Huron-Wendat Nation Consultation and Accommodation Protocol
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Huron-Wendat Nation Consultation and Accommodation Protocol Agreement
The Huron-Wendat Nation
The government of Canada,
as represented by the Minister of Indian and Northern Affairs Canada ("Canada")
Hereinafter collectively referred to as the "parties"
Whereas the Constitution Act, 1982 recognizes and confirms Aboriginal and treaty rights;
Whereas the Crown has a constitutional obligation to consult and, where appropriate, accommodate Aboriginal communities when it contemplates any conduct that may adversely impact established or potential Aboriginal or Treaty rights, or related interests;
Whereas the Supreme Court of Canada confirmed in 1990 in Sioui the existence and the validity of the 1760 Huron-British Treaty;
Whereas Canada recognizes the existence of a relationship based on the 1760 Huron-British Treaty with the Huron-Wendat Nation;
Whereas the Supreme Court of Canada determined the Sioui decision that the parties contemplated that the rights guaranteed by the treaty could be exercised over the entire territory frequented by the Hurons in 1760 so long as the carrying out of the customs and rites was not incompatible with the particular use made by the Crown of this territory. This interpretation reconciles the Hurons' need to protect the exercise of their customs and the British conquerors' desire for expansion;
Whereas the Huron-Wendat Nation asserts that the 1760 Huron-British Treaty rights apply over the territory called Nionwentsïo, of which it has filed a map in the Federal Court of Canada (Application for Judicial Review T-699-09, map included in Grand Chief Konrad Sioui's affidavit dated September 9, 2011), the most recent version of which was submitted to Indigenous and Northern Affairs Canada (INAC);
Whereas the Huron-Wendat Nation asserts that it has a profound cultural and spiritual attachment to the Nionwentsïo;
Whereas Canada and the Huron-Wendat Nation wish to establish a clear and effective process that they can follow in order to comply with the constitutional obligation to consult and, if applicable, accommodate pursuant to section 35 of the Constitution Act, 1982.
The parties agree as follows:
- This Agreement sets out a consultation and accommodation process with the Huron-Wendat Nation that may be used whenever Canada contemplates conduct that may affect the 1760 Huron-British Treaty rights and related interests on the Canadian portion of the Nionwentsïo.
- The parties intend to make the process established under this Agreement the preferred approach to meet their mutual obligations with respect to consultation and accommodation.
- This protocol does not constitute a commitment of the parties to sign an agreement or hold consultations on a particular decision, activity or subject.
- The Nionwentsïo Office was established, constituted by and reports to the Council of the Huron-Wendat Nation.
- The Nionwentsïo Office shall act as a coordinator and conduit between the members of the Huron-Wendat Nation, the Council, the proponents and Canada for the receipt, transmission and assessment of information pertaining to the consultation and accommodation process. It shall subsequently recommend actions to the Council with a view to protecting and promoting the rights and interests of the Nation and its current and future members.
- The Nionwentsïo Office favours a partnership approach with Canada and the proponents concerned for the purposes of minimizing the adverse impacts of contemplated conduct on the rights and interests of the Nation and optimizing economic benefits for the Huron-Wendat Nation minimizing adverse impacts, and optimizing socio-economic benefits for the Huron-Wendat Nation.
- The Nionwentsïo Office may inform Canada in writing of any conduct on which the Huron-Wendat wants to be consulted.
Participation of Canada
- Canada participates in the consultation and accommodation process conducted under this Agreement through the federal departments and agencies responsible for the contemplated conduct.
- Federal departments and agencies shall adopt a coordinated approach to consultation and, where appropriate, accommodation in order to promote the effectiveness and efficiency of the process.
- Where appropriate, Canada shall use existing mechanisms and processes, such as the environmental assessment and regulatory approval processes (e.g. agencies, boards, private sector and provincial government).
- Federal departments and agencies will present the Nionwentsïo Office with a list of consultation activities they plan to undertake with the Huron-Wendat Nation during each fiscal year.
Preliminary Stage of the Consultation and Accommodation Process
- When Canada contemplates a particular conduct on the Canadian portion of Nionwentsïo that may have an adverse impact on the 1760 Huron-British Treaty rights and related interests of the Huron-Wendat Nation, it shall inform the Nionwentsïo Office.
- The Nionwentsïo Office may request information from Canada with respect to any contemplated conduct on the Canadian portion of Nionwentsïo in order to determine whether the conduct may have adverse impact, including negative cumulative effects, on 1760 Huron-British Treaty rights and related interests.
- The Nionwentsïo Office shall review the information provided concerning the contemplated conduct and shall notify Canada:
- that consultation is not required and that the Huron-Wendat Nation will not oppose the contemplated conduct; or
- that the contemplated conduct may have adverse impact, including cumulative effects, on 1760 Huron-British Treaty rights and related interests for reasons that the Nionwentsïo Office shall set out, and that the Huron-Wendat Nation wants to be consulted
- of its perspective regarding the scope of the consultation process and the appropriate accommodation for the circumstances.
- Canada shall determine, where appropriate, the scope of the consultation and accommodation process based on its preliminary assessment of the strength of the assertions of rights by the Huron-Wendat Nation, taking into account the 1760 Huron-British Treaty rights and the anticipated scope of adverse impact on 1760 Huron-British Treaty rights and related interests.
Consultation and Accommodation Process
- Where Canada wishes to initiate consultation under this Agreement, it shall provide notification in writing to the Nionwentsïo Office that on the record consultation, is intended in regards to a particular contemplated conduct.
- Canada shall provide to the Nionwentsïo Office relevant and available information with respect to the contemplated conduct, including a list of other First Nations to be consulted with respect to the contemplated conduct, and a reasonable period of time to determine whether the conduct may have adverse impact, including cumulative effects, on 1760 Huron-British Treaty rights and related interests and, if so, the extent of such impact.
- The Nionwentsïo Office shall, within a reasonable period of time:
- assess the information provided by Canada;
- explain to Canada the nature and scope of the 1760 Huron-British Treaty rights and related interests on which the contemplated conduct may have adverse impact, including any cumulative effects;
- specify the effect and extent of the adverse impact of the contemplated conduct by Canada on the1760 Huron-British Treaty rights and related interests of the Huron-Wendat Nation;
- propose, where appropriate, accommodation measures to reconcile the rights and interests of each party.
- Canada shall consider the information communicated by the Nionwentsïo Office.
- If necessary, the parties shall work together in order to implement appropriate accommodation measures to eliminate or reduce, where appropriate, any adverse impact of the contemplated conduct. If the parties agree that it is impossible to eliminate or significantly reduce the adverse impact of the contemplated conduct, the Crown shall determine whether compensation, monetary or non-monetary, could be provided to the Huron-Wendat Nation. The Crown may also rely on that such compensation provided by the proponent concerned.
- Canada shall respond to the information communicated to it by the Nionwentsïo Office and explain how that information will be taken into consideration in the decision-making process relating to the contemplated conduct.
- Canada notes that other First Nations assert that they have Aboriginal and Treaty rights over Nionwentsïo. When Canada consults more than one First Nation, it is of the opinion that it must take into consideration the information that it is given by all these First Nations.
- The consultation and accommodation process under this Agreement does not constitute a commitment by any party to undertake consultation or to reach an agreement in respect of any particular conduct.
- Nothing in this Agreement is intended to alter any statutory or regulatory requirements to which Canada is subject.
- The consultation and accommodation process under this Agreement is optional and does not prevent the parties from participating in consultations independent of the consultation and accommodation process under this Agreement.
- This Agreement is not subject to settlement privilege and may be tendered as evidence in a court of law or other legal proceeding.
- Consultation conducted pursuant to this Agreement is not subject to settlement privilege, and evidence respecting consultation activities may be tendered as evidence in a court of law or other legal proceeding.
- Nothing in this Agreement is intended to:
- alter or define the constitutional duty to consulter and, where applicable, accommodate;
- prevent the Huron-Wendat Nation from relying on any common law or statutory right they may have respecting the duty to consult and, where applicable, accommodate;
- 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;
- prevent the Huron-Wendat Nation from seeking in a court of law or other legal proceeding enforcement of the constitutional duty of the Crown to consult and, where appropriate, accommodate;
- recognize, deny, create, extinguish, abrogate, derogate from or define any right, including a1760 Huron-British treaty right recognized or confirmed by section 35 of the Constitution Act, 1982, that the Huron-Wendat Nation may have.
- Notwithstanding anything in this Agreement, either party may, at any time, terminate by written notice any consultation and accommodation process conducted pursuant to this Agreement.
- Titles and headings in this Agreement are solely for informational purposes and ease of reference, and shall not affect the construction or interpretation of its provisions.
- This Agreement is not confidential and may be made public.
- In respect of any consultation conducted pursuant to this Agreement, records and information may be provided to the parties to the consultation and accommodation process 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 parties. The parties involved in the consultation and accommodation process shall determine whether the records or information in question should be provided, received and held in confidence. Any records or information that the parties agree to treat confidentially shall be identified as having been provided and received confidentially and shall not be disclosed, unless required by law or by a court. The records and information may, however, circulate freely within the Council of the Huron-Wendat Nation and between federal departments and agencies for the purposes of consultation activities.
- Nothing in the preceding section is intended to prevent any party from tendering records or information as evidence in a court of law or other legal proceeding if the record or information is relevant to an issue of whether the constitutional duty to consult was or was not met or fulfilled through a consultation conducted pursuant to this Agreement.
Parties may proceed without prejudice
- Notwithstanding any other provision of this Agreement, the parties involved in a consultation under this Agreement 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.
Funding provided by Canada
- Contribution funding from the Department of Aboriginal Affairs and Northern Development will be paid to the Huron-Wendat Nation to assist in the activities of the Nionwentsïo Office for the purposes of this Agreement. Such funding will be provided based on consideration of an annual budget submitted by the Huron-Wendat Nation and subject to annual appropriations by Canada.
- Each federal department and agency involved in a consultation with the Huron-Wendat Nation conducted under this Agreement will examine the requirements in connection with the consultations relating to each proposed conduct and, where applicable determine, after consulting with the Nionwentsïo Office, whether and how to fund the needs specific to the consultation and accommodation process.
Review of this Agreement
- Twenty-four (24) months after this Agreement is signed, the parties will review the Agreement and its process and consider whether amendments to this Agreement are desirable. The objectives of the review include, but are not limited to:
- determining the la frequency with which the parties use the consultation and accommodation process;
- assessing the effectiveness of the consultation and accommodation process, including the extent to which it has facilitated consultation;
- if they are not using the process, assessing why not;
- examining Canada's contributions in support of the activities of the Nionwentsïo for the purpose of this Agreement; and
- considering whether amendments to this Agreement are desirable.
Coming into effect and Termination of this Agreement
- This protocol shall take effect on the date it is signed and shall remain in effect, unless it is terminated by one or several of the parties upon three (3) months' notice to the parties to this agreement.
- This Agreement may be amended with the written consent of the parties.