PROPONENT INVOLVEMENT IN CONSULTATION

Presentation to the Geology Matters Environmental Assessment WorkshopNovember 14, 2013

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

THE MI’KMAQ OF NOVA SCOTIA

• The Mi’kmaq of Nova Scotia– 13 First Nations Bands

– The Assembly of Nova Scotia Mi’kmaq Chiefs

– The  Kwilmu'kw Maw-klusuaqn Negotiation Office (KMKNO) 

• The Mi’kmaq will respond to consultation requests within a reasonable and timely manner

• The Mi’kmaq will provide information on their concerns and interests in a reasonable and timely manner

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 Consult Identify ImpactsConsider

AccommodationDecision

THE ABORIGINAL CONSULTATION PROCESS

1 2 3 4 5

OAA Reviews Information from Proponents:

• Project description• Maps• Potential environmental impacts• Contact information

Is Consultation Required?

Offer to Consult Identify ImpactsConsider

AccommodationDecision

THE ABORIGINAL CONSULTATION PROCESS

1 2 3 4 5

If Consultation required:

• Lead department initiates consultation with Mi’kmaq

• Proponent Notifies Mi’kmaq early in Process (provide information, meet with KMKNO, communities)

Is Consultation Required?

Offer to Consult Identify ImpactsConsider

AccommodationDecision

THE ABORIGINAL CONSULTATION PROCESS

1 2 3 4 5

Information from Proponents:

• MEKS• Environmental Assessment• Archaeological Resource Assessment• Other studies

Is Consultation Required?

Offer to Consult Identify ImpactsConsider

AccommodationDecision

THE ABORIGINAL CONSULTATION PROCESS

1 2 3 4 5

Government and Proponent work with Mi’kmaq to Accommodate Impacts on Rights:• Avoidance, Mitigate, Compensate,

Accommodate• Proponent needs to document any

mitigation already undertaken; and• Any benefits agreements that may be in

place

Is Consultation Required?

Offer to Consult Identify ImpactsConsider

AccommodationDecision

THE ABORIGINAL CONSULTATION PROCESS

1 2 3 4 5

Government review information provided by Proponent and Mi’kmaq and make decision:• Record of consultation/engagement

undertaken by the proponent• Any commitments made by the proponent• Any process identified to monitor the

relationship moving forward

Thank you

LAURENT JONARTConsultation AdvisorOffice of Aboriginal AffairsPhone:424-8088Email: JONARTLA@gov.ns.ca