Special Assembly of the NAN Chiefs on the Northern Table Nov. 13 - 15 in Timmins
NORTHERN TABLE UPDATE
LEAD NEGOTIATOR SURPRISED AT THE RESPONSE FROM FIRST NATIONS TO THE NORTHERN TABLE
“I am surprised at the high level of interest and participation by NAN First Nations in the Northern Table (NT) process, and at the same time I should not be surprised,” said Northern Table Lead Negotiator Frank Beardy, “Our First Nations have wanted to deal with these issues and find fair solutions ever since our treaties were signed. Our homelands have always been our priority. First Nations have ‘process fatigue’ so I did not expect the level of interest and involvement to grow this quickly. It is a strong indicator of how important it is to the people to be involved in what happens on their homelands, and how much they want to protect their rights and their access to the land.”
The NT has more than 45 people from NAN First Nations and Tribal Councils participating at technical tables. As well, NAN Executive, Tribal Council Chairs, First Nation Chiefs, and Elders are working at the Senior Officials Level and the Joint Management Level where the NAN Northern Table Team meets with Ontario’s policy advisors, Deputy Ministers, and Ministers.
“The Northern Table keeps growing. There is a hope that it can deliver. The 120 days Interim Measures Process will be finished October 12. In November the NAN Chiefs will decide if the Northern Table is delivering,” said Beardy.
A special assembly of the Nishnawbe Aski Nation Chiefs will be held during the second week of November to review the progress of the Northern Table and to decide whether to continue with the process.
A FIFTH TECHNICAL TABLE ADDED TO THE NORTHERN TABLE
In May, four technical tables were created to research and discuss the Four Key Areas. They are:
1. Parks
2. Licenses and Permits
3. Land Use Planning
4. Mineral Exploration
Within each of these key areas the parties also agreed to work on initiatives to close the socio-economic gap between the Aboriginal peoples of Treaty No. 9 and Treaty No. 5 First Nations, and other Ontario citizens.
In September a fifth table was added to deal with issues common to all four tables. The Common Issues Table will discuss and develop processes and protocols for:
Revenue Sharing
Impact Benefit Agreements
Respect for Moratoria
Consultation, Accommodation, Consent
ELDERS CONFERENCE HELD IN THUNDER BAY
NAN Elders meet in Thunder Bay, August 25, 26, 2007 to discuss the Northern Table.
At the NAN Chiefs’ annual summer assembly (Keewaywin), held in Aroland this past August, a resolution was passed by the Chiefs that called for NAN to increase the input and involvement of Elders in the Northern Table process. Ten days later, on August 25 and 26, NAN Elders met in Thunder Bay for a two day session to discuss the Northern Table. Information on the issues, as well as the research and progress being made in the NT key areas was shared with the Elders. The Elders expressed a desire to take a more active role in helping their communities stay informed about the NT. They have asked to be kept updated on the issues and progress of the NT so that they may have discussions with community members and share information with them.
GRAND CHIEF AND CHIEFS’ STEERING COMMITTEE MEET WITH MINISTER RAMSAY
On August 29, 2007 NAN Grand Chief Stan Beardy, along with the Northern Table Negotiating Team and Legal Counsel, met with Minister Ramsay to try to resolve some of the issues that were not being addressed to NAN’s satisfaction at the other negotiating levels of the Northern Table. At that meeting the Minister made these commitments:
He agreed with NAN’s request to set up a fifth table in connection with the Northern Table to discuss the following issues: resource revenue sharing; impact benefit agreements; recognition of First Nations’ moratoria; the requirement of consultation, accommodation and consent. Meetings have taken place throughout September to establish the new table and begin discussions. Minister Ramsay has appointed two assistant deputy ministers to head up Ontario’s participation at that table.
Ontario is Committed to Resource Benefit Sharing
At the meeting on August 29, the Minister said that Ontario is committed to resource benefit sharing and that the government recognizes that impact benefit agreements should be required for development that goes into First Nations’ territory.
Minister Commits to Amending the Mining Act
Minister Ramsay said that MNDM is committed to amending the Mining Act, and proposals for such will be developed at the Northern Table. The Minister acknowledged that the Mining Act is not respectful to First Nations. The Minister also committed to the appointment of an independent facilitator to address interim issues such as moratoria, while policy changes and changes to the Mining Act are being considered.
Minister Apologizes for Establishing Parks without Consultation
David Ramsay, Minister of Natural Resources, apologized to Treaty No. 9 and Treaty No. 5 First Nations for having established parks on their homelands without consultation. The Minister made his apology at a meeting held in Toronto, August 29, 2007 with NAN Grand Chief Beardy and the Northern Table Negotiating Team. The Minister said he was prepared to sit down and discuss how Treaty and Aboriginal rights can be respected. He stated that he was prepared to look at any interference with Treaty and Aboriginal rights in park areas and resolve the problems.
Several NAN First Nations have been calling for the removal of the provincial parks, and have passed a resolution to that effect. The removal of the parks is based on the fact that they have been established without consultation, which is a violation of Aboriginal and Treaty Rights as per section 35 of the Constitution Act, 1982.
NAN Grand Chief Stand Beardy, and Minister of Natural Resources, David Ramsay
August 29, 2007.
The Minister directed the Assistant Deputy Minister Responsible for Parks to set up a special parks meeting so that the specific issues of each of these First Nations could be addressed. The Minister agreed to appoint a special facilitator, outside of government, to address the current issues related to infringement of treaty rights, such as tearing down cabins and the restrictions placed on and enforced by MNR of traditional First Nation activities in the parks. The Minister indicated that he is not prepared to de-designate the parks. Removal of parks would require a vote by the legislature.
Three Levels of Discussion at the Northern Table
The Northern Table has three levels where discussions take place. The Technical Tables conduct research, discuss issues, develop positions, identify options and make recommendations. At the Senior Officials Committee (SOC), discussions and negotiations take place and decisions and agreements are made. Issues that cannot be resolved at the Senior Officials level are sent to the Joint Management Committee (JMC) for further discussion and negotiation. When issues cannot be resolved at the Joint Management level, a meeting with the Minister may be called.
TECHNICAL TABLE UPDATES
Land Use Planning
There are nine First Nation and Tribal Council members working on the NAN side of the Land Use Planning Technical Table. The Land Use Planning Table has been researching issues and developing positions for the discussions with Ontario. The table is reaching an understanding with the province that community-based, and community-led, land use planning will be simultaneous with broader scale planning. Land use planning will encompass all NAN First Nations and NAN First Nations will plan for all of their homelands, regardless of the Ontario plan designation. However, NAN recognizes that the implementation of NAN interests will differ given the differing environments in which the First Nations co-exist. The Minister of Natural Resources has offered one million dollars to begin land use planning this fiscal year.
NAN is in agreement with the province that the land use plan for the far north will protect the environmental integrity of the land, provide for sustainable economic development, and that First Nations must benefit from the development of their homelands. There will be respectful integration of traditional knowledge and western scientific knowledge.
Still under discussion are the following concerns:
- The land use activities that can continue while the far north land use planning process is unfolding.
- An Aboriginal homelands designation that could replace and would supplement parks designations.
- A name for the Nishnawbe Aski Nation - Ontario planning initiative.
Under discussion at the new Common Issues table is the consent of First Nations prior to development initiatives, the need for mandatory impact and benefit agreements, revenue sharing, and respect for moratoria.
Licenses and Permits
The Ministry of Natural Resources, as well as several other provincial Ministries, issue thousands of licenses and permits every year for activities on NAN traditional homelands. The Licenses and Permits Technical Table (L&P) is researching the number and scope of these permits. The table is looking at developing a protocol (Notification Protocol) for how First Nations can be informed of activities being licensed on their traditional lands, and also how First Nations can be involved with the licensing and permitting of activities. The L&P Tech Table is looking at the issues in three ways:
What can be achieved within current legislation
What can be achieved with legislative changes
What can be achieved outside of current legislation
The current mandate of the L&P Tech Table is restricted to licenses and permits issued by MNR. Approval has been granted for the Notification Protocol to be developed in such a way that other Ministries will be able to utilize the platform and processes designed for the current MNR mandate. MNR and MOE will appoint representatives to the L&P Technical Tables.
Some provincial ministries can undertake activities without requesting a permit and therefore NAN First Nations would not be notified of such activities. NAN has requested that activities undertaken by other ministries under their own authority, which otherwise would require a license or permit from MNR, be considered in-scope under the current L&P Tech Table Mandate. The L&P Table has been mandated to look further into this issue and how it might be incorporated into the Notification Protocol.
First Nations can currently become involved in forest management planning and can request a specific First Nation consultation process in this regard. There are no similar provisions for First Nation involvement in wildlife management planning or fisheries management planning. Given the close link between these plans and the issuance of licenses and permits by MNR, it was agreed that discussions for First Nation participation in these processes be added to the L&P Technical Table mandate.
NAN has raised several examples where they believe First Nation consent should be required prior to the approval of a license or permit. For example, NAN would like to discuss the creation of a buffer zone around reserve lands within which any approval of licenses and permits would require First Nation consent, in addition to MNR approval. It was agreed that this matter would be further discussed at the L&P Table and in conjunction with the other technical tables.
Mineral Exploration
Under the Letter of Political Agreement signed between Minister Ramsay and Grand Chief Beardy, the Ministry of Northern Development and Mines (MNDM) agreed to discuss, address, and develop processes and implementation strategies for mineral exploration. Although the ministry was not keen on creating a technical table for these discussions at first, NAN continued to express the importance and necessity of a mineral exploration table in order to meet the goals of the Letter of Political Agreement and resolve long standing issues. MNDM did eventually agree to participate at the Mineral Exploration Technical Table. The Minister of Northern Development and Mines has agreed that legislation governing mineral exploration and mining is flawed, and has agreed to amend the legislation.
Recent court decisions, including the KI decision, have stated that provinces can no longer allow free entry to resources companies to First Nation traditional territories and homelands without consultation, accommodation, and in cases where the negative effects on First Nation traditional activities would be serious, First Nation consent would also be required. The mining table is discussing a new process where First Nations will review and approve mining exploration projects before any mining claims are staked on their territory.
Parks
When Ontario proposed new legislation for parks (Bill 11), NAN put together 58 recommendations for changes before the legislation was passed. The recommendations were ignored by the province. When the Letter of Political Agreement was signed between NAN and Minister Ramsay, the province agreed to discuss the concerns raised by NAN, which have since been amalgamated into 22 issues. The original mandate of the Parks Technical Table was to address these issues. However, new issues have also arisen at the table.
Due to the number of Treaty and Aboriginal rights infractions by the province in regards to parks, several First Nations brought their individual concerns with parks to the Northern Table. Six NAN First Nations drafted and signed a resolution calling for the removal of the parks altogether. Two more First Nations have also signed the resolution. These First Nations see the parks as unconstitutional, as they were designated without consultation with the First Nations whose homelands are affected. The First Nations that are calling for removal of the parks do not wish to interfere with First Nations who are satisfied with the parks in their areas, or have arrangements with the province in regards to parks on their traditional lands.
Members of the Parks Technical Table meet with the other three technical tables in Thunder Bay, July 17,18, 2007.
The Minister has said that it is unlikely that he will de-designate parks, however, he is willing to discuss the individual concerns of First Nations and work out mutually agreed-to solutions to the problems with the parks. This may include boundary changes, protection of areas that First Nations want protected, ensuring that traditional practices will not be interfered with as they have been in the past, finding ways for First Nations to be involved in the co-management of parks, and revenue sharing.
The issues of revenue sharing, impact benefit agreements, consultation, and moratoria on parks will now be discussed at the new Common Issues Table. The Parks Table will continue to deal with the issues surrounding Bill 11. A process will be developed under the Parks Table to deal with issues that are specific to individual First Nations, or groups of First Nations.
Feeling that they were not making enough progress at the parks table, NAN asked that a new Ontario technical lead be appointed by the province. The MNR agreed and the new provincial lead has come on board at the Parks Technical Table, giving some new optimism to the possibility of progress on the issues. The parks table has the highest level of participation by First Nation members with a dozen community members, Chiefs and Tribal Council representatives working at the table.
WHEN THE 120-DAY INTERIM MEASURES PROCESS IS FINISHED
Special Chiefs Meeting to be Held in Timmins On October 12, 2007, the Northern Table Interim Measures Process will end. When the Letter of Political Agreement was signed in April 2007 between NAN and Ontario, the NAN Chiefs had put a time limit on the process in order to see if any substantive progress could be made on the issues. A special assembly of the NAN Chiefs will be held November 13, 14 and 15 in Timmins, ON. The Technical Tables and Negotiating Team for the Northern Table will prepare reports on the issues and progress made during the 120-day Interim Measures process. The Chiefs will decide at the assembly in Timmins whether or not to continue with the Northern Table, based on whether they believe substantive progress has been made.
First Nation Participation in the Northern Table
Currently NAN First Nations are participating in the NT process through the Northern Table technical committees. Over 45 First Nation and Tribal Council representatives are involved with the technical tables. Their input and work at the tables involves research, discussions, and development of NAN positions for the key areas being negotiated at the Northern Table. The NAN Chiefs’ Steering Committee, comprised of First Nation Chiefs, Tribal Council representatives, and Elders, is giving direction to the discussions.
Should the Chiefs decide to continue with the Northern Table after the 120 day Interim Measures Process, a comprehensive strategy for gaining community input will be developed, including First Nation community meetings, focus groups and video conferences. The Northern Table needs the input and participation of NAN First Nations to succeed.