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PROPONENT INVOLVEMENT IN CONSULTATION Presentation to the

Consultation with the Mi’kmaq. PROPONENT INVOLVEMENT IN CONSULTATION Presentation to the Geology Matters Community Engagement Workshop October 30, 2012. Introduction. THE DUTY TO CONSULT The Constitution Act (1982):

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PROPONENT INVOLVEMENT IN CONSULTATION Presentation to the

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  1. Consultation with the Mi’kmaq PROPONENT INVOLVEMENT IN CONSULTATION Presentation to the Geology Matters Community Engagement Workshop October 30, 2012

  2. Introduction THE DUTY TO CONSULT • The Constitution Act (1982): • Section 35(1): “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.” • The Supreme Court of Canada: • “The duty to consult arises when the Crown has knowledge of the existence or potential existence of an Aboriginal or treaty right and contemplates conduct that might adversely affect that right.” (Haida, para. 47)

  3. Introduction IMPORTANT DOCUMENTS – NOVA SCOTIA • Nova Scotia’s Interim Consultation Policy • The Consultation Terms of Reference • The Proponents’ Guide • Canada-Nova Scotia MOU on Consultation Cooperation

  4. Roles and Responsibilities THE OFFICE OF ABORIGINAL AFFAIRS (OAA) • Strategic Leadership in Aboriginal Consultation • Ensure consistent government approach, lead the policy, TOR, liaise with other jurisdictions (fed/prov/territorial) • Operational Support to Departments • Advice on whether to consult, issue tracking, advice to proponents, committees, file management • Training • Training sessions for provincial employees, Learning Seminar, training resources • Strengthening Capacity of the Mi’kmaq • Capacity funding to the KMK, training on NS government processes

  5. Roles and Responsibilities NOVA SCOTIA DEPARTMENTS • Decide whether to consult with the Mi’kmaq based on advice from OAA • Lead the consultation process with the Mi’kmaq • Keep the record of consultation • Assess the adequacy of a proponent’s engagement efforts • Consider input from the Mi’kmaq • Decide on the appropriate accommodations • Determine the need for department-specific consultation procedures and guidelines

  6. Roles and Responsibilities DELEGATION TO PROPONENTS • Government is ultimately responsible for consultation with the Mi’kmaq, but proponents may be delegated some of the procedural aspects of that consultation, which includes: • Notifying the Mi’kmaq of their projects • Providing project-specific information • Meeting with the Mi’kmaq • Conducting a Mi’kmaq Ecological Knowledge Study • Addressing project-specific issues • Documenting their engagement process • Providing periodic consultation reports to the lead Nova Scotia department

  7. Is Consultation Required? THE ABORIGINAL CONSULTATION PROCESS 1 2 3 4 5 Offer to Consult Identify Impacts Consider Accommodation Decision • Information from Proponents: • Project description • Maps • Potential environmental impacts • Contact information

  8. Is Consultation Required? CONSULTATION SCREENING CRITERIA • Project description (location, size, duration) • Operational phases (construction, operation) • Regulatory schedule (approvals and deadlines) • Land ownership and description • Potential environmental impacts • Potential impacts on Aboriginal and treaty rights • Distance of project to First Nation lands • Archaeology • Specific Claims • Interest expressed in land • Jurisdictional issues (eg. impact on reserve lands)

  9. Is Consultation Required? THE ABORIGINAL CONSULTATION PROCESS 1 2 3 4 5 Offer to Consult Identify Impacts Consider Accommodation Decision • Information from Proponents: • We reference if proponents have already shared information • We provide a list of all the approvals/permits required for a project • Allows for one project – one process

  10. Offer to Consult PROJECT DESCRIPTION • Attached to the offer to consult letter will be a project description that includes: • project proponent contact information (gov’t or industry) • a non-technical, plain language description of the proposed project including the magnitude and duration of the proposed project • a list of anticipated permits and approvals • timelines and schedules for project milestones • a map(s) of sufficient scale to clearly illustrate the location of the proposed project in relation to easily identified or commonly known landmarks (water bodies, roads, etc.) • clear identification of potential short and long term adverse impacts of the project

  11. Is Consultation Required? THE ABORIGINAL CONSULTATION PROCESS 1 2 3 4 5 Offer to Consult Identify Impacts Consider Accommodation Decision • Information from Proponents: • MEKS • Other studies

  12. Identify Impacts STUDIES • The First Nation “must show a causal relationship between the proposed government conduct or decision and a potential for adverse impacts on pending claims or rights. Past wrongs, including breaches of the duty to consult, do not suffice.” (Rio Tinto, para. 45) • Mi’kmaq Ecological Knowledge Studies (MEKS) • Archaeological Assessments • Mi’kmaq reviews of environmental studies • The Crown must show that it has meaningfully considered the input received by the First Nation which requires a response to issues

  13. Is Consultation Required? THE ABORIGINAL CONSULTATION PROCESS 1 2 3 4 5 Offer to Consult Identify Impacts Consider Accommodation Decision • Information from Proponents: • Any mitigation already undertaken by the proponent • Any benefits agreements that may be in place

  14. Accommodation FOUR TYPES OF ACCOMMODATION • Avoidance: • Reject project; move project; postpone activity during spawning, mating, and hunting seasons • Reduce Impact / Mitigate: • Relocate traditionally used grounds, where sustainably possible; repopulate species; habitat restoration • Compensate for Impacts: • Training programs; approved absence or paid leave for Aboriginal project employees who wish to exercise their right to hunt, fish, trap, etc. during traditional seasons • Proponents Accommodation: • Negotiated agreements; co-management strategies; revenue sharing; equity ownership

  15. Is Consultation Required? THE ABORIGINAL CONSULTATION PROCESS 1 2 3 4 5 Offer to Consult Identify Impacts Consider Accommodation Decision • Information from Proponents: • Record of consultation/engagement undertaken by the proponent • Any commitments made by the proponent • Any process identified to monitor the relationship moving forward

  16. Decision • INFORM THE MI’KMAQ • RESPOND TO THE ISSUES • MAINTAIN RECORD OF CONSULTATION • Departments are responsible for maintaining the record of consultation for their specific projects • Can include the record of proponents

  17. Thank you LAURENT JONART Consultation Advisor Office of Aboriginal Affairs Phone:424-8088Email: JONARTLA@gov.ns.ca

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