The existence and validity of Aboriginal and Treaty Rights have been recognized in Canada through many court decisions. However, the courts have only partially defined the nature and scope of the rights and the common theme throughout these decisions has been the court’s direction or advice for government and Aboriginal people to resolve their issues and find fair solutions through negotiation, rather than litigation.
The Marshall Decision in 1999 prompted greater collaboration between Lennox Island and Abegweit First Nation Councils on the protection and implementation of Mi’kmaq Rights in PEI and from the outset, the leadership has been clear that they are committed to negotiations as the preferred path to resolving these issues.
In January 2019, the Mi’kmaq-Prince Edward Island-Canada Framework Agreement was signed and it established a process for the parties to discuss and advance Mi’kmaq Aboriginal and Treaty Rights, including the inherent right to self-government. It sets out the scope for government-to-government-to-government negotiation processes.
Through the Framework Agreement a “Main Table” was formalized with technical staff from each of the governments. Work plans are developed by the negotiators, based on the direction and authority of the respective leadership for each party – for the Mi’kmaq that is the Epekwitk Assembly of Councils.
With the guidance and direction of the Assembly, L’nuey has begun to explore the priority areas for initial negotiations at the Main Table, including potential areas for self-government discussions. Under the Main Table, bi-lateral negotiations (between the Mi’kmaq and Canada) have been underway under the “Rights and Reconciliation Agreement” process. In 2017, Canada obtained a mandate to negotiate Rights and Reconciliation Agreements to respond to the unique rights and interests of the Mi’kmaq Maliseet and Passamaquoddy in the Maritimes. The Agreements were intended to be legally binding, time-limited in recognition of the Aboriginal and historic Treaty Rights of the Mi’kmaq, and set out how those rights would be exercised during that time-limited period. Two areas have been the subject of RRA negotiations in PEI – Fisheries and Parks. With the signing of the Framework Agreement in 2019, these negotiations became part of the Main Table workplan.
These negotiations were impacted by delays associated with the COVID-19 pandemic and more recently by the federal election.
Rights and Reconciliation Agreements
Fish RRA (Representatives at the Table: L’nuey and DFO):
Following significant conflict with respect to the implementation of treaty-protected fisheries in Mi’kma’ki and negotiations that did not result in any satisfactory changes to the RRA offer by the Department of Fisheries and Oceans, the L’nuey negotiators were directed by the Assembly to step away from the negotiations. The Department of Fisheries and Oceans has advised that they will be seeking a new negotiation mandate in 2022. Negotiations will be considered by the Assembly once confirmation of that mandate is received.
Parks RRA (Representatives at the Table: L’nuey and Parks Canada):
These negotiations have been progressing in a very positive manner. The objective of the negotiations is to recognize and reconcile Mi’kmaq Rights in PEI with the current management and oversight of the National Park in Prince Edward Island, including respectful recognition of the appropriate role to be played by the Mi’kmaq in the co-management of the Park. Formal agreement on these negotiations would follow negotiations of terms that the Mi’kmaq negotiators are prepared to recommend to the Assembly, and if approved, would then be presented to the membership to seek community support.
- What is a Framework Agreement
This Framework Agreement commits Canada, PEI and the Mi’kmaq to respectful and cooperative negotiations to deal with our outstanding Aboriginal and treaty rights claims. It sets out the guidelines for government-to-government-to-government negotiation processes.
- What will be negotiated?
The agreement lists the areas that could be the subject of negotiations, from land and water to law making authority, but it also allows for other areas that are important to the Mi’kmaq to be raised, and also for the longer-term objective of a larger more comprehensive agreement.
While the Supreme Court of Canada has clearly acknowledged our Rights in many decisions, they have not clearly defined the Rights or how the Rights can be implemented. This has resulted in more litigation. The purpose of the Framework Agreement process is to determine what these Rights mean for the Mi’kmaq today and how we can use them for the benefit of the Mi’kmaq, through respectful negotiations instead of litigation, which the Supreme Court of Canada has consistently encouraged.
- Is this a new Treaty?
No. The Framework Agreement recognizes the existence of Aboriginal and treaty rights that are protected under the Constitution Act, 1982, as well as court decisions such as Haida, Delgamuukw and Marshall. The Agreement will seek to resolve and settle outstanding claims with respect to existing Mi’kmaq Rights and Treaties through negotiation. The historic treaties of the Mi’kmaq will not be re-negotiated.
- Does this agreement include all PEI Mi’kmaq people?
The agreement includes all Mi’kmaq, on and off reserve, who are beneficiaries of Mi’kmaq rights and title in PEI. There will be important work ahead by the community to determine how the Mi’kmaq of PEI define beneficiaries.
- Who will represent the Mi’kmaq in these negotiations?
The First Nations’ leadership/Councils are responsible for the negotiations that happen through the Agreement. L’nuey will serve and support the leadership in the negotiation process. Any major decisions will need to be voted on by the PEI Mi’kmaq.
- How will the community be involved and consulted in this process?
The Framework Agreement is just the beginning. While the structure and processes for technical Rights based work under the Agreement are just being developed, community input and direction will be the priority. All of the efforts under the Framework Agreement must be for the Mi’kmaq and by the Mi’kmaq.
- When an Agreement is eventually reached, does it have to be approved by the community?
The agreement provides for a framework to achieve interim agreements on specific issues, and also for a larger more comprehensive agreement, which is a much longer-term self-government objective. Nothing will be approved without the direction and support of the Mi’kmaq leadership/the Councils, including how the Mi’kmaq will approve. The longer-term objectives for a more comprehensive agreement would require community ratification. The Mi’kmaq leadership will be starting the work with the community to design a voting process for issues or agreements that may come out of the Framework Agreement process.
- Will we receive updates on the progress and status of negotiations?
Yes. One of the first priorities for the work to be done is establishing communications resources and processes. There will be open and frequent communications with the community. This website will be an important place for communicating information but there will also be many other opportunities for communication and engagement.