The First Nations’ leadership/Councils are responsible for Consultations that happen through the Consultation Agreement.  L’nuey Consultation Unit will serve and support the leadership and Epekwitnewaq Mi’kmaq in the Consultation process.

The consultation process provides an opportunity for the Mi’kmaq to address concerns in regard to the protection of rights such as cultural and traditional practices, the use and occupation of the Mi’kmaq, Archaeological concerns.

The Epekwitnewaq Mi’kmaq assert Aboriginal title over the entire island now known as Prince Edward Island, hereinafter referred to as “Epekwitk”, including the inshore and surrounding waters, and offshore islands.

Aboriginal rights (commonly referred to as Indigenous rights) are collective rights of distinctive Indigenous societies flowing from their status as the original peoples of Canada. These rights are recognized and affirmed by Section 35 of the Constitution Act, 1982. 

Treaty rights are rights set out in either a historic or modern treaty agreement that define specific rights, benefits and obligations for the signatories that vary from treaty to treaty. These rights are recognized and affirmed by Section 35 of the Constitution Act, 1982.

Duty to Consult is triggered when the Crown (the Federal or Provincial governments) conducts decisions or actions that potentially affect Aboriginal Title and rights, such as [INSERT AN EXAMPLE –  i.e. land disposals or new road construction…]. The Crown must consult with the Indigenous People to gain their views and take interests into account.

Here on Prince Edward Island, the Epekwitnewaq Mi’kmaq must hold the Crown accountable if the Crown is contemplating an action or decision that may have an adverse impact on Mi’kmaq rights.

The L’nuey Consultation Unit, on behalf of the Epekwitnewaq Mi’kmaq, are authorized under the Consultation Agreement to coordinate the consultation process with the Crown but the decision making remains with the Mi’kmaq leadership.

The Governments of Canada and Prince Edward Island have a duty to consult, and where appropriate, accommodate Indigenous groups when it considers conduct that might adversely impact potential or established Aboriginal or treaty rights.

The Consultation Agreement was signed on August 13, 2012, between Canada, Province of PEI and Mi’kmaq. The Agreement establishes a clear and efficient means for Canada and PEI to consult the Mi’kmaq on proposed actions or decisions that may adversely impact asserted or established Aboriginal and Treaty rights.

Consultation is a process to understand and consider the potential adverse impacts of anticipated Crown decision on First Nations, with a view to address them.

Constitution Act, 1982 Section 35

Section 35 is the part of the Constitution Act, 1982 that recognizes and affirms Aboriginal and treaty rights.  The Canadian government did not initially plan to include Aboriginal rights so extensively within the constitution when the Act was being drafted in the early 1980s. Early drafts and discussions during the patriation of the Canadian Constitution did not include any recognition of those existing rights and relationships, but through campaigns and demonstrations, Aboriginal groups in Canada successfully fought to have their rights enshrined and protected.

It is important to understand that Section 35 recognizes Aboriginal rights but did not create them—Aboriginal and treaty rights existed before Section 35.

Section 35 of the Constitution Act states:

35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

(2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada.

(3) For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired.

(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.

Section 35 of The Constitution Act, 1982 recognizes and affirms existing Aboriginal and treaty rights, but does not define them.  What Aboriginal rights include has been the topic of much debate and discussion, and they have been defined over time through numerous Supreme Court of Canada cases, as have specific treaty rights.

Section 35 also recognizes that Aboriginal rights are “existing.” The Supreme Court of Canada has stated that this means that any Aboriginal rights that had been extinguished by treaty or other legal processes prior to 1982 no longer existed and therefore are not protected under the Constitution.  The significance of the term “existing” was further clarified in the case of R. v. Sparrow:

“Section 35(1) applies to rights in existence when the Constitution Act, 1982 came into effect; it does not revive extinguished rights.  An existing aboriginal right cannot be read so as to incorporate the specific manner in which it was regulated before 1982.  The phrase “existing aboriginal rights” must be interpreted flexibly so as to permit their evolution over time.^”

The existing rights of the Aboriginal people of Canada are recognized by s. 35 of the Constitution Act 1982 and that recognition has been further defined through various Court decisions. Section 35 defines Aboriginal as Indian, Inuit and Métis.

Section 35 falls outside of the Charter of Rights and Freedoms, and it begins Part II of the constitution. This allows Section 35 to be exempt from the “notwithstanding clause” that applies to the Charter. In other words, the federal government cannot override Aboriginal rights.

*definition adapted in part from Indigenous Foundations, UBC