Protocol on Consultation and Accommodation of the Wolastoqiyik Wahsipekuk First Nation

Preamble

Whereas section 35 of the Constitution Act, 1982 recognizes and affirms the Aboriginal and treaty rights of the Aboriginal peoples of Canada;

Whereas Canada has a constitutional duty to consult and, where appropriate, accommodate Aboriginal peoples when contemplating conduct that could have adverse effects on established or potential Aboriginal or treaty rights and on their Aboriginal interests;

Whereas the WWFN holds and exercises Aboriginal and treaty rights applicable to the Wolastokuk, in particular under peace and friendship treaties, which rights are recognized and affirmed by section 35 of the Constitution Act, 1982;

Whereas the Wolastoqiyik have developed a close and lasting relationship with Wolastokuk and the resources located there, and wish to manage activities that occur there in a manner that respects and is in accordance with their values;

Given the Supreme Court of Canada decisions on peace and friendship treaties;

Whereas, on December 21, 2006, the WWFN submitted to Canada the comprehensive land claim of the Viger Maliseet First Nation (now the Wolastoqiyik (Maliseet) Wahsipekuk First Nation), describing the boundaries of its ancestral territory, Wolastokuk;

Whereas Canada and the WWFN signed a framework agreement in 2019 to renew their relationship;

Whereas Canada recognizes the existence of a relationship based, among other things, on these Aboriginal rights and on peace and friendship treaties with the WWFN;

Whereas the honour of the Crown requires that these rights be determined, recognized and respected, which may require that Canada consult with Indigenous peoples and, where appropriate, accommodate their interests;

Whereas the WWFN identifies an area as being the Territorial Consultation Area where government conduct may have adverse effects on established or potential Aboriginal and/or treaty rights, and on its Aboriginal interests;

Whereas the parties wish to establish a clear and effective process that they can follow to respect Canada's constitutional duty to consult and, where appropriate, accommodate, flowing from section 35 of the Constitution Act, 1982;

Whereas it is in the interest of the parties that Canada initiates consultation under this protocol as soon as possible in its decision-making process;

The Parties Agree As Follows:

Definitions

The following definitions apply in this protocol.

"Aboriginal rights and interests" refers to established or potential Aboriginal or treaty rights, and Aboriginal interests of the WWFN.

"Conduct" includes actions by Canada and its Federal Organization  in territorial matters, including but not limited to designations, authorizations and other decisions that may have adverse effects on Aboriginal rights and interests in the Territorial Consultation Area.

The "Department" refers to the Department of Crown-Indigenous Relations

The "Directorate responsible for consultations" [Directorate] is a department of the WWFN responsible for the latter's mandate in territorial matters.

A "Federal Organization" refers to federal government departments and agencies.

The "Grand Council" refers to the WWFN band council as defined in the Indian Act.

The "Monuwehkehtit Kisitahahsit Committee" is a committee established under article 55.

The "Territorial Consultation Area" includes the following areas, the mapping representation of which is described in Appendix I, subject however to future change:

1. Wolastokuk, limited to its portion situated within Quebec for the purposes of this protocol;
2. The WWFN fishing areas of interest on which asserted or established Aboriginal and treaty rights are exercised and/or for which permits may be are issued to it by the Department of Fisheries and Oceans Canada; and.
3. Any other place of interest agreed upon by the parties, where government conduct could have adverse effects on Aboriginal rights and interests.

The "Wolastokuk" is the ancestral territory asserted by the WWFN.

"Wolastoqiyik" is a member of the WWFN, as defined in the current WWFN citizenship rules.

Purpose

1. This protocol establishes a process for consulting and accommodating the WWFN when Canada is considering Conduct.
2. The consultation and accommodation process applies in accordance with the following objectives:
   1. establish constructive exchanges and a nation-to-nation relationship between the parties based on respect and cooperation;
   2. ensure consideration and protection of Aboriginal rights and interests;
   3. agree on the parties' preferred approach for consultation and accommodation;
   4. recognize and promote co-existence on Wolastokuk, particularly concerning the use of its resources; and
   5. work together to reach consensus and even, where possible, the respective consent of the parties to the required accommodation.

The Directorate Responsible for Consultations [Directorate]

3. The role of the Directorate is to act as a spokesperson on territorial matters for the WWFN. Its mandate is to undertake territorial consultations and impact assessments, and to exercise the powers of the WWFN for the purposes of this protocol. It only exercises the powers delegated to it by the Grand Council.
4. In addition to consultations undertaken by Canada pursuant to this protocol, the Directorate may inform Canada in writing of any Conduct for which the WWFN wishes to be consulted, describing the reasons for which the proposed Conduct may have adverse effects on Aboriginal rights and interests.

Canada

5. Canada participates in the consultation and accommodation process undertaken in accordance with this protocol through Federal Organizations responsible for the contemplated Conduct.

Parties’ Participation in a Consultation

6. To the extent possible, the Federal Organizations will adopt a coordinated approach to consultation and, where appropriate, accommodation, to promote the efficiency and effectiveness of the process.
7. To assist it in complying with its duty to consult and, where appropriate, accommodate, Canada
   1. to the extent possible, relies on existing mechanisms and processes, such as the impact assessment and regulatory approval processes (e.g. those of agencies boards, and offices of the federal government); and
   2. may use third-party consultation activities (e.g. those of departments and agencies of the provincial government, and of proponents).
8. When Canada obtains information through another prior or existing process, it shall advise the WWFN. The parties shall discuss the relevance of the information in relation to the proposed Conduct and, if the WWFN deems necessary, it may complete the information thus obtained.
9. For the purposes of article 7(b), when Canada obtains information from a third party to the consultation, it shall contact the WWFN to allow it, if the latter deems necessary, to verify, validate and complete the information thus obtained.
10. At the start of each fiscal year, Canada will provide the WWFN with a list and brief description of Conduct being considered by Canada that may have adverse effects on Aboriginal rights and interests in the Territorial Consultation Area in that fiscal year. This list will also include Conduct applied outside the Territorial Consultation Area that could have adverse effects on Aboriginal rights and interests, including any Conduct subject to an existing impact assessment or regulatory approval mechanism or process.
11. The absence of a Conduct from the list of consultation activities provided for under article 10 shall not prevent the parties from using this protocol to undertake consultation concerning that Conduct.

Consultation and Accommodation Process

12. The WWFN may indicate to each Federal Organization the type and nature of proposed Conduct that it wishes to be subject to this protocol. The absence of such indications, however, shall not exempt the parties from application of this protocol.
13. To initiate a consultation pursuant to this protocol, Canada shall advise the WWFN in writing as early as possible that a consultation is planned in relation to a specific proposed Conduct. This notice shall identify the person(s) designated by the Federal Organizations in question to represent Canada in the consultation and the parties shall keep a record of the consultation.
14. Canada shall forward to the WWFN as soon as possible sufficient, relevant information available in French concerning the contemplated Conduct. This information includes the following:
    1. the title of the Conduct, its type or sector, its proposed location and the area required for its implementation;
    2. the names and contact information of the proponent or third party primarily interested in the Conduct, as applicable;
    3. the name and contact information of the resource person within the department responsible for the Conduct;
    4. a detailed description of the Conduct, including, for example, the objectives, the list of activities and methods of implementation, costs, and proposed timelines;
    5. a scale map showing the proposed general location of the Conduct and its various elements in relation to each other;
    6. any study or plan related to the Conduct that is, will be or have been carried out with respect to the area where the Conduct is to be carried out, including any study or plan related to the potential impacts of the Conduct on the Territorial Consultation Area;
    7. opportunities for the participation and involvement of the WWFN or its members in any stage of the project, in particular in relation to jobs and business opportunities; and
    8. federal laws, regulations, policies or programs applicable to the Conduct.
15. The WWFN may inform Canada within a reasonable time of its desire to obtain more information than is set out in article 14.
16. The WWFN shall advise Canada if any information required for its analysis is missing. In such a case, the WWFN's deadline for responding under article 18 shall be suspended until the information has been provided.
17. The parties shall issue a joint notice of compliance when the information shared is deemed to be sufficient to initiate consultations.
18. Canada shall allow the WWFN a reasonable time after issuance of a notice of compliance for it to determine what adverse effects the contemplated Conduct will have on Aboriginal rights and interests and, as applicable, the degree of such effects.
19. Within the response time, the WWFN shall
    1. analyze the information provided by Canada;
    2. explain to Canada the nature and scope of the Aboriginal rights and interests on which the contemplated Conduct may have adverse effects;
    3. indicate the nature and degree of the adverse effects of the  Canada's  contemplated Conduct on Aboriginal rights and interests, including cumulative effects that may be related to other conduct that have adverse effects on Aboriginal rights and interests; and
    4. propose, where applicable, accommodation measures to avoid or minimize the adverse effects of the contemplated Conduct.
20. If the WWFN needs to conduct in-depth analyses, it shall set out its reasons to Canada as soon as possible in order to have additional time.
21. Despite the expiry of the response period, the WWFN may provide any additional information in a timely manner in relation to one or more points under article 19.
22. Within a reasonable time proportional to what was allotted to the WWFN under article 18, Canada shall analyze the information provided by the WWFN and request any additional information or clarification needed for its decision-making process.
23. Canada shall consider the information provided by the WWFN in its decision-making process in relation to the contemplated Conduct.
24. The parties may, at the request of either, meet to discuss the contemplated Conduct if either party feels that simply exchanging information in writing is not enough.
25. Canada shall advise the WWFN of any decision made with respect to the contemplated Conduct, including how the decision was able or unable to avoid the adverse effects and, where applicable, to the accommodation measures proposed by the WWFN, unless those elements are included in another document (e.g. an impact assessment report). In that case, that document shall be provided to the WWFN and Canada may simply refer to it when communicating its decision.
26. At the request of the WWFN, the parties may meet to discuss and obtain additional information, particularly in relation to Canada's decision concerning the contemplated Conduct.
27. When accommodation measures appear necessary, the parties shall engage in discussions to establish appropriate and suitable accommodation measures to avoid or minimize the adverse effects of the Conduct on the Aboriginal rights and interests in question.
28. If the adverse effects of the Conduct cannot be completely avoided or minimized to the satisfaction of the parties, other appropriate accommodation measures may be considered, such as financial compensation, employment and business opportunities, exchange of land and/or royalties.
29. The parties involved may, by written notice, terminate any consultation and accommodation process conducted pursuant to this protocol.
30. Notwithstanding the above, this protocol shall not prevent the WWFN from agreeing with a Federal Organization concerning a particular consultation mechanism suited to the types of Conduct for which the Organization is responsible, including in relation to specific timelines and places.
31. Exceptionally, in the event of imminent and unforeseeable emergencies such as natural, environmental or man-made disasters, Canada may implement emergency measures without following the consultation steps provided for in this protocol. As soon as possible, once the emergency has ended, Canada shall inform the WWFN of the Conduct applied that could have adverse effects on Aboriginal rights and interests and engage in discussions concerning appropriate and suitable accommodation measures that may be required to avoid or minimize adverse effects. As applicable, and with the necessary modifications, Canada shall formally begin the consultation process as soon as circumstances permit.

Legal Scope

32. The French version of the protocol is the official version. If there is a divergence between the French and the English versions of the text of this protocol, the French version will prevail.
33. The consultation process provided for in this protocol does not constitute a commitment by the parties to undertake consultation or to reach agreement concerning any particular Conduct.
34. Nothing in this protocol is intended to modify  any legal obligations to which Canada is subject.
35. The parties reserve the right to discuss a process for engagement in the future.
36. The consultation and accommodation process provided for in this protocol represents the parties' preferred approach but shall not prevent them from participating in other processes that meet Canada's duty to consult independent of the consultation and accommodation process under this protocol, or from concluding other consultation agreements.
37. This protocol is public and may be tendered as evidence before a court or any other legal proceeding.
38. Unless the parties avail themselves of provisions concerning the confidentiality of certain information exchanged under articles 39 and following, no consultation held under this protocol shall be subject to settlement negotiation privilege, and evidence concerning consultation activities may be tendered before a court or any other legal proceeding.
39. Nothing in this protocol shall:
    1. modify or define the duty to consult and, where appropriate, to accommodate;
    2. prevent the WWFN from exercising any right that it may have in relation to the duty to consult and, where appropriate, to accommodate;
    3. represent the views of either party concerning the nature and scope of any duty to consult, or be interpreted as an admission by either party;
    4. prevent the WWFN from turning to the courts or any other legal proceeding to enforce Canada's duty to consult and, where appropriate, accommodate;
    5. override a consultation protocol entered into separately in relation to a specific matter; or
    6. recognize, deny, create, extinguish, repeal, define or override any Aboriginal right or interest that the WWFN may have.

Confidentiality of Information

40. Canada recognizes:
    1. that the Wolastoqiyik are the keepers of traditional knowledge that they hold, which may be confidential in nature;
    2. that it may become aware of such knowledge as part of the application of this protocol; and
    3. that it must manage this knowledge in accordance with the wishes of the WWFN and in accordance with applicable laws and regulations.
41. With respect to any consultation held pursuant to this protocol, a document or information may be shared confidentially with the parties to the consultation and accommodation process with a clear statement that effect.
42. When a party wishes to share a document or information ("information") confidentially under the previous article, the parties may discuss the confidential nature of the information in question and agree to the appropriate terms of confidentiality. If the party receiving the information refuses to consider it confidential and to handle it accordingly, the party providing it shall have the choice to withdraw it from the consultation and accommodation process or to continue to disclose it without it being treated confidentially.
43. Written documents resulting from or forming the subject of a consultation activity shall not contain information that the parties agree to treat as confidential. Any information that the parties agree to treat as confidential shall be identified as having been provided and received in confidence. Confidential information may then not be disclosed to a third party and may only be shared between the Federal Organizations themselves and within the WWFN, unless the law requires or a court orders otherwise.
44. If there is a major disagreement about the confidential nature of the information, the matter may be taken before the Monuwehkehtit Kisitahahsit Committee at the request of either party in accordance with articles 58 and following.
45. If Canada receives a request under the Access to Information Act (RSC 1985, c. A-1) concerning information received from the WWFN pursuant to this protocol, all relevant provisions of the Act shall apply, including the need to inform the WWFN of the intent to disclose such information and to allow it to make submissions in that respect.
46. The parties may file confidential information in evidence before a court or any other judicial body if they have jointly agreed in advance to the terms for disclosing that confidential information in question. In the event of disagreement between the parties about the confidential nature of the information or the terms for disclosing it, the rules of evidence applicable to the judicial body seized of the matter shall apply.

Circulation of Documents

47. Without affecting its confidential nature, the information may circulate freely within the WWFN and within the Federal Organizations for the purposes of that same consultation and, unless one of the parties objects, for the purposes of other consultation and accommodation activities with WWFN.
48. The circulation of information within the parties does not affect its confidential nature.

Right of the Parties to Proceed Without Prejudice

49. Despite any other provision of this protocol, the parties taking part in a consultation initiated pursuant to this protocol  have the right, at any time before or during the consultation, to hold discussions and exchange information without prejudice, until indicated otherwise, to allow for open, collaborative and solution-based interaction, without concern for the legal significance of admissions, concessions, positions and discussions during the prescribed or agreed period.

Funding Provided by Canada

50. A financial contribution from the Department of Crown Indigenous Relations will be made to the WWFN to support its activities under this protocol. This funding shall be provided, subject to the allocation of the necessary appropriations by Canada, based on an annual budget submitted by the WWFN.
51. Nothing in this protocol shall prevent the WWFN from:
    1. accessing funding from another governmental or non-governmental source; and/or
    2. negotiating any benefit-sharing agreement.
52. Other amounts received by the WWFN from other governmental or non‑governmental sources, incentives or economic opportunities that it may otherwise access may not be deducted from the funding provided pursuant to this protocol, nor be included, in whole or in part, in it.
53. Regardless of the contribution referred to in article 49, each Federal Organization involved in a consultation with the WWFN conducted pursuant to this protocol will examine the consultation needs related to each proposed Conduct and, where appropriate, determine the funding terms based on the specific needs of the consultation and accommodation process.

Monitoring of the Protocol

54. Once per year, the WWFN shall take part in meetings of the Federal Network on Indigenous Consultation in Quebec to discuss the implementation of this protocol.
55. In addition, the WWFN may submit an annual report to Crown-Indigenous Relations and Northern Affairs Canada indicating the consultation and accommodation processes conducted in the past year and the findings, requests and recommendations concerning this protocol and its implementation.

The Monuwehkehtit Kisitahahsit Committee (committee with the mandate of protecting what the parties have agreed to)

56. The parties agree to create a committee called Monuwehkehtit Kisitahahsit made up of four representatives, one permanent representative duly appointed by each of the parties and one duly appointed by each of the parties based on the issue being considered. The parties' representatives have the jurisdiction and powers required to allow the committee to fulfill its mandate.
    The committee's mandate is to ensure compliance with this protocol, its revision and its implementation, including finding solutions when disputes arise, based on the objectives of this protocol.
57. The Monuwehkehtit Kisitahahsit Committee shall establish its operating procedures.
58. Every twenty-four (24) months after the signing of this protocol, unless the parties agree otherwise, the Monuwehkehtit Kisitahahsit Committee shall review the protocol and its processes and determine if it needs any amendments. This review shall include the following objectives:
    1. determine how often the parties use the consultation process;
    2. assess the effectiveness of the consultation process, including the extent to which it has facilitated consultations;
    3. identify the reasons why they have chosen to not use the processes set out in this protocol, where applicable; and
    4. determine whether this protocol requires any amendments, which shall, as applicable, be submitted to the parties in writing for approval.
59. The parties recognize that the success of this protocol will depend on the capacity and willingness to recognize, explore and resolve difficulties that may arise in its interpretation and application, and that they will seek to resolve conflicts in a manner that fosters an improved and ongoing nation-to-nation relationship, as follows:
    1. In the event of a conflict, the parties will seek to resolve their dispute between themselves through their respective representatives.
    2. If the conflict persists, either party may submit the dispute to the Monuwehkehtit Kisitahahsit Committee to attempt to resolve it, explaining the nature of the dispute and the efforts made so far to resolve it.
    3. The Monuwehkehtit Kisitahahsit Committee shall conduct a full and fair review of the parties' positions and seek consensus on the resolution of the dispute.
60. If no settlement is reached, the parties shall give preference to alternative dispute resolution, including mediation. As part of the dispute resolution process, the parties shall assume their respective costs.

Coming into Force and Cancellation of this Protocol

61. This protocol shall come into force on the date on which it is signed and shall remain in force, unless cancelled by one of the parties with three (3) months written notice to the other party to this protocol.

Amendment

62. The evolution of law shall guide the interpretation of this protocol.
63. This protocol may be amended with the written consent of the parties or through their authorized representatives.

Signatures

In witness whereof the Parties have signed this Protocol:

Appendix I: Territorial Consultation Area

The Territorial Consultation Area corresponds to the following areas:

1. Wolastokuk (Canadian portion located in Quebec). The territory in which the WWFN asserts Aboriginal and treaty rights. It represents the perspective of the WWFN and is not a recognition by Canada of the territory in which the WWFN holds Aboriginal or treaty rights. The geographic boundaries of Wolastokuk are subject to change based on ongoing research and analyses.
2. The WWFN fishing areas of interest on which asserted or established Aboriginal and treaty rights are exercised and/or for which permits may be issued to it by the Department of Fisheries and Oceans Canada, subject to change based on current permits.

In addition to possible changes to the boundaries of Wolastokuk and WWFN fishing areas of interest, the Territorial Consultation Area and its map representation may be changed at a later time to reflect any other area of interest agreed to by the parties.