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 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.

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.

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.

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 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.

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.

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.

The Marshall case is a landmark ruling by the Supreme Court of Canada on treaty rights in Canada. The case relates to Donald Marshall Jr., a Mi’kmaq man from the Membertou First Nation in Nova Scotia. Mr. Marshall was charged with three offences set out in the federal Fishery Regulations:  the selling of eels without a licence, fishing without a licence and fishing during the close season with illegal nets. Mr. Marshall admitted that in August of 1993 he had caught and sold 463 pounds of eels without a licence and with a prohibited net within close times. He caught and sold the eels to support himself and his wife. The only issue at trial was whether he possessed a treaty right to catch and sell fish under the treaties of 1760-61 that exempted him from compliance with the regulations.  A trial, Mr. Marshall was found guilty on all three charges in provincial court (1996) and that ruling was upheld by the Court of Appeal (1997). The Supreme Court of Canada reversed Mr. Marshall’s convictions in a decision released on September 17, 1999. The Supreme Court recognized the hunting and fishing rights promised in the Peace and Friendship Treaties. These treaties were signed between the British and the Mi’kmaq, Wolastoqiyik and Peskotomuhkati in 1760–61.

The Court ruled that the scope of Mr. Marshall’s fishing activities fell within treaty rights. This is because Marshall was selling eels only to “obtain necessaries” as a “moderate livelihood.” Mr. Marshall’s treaty rights were limited to securing “necessaries” (which should be interpreted in the modern context as equivalent to a moderate livelihood), and do not extend to the open-ended accumulation of wealth. The Court did not define “moderate livelihood”.

These treaty rights are protected under section 35 of the Constitution Act, 1982. The Supreme Court noted that these rights are held by the community as a whole because Indigenous groups, rather than individuals, negotiated the treaties.

The Supreme Court’s initial ruling drew criticism and protest from non-Indigenous fishermen. On 17 November 1999, the Supreme Court clarified its ruling in what became known as Marshall II. The court stated that Indigenous treaty rights were not unlimited. Indigenous fishing activities can be regulated based on conservation concerns or other important public objectives.

The federal and provincial governments have the authority within their respective legislative fields to regulate the exercise of a treaty right, but only where justified on conservation or other grounds.  The Marshall judgment referred to the Court’s principal pronouncements on the various grounds on which the exercise of treaty rights may be regulated.  The paramount regulatory objective is conservation and responsibility for it is placed squarely on the minister responsible and not on the aboriginal or non‑aboriginal users of the resource.  The regulatory authority extends to other compelling and substantial public objectives.  Aboriginal people are entitled to be consulted about limitations on the exercise of treaty and Aboriginal rights.