Questions and Answers

• How is the situation in the Maritimes and Gaspé with the Mi'kmaq and Maliseet different from other parts of Canada?
• Who represents the government of Canada in these tripartite negotiations?
• What is in the Chief Federal Negotiator's mandate to negotiate?
• How long will it take to negotiate these agreements?
• How much will the negotiations cost?
• How will the interests of third parties and the general public be taken into account in these negotiations processes?
• For example, what might be negotiated as part of one of these agreements?
• What areas of self-government could be negotiated, if the parties identify it as a topic?
• How will the agreement be ratified?
• What happens to the treaties once a new long-term agreement is negotiated?
• What is an Umbrella Agreement?
• What is a Framework Agreement?
• What is an Agreement in Principle?
• What is a Final Agreement?

How is the situation in the Maritimes and Gaspé with the Mi'kmaq and Maliseet different from other parts of Canada?

The fact that the Peace and Friendship Treaties in the Maritimes and Gaspé region of Québec did not involve any Mi'kmaq or Maliseet surrender of rights to the land and resources create a special situation. In the Marshall decision, the Supreme Court of Canada confirmed that Mi'kmaq and Maliseet First Nations continue to have treaty rights to hunt, fish and gather to earn a moderate livelihood. These treaty rights must be implemented. Along with these treaty rights, First Nations maintain that they continue to hold Aboriginal rights and title throughout their traditional territory.

The 2006 Supreme Court of Canada Sappier and Polchies and Gray decisions confirmed site-specific Aboriginal rights to harvest logs for personal use. As such, the Mi'kmaq and Maliseet in Nova Scotia, Prince Edward Island, New Brunswick and the Gaspé have court decisions affirming Aboriginal and treaty rights. As the courts stated, parties need to negotiate how these rights will be exercised. There is no model or generic approach to follow on how to proceed in these negotiations. All parties must be prepared to consider how to devise a negotiation process which meets everyone's circumstances, needs and interests.

Who represents the Government of Canada in these tripartite negotiations?

A Chief Federal Negotiator (CFN) is often appointed by the Government of Canada as its lead representative during the negotiation processes.  In the absence of an appointed CFN, an INAC Senior Negotiator leads the negotiations representing Canada's interests.  The CFN works in conjunction with representatives of Indian and Northern Affairs Canada and, when required, the CFN or the Sr. Negotiator will work with representatives from other government departments to ensure that the negotiations reflect Canada's interests and uphold the honour of the Crown.

What is in the Lead negotiator's mandate to negotiate?

Currently, the lead negotiator has a mandate to enter into Framework Agreement and Agreement-in-Principle negotiations with respect to outstanding issues of Aboriginal and treaty rights with Mi'kmaq and Maliseet First Nations and provincial governments in Nova Scotia, New Brunswick, and Prince Edward Island.

The Lead Negotiator's mandate does not limit what subjects may be negotiated. It is up to the parties to agree on subject matters for negotiation. Generally, the areas of federal jurisdiction which are open for negotiation include, fish, national parks, migratory birds and federal Crown lands.

How long will it take to negotiate these agreements?

Setting up long-term negotiation processes and reaching agreements on issues of Aboriginal and treaty rights will take time. Entering into a negotiation process is a long-term commitment. It is impossible to say how long it will take, except that it is important to take the time and care necessary to develop approaches and agreements that will work and stand the test of time.

How much will the negotiations cost?

It is too early to estimate how much these agreements may cost. Canada will strive for agreements that are affordable and cost-effective and that result in stronger, more self-sufficient Mi'kmaq and Maliseet First Nations who are able to participate fully in their regional and provincial economies. It is important to work together in partnership in order to achieve real progress and improve the quality of life in First Nation communities. 

How will the interests of third parties and the general public be taken into account in these negotiations processes?

Canada and the other parties involved in the negotiations believe it is important that the public is informed and has an opportunity to provide input.  As such, the processes in each province will need to provide specific approaches to address the interests of third parties and the general public.

What might be negotiated as part of one of these agreements?

The rights and benefits set out in these agreements may include, but are not limited to:

• ownership of certain lands;
• wildlife harvesting rights;
• participation in land, water, wildlife, and environmental management in specific areas;
• financial payments;
• role in managing heritage resources and parks in the area;
• resource revenue sharing;
• self-government; and,
• measures to participate in the economy.

What areas of self-government could be negotiated, if the parties identify it as a topic?

Self-government agreements focus on areas internal to Aboriginal communities and important to their unique cultures, traditions and languages. This could include areas such as health care, child and family welfare, education, policing and administration of justice or housing. With self-government, Aboriginal people have greater control over decisions affecting their communities. Self-government agreements can help create a more positive and stable environment for investment and growth for these and neighbouring communities.

How will agreements be ratified?

During negotiations, each of the parties must ratify agreements before they are signed. Generally, for Canada this means the Chief Federal Negotiator must receive the federal government's approval of the Framework Agreement, Agreement-in-Principle, as well as the Final Agreement.

What happens to the treaties once a new long-term agreement is negotiated?

This will be up to the parties to determine through negotiations. Section 35 of the Canadian Constitution recognizes and affirms existing Aboriginal and treaty rights and this includes the Peace and Friendship Treaties signed in the Maritimes and Gaspé region of Québec. Negotiations will respect the Peace and Friendship Treaties.

What is an Umbrella Agreement?

An Umbrella Agreement is typically the first step undertaken by the parties.  Although not legally binding, it affirms the commitment of the parties to work together in the negotiation process and sets out the general principles of the undertaking.  As such, these agreements are not detailed and could vary significantly between provinces. 

What is a Framework Agreement?

A Framework Agreement is a road map of how the parties agree to proceed with negotiations and includes the subjects to be negotiated.  Some of the areas that are typically covered in a Framework Agreement include a timetable, list of issues to discuss and a process for reaching an agreement.  All of the parties must approve and sign the Framework Agreement.  A Framework Agreement is not legally binding.

What is an Agreement-in-Principle?

The Agreement-in-Principle (AIP) is the next, and often longest, stage in the negotiation process. During these negotiations, the parties address and attempt to resolve the broad range of subject matters set out in the Framework Agreement. The AIP generally contains all of the major elements of the Final Agreement, but it is not legally binding.  All of the parties must approve and sign the AIP. For Canada, this means that the federal Cabinet must review and approve the document. At that time, a mandate is received for the next stage of negotiations, the Final Agreement.

What is a Final Agreement?

The Final Agreement is based on the AIP and is the outcome of successful negotiations. It details agreements reached between the Aboriginal group, the province, and Canada on the issues set out in the Framework Agreement and AIP and is accompanied by an implementation plan.  It must be ratified and signed by all parties, before being made effective through federal and provincial legislation. In general, the Final Agreement is constitutionally protected and legally binding.