Mi'gmawe'l Tplu'taqnn Incorporated / New Brunswick / Canada Interim Consultation Protocol

Gelusultieg / Nit Oc Eli Skuhutawsk Mi’gmag Wolastoqiyik / New Brunswick / Canada Interim Consultation Protocol

-among-

The Mi’gmag and Wolastoqiyik Peoples in New Brunswick, as represented by the Chiefs of the Mi’gmag and Wolastoqiyik First Nations in New Brunswick (the "Mi’gmag and Wolastoqiyik")

-and-

The Province of New Brunswick, as represented by the Minister Responsible for the Aboriginal Affairs Secretariat of New Brunswick ("New Brunswick")

-and-

The Government of Canada, as represented by the Minister of Indian Affairs and Northern Development ("Canada") Collectively referred to as "the Parties".

The Parties agree as follows:

Purpose

1. The consultation process under this Interim Consultation Protocol (herein "Protocol") is available whenever Canada or New Brunswick wishes to conduct consultation on the record and with prejudice with one or more Mi’gmag or Wolastoqiyik First Nations respecting established or asserted Aboriginal or Treaty rights. This process includes consultation in respect of a decision or activity concerning Crown land, water or a natural resource.
2. The Parties intend that the consultation process under this Protocol is the preferred choice for consultation by Canada and New Brunswick with the Mi’gmag and Wolastoqiyik.
3. This Protocol does not constitute a commitment by any Party to reach agreement or to undertake consultation in respect of any particular decision, activity or subject matter.

Mi’gmag and Wolastoqiyik Authority

4. Subject to determination by a Chief and Council pursuant to Articles 5 to 8, the Assembly of First Nations’ Chiefs in New Brunswick Inc. (herein the "Assembly") has authority to enter into consultations and to bind and make commitments on behalf of the Mi’gmag and Wolastoqiyik and the Chief and Council of each of the Mi’gmag and Wolastoqiyik First Nations that subscribe to this Protocol.
5. A Chief and Council that receives notice under Article 11(a) may at any time before or after consultation has commenced pursuant to that notice determine to engage in its own consultation on behalf of its respective First Nation.
6. A Chief and Council that determines under Articles 5 or 11(b) to engage in a consultation independently will give written notice to that effect to the Assembly, which will provide written notice to Canada or New Brunswick of the decision.
7. Once a Chief and Council of a First Nation gives notice under Article 6, that First Nation is no longer represented by the Assembly and is no longer governed by this Protocol for the remainder of that consultation.
8. A Chief and Council that has given notice under Article 6 may rescind that notice if Canada or New Brunswick and the Assembly concur.

Protocol Advisory Group

9. The Parties shall establish a Protocol Advisory Group (herein the "Advisory Group") and each Party shall appoint a representative to it.
10. The Advisory Group:
    1. shall monitor the consultation process conducted under this Protocol and inform the Parties of any consultation undertaken by either New Brunswick or Canada with the Mi’gmag and Wolastoqiyik outside of this Protocol;
    2. shall monitor the implementation of this Protocol and recommend appropriate action to ensure that its spirit and intent are fulfilled;
    3. may seek the assistance of any person or entity it deems necessary to support the Advisory Group in fulfilling its functions; and
    4. may adopt its own rules of procedure, schedule of meetings and make arrangements for recording minutes as it deems necessary.

Principles of Consultation Process

11. The consultation process shall operate in good faith on the basis of the following principles:
    1. when either Canada or New Brunswick wishes to initiate consultation under this Protocol, that Party shall provide notification in writing to the Assembly, and to any non-Assembly member Chief and Council, that consultation with prejudice and on the record is intended respecting a particular decision, activity or subject matter. Each such notification may be jointly addressed to the Chiefs and Councils and delivery to the Assembly shall be deemed delivery to all First Nations to this Protocol;
    2. each Chief and Council receiving notice under Article 11(a) shall have a reasonable opportunity to consider whether it wishes to independently engage in consultation pursuant to that notice, as contemplated by Article 5 of this Protocol;
    3. Canada or New Brunswick shall make good faith efforts to provide to the Assembly all relevant information with respect to the proposed decision, activity or subject matter, and sufficient time to assess whether or not and the extent to which the decision, activity or subject matter may impact on established or asserted Mi’gmag or Wolastoqiyik Aboriginal or Treaty rights;
    4. within a reasonable period of time as identified in a notice under Article 11(a), or such further period as may be agreed, the Assembly shall identify and communicate to Canada or New Brunswick any concern it may have respecting any potential adverse impact on established or asserted Mi’gmag or Wolastoqiyik Aboriginal or Treaty rights;
    5. the Parties acknowledge that from time to time an agreement may be reached respecting a particular decision, activity or subject matter which could enable an action or project to proceed in phases. In such cases, the Parties involved may agree to have consultation also occur in phases;
    6. Canada or New Brunswick shall consider the concerns identified pursuant to Article 11(d), identifying potential accommodations, if any, including, if appropriate, providing financial consideration or other redress;
    7. Canada or New Brunswick shall notify the Assembly in writing of any decision or determination reached, including responses to the issues or concerns raised, and notification of specific accommodations, if any, as a result of the consultation; and
    8. the Parties concerned may terminate by written notice any consultation conducted pursuant to this Protocol.
12. Nothing in this Protocol is intended to:
    1. alter or define the duty to consult;
    2. prevent the Mi’gmag or Wolastoqiyik 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;
    4. prevent the Mi’gmag or Wolastoqiyik from seeking judicial enforcement of the duty of the Crown to consult and accommodate if any consultation or accommodation under this Protocol is not sufficient; or
    5. recognize, deny, create, extinguish, abrogate, derogate from or define any Aboriginal or Treaty right that the Mi’gmag or Wolastoqiyik may have.

Process Optional

13. The Parties acknowledge that the consultation process established through this Protocol is optional and does not limit the ability of the Parties to engage in consultation independent of the consultation process set out in this Protocol.

Confidentiality

14. This Protocol is not confidential and may be made public and tendered as evidence in a court of law or other legal proceeding.
15. In respect of any consultation conducted pursuant to this Protocol, records and information may be provided to the Parties to the consultation and received by them in confidence. In each case where information is intended to be provided, received and held in confidence, the Party providing the information shall so notify the other Party or Parties participating in respect of that consultation. The Parties at the consultation shall determine whether and in which manner the records or information in question should be provided, received and held in confidence. It is the intention of the Parties that any such record and information shall be held in confidence and shall not be disclosed publicly, unless such disclosure is required by law.
16. Notwithstanding Article 15, any Party may tender as evidence in a court of law or other legal proceeding records and information provided, received and held in confidence by the Parties to the consultation 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 Protocol.

Parties May Proceed Without Prejudice

17. Notwithstanding any other provision of this Protocol, the Parties to a consultation have the option of determining that at any time prior to or during the consultation, discussions may be held and information exchanged on a without prejudice basis with respect to the legal rights or positions of the Parties to the consultation, in order to permit frank, cooperative and solution-oriented interaction without concern for the legal significance of admissions, concessions, positions and discussion for the period of time agreed upon.

Funding

18. Contribution funding as determined by Canada and New Brunswick will be provided to assist the Assembly in coordinating consultation requests and in participating in the Advisory Group. Such funding will be provided based on consideration of an annual budget submitted by the Assembly and subject to annual appropriations by Canada and New Brunswick.
19. Upon request by the Assembly, each of the federal departments, provincial ministries and Crown entities which are subject to this Protocol and which are engaged in a consultation with the Assembly conducted pursuant to this Protocol will consider whether funding is required to assist the Assembly in participating in such consultation.

Review of This Protocol

20. The Parties shall jointly review this Protocol yearly. The objectives of the review include, but are not limited to:
    1. assessing information provided by the Advisory Group;
    2. determining whether the Parties are opting to use this process with regularity including an accounting of the number of consultations carried out;
    3. if they are not opting to use the process, assessing why not; and
    4. considering whether amendments to this Protocol are desirable.

Effective Date

21. This Protocol shall come into force and effect on the date of its execution (herein the "Effective Date") by Canada, New Brunswick and a majority of the First Nations’ Chiefs in New Brunswick.

Term of this Protocol

22. This Protocol is intended to expire three (3) years following the Effective Date.
23. It is the goal of the Parties that prior to the expiration of this Protocol and based on the required reviews of it they will have agreed to a final version of a trilateral consultation protocol.
24. The Parties may extend the three (3) year expiry date in writing.

Termination of this Protocol

25. This Protocol may terminate upon six (6) months written notice to the other Parties by Canada, New Brunswick or a majority of the First Nations’ Chiefs in New Brunswick who executed this Protocol.
26. A Chief and Council may at any time by written notice to Canada, New Brunswick and the Assembly terminate its subscription to this Protocol and take full responsibility for all consultations on behalf of that First Nation.

Amendment

27. This Protocol may be amended with the written consent of the Parties.

Signed in New Brunswick, the ___________ day of _____________ 2013.

The Mi’gmag and Wolastoqiyik

The Province of New Brunswick

The Government of Canada