Consultation Agreement between the Métis Nation of Ontario and the Government of Canada
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The Métis Nation of Ontario ("MNO")
The Government of Canada,
as Represented by the Minister of Indian Affairs and Northern Development
Collectively referred to as "the Parties"
Whereas the MNO represents its citizens and member Ontario Métis communities through various governance structures and institutions at the local, regional and provincial levels;
Whereas the Crown has a legal duty to consult Aboriginal peoples and, if appropriate, accommodate, when the Crown contemplates conduct that might adversely impact asserted or established Aboriginal or treaty rights; and,
Whereas the Parties wish to establish a process that will guide consultations when Canada has a legal obligation to consult.
The Parties agree as follows:
- The consultation process described in this Consultation Agreement (the "Agreement") is available whenever Canada wishes to conduct consultation on the record and with prejudice with the MNO respecting potential adverse effects of contemplated federal Crown conduct on the asserted or established Aboriginal or treaty rights of collectives represented by the MNO.
- The Parties intend that the consultation process described in this Agreement be the preferred choice for consultation by Canada with the MNO.
- This Agreement 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.
- Notwithstanding Section 1 b), the consultation process described in this Agreement is optional and does not prevent the Parties from engaging in consultations independent of this process or from concluding other consultation agreements, including potential tripartite consultation processes.
- The Parties agree that Canada may also engage with the MNO through this Agreement for decisions and/or activities for good governance and not specific to Section 35 rights.
2. Métis Nation of Ontario Structure
- The MNO has developed and adopted a Consultation Framework that facilitates effective Crown consultation through the MNO's governance structures at the local, regional and provincial levels on behalf of the Métis communities it represents in Ontario on contemplated Crown activities that may impact the collective rights, claims, interests and way of life of these communities.
- The MNO Consultation Framework has nine Regional Consultation Committees (the "Consultation Committees") that have been established through executed Regional Consultation Protocols (the "Protocols") between the MNO and its twenty-nine MNO Community Councils (See Annex A) that set out varying roles and responsibilities between the MNO's governance structures for effective Crown consultation on behalf of Ontario Métis communities.
- As set out in the Protocols, the MNO Lands, Resources and Consultations Branch acts as an initial point of contact for the purpose of Crown consultations and works with the Consultation Committees that are responsible to ensure MNO citizens and the Métis communities the MNO represents are meaningfully and effectively consulted by the Crown.
For the purposes of providing notice or engaging in consultation under this Agreement, initial contact shall be made with the MNO Lands, Resources and Consultations Branch which is responsible for ensuring that the relevant Consultation Committee(s) is/are provided this information for their consideration and potential response or follow up. The contact information for this initial notice is:
Métis Nation of Ontario
Lands, Resources and Consultation Branch
500 Old St. Patrick Road, Unit D
Ottawa, ON K1N 9G4
Attention: Branch Director
- Crown consultation will take place directly between the responsible federal department(s) and agencies, the MNO and its appropriate Consultation Committee(s) as contemplated in the Protocols.
- The MNO Lands, Resources and Consultations Branch will support and provide administrative, coordination and technical support to the Consultation Committees in consultation processes with the Crown.
- Each of the Consultation Committees (see Annex B) is comprised of a representative of each of the Community Councils in the relevant region (see Annex C), along with the elected MNO Regional Councilor who acts as the Chair of the Committee. The MNO Captain of the Hunt for the region participates as an ex-officio member of the Committee to provide support and guidance to the Committee.
- MNO's five steps for consultation and accommodation include:
- provision of necessary capacity (if required);
- information exchange;
- assessing effects on Métis rights; and
- accommodation (if appropriate)
Depending on the nature, size and scope of the Crown action and subject to 8 b) of this Protocol, Canada will make best efforts to follow these steps
3. Canada's Structure
- Canada shall participate in consultations through the federal departments or other Crown agencies responsible for the decision or activity in respect of which consultation is sought.
- Federal departments and agencies follow Canada's Guidelines for Federal Officials to Fulfill the Duty to Consult in addition to other policies and guidelines which may exist for each department or agency.
- Federal departments and agencies will take a coordinated approach to consultation and accommodation to ensure an effective and efficient process for proposed activities or actions.
- Where applicable, Canada uses and relies, to the extent possible, on the consultation processes and accommodation measures of other parties (e.g. industry, Boards, province) to assist it in fulfilling its duty to consult.
4. Consultation Agreement Advisory Committee
The Parties shall establish a Consultation Agreement Advisory Committee consisting of representatives of each Party and shall meet regularly. The Consultation Agreement Advisory Committee will:
- Exchange information regarding the progress of existing and upcoming consultation activities to facilitate improved consultation processes and community preparedness. This structure may also be used for early engagement on upcoming projects and follow-up on accommodation measures.
- conduct an informal annual review of the application of this Agreement to determine whether the Parties are using this process regularly; if not, assess why not and if required, consider whether amendments to the Agreement are necessary or if there are potential funding needs associated with the Agreement's implementation; and,
- meet annually to discuss the adequacy of this Agreement and three (3) years after the date of signing, report to senior officials on the effectiveness and usage of it.
5. The Consultation Process
The consultation process will operate in good faith and on the basis of the following principles:
- Where Canada wishes to initiate consultation under this Agreement, consistent with the notification procedure set out in section 2, it shall provide notification in writing to the MNO that Canada is initiating consultation with prejudice and on the record respecting the Federal Crown action.
- Canada shall provide the MNO information regarding the process to be followed by the Crown for consultation on the proposed action.
- Canada shall make good faith efforts to provide to the MNO all relevant information with respect to the proposed action and sufficient time to assess whether or not and, the extent to which the decision or activity may impact on established, asserted aboriginal, or treaty rights.
- The MNO shall indicate to Canada which Regional Consultation Committee(s) will participate in consultation on the project.
- The MNO shall, within a reasonable period of time, identify and communicate to Canada any concern they may have respecting any potential adverse impact on established, asserted aboriginal, or treaty rights.
- Canada shall notify the MNO 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.
- The amount of time to be provided for each step set out in this section above may differ depending on the Crown action in question and so will be determined and conveyed by the relevant federal official at the outset of each consultation that is initiated pursuant to this Agreement.
- Notwithstanding anything in this Agreement, any of the Parties may terminate by seven (7) days written notice, any consultation conducted pursuant to this Agreement.
6. General Matters
- This Agreement does not constitute a commitment by any Party to reach agreement within a consultation process in respect of any particular Crown action.
- Nothing in this Agreement is intended to alter any statutory or regulatory requirements to which Canada is subject, or to replace any consultation processes established pursuant to such requirements.
- This Agreement is not subject to settlement privilege and may be tendered as evidence in a court of law or other legal proceedings.
- Nothing in this Agreement is intended to:
- alter or define any Crown duty to consult and, if appropriate, accommodate;
- prevent the MNO from relying on any constitutional, common law or statutory right it may have respecting the Crown's duty to consult;
- represent the views of, or be interpreted as admissions by either of the Parties with respect to the nature and scope of any duty to consult and, if appropriate, accommodate;
- prevent the MNO from seeking judicial review of any Crown conduct on the basis of a failure of the duty to consult and, if appropriate, accommodate; and
- recognize, deny, create, extinguish, abrogate, derogate from or define any aboriginal or treaty rights that the citizens and communities the MNO represents, may have.
- The terms and conditions of this Agreement are not confidential and may be made public and tendered as evidence in a court of law or other legal proceedings.
- In respect of any consultation conducted pursuant to this Agreement, records and information may be provided and received 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. Both Parties shall determine whether the records or information in question should be provided, received and held in confidence. If the Parties determine the records or information should be provided and received in confidence, the record shall so be marked and any other record containing the information will also be marked to indicate it was provided and received in confidence. It is the intention of the Parties that any such record and information be held in confidence, unless such disclosure is required by law.
- Unless otherwise agreed to and notwithstanding Section 6 b) of this Agreement, any records or information provided to any federal department or agency consulting under this Agreement, shall be deemed to have been provided as confidential to the Government of Canada and may be shared freely amongst federal departments and agencies for the purposes of consultation.
- Nothing in Section 6b) is intended to prevent any Party from tendering as evidence in a court of law or other legal proceedings, 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.
8. Parties may proceed without prejudice
- Notwithstanding any other provision of this Agreement, the Parties to the consultation have the option of determining that, at any time prior to or during the consultation, discussions may be held and information exchanged, until further notice, on a without prejudice basis, in order to permit frank, cooperative and solution-oriented interaction without concern for the legal significance of admissions, concessions, positions and discussions for the period of time specified or agreed upon.
9. Funding for Consultations
- Contribution funding as determined by the Department of Indian Affairs and Northern Development may be provided to the MNO to assist in the operations of the MNO's Lands, Resources and Consultations Branch in order to support the capacity to participate in Crown consultation under this Agreement and to participate in the Consultation Agreement Advisory Committee. Such funding will be provided based on consideration of an annual budget submitted by the MNO and subject to annual appropriations by Canada.
- Each of the federal departments and other Crown agencies who are engaged in a consultation with the MNO conducted pursuant to this Agreement will consider whether or not, and how to provide funding to assist the MNO with respect to each proposed activity or action.
- For greater certainty, nothing in this Agreement shall be interpreted as denying or limiting the MNO's access to additional funding for project-specific Aboriginal consultation provided through federal departments or other Crown agencies.
10. Term of the Agreement
- This Agreement will come into force and effect on its execution and will continue in force and effect unless terminated by one or more of the Parties upon ninety (90) days written notice to the other Party.
- This Agreement may be amended with the written consent of the Parties.
In witness whereof the Parties hereto have signed this Agreement:
Métis Nation of Ontario
Chief, Métis Nation of Ontario
Her Majesty the Queen in Right of Canada
Minister of Indian Affairs and Northern Development Canada