Guiding Framework

The provincial and federal governments and the Mi’kmaq of Nova Scotia agreed in 2002 to begin a negotiation process to resolve issues on Aboriginal and treaty rights. This is the first time since the Peace and Friendship Treaties of the 1700s that the Crown and the Mi’kmaq have agreed to come together to seek agreement on issues of such fundamental importance.

The province sees the negotiations as the continuation of a centuries long relationship and the beginning of a new phase of co-operation and respect. The effect of future agreements will be felt for generations. We will need to plan for and respond to evolving needs and opportunities for generations to come. We cannot predict the future but we can equip ourselves to deal with it. We need Nova Scotians to support this made in Nova Scotia process. 

The approach that the parties plan to follow in the discussions is called interest-based negotiation. This document outlines the general interests that the provincial government wants to bring to the table as our negotiations begin. We expect that many of our interests will overlap or duplicate those of the Mi’kmaq and the federal government. That would show that we share a commitment to a common set of objectives and provide a very good starting point for negotiations.

As negotiation on a specific subject proceed, each party will identify their interests in much greater detail. For Nova Scotia, this will include working with provincial departments and stakeholder groups and members of the public with interests in the outcome.

Public Support

Nova Scotians will support the negotiations process if they see it as effective, efficient, balanced, and producing lasting results. We intend that the parties will be able to show regular progress. We intend to achieve tangible results on specific matters requiring early attention, while also keeping the focus on resolving the longer-term issues.

Fairness for All

For any arrangement to last it must be fair. It is important that agreements reflect Nova Scotians’ sense of fairness. The public needs to have input and be kept informed about the process. Also, full consideration should be given to the input and advice of municipalities and stakeholders, both to identify concerns and impacts and to help us develop solutions.

What is Interest-based Negotiation? 

Interest-based negotiation means that before taking a position, you take the time to clearly define the problem that needs to be solved and understand why the issue is important to all sides. It also requires a mutual commitment to work together to find settlements that satisfy everyone’s interests, not just your own.

An interest-based approach has many benefits:

• avoids extreme positions that can inflame working relationships
• promotes collaboration by focusing on solutions that meet everyone’s interests
• leads more often to innovative and creative solutions
• helps identify areas for meaningful compromise

Traditionally, negotiation involves the exchange of positions between the parties. A party may offer a position on a take-it-or-leave-it basis, or may strategically make offers and counter-offers to probe the other side’s bottom line to try to get the best deal possible. This approach works for relatively simple transactions with a limited number of considerations—How much can I afford? What is my break-even point? How much are others paying? But this kind of positional negotiation has not proven effective when there are a large number of issues and when the parties will have an on-going relationship. Here we have both a large number of complex and interconnected issues and an on-going relationship to preserve and improve upon. An interest-based approach offers real hope that we can find workable solutions to longstanding issues.

Legal Clarity

The courts have confirmed that the Mi’kmaq of Nova Scotia have rights protected under Section 35 of the Constitution Act. The nature and extent of those rights, as well as the responsibilities and authorities of governments with respect to those rights, remain largely undefined. In some cases, they remain before the courts.

“The existing Aboriginal and treaty rights of the Aboriginal peoples of
Canada are hereby recognized and affirmed” Section 35.(1) of the Constitution

Nova Scotia would prefer to resolve legal uncertainty regarding constitutional rights through negotiation, not by the courts. Courts deal with matters of law but have no mandate to address other issues. A key interest of the province is to ensure agreements address the rights of all potential treaty beneficiaries. Beneficiaries are those individuals who are legitimately entitled to Mi’kmaq treaty and Aboriginal rights in Nova Scotia. This will require a fair and inclusive process to identify Mi’kmaq beneficiaries and appropriate mechanisms for all Mi’kmaq to participate in the ratification of agreements. It is the province’s view that it is important for the Mi’kmaq community itself to define its membership, as well as how the community is represented in the negotiations. Clarification of the rights of non-Nova Scotia Mi’kmaq within the province should be determined.

Socio-Economic Matters

Nova Scotia wants to take into account the social and economic situation in Mi’kmaq communities. This will mean dealing with a variety of interrelated topics in a systematic and coordinated way. These interrelated topics include culture, language, health, education, youth, natural resources, economic development, and capacity issues. The Mi’kmaq are under represented in many sectors of the economy. Nova Scotia wants to support efforts to allow for Mi’kmaq to have a greater stake in the economy.

Governance

The Province of Nova Scotia recognizes the importance of initiatives that give the Mi’kmaq real responsibility over matters that affect their communities. The governing and regulatory arrangements that bring about that enhanced responsibility must be carefully coordinated with the responsibilities of the federal, provincial, and municipal governments. We need to clearly and plainly state who is responsible for what.

Constitutional Responsibilities

The Constitution Act (1867) gives the federal government exclusive legislative authority for “Indians” and lands reserved for Indians. There are also many areas important to the Mi’kmaq where the province is responsible, like land and natural resources. The federal and provincial government will have to work together to ensure the respective responsibilities are clearly laid out.

Culture

As a unique and defining culture of Nova Scotia, Mi’kmaq culture and history need to be appreciated, preserved, and promoted. The negotiations should provide the Mi’kmaq the authority and tools to provide even greater leadership on their cultural matters, including a leading role in the management of cultural materials like artifacts and archaeological sites. 

Land, Resources, and Environment

The land, resources, and natural environment shape our economy and way of life. Sustainable resource management is essential for maintaining resource-based economies. Nova Scotians place great importance on conserving the environment.

At 27 per cent, Nova Scotia’s crown land holdings are small compared to other provinces—both in relative size and as a percentage of the total land area of the province. Nova Scotia also recognizes that the amount of land that has been set aside for First Nations communities is also among the lowest in the country. This has clearly created a barrier to the future social and economic viability of Mi’kmaq communities, which needs to be addressed.

European settlement in Nova Scotia goes back as long as anywhere in North America, some 400 years. Our history has meant that much of the land has been granted to private land owners. Security of private property title is a key interest for Nova Scotia.

Nova Scotia’s interests with respect to crown land and resources include:

• resource access and management that is fair to the Mi’kmaq and other users
• respect for Nova Scotians’ existing uses of crown land for economic and recreational  purposes, including parks and protected areas
• the need to honour existing commitments like licenses, leases, and permits
• ensuring that the province-wide environmental standards are maintained.