Abenaki Consultation and Accommodation Protocol
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Abenaki Consultation and Accommodation Protocol
The Abenaki, as represented by the Chiefs and Councils of the Abenaki of Odanak and Wôlinak and their tribal council, the Grand Council of the Waban-Aki Nation, "the Abenaki"
The Government of Canada, as represented by the Minister of Indian Affairs and Northern Development, "Canada"
Hereinafter collectively referred to as the "Parties"
Whereas section 35 of the Constitution Act, 1982 recognizes and confirms the Aboriginal and treaty rights of the Aboriginal peoples of Canada;
Whereas the Crown has a constitutional obligation to consult and, where appropriate, accommodate Aboriginal peoples when it contemplates conduct that may adversely impact established or potential Aboriginal or treaty rights and Aboriginal interests;
Whereas the Abenaki make up an Aboriginal people that asserts Aboriginal rights and treaty rights under the Treaty of Swegatchy and the Treaty of Caughnawaga on their traditional territory called Ndakinna;
Whereas on May 26, 2015, the Abenaki presented to Canada a historical research report on the limits of the Ndakinna entitled, "Le Ndakinna de la Nation Wabanaki au Québec, document synthèse relatif aux limites territoriales" [The Ndakinna of the Wabanaki Nation of Quebec, a summary document regarding the limits of the territory];
Whereas the Abenaki identified in this report a priority area for territorial consultation where government conduct could have adverse impacts on their established or potential Aboriginal and treaty rights; the most recent version produced by the Ndakinna Office is available on the Aboriginal and Treaty Rights Information System (ATRIS) of Indigenous and Northern Affairs Canada (INAC) and is annexed to this Protocol (Annex 1).The borders of this priority area for territorial consultation may be subject to change from time to time by the Ndakinna Office;
Whereas the Parties wish to establish a clear and effective process that they can follow to respect the constitutional obligation of Her Majesty the Queen in Right of Canada to consult and, where appropriate, to accommodate, pursuant to section 35 of the Constitution Act, 1982, thereby strengthening the relationship between the Parties;
Whereas it is in the interest of the Parties that consultation conducted pursuant to this Protocol be initiated by Canada as early as possible in its decision-making process.
The Parties agree as follows
In this Protocol:
The "Ndakinna Office" is a department of the Grand Council of the Waban-Aki Nation responsible for the latter's mandate in territorial matters.
The "Grand Council of the Waban-Aki Nation" is the tribal council responsible for representing the First Nations of Odanak and Wôlinak, ensuring their economic development and administering the services of both communities.
"Conduct" includes the actions of Her Majesty the Queen in Right of Canada and her representatives in territorial matters, including but not limited to the designations, authorizations and other decisions likely to have an adverse impact on the established or potential Aboriginal or treaty rights and interests of the Abenaki.
The "Ndakinna" is the ancestral territory as asserted by the Abenaki and described in part (the Canadian portion) in Annex 1, which may be subject to change from time to time by the Ndakinna Office.
The "priority area for territorial consultation" is the area, including bodies of water, defined in Annex 1, which may be subject to change from time to time by the Ndakinna Office.
- This Protocol sets out a consultation and accommodation process with the Abenaki whenever Canada contemplates conduct that may have an adverse impact on the established or potential Aboriginal or treaty rights in the priority area for territorial consultation (i.e., Conduct).
- The Parties intend to make the process set out in this Protocol the preferred approach to fulfilling their mutual obligations in regards to consultation and accommodation.
Ndakinna Office of the Grand Council of the Waban-Aki Nation
- The Ndakinna Office is established and constituted by the Councils of the Abenaki of Odanak and Wôlinak, to which it reports.
- The role of the Ndakinna Office is to act as the spokesperson for the First Nations of Odanak and Wôlinak in territorial matters, and to defend and promote the Abenaki rights and interests. It undertakes historical, anthropological and environmental research to acquire the knowledge required for sustainable and responsible management of the Ndakinna territory in Canada.
- The Ndakinna Office was mandated by the Councils of the Abenaki of Odanak and Wôlinak to take charge of territorial consultations, environmental assessments, sustainable development and land claims.
- The Ndakinna Office maintains close ties with the members and elected officials of the Councils of the Abenaki of Odanak and Wôlinak to provide them with information regarding various consultation requests.
- The Abenaki participate in consultations held pursuant to this Protocol through the Ndakinna Office which acts, on behalf of the members and elected officials of the Councils of the Abenaki of Odanak and Wôlinak, as a coordinator and intermediary for the circulation of information for the purpose of consultation.
- The Ndakinna Office may inform Canada in writing of any Conduct taking place within the Ndakinna in Canada in regards to which the Abenaki wish to be consulted by describing how the contemplated Conduct may adversely impact the established or potential Aboriginal or treaty rights and interests of the Abenaki.
- Canada shall participate in the consultation and accommodation process conducted pursuant to this Protocol through the federal departments and agencies responsible for the contemplated Conduct.
- Where practicable, federal departments and agencies will adopt a coordinated approach regarding consultation and, where appropriate, accommodation in order to promote the effectiveness and efficiency of the process.
- Where applicable, Canada will rely to the extent possible on existing mechanisms and processes, such as the environmental assessment and regulatory approval processes (e.g. those of the agencies, boards, and the provincial government). As required, elements of the consultation and accommodation process set out in this Protocol can be integrated into or added by Canada, in a complementary manner, to the various existing regulatory approval mechanisms and processes in order to ensure that Canada's duty to consult and, where appropriate, to accommodate, is met.
- Where applicable, Canada may also rely on the consultation activities of third parties to help it respect, to the extent possible, its duty to consult and, where appropriate, to accommodate. Canada shall inform the Abenaki as soon as possible when consultation activities are used in this manner.
- When Canada obtains information from a third party about discussions it has had with the Abenaki, Canada shall communicate with the Ndakinna Office to validate the information obtained.
- At the start of each fiscal year, Canada will provide the Ndakinna Office with a list of consultation activities contemplated by Canada for that fiscal year in the priority area for territorial consultation. This list shall include, among other things, Conduct taking place outside the priority area for territorial consultation, but likely to have an adverse impact inside the area, including any Conduct that is part of an existing environmental assessment or regulatory approval mechanism or process.
- If Canada contemplates Conduct that is not on the list of consultation activities or Conduct prepared at the beginning of the fiscal year, this shall not prevent the Parties from relying on this Protocol to undertake consultation about the Conduct in question.
- When Canada contemplates specific Conduct in the priority area for territorial consultation, it shall determine, where appropriate, the scope of the consultation and accommodation process based on its preliminary analysis of the strength of the Abenaki's assertion of rights and the anticipated extent of the adverse impact on these rights and interests.
- When the Ndakinna Office informs Canada that the Abenaki wish to be consulted with regard to specific Conduct, in accordance with paragraph 8, Canada shall not refuse to consult with the Abenaki on the ground that the adverse impact of the Conduct is exclusively outside the priority area of territorial consultation.
Consultation and Accommodation Process
- To initiate consultation under this Protocol, Canada shall provide notification in writing to the Ndakinna Office, as soon as possible, that consultation is intended with regards to particular contemplated Conduct. This notice shall indicate the person(s) designated by the federal departments and agencies involved to represent the Crown in consultation and that the parties will document the consultation.
- Canada shall provide the Ndakinna Office, as soon as possible, with the relevant and available information in French and in English concerning the contemplated Conduct and shall allow a reasonable period of time for the Ndakinna Office to determine whether the Conduct may have adverse impacts on established or potential Aboriginal or treaty rights and related interests of the Abenaki and, if so, the extent of such impacts.
- The Ndakinna Office shall, within a reasonable period of time:
- assess the information provided by Canada;
- explain to Canada the nature and scope of the established or potential Aboriginal or treaty rights of the Abenaki on which the contemplated Conduct may have adverse impacts;
- specify the effect and extent of the adverse impact of Canada's contemplated Conduct on the established or potential Aboriginal or treaty rights and related interests of the Abenaki;
- propose, where appropriate, accommodation measures to minimize the adverse impacts of the contemplated Conduct.
- Canada shall consider the information communicated by the Ndakinna Office in the decision-making process relating to the contemplated Conduct.
- Canada shall respond to the information communicated by the Ndakinna Office and explain how it will be taken into consideration in the decision-making process relating to the contemplated Conduct.
- If the decision-making process permits, the Abenaki may communicate any additional information regarding one or more of the points noted in paragraph 20. Canada shall acknowledge receipt of the information and, if possible, shall explain to the Ndakinna Office how the additional information will be considered in the decision-making process.
- Canada shall notify the Ndakinna Office of any decision reached relating to the contemplated Conduct, including how the decision may or may not have responded to the anticipated adverse impact and, where appropriate, to the accommodation measures proposed by the Abenaki, unless those issues are described in another document (e.g. an environmental assessment report). In the latter case, this other document is made available to the Abenaki and can be simply referred to by Canada when it communicates its decision.
- The Parties concerned may terminate any consultation and accommodation process conducted pursuant to this Protocol by written notice.
- The consultation process under this Protocol does not constitute a commitment by the Parties to undertake consultation or to reach agreement in respect of any particular Conduct.
- Nothing in this Protocol is intended to alter any statutory or regulatory requirements to which Canada is subject.
- The consultation and accommodation process under this Protocol is the Parties' preferred approach. However, this does not prevent them from participating in consultations independent of the consultation and accommodation process under this Protocol or from concluding other consultation agreements.
- This Protocol is not subject to settlement privilege and may be tendered as evidence in a court of law or in other legal proceedings.
- Unless the Parties avail themselves of provisions concerning the confidentiality of certain information exchanged under paragraphs 33 and 34, consultation conducted pursuant to this Protocol is not subject to settlement privilege, and evidence respecting consultation activities may be tendered as evidence in a court of law or in other legal proceedings in accordance with paragraph 37.
- Nothing in this Protocol is intended to:
- alter or define the obligation to consult and, where appropriate, accommodate;
- prevent the Abenaki from relying on any common law or statutory right they may have respecting the duty to consult and, where appropriate, accommodate;
- represent the views of, or be interpreted as admissions by, any of the Parties with respect to the nature and scope of any duty to consult;
- prevent the Abenaki from seeking enforcement of the duty of Canada to consult and, where appropriate, accommodate in a court of law or in other legal proceedings;
- recognize, deny, create, extinguish, abrogate, derogate from or define any Aboriginal or treaty right that the Abenaki may have.
- This document is not confidential and may be made public.
- With respect to any consultation conducted pursuant to this Protocol, documents and information may be provided to the Parties to the consultation and accommodation process on a confidential basis.
- When a Party wishes to provide confidential information in the consultation and accommodation process under this Protocol, that Party shall notify the other Party to the consultation. The Parties shall discuss the confidentiality of the information in question and, if the Party receiving the information does not consider the information to be confidential, the Party providing the information will have the choice of whether or not to disclose it. The written record of a consultation activity shall not contain information that a Party does not wish to disclose for the purpose of maintaining its confidentiality. Any documents or information that the Parties agree to treat on a confidential basis shall be identified as having been provided and received confidentially and shall not be disclosed, unless required by law or by a court.
- The documents and information may, however, circulate freely within the Grand Council of the Waban-Aki Nation and the Councils of the Abenaki of Odanak and Wôlinak and between federal departments and agencies for the purposes of a given consultation activity and, unless otherwise required by a Party, other consultation activities.
- When a document or information prepared for specific consultation is communicated from one federal department or agency to another to help determine or fulfill, where appropriate, its duty to consult and accommodate with respect to new Conduct, the latter department or agency shall contact the Ndakinna Office to verify whether the document or information is relevant and complete as regards the new contemplated Conduct.
- Nothing in this section of this Protocol is intended to prevent any Party from tendering documents or information as evidence in a court of law or in other legal proceedings when the document or information is relevant to an issue of whether a duty to consult and, where appropriate, to accommodate was or was not met or fulfilled through the consultation and process conducted pursuant to this Protocol.
Parties may proceed without prejudice
- Notwithstanding any other provision of this Protocol, the Parties involved in consultation conducted pursuant to this Protocol have the right to determine that, at any time prior to or during the consultation activity, discussions may be held and information exchanged on a without-prejudice basis, until further notice, 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.
Funding provided by Canada
- Contribution funding as determined by the Department of Indian Affairs and Northern Development Canada will be paid to the Grand Council of the Waban-Aki Nation to support the activities of the Ndakinna Office as related to this Protocol. Such funding will be provided based on an annual budget submitted by the Grand Council of the Waban-Aki Nation and subject to annual appropriations by Canada.
- Regardless of the contribution referred to in the previous paragraph, each federal department and agency involved in consultation with the Abenaki conducted under this Protocol will examine the requirements in connection with consultation relating to all proposed Conduct and, where appropriate, determine whether and how to fund the needs specific to the consultation and accommodation process.
Review of this Protocol
- The Ndakinna Office shall participate in at least one meeting per year of the federal interdepartmental network on Aboriginal consultation in Quebec to discuss the implementation of this Protocol.
- Twenty-four (24) months after this Protocol is signed, the Parties will review the Protocol and its process and consider whether amendments are needed. The objectives of the review include, but are not limited to:
- determining the frequency with which the Parties use the consultation process;
- assessing the effectiveness of the consultation process, including the extent to which it has facilitated consultation;
- assessing why the Parties might not be opting to use the process, if such is the case; and;
- considering whether amendments to this Protocol are appropriate.
Coming into effect and Termination of this Protocol
- The consultation Protocol shall come into force on the date of its signature and shall continue in force unless terminated by one of the Parties upon three (3) months written notice to the other Party hereto.
- This Protocol may be amended with the written consent of the Parties.
Signed this ________________________________ day of ________________________________ 2017
Richard O'Bomsawin, Chief
Council of the Abenaki of Odanak
Michel R. Bernard, Chief
Council of the Abenaki of Wôlinak
Grand Council of the Waban-Aki Nation
The Government of Canada
Minister of Indian Affairs and Northern Development