PROPONENT INVOLVEMENT IN CONSULTATION Presentation to the Geology Matters Community Engagement Workshop October 30, 2012 Consultation with the Mi’kmaq

THE DUTY TO CONSULT The Constitution Act (1982): –Section 35(1): “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.” The Supreme Court of Canada: –“The duty to consult arises when the Crown has knowledge of the existence or potential existence of an Aboriginal or treaty right and contemplates conduct that might adversely affect that right.” (Haida, para. 47) Introduction

IMPORTANT DOCUMENTS – NOVA SCOTIA Nova Scotia’s Interim Consultation Policy The Consultation Terms of Reference The Proponents’ Guide Canada-Nova Scotia MOU on Consultation Cooperation Introduction

THE OFFICE OF ABORIGINAL AFFAIRS (OAA) Strategic Leadership in Aboriginal Consultation –Ensure consistent government approach, lead the policy, TOR, liaise with other jurisdictions (fed/prov/territorial) Operational Support to Departments –Advice on whether to consult, issue tracking, advice to proponents, committees, file management Training –Training sessions for provincial employees, Learning Seminar, training resources Strengthening Capacity of the Mi’kmaq –Capacity funding to the KMK, training on NS government processes Roles and Responsibilities

NOVA SCOTIA DEPARTMENTS Decide whether to consult with the Mi’kmaq based on advice from OAA Lead the consultation process with the Mi’kmaq Keep the record of consultation Assess the adequacy of a proponent’s engagement efforts Consider input from the Mi’kmaq Decide on the appropriate accommodations Determine the need for department-specific consultation procedures and guidelines Roles and Responsibilities

DELEGATION TO PROPONENTS Government is ultimately responsible for consultation with the Mi’kmaq, but proponents may be delegated some of the procedural aspects of that consultation, which includes: –Notifying the Mi’kmaq of their projects –Providing project-specific information –Meeting with the Mi’kmaq –Conducting a Mi’kmaq Ecological Knowledge Study –Addressing project-specific issues –Documenting their engagement process –Providing periodic consultation reports to the lead Nova Scotia department Roles and Responsibilities

Is Consultation Required? Offer to ConsultIdentify Impacts Consider Accommodation Decision THE ABORIGINAL CONSULTATION PROCESS Information from Proponents: Project description Maps Potential environmental impacts Contact information

CONSULTATION SCREENING CRITERIA Project description (location, size, duration) Operational phases (construction, operation) Regulatory schedule (approvals and deadlines) Land ownership and description Potential environmental impacts Potential impacts on Aboriginal and treaty rights Distance of project to First Nation lands Archaeology Specific Claims Interest expressed in land Jurisdictional issues (eg. impact on reserve lands) Is Consultation Required?

Offer to ConsultIdentify Impacts Consider Accommodation Decision THE ABORIGINAL CONSULTATION PROCESS Information from Proponents: We reference if proponents have already shared information We provide a list of all the approvals/permits required for a project Allows for one project – one process

PROJECT DESCRIPTION Attached to the offer to consult letter will be a project description that includes: –project proponent contact information (gov’t or industry) –a non-technical, plain language description of the proposed project including the magnitude and duration of the proposed project –a list of anticipated permits and approvals –timelines and schedules for project milestones –a map(s) of sufficient scale to clearly illustrate the location of the proposed project in relation to easily identified or commonly known landmarks (water bodies, roads, etc.) –clear identification of potential short and long term adverse impacts of the project Offer to Consult

Is Consultation Required? Offer to ConsultIdentify Impacts Consider Accommodation Decision THE ABORIGINAL CONSULTATION PROCESS Information from Proponents: MEKS Other studies

STUDIES The First Nation “must show a causal relationship between the proposed government conduct or decision and a potential for adverse impacts on pending claims or rights. Past wrongs, including breaches of the duty to consult, do not suffice.” (Rio Tinto, para. 45) Mi’kmaq Ecological Knowledge Studies (MEKS) Archaeological Assessments Mi’kmaq reviews of environmental studies The Crown must show that it has meaningfully considered the input received by the First Nation which requires a response to issues Identify Impacts

Is Consultation Required? Offer to ConsultIdentify Impacts Consider Accommodation Decision THE ABORIGINAL CONSULTATION PROCESS Information from Proponents: Any mitigation already undertaken by the proponent Any benefits agreements that may be in place

FOUR TYPES OF ACCOMMODATION 1.Avoidance: – Reject project; move project; postpone activity during spawning, mating, and hunting seasons 2.Reduce Impact / Mitigate: –Relocate traditionally used grounds, where sustainably possible; repopulate species; habitat restoration 3.Compensate for Impacts: –Training programs; approved absence or paid leave for Aboriginal project employees who wish to exercise their right to hunt, fish, trap, etc. during traditional seasons 4.Proponents Accommodation: –Negotiated agreements; co-management strategies; revenue sharing; equity ownership Accommodation

Is Consultation Required? Offer to ConsultIdentify Impacts Consider Accommodation Decision THE ABORIGINAL CONSULTATION PROCESS Information from Proponents: Record of consultation/engagement undertaken by the proponent Any commitments made by the proponent Any process identified to monitor the relationship moving forward

-INFORM THE MI’KMAQ -RESPOND TO THE ISSUES -MAINTAIN RECORD OF CONSULTATION Departments are responsible for maintaining the record of consultation for their specific projects Can include the record of proponents Decision

Thank you LAURENT JONART Consultation Advisor Office of Aboriginal Affairs Phone: