BACKGROUND

On September 17, 1999, the Supreme Court of Canada (SCC) in the Marshall decision found that the Peace and Friendship Treaties of 1760-61 affirmed the right of certain Aboriginal groups to provide for their own sustenance by taking the products of their hunting, fishing and gathering activities, and trading them in the pursuit of a "moderate livelihood". This decision potentially affects 34 Mi'kmaq and Maliseet First Nations in Nova Scotia, New Brunswick, Prince Edward Island and the Gaspé region of Québec.

The Peace and Friendship Treaties in the Maritimes did not require the Mi'kmaq and Maliseet signatories to surrender any rights to land or resources. Today, the Mi'kmaq and Maliseet First Nations maintain that they continue to hold Aboriginal rights and title throughout their traditional territory in addition to the treaty rights affirmed by the SCC in the Marshall decision.

Over the years, the courts have clarified certain aspects of the relationship between governments and Aboriginal people. A consistent theme throughout these decisions has been the need for governments and Aboriginal people to resolve their issues through negotiation, rather than litigation. This is what the federal government is trying to do by addressing its treaty obligations and operating within the spirit of the Marshall decision to address other potential rights that may continue to exist.

THE FEDERAL STRATEGY

On February 9, 2001, Minister Nault and Minister Dhaliwal jointly announced the launch of the Government of Canada's long-term strategy to address the Marshall decision. The objective of the process led by Indian and Northern Affairs Canada (INAC) is to find long-term solutions to issues of Aboriginal and treaty rights. Recognizing that it will take time to reach long-term agreements, a complementary initiative is being carried out by Fisheries and Oceans (F&O;) to facilitate the immediate participation of Mi'kmaq and Maliseet First Nations affected by the Marshall decision in the commercial fishery.

In February, Minister Nault also announced the appointment of Mr. W. Thomas Molloy to the position of Chief Federal Negotiator (CFN) to represent Canada in exploratory discussions and formal negotiations with the Mi'kmaq and Maliseet First Nations and affected provinces of the east coast. In addition, Mr. Molloy has a mandate to negotiate practical measures to increase Aboriginal opportunities for economic development and capacity building. Finally, Mr. Molloy is responsible for consulting on the possible creation of Mi'kmaq and Maliseet Treaty Commission(s).

Long-Term Process on Aboriginal and Treaty Rights

The long-term process will give the Government of Canada, the provinces and the Mi'kmaq and Maliseet First Nations the opportunity to explore issues that are fundamental to their relationship and to eventually enter into agreements setting out the scope and nature of Mi'kmaq and Maliseet rights to land, resources and self-government.

The federal government is open to discuss and design a process for negotiations which will address the circumstances, needs and interests of all involved parties. As a preliminary step, the federal government believes that an exploratory phase of discussions would allow the parties to exchange views and determine if there is enough common ground to begin formal negotiations.

Typically, after exploratory discussions, the parties would negotiate a Framework Agreement. The Framework Agreement sets out the subject-matters, the rules regarding the process, including information sharing with third parties, and the order and time frame of negotiations.

The parties would then begin substantive negotiations towards an Agreement-in-Principle (AIP). During AIP negotiations, the parties negotiate the issues identified in the Framework Agreement and describe all the features of an eventual settlement. This is usually the longest period of negotiations.

Once the AIP is ratified by all the parties, the next step is negotiation of a Final Agreement and Implementation Plan. Once signed, each of the parties bring these final documents through their respective processes for ratification. If the Agreements are successfully ratified, action would then be taken to bring them into effect. For the federal government this means passing settlement legislation. It is only at this stage that rights are affected or created. Implementation plans identify what has to be done to give effect to the agreement and provide for the monitoring and implementation of the obligations of the parties.

Immediate Practical Measures

In addition to establishing processes towards long-term agreements, INAC has been addressing urgent issues affecting the standard of living of Mi'kmaq and Maliseet communities. Mi'kmaq and Maliseet communities have the smallest reserve land base in Canada and one of the highest rate of on-reserve social assistance dependency. To address these immediate pressures, the federal government has allocated new funds to increase the land base of Mi'kmaq and Maliseet First Nation reserves and to provide increased economic development opportunities in order to improve the quality of life for these communities.

To begin addressing other potential implications of the Marshall decision which fall under federal jurisdiction, Tom Molloy has received the mandate to negotiate practical measures to involve Mi'kmaq and Maliseet First Nations in the management of national parks and migratory birds on the east coast.

Treaty Commission(s)

Mr. Molloy has the mandate to consult with Aboriginal and provincial partners to determine the degree of interest in, and scope of possible Mi'kmaq and Maliseet Treaty Commission(s). Treaty Commission(s) may be a useful mechanism to engage the Mi'kmaq and Maliseet groups, provincial governments and the private sector in activities to support, validate and communicate the continuing significance and importance of the Peace and Friendship Treaties. These consultations are currently underway.

Linkages to Short-Term Fisheries Negotiations

Since the Marshall decision, F&O; has been working to facilitate increased Aboriginal access to the commercial fishery. The Federal Fisheries Negotiator, appointed by the Minister of Fisheries and Oceans, is responsible to negotiate community level multi-year fisheries agreements. These are practical arrangements which are without prejudice to the positions of the parties in the long-term INAC-led process.

Also, broader fishery issues which cannot be dealt with in the F&O; short-term process may be addressed in the long term process led by INAC. Mr. Molloy and the Federal Fisheries Negotiator have been and will continue to work closely together in the implementation of this strategy.

For further information contact Media Relations at (819) 997-8404.

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