstanding section 3, a Chief and Council may notify Canada or Québec and the MMS Consultation and Accommodation Unit, in writing, at any time within the consultation process, that they wish to be consulted directly, rather than through the MMS Consultation and Accommodation Unit.

7. Once a Chief and Council give notice under section 6, they are no longer represented by the MMS Consultation and Accommodation Unit and are no longer governed by the terms of this Agreement for the remainder of that specific consultation.

Canada and québec participation

8. Canada or Québec shall participate in consultations conducted pursuant to this Agreement through the federal departments, federal Crown agencies or provincial ministries responsible for the contemplated conduct.

Consultation Process

9. Where Canada or Québec wishes to initiate consultation under this Agreement, it shall provide notification in writing to the MMS Consultation and Accommodation Unit that consultation respecting a particular contemplated conduct is intended.

10. Canada or Québec shall provide to the MMS Consultation and Accommodation Unit relevant and available information with respect to the contemplated conduct and a reasonable period of time to assess the information. Canada or Québec can also, during that time, assist the MMS Consultation and Accommodation Unit to better understand the information exchanged if needed and if possible.

11. The MMS Consultation and Accommodation Unit shall within a reasonable period of time assess the information, engage with one or more of its communities, if needed, and notify Canada or Québec of:

1. any potential adverse impact on established or asserted Mi'gmaq Aboriginal or treaty rights and the extent of such impact;
2. what accommodations, if any, would address the concerns of the Mi'gmaq; and,
3. what engagement with Canada or Québec it recommends to discuss matters found in sections 11a) and 11b).

12. Canada or Québec shall consider the information communicated by the MMS Consultation and Accommodation Unit pursuant to section 11, including any recommended engagement.

13. Canada or Québec shall notify the MMS Consultation and Accommodation Unit in writing of any decision reached relating to the contemplated conduct, including responses to the concerns raised, and accommodations, if any, as a result of the consultation.

Legal Status

14. The consultation process under this Agreement does not constitute a commitment by any Party to undertake consultation or to reach agreement in respect of any particular conduct.

15. Nothing in this Agreement is intended to alter any statutory or regulatory requirements to which governments are subject.

16. The consultation process under this Agreement is optional and does not prevent the Parties from engaging in consultations independent of this process or from concluding other consultation agreements.

17. This Agreement is not subject to settlement privilege and may be tendered as evidence in a court of law or other legal proceeding.

18. Consultation conducted pursuant to this Agreement is not subject to settlement privilege and evidence respecting consultation activities may be tendered as evidence in a court of law or other legal proceeding.

19. Nothing in this Agreement is intended to:

1. alter or define the duty to consult;
2. prevent the Mi'gmaq from relying on any common law or statutory right they may have respecting the duty to consult;
3. represent the views of, or be interpreted as admissions by, any of the Parties with respect to the nature and scope of the duty to consult; or
4. prevent the Mi'gmaq from seeking in a court of law or other legal proceeding enforcement of the duty of Canada or Québec to consult and, where appropriate, accommodate.

20. Nothing in this Agreement is intended to recognize, deny, create, extinguish, abrogate, derogate from or define any Aboriginal rights, including Aboriginal title, and treaty rights that the Mi'gmaq may have.

21. Notwithstanding anything in this Agreement, any of the Parties may terminate by written notice any consultation conducted pursuant to this Agreement.

Confidentiality

22. This document is not confidential.

23. The Mi'gmaq may provide documents to Canada and Québec for the purpose of consultation which describe their established or asserted rights. The Parties engaged in a consultation conducted pursuant to this Agreement shall determine whether the record or information in question should be provided, received and held in confidence. Any record or information that they agree to treat confidentially shall be held in confidence and not disclosed, unless such disclosure is required by law.

24. Nothing in section 23 is intended to prevent any Party from tendering records or information as evidence in a court of law or other legal proceeding if the record or information is relevant to an issue of whether a duty to consult was or was not met or fulfilled through a consultation conducted pursuant to this Agreement.

Without Prejudice Discussions

25. Notwithstanding any other provision of this Agreement, the Parties engaged in a consultation conducted pursuant to this Agreement may at any time during that consultation agree to enter into, for an agreed period of time, without prejudice discussions, including verbal and written communications.

Funding Provided by Canada

26. Contribution funding as determined by Canada will be provided to MMS to assist them in operating the MMS Consultation and Accommodation Unit. Such funding will be provided based on consideration of an annual budget submitted by MMS and subject to annual appropriations by Canada.

27. Each of the federal departments and federal Crown agencies which are engaged in a consultation with the MMS Consultation and Accommodation Unit conducted pursuant to this Agreement will consider whether and how to fund the requirements of that consultation.

Funding Provided by Québec

28. The Secrétariat aux affaires autochtones will provide funding to MMS via the funds available under the consultation support component of the Aboriginal Initiatives Fund to assist MMS in operating the MMS Consultation and Accommodation Unit and to ensure Mi'gmaq participation in consultations conducted by Québec pursuant to this Agreement.

Review of Agreement

29. Eighteen (18) months following the signature of this Agreement, the Parties will review this Agreement and its process, and consider if amendments are required. The objectives of this review include, but are not limited to:

1. determining whether the Parties are opting to use this consultation process regularly;
2. assessing the effectiveness of the consultation process, including the extent to which it has facilitated consultation; and
3. if the Parties are not opting to use this consultation process, assessing why not.

Effective Date and Termination of Agreement

30. This Agreement shall come into force and effect on the date of its signature and shall continue in force and effect unless terminated by one or more of the Parties upon three (3) months written notice to the other Parties hereto.

Amendment

31. This Agreement may be amended with the written consent of the Parties.

Signed this ____________ day of _____________ 2012.