The Mi’kmaq Grand Council and the Union of Nova Scotia Indians submitted a comprehensive land claim to Canada and Nova Scotia regarding Aboriginal title in Nova Scotia. The claim was rejected on the basis that it was “superceded by law”.
The Constitution Act, 1982 amended the Constitution of Canada by adding section 35(1), which for the first time “recognized and affirmed existing Aboriginal and treaty rights” as constitutionally protected rights.
The Supreme Court of Canada held that the Treaty of 1752 was an existing treaty in R. v. Simon.
The Supreme Court of Canada, in the Sparrow decision, set out the way in which Aboriginal and treaty rights are protected by section 35(1) of the Constitution, and indicated that the government and First Nations should negotiate the details of implementation.
The Nova Scotia Court of Appeal held that the Mi’kmaq of Nova Scotia had Aboriginal rights to fish for food, protected by section 35(1) of the Constitution in the case of Denny, Paul and Sylliboy.
The National Energy Board began a review process for the Sable Offshore Energy Project and the Maritimes and Northeast Pipeline. Discussions began between the companies and the Assembly of Nova Scotia Mi’kmaq Chiefs, and they placed a lot of pressure on the governments to deal with Mi’kmaq title issues.
The Chiefs, Minister Jane Stewart (Department of Indian Affairs) and Minister Don Downe (Nova Scotia Department of Aboriginal Affairs) signed the Tripartite Memorandum of Understanding (MOU) to begin discussions on community specific issues. The Tripartite Forum does not deal with Mi’kmaq rights and title, and only deals with programs and services.
The Supreme Court of Canada provided guidance on the question of Aboriginal title in the Delgamuukw case, stating how rights to land, and not just rights to fish or hunt on the land, were to be determined. The Supreme Court also directed that governments and First Nations should try to negotiate how these rights should be recognized and implemented.
Using the ongoing negotiations with Sable and Maritimes and Northeast, the Chiefs, Don Downe (then Minister of Aboriginal Affairs for Nova Scotia), and Ron Sinclair, (then Assistant Deputy Minister of Indian and Northen Affairs for Canada) and the Presidents of the gas companies met to discuss Mi’kmaq rights and title. Canada, Nova Scotia and the Assembly of Chiefs agreed to pursue a “Made-in-Nova Scotia Process” to deal with outstanding treaty, title and Aboriginal rights questions in Nova Scotia.
It was agreed that the “Made-in-Nova Scotia Process” would not be based on the Federal Comprehensive Claims Policy. In the Process the parties would seek to clarify rights to lands and resources, ensure that the interests of Aboriginal groups in resource management and environmental protection were recognized, and that claimants share in the benefits of development.
Jane Stewart (then Minister of Indian Affairs, Canada) announced on Treaty Day that Canada was committed to a “Made-in-Nova Scotia Process”. Exploratory discussions began between Canada, Nova Scotia and the Assembly of Nova Scotia Mi’kmaq Chiefs.
The Assembly of Chiefs forwarded a draft document to Canada and Nova Scotia outlining a possible process. The Assembly suggested a pre-Framework Agreement be ratified to set out the process and protect the Mi’kmaq from inappropriate consultation. The pre-Framework document would be an Umbrella Agreement, which included terms of reference for the Tripartite Forum and a proposed Consultation Process, and set up the negotiation of constitutional rights under the protection of without prejudice clauses so that discussions could not be used as evidence of consultation. Exploratory talks began.
The Supreme Court of Canada released the Donald Marshall decision recognizing the Treaties of 1760 and 1761 and the right to hunt, fish and gather for a moderate livelihood. This right is protected by section 35(1) of the Constitution. The Court repeated the need for government and First Nations to negotiate acceptable solutions to detailed implementation of the constitutional rights.
The Supreme Court of Canada released the Marshall (No.2) decision, which explained in more detail the nature of the rights proclaimed in the Marshall decision, and the power of governments to justify infringing the rights.
In the aftermath of Marshall, exploratory talks continued regarding a long-term rights-based process of determining land claims, fishing rights, etc.
The Chiefs, Minister Michael Baker (Aboriginal Affairs, Nova Scotia) and Minister Robert Nault (Indian Affairs, Canada) met in Truro and agreed to negotiate an Umbrella Agreement to begin the long-term rights-based process.
Following extensive discussion with Chiefs and Councils across Nova Scotia, the thirteen First Nations passed Band Council Resolutions to support the signing of the Umbrella Agreement, and the document was then completed by the Mi’kmaq of Nova Scotia. Representatives of Canada and Nova Scotia were present for the signing ceremony held at Province House on June 7th. The Umbrella Agreement is a political commitment to enter into a mutually agreed upon negotiation process, and to develop
Terms of Reference for a proper Consultation Process. It is completely without prejudice and is intended to protect the Mi’kmaq while they talk to government. Canada, Nova Scotia and the Mi’kmaq of Nova Scotia committed to negotiate the recognition, definition and implementation of Mi’kmaq rights and title in good faith.
By this time, all three parties had appointed their negotiators for the Framework Agreement.
•Assembly – Bruce H. Wildsmith, Q.C. as Lead Negotiator and Eric A. Zscheile as Associate Negotiator
•Nova Scotia – Jamie Campbell
•Canada – Tom Molloy
The negotiators began to meet to scope out the process and
start discussions on the Framework Agreement, the blueprint that sets out the process to be used in the upcoming discussions.
The “Made-in-Nova Scotia Process” became Kwilmuk Maw-klusuaqn (Searching for Consensus). Staff was retained to begin preparing for upcoming discussions. Emphasis was put on research to ensure that the Mi’kmaq are prepared for negotiations, and community discussion to ensure that all Mi’kmaq are aware of what is happening and can provide input to the negotiations.
The Framework Agreement was signed on February 23, 2007 between the Mi’kmaq of Nova Scotia, the Province of Nova Scotia and the government of Canada to set out the process and the subjects to be discussed in full negotiations that fall broadly under the categories of land, resources and governance. The purpose of the Framework Agreement is to promote efficient, effective, orderly and timely negotiations towards a resolution of issues respecting Mi’kmaq rights and title.
On October 1, 2008, the 13 Chiefs signed a Mi’kmaq Nationhood Proclamation representing a commitment from the Mi’kmaq of Nova Scotia to develop a system of governance to enhance the quality of life for the Mi’kmaq. Nationhood Proclamation