It was reported earlier this week that 10 out of 15 First Nations in NB signed an agreement with the federal and provincial governments to negotiate self-government. It was then subsequently reported that all 15 First Nations in NB have signed on. However, after speaking with several First Nations, I understand that only 10 First Nations signed, and only one was Maliseet. I don’t have an original signed copy, but I have been provided with the text by one of the First Nations. Many people have been emailing me and asking for a copy of the agreement which I have copied below. Please always refer to the original as the official document: MI’GMAG, WOLASTOQIYIK, NEW BRUNSWICK and CANADA UMBRELLA AGREEMENT -among- THE MI’GMAG AND WOLASTOQIYIK PEOPLES IN NEW BRUNSWICK, as represented by the Chiefs of the Mi’gmag and Wolastoqiyik First Nations in New Brunswick (“the Mi’gmag and Wolastoqiyik in New Brunswick”) -and- THE PROVINCE OF NEW BRUNSWICK, as represented by the Minister Responsible for the Aboriginal Affairs Secretariat of New Brunswick (“New Brunswick”) -and- THE GOVERNMENT OF CANADA, as represented by the Minister of Indian Affairs and Northern Development (“Canada”) Collectively referred to as “the Parties”: RECITALS: WHEREAS The Mi’gmag and Wolastoqiyik Peoples assert that they have used and occupied their Traditional Lands since time immemorial in accordance with principles of stewardship and responsibility given to them by the Creator; and The Parties wish to renew and strengthen their government-to-government-togovernment relationship; and The Parties are dedicated to the principles of good faith, openness, mutual honour and respect; and The Parties are committed to formal tripartite discussions in order to address outstanding issues among the Parties; and The Parties recognize that the Mi’gmag and Wolastoqiyik in New Brunswick have not enjoyed the same standard of living as other New Brunswickers; and The Parties have a shared desire to work in partnership with the shared goal of improving the quality of life outcomes of the Mi’gmag and Wolastoqiyik in New Brunswick; and Page 2 of 7 The Mi’gmag and Wolastoqiyik Peoples and the British Crown entered into sacred Treaties. Those Treaties established a relationship based on peace and friendship; and The Parties intend to negotiate and implement agreements on Aboriginal and Treaty rights, including the right to self-government. THEREFORE THE PARTIES HAVE REACHED THE FOLLOWING UNDERSTANDINGS: OBJECTIVE OF THE UMBRELLA AGREEMENT 1) This Umbrella Agreement is designed to guide tripartite discussions with the aim of concluding a Framework Agreement on inter-governmental relationships and Aboriginal and Treaty rights and the self-government of the Mi’gmag and Wolastoqiyik in New Brunswick. 2) The Parties have targeted December 31, 2012 as the date by which they wish to have negotiated a Framework Agreement. PROCESS 3) The Parties shall establish a Coordinating Committee comprised of representatives appointed by each of the Parties to oversee the work undertaken under this Umbrella Agreement. In particular, the Coordinating Committee shall: a) Identify the subject-matters that are to be addressed under a Framework Agreement, such as, but not limited to: i. Lands and Resources; ii. Governance and Jurisdiction; iii. Economy Development and Sustainability; iv. Health; v. Education; and vi. Social and Cultural Development; b) Negotiate a tripartite agreement on consultation; c) Identify whether a sub-committee for any agreed to subject-matter should be established; d) Develop terms of reference and strategic work plans for itself and any proposed sub-committee; e) Propose interim agreements on issues of concern to the Parties and develop methods for their implementation; f) Coordinate, monitor and evaluate progress made on the work undertaken under this Umbrella Agreement; g) Ensure that its representatives report on an ongoing basis, and at least quarterly, to their respective principals on work progress; and Page 3 of 7 h) Ensure that annual budgets, work plans and any reporting requirements related to funding agreements are completed and processed in a timely manner. 4) Upon consideration of an annual work plan and the funding resources available, Canada and New Brunswick will cost-share funding under this Umbrella Agreement. STATUS AND INTERPRETATION OF THE UMBRELLA AGREEMENT 5) Except for sections 5 to 14, this Umbrella Agreement and the work undertaken pursuant to this Umbrella Agreement do not create any legal obligations which are binding on the Parties unless otherwise agreed in writing by the Parties. 6) This Umbrella Agreement and the work undertaken pursuant to this Umbrella Agreement shall: a) be on a “without prejudice” basis with respect to the legal rights or positions of the Parties, including the Aboriginal and Treaty rights of the Mi’gmag and Wolastoqiyik in New Brunswick; b) be deemed not to create, define, alter or affect the legal rights or positions of the Parties, including the Aboriginal and Treaty rights of the Mi’gmag and Wolastoqiyik in New Brunswick; c) not be construed to be, or deemed to be, consultation for the purpose of justification by Canada or New Brunswick for the infringement of any Aboriginal or Treaty rights of the Mi’gmag and Wolastoqiyik in New Brunswick; and d) not preclude any other discussion or initiative between: i. the Mi’gmag and Wolastoqiyik in New Brunswick, or individual Mi’gmag and Wolastoqiyik First Nations and New Brunswick, or ii. the Mi’gmag and Wolastoqiyik in New Brunswick, or individual Mi’gmag and Wolastoqiyik First Nations and Canada on matters of mutual concern. 7) Except for the purpose of enforcing sections 5 to 14 or unless otherwise agreed in writing the Parties undertake not to tender or seek admission of this Umbrella Agreement or the content of meetings, discussions, negotiations, documents generated or positions taken in or during the process contemplated hereunder as evidence in a court of law or before any administrative or regulatory tribunal or board. This undertaking shall survive the termination of this Umbrella Agreement unless otherwise agreed in writing by the Parties. 8)
Notwithstanding any other provision of the Umbrella Agreement, any Party may refer to publicly and may lead evidence regarding the Parties, date of operation, existence and purpose of this Umbrella Agreement and the frequency of and participants in meetings held pursuant to its operation before a court, regulatory tribunal, board or similar body. Page 4 of 7 9) This Umbrella Agreement shall come into force and effect on the date of its signatures by Canada, New Brunswick, and the First Nations’ Chiefs in New Brunswick provided: a) A majority of the First Nation Chiefs in New Brunswick execute this Umbrella Agreement; and b) The Chiefs who execute this Umbrella Agreement are leaders of those First Nations whose members constitute at least fifty per cent plus one person (50% + 1) of the federally registered Indian population in New Brunswick. 10) Any New Brunswick Mi’gmag or Wolastoqiyik First Nation, as represented by its respective Chief, may upon three months written notice to all the Parties, hereto join, withdraw, or rejoin this Umbrella Agreement. 11) If one or more of the Mi’gmag or Wolastoqiyik First Nation(s), as represented by the respective Chief(s), decides to withdraw from this Umbrella Agreement pursuant to section 10, this Umbrella Agreement shall not automatically terminate. 12) If, at any time, the First Nation Parties to this Umbrella Agreement fall below the majority of Chiefs or the majority consists of Chiefs representing less than fifty per cent plus one person (50% + 1) of the federally registered Indian population in New Brunswick, the Parties will consider whether to terminate this Umbrella Agreement. 13) Notwithstanding section 12, Canada or New Brunswick may withdraw or rejoin this Umbrella Agreement upon three months written notice to all the Parties. 14) Notwithstanding sections 10 to 13, the agreements, understandings, undertakings and commitments set out in sections 5 to 9 all continue in effect unless the Parties otherwise agree in writing. Page 5 of 7 Signed at _______________, New Brunswick, the _______day of ___________, 2011. Representing the Mi’gmag and Wolastoqiyik in New Brunswick I am told that the last two pages are just the signature pages. A special thank you to my friends, family and colleagues in NB First Nation who help keep me informed on what is happening back home. It is hard being so far from home, but you all make it easier. Hope this helps. Please e-mail if you have any more questions.
Tag: Maliseet
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First Nations Sign Agreement with Federal and Provincial Governments in NB to Negotiate Self-Government
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Aboriginal Peoples in NB not Consulted on Proposed Sale of NB Power to Québec
The Premier of New Brunswick (NB) announced in 2009 that NB had signed a Memorandum of Understanding (MOU) with Hydro-Québec that would involve the transfer/sale of NB Power and/or its assets to Québec (or part thereof). Premier Shawn Graham explained that this is necessary for all New Brunswickers: “By entering into this agreement, New Brunswick is securing access to affordable, clean hydroelectricity, which will make the province’s economy more competitive and provide a cleaner environment for future generations of New Brunswickers.” The obvious question being: do New Brunswickers feel the same way? It is the province’s goal to enter into a legal, binding agreement with Hydro-Québec by March 31, 2010. I fail to see how the Premier could possibly finalize an agreement with Hydro-Québec by March 31, 2010, if he also plans on informing Aboriginal communities about how this deal might impact their Aboriginal and treaty rights, including their land claims and also engaging in proper consultations with them. It is not as if he hasn’t been given due notice that there are unresolved land claims in New Brunswick. Both on and off-reserve Mi’kmaq, Maliseet and Passamaquoddy peoples have informed NB about their land claims and that they expect to be consulted on decisions made by NB that could impact those claims and their Aboriginal and treaty rights. Firstly, NB signed a bilateral agreement with the Mi’kmaq and Maliseet Chiefs that had as its goal (in part) to: “facilitate communication and consultation between First Nations Leaders and their constituents and between the Province and its citizens” on a wide variety of issues. The very first item listed for discussion and consultation is “Land and Resources”. Given the reaction of the NB Chiefs in the recent media reports, it does not appear as if NB has lived up to its part of the deal. Secondly, the New Brunswick Aboriginal Peoples (NBAPC) which represents Mi’kmaq, Maliseet and Passamaquoddy people living off-reserve in NB was not included in the above-mentioned bilateral agreement. However, that does not absolve NB of its legal obligations to inform the off-reserve Aboriginal peoples represented by the NBAPC of the implications of this proposed deal, consult with them and accommodate their interests and concerns. As this was not done, Frank Palmater, a Director of the NBAPC sent a letter to the Premier in November 2009 reminding him of their outstanding land claim and NB’s legal obligation to consult with them before any decisions are made with regard to NB Power and its assets. It reads in part: ” As you know, the Mi’kmaq, Maliseet and Passamaquoddy Peoples in New Brunswick have never surrendered or ceded their traditional territories. They did not sign treaties which gave up rights to their lands, nor have they since settled a comprehensive land claim ceding their Aboriginal and treaty rights to their land in exchange for anything. In fact, as you also know, the NBAPC and other Aboriginal groups have received funding in the past to complete land claims research with a view to submitting a formal claim. All that was missing was the province of New Brunswick’s commitment to negotiate. I refer you to the book, Our Land: The Maritimes: The Basis of the Indian Claim in the Maritime Provinces of Canada, edited by former President of the NBAPC, Gary Gould and his collaborator, Allan Semple. The book publically asserted both a historical and legal basis of Aboriginal title in New Brunswick. The NBAPC has also advocated on behalf of its members with regards to their claims to Aboriginal title in New Brunswick. The fact that the province of New Brunswick has ignored our claims does not mean that we have not made those claims and maintain them. As you are aware, there are numerous legal cases that have been heard at the Supreme Court of Canada relating to fiduciary duty, the honour of the Crown and the duty to consult and accommodate with regards to Aboriginal peoples and their interests. …This duty to consult and accommodate applies regardless of whether our Aboriginal title right has been confirmed in court of law. The duty is triggered when the province of New Brunswick has “real or constructive knowledge” of the “potential existence” of the Aboriginal right or title claimed. Therefore, the province of New Brunswick must not only act honourably in all of its dealings with Aboriginal peoples, which includes the NBAPC, it must also consider both their historical and future relationship with Aboriginal peoples. This relationship has as its base, our treaties and our traditional lands upon which we currently share with the province. … Practically speaking, this means that our Aboriginal title to our traditional territories in New Brunswick act as a “burden” to the province’s title and, as such, it cannot be sold, traded and/or otherwise dealt with unless and until our underlying Aboriginal title claims have been addressed. In other words, you do not have the right to even consider the sale of NB Power and/or its assets to another province because NB Power and its assets sit on lands which are claimed by the Mi’kmaq, Maliseet and Passamaquoddy peoples in New Brunswick and the sale, trade or loan of NB Power and/or its assets can and will have a negative impact on our land claim once it is finally addressed. Moreover, it is also our understanding that there are various specific land claims relating to NB Power and/or its assets that have yet to be addressed. … Therefore, this letter will: (1) Re-assert our long-standing claim to Aboriginal title in the lands traditionally used and/or occupied by the Mi’kmaq, Maliseet and Passamaquoddy in New Brunswick, a right which is protected by section 35 of the Constitution Act, 1982; (2) Remind the Province of New Brunswick of its legal and moral obligations to act honourably and in good faith and to both consult with us and accommodate our interests with regards to the proposed sale of NB Power and/or its assets; and (3) Request that the Province of New Brunswick meet with us immediately to establish a process to finally address our long-outstanding Aboriginal title claim as well as our treaty and other rights in New Brunswick, before considering the sale of NB Power and/or its assets.” The Premier promptly responded to this letter on December 7, 2009 by indicating that no binding agreement had yet been signed and that NB, would in fact, be meeting with the NBAPC on this issue within the “next few months”. When the NBAPC failed to hear from the Premier, Frank Palmater sent another letter reminding him of the looming deadline and the province’s legal obligations to consult. Now, the Chiefs of New Brunswick are also pointing out the lack of consultation. For the benefit of all New Brunswickers: Aboriginal and non-Aboriginal, the Premier ought to slow down this run-away train and avoid a complete disaster (legally and politically) and take time to: (1) properly inform communities about the specific implications of this proposed deal; (2) consult in an appropriate manner; and (3) accommodate the interests, rights and concerns raised during consultations. Our land and resources are worth at least the time it takes to have this discussion.