First Nation and Mtis

Consultation Policy Framework

June 2010
 Table of Contents

1. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

2. Duty to Consult Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

1. Policy Statement
2. Policy Goal
3. Objectives
4. Guiding Principles

3. The Duty to Consult as Applied to Lands and Resources. . . . . . . . . . . . . . . . . . . . . 5

A. Application of the Duty to Consult . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

1. Policy Application
2. Decisions Subject to the Duty to Consult Policy
3. Matters Not Subject to the Duty to Consult Policy
4. Roles and Responsibilities
5. Funding Consultation
6. Existing Processes for Consultation

B. Duty to Consult Guidelines. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

1. Purpose
2. Consultation Process
a. Step 1: Pre-Consultation Assessment
b. Step 2: Consultation
c. Consultation Matrix

4. Context for the Duty to Consult . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

1. Treaty Context
2. Treaty Rights Pertaining to the Duty to Consult
3. Mtis Aboriginal Rights
4. Mtis Aboriginal Rights Pertaining to the Duty to Consult
5. Asserted Rights

5. Interest-based Engagement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Government of Saskatchewan First Nation and Mtis Consultation Policy Framework

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1. Introduction

The Government of Saskatchewan First Nation and Mtis Consultation Policy

Framework (Consultation Policy Framework) presents the Government of
Saskatchewans policy on consultation with First Nations and Mtis communities for
use by Government ministries, agencies, Crown corporations, First Nations, Mtis
and proponents. It includes the Duty to Consult Policy, a section on the policys
application to decisions affecting lands and resources, a policy context section and
a section on interest-based engagement.The Consultation Policy Framework will
also provide direction to Government ministries, agencies and Crown corporations
to establish operational procedures to consistently implement the consultation policy
across Government.

In accordance with this Policy Framework, the Government of Saskatchewan is

responsible for determining whether a duty to consult is triggered and if so, the
level of consultation required. In the case of asserted rights, the Government is
also responsible for determining whether there is a credible basis for the claim.
Government decision-makers requiring assistance interpreting this policy, undertaking
pre-consultation assessments and developing consultation plans are encouraged to
contact the Aboriginal Consultation Branch, Ministry of First Nations and Mtis
Relations by e-mailing Aboriginal.Consultation@gov.sk.ca or phoning toll-free,
1-877-879-7099.

Although the focus of this policy is on consultation as it applies to Treaty and

Aboriginal rights associated with lands and renewable resources, it does not exclude
application to other Treaty and Aboriginal rights.

This policy takes effect June 2010, replacing the Government of Saskatchewan
Interim Guide for Consultation with First Nations and Mtis People. It will be
reviewed and updated when required to ensure consistency with case law, legislation
and/or policy.

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2. Duty to Consult Policy

Policy Statement
The Government of Saskatchewan will consult with and accommodate, as
appropriate, First Nations and rights-bearing Mtis communities in advance of
decisions or actions which may adversely impact Treaty and Aboriginal rights.

Policy Goal
The goal of this policy is to facilitate mutually beneficial relationships among the
Government of Saskatchewan, First Nations, Mtis and industry that contribute to a
growing provincial economy.

Objectives of the Duty to Consult

1. To respect and protect Treaty and Aboriginal rights by ensuring, through
the consultation process and subsequent decisions, that negative impacts
on these rights and uses are avoided, minimized or mitigated and rights are
accommodated, as appropriate;

2. To advance the process of reconciliation between Aboriginal and non-

Aboriginal peoples and their respective claims, interests and ambitions; and

3. To promote certainty, predictability and a stable, secure investment climate for

the residents of Saskatchewan, including First Nation and Mtis communities.

Guiding Principles
Integrity and Good Faith
The duty to consult is grounded in the honour of the Crown. The Government will
approach consultations with an open mind, conduct itself with integrity during
consultation processes and deal in good faith with First Nations and Mtis people.
The Government will listen to and respond to First Nations and Mtis concerns
respecting potential impacts on Treaty or Aboriginal rights and consider them when
making decisions.

Respect
Consultations with First Nations and Mtis communities will be undertaken in a spirit
of mutual respect and trust. For example, cultural practices, such as opening prayers,
will be respected and traditional knowledge will be taken into consideration. As the
holders of Treaty and/or Aboriginal rights, the Government does not consider First
Nations and Mtis to be stakeholders.

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Governments Duty
On matters subject to provincial jurisdiction, the duty to consult lies with the
Government of Saskatchewan. The Government will not delegate the duty to project
proponents or other third parties, although proponents have an important role in the
procedural aspects of consultation processes. Government retains final decision-
making authority; First Nations and Mtis do not have a veto over decisions.

Reciprocal Responsibility
There is a reciprocal responsibility on First Nation and Mtis communities to
participate in the consultation process in good faith, to make their concerns respecting
potential impacts on Treaty and Aboriginal rights known and to respond to the
Governments attempts to consult.

Transparency and Accountability

Consultation processes will be transparent, accountable, timely and results-based.

Communication
Successful consultation depends on clear, open and honest communication between
the Government of Saskatchewan and First Nations and Mtis communities with
potentially impacted rights. For example, technical information should be in plain
language and translation provided, if necessary.

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3. The Duty to Consult as Applied to Lands and Resources

A. Application of the Duty to Consult

Policy Application
This policy applies to Government decisions and actions that have the potential to
adversely impact the exercise of:
1. Treaty and Aboriginal rights, such as the right to hunt, fish and trap for food
on unoccupied Crown lands and other lands to which First Nations and Mtis
have a right of access for these purposes; and
2. Traditional uses of lands and resources, such as the gathering of plants for
food and medicinal purposes and the carrying out of ceremonial and spiritual
observances and practices on unoccupied Crown lands and other lands to
which First Nations and Mtis have a right of access for these purposes.

Decisions Subject to the Duty to Consult Policy

The duty to consult may be triggered by Government decisions and actions that
have the potential to adversely impact the exercise of Treaty and Aboriginal rights
and pursuit of traditional uses. The decisions and actions that will be assessed by
Government for potential consultation obligations include, but are not limited to, the
following:

Legislation, Regulation, Policy and Strategic Plans

Creating a new or amended piece of legislation, regulation, policy or strategic plan
that may have the effect of limiting or altering the use of Crown lands and renewable
resources.

Fish and Wildlife Management

A decision that may limit or alter the quality and quantity of fish and wildlife or the
right of access to these resources.

Resource Extraction
A decision related to the harvesting and processing of timber or the permitting and
licensing of Crown surface lands for extraction and production of minerals.

Land Reservations
Any action that has the effect of restricting the use of unoccupied Crown lands and
other lands to which there is a right of access.

Land Use Planning

Land use planning activities that provide a long-term framework for Government
decisions.

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Lease, Grant or Sale of Unoccupied Crown Land
Decisions related to the long-term lease, granting or sale of unoccupied Crown land.

Changes to Public Access

A decision that will have the effect of changing public access to Crown lands and
renewable resources.

Environmental Approvals
A decision where an activity has the potential to negatively impact the environment.

Matters Not Subject to the Duty to Consult Policy

Matters that do not trigger the duty to consult include, but are not limited to, the
following:

Past Actions
The Government does not consider the duty to consult to be retroactive and therefore
will not consult on decisions it made in the past.

Private Land and Leased Crown Agricultural Land

Private land ownersand lessees of Crown agricultural lands have the right to control
access to their private or leasedlands. Treaty and Aboriginal rights and traditional
uses canonly be exercised onthese lands withthe permissionof the land owner or
lessee. Accordingly, decisions related to projects occurring on private lands or leased
Crown agricultural landsare not subjectto consultation under this policy unless
the projecthas the potential toadversely impactTreaty and Aboriginal rights and
traditional uses on unoccupied Crown lands, occupied Crown lands where the Crown
permits access or Indian reserve lands in the general vicinity.

Aboriginal Title
The Government does not accept assertions by First Nations or Mtis that Aboriginal
title continues to exist with respect to either lands or resources in Saskatchewan.
Accordingly, decisions claimed to adversely affect Aboriginal title are not subject to
this policy.

Mineral Dispositions
The issuance of mineral dispositions under The Crown Minerals Act is not subject to
this policy. These dispositions do not provide the disposition holder with a right of
access to lands for purposes of mineral exploration and development. This policy will,
however, apply where the Government is contemplating surface land use decisions
related to mineral exploration and development that may have an impact on Treaty
and Aboriginal rights and traditional uses.

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Commercial Use of Resources
Commercial uses of resources by First Nations and Mtis people, such as commercial
trapping and fishing, are not subject to this policy. However, the importance of
these pursuits is recognized by the Government and ministries will be guided by the
Interest-Based Engagement section (see Section 5) when its decisions or actions have
the potential to adversely impact commercial activities.

Emergency Situations
In emergency situations, such as flooding and forest fires, or where public health and
safety and/or infrastructure are at immediate risk and response time is of the essence,
consultation on potential impacts on Treaty and Aboriginal rights and traditional uses
may not be feasible. The first priority is to address public safety. First Nations and/or
Mtis communities will be consulted on impacts to rights if time permits.

Roles and Responsibilities

The Provincial Government
The Government of Saskatchewan has administration and control over land and
natural resources that were transferred from Canada to Saskatchewan under the
Natural Resources Transfer Agreement, 1930, and will exercise its authority in the
interests of all residents of Saskatchewan.

The Government is responsible and ultimately accountable for managing and

implementing the duty to consult. The Governments consultation obligations will not
be delegated to project proponents. The Government however, may assign procedural
aspects of the consultation process to proponents, such as hosting information-sharing
meetings. The Government may also provide advice to proponents and First Nations
and Mtis leadership on this policy and its implementation.

The Saskatchewan ministries and/or agencies responsible for renewable resource

management and for authorizing activity on the surface of the land generally have
responsibility for implementing the duty to consult. Crown corporations are usually
proponents who secure authorizations from provincial ministries and, as such, the
Government may assign procedural aspects of the consultation process to them. In
instances where Crown corporations have a duty to consult, they will abide by this
policy.

The Federal Government

The federal government will have a duty to consult and accommodate, as
appropriate, as a result of federal decisions and actions that have the potential to
adversely impact Treaty and Aboriginal rights. In order to ensure consultations in
Saskatchewan are effective and efficient where jurisdictions overlap or where there
is a joint responsibility, provincial ministries will endeavor to work with their federal
counterparts to develop and implement joint processes.

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First Nations and Mtis Rights-Bearing Communities
First Nations and Mtis are responsible for participating in the consultation process
in good faith and in a timely manner, making their concerns known about adverse
impacts on Treaty and Aboriginal rights and traditional uses and responding to the
Governments attempts to consult.

Project Proponents
Proponents, by virtue of their knowledge of and participation in project activities,
have an important and direct role in the consultation process to ensure both
success and certainty. Proponents are expected to collaborate with Government
in the provision of project information to potentially impacted First Nations and
Mtis communities. The information must be clear, accurate and complete, and in
plain language where possible. Proponents may also be expected to participate in
Government meetings with potentially impacted First Nations and Mtis communities
to discuss potential impacts of the proposed activity. Where an adverse impact on
Treaty or Aboriginal rights and/or traditional uses is identified, proponents will be
expected to work with Government and the parties being consulted to develop and
implement measures to address these impacts.

Proponents are responsible for the costs associated with their engagement in
consultation processes and procedural aspects that may be assigned to them by
Government, as well as any necessary adjustments or actions to project activities
required to avoid, minimize or mitigate adverse impacts on Treaty and Aboriginal
rights and traditional uses.

Successful consultation depends, in part, on early engagement of proponents with

First Nations and Mtis communities.Proponents are encouraged toengage and build
relationships with the affected First Nations and Mtis. Establishing relationships
with First Nations and Mtis communities in advance ofpursuing development of
specific projects has proven to bean effective management practice.

Municipalities
Municipalities are established by provincial legislation and exercise powers delegated
by the Provincial Government. Municipalities may have a duty to consult whenever
they independently exercise their legal authority in a way that might adversely impact
the exercise of Treaty and Aboriginal rights and/or traditional uses on unoccupied
Crown land or other lands to which First Nations and Mtis have a right of access. In
cases where the municipality is the proponent of a development, the Government can
assign procedural aspects of the consultation to the municipality, as it may with any
other proponent.

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Funding for Consultation
The Government recognizes that First Nations and Mtis may require assistance
to engage in meaningful consultations. The First Nations and Mtis Consultation
Participation Fund, administered by the Ministry of First Nations and Mtis Relations,
allows eligible First Nations and Mtis entities to participate in consultations where
the Provincial Government has determined that it has a duty to consult. More
information can be found at: http://www.fnmr.gov.sk.ca/Consultation-Fund/.

Existing Processes for Consultation

Consultations undertaken in accordance with legislative requirements or regulatory
processes, such as environmental assessment or land use planning, may be relied
upon by the Crown to satisfy, in whole or in part, the duty to consult. In many cases,
the duty to consult is carried out on a continuum from one decision-making stage to
another, within ministries and across ministries.

B. Duty to Consult Guidelines

Purpose
The purpose of the Duty to Consult Guidelines is to provide consistent direction to all
parties who are likely to use the Duty to Consult Policy, with the objective of having
successful consultations. The Guidelines will also provide those ministries, agencies
and Crown corporations that have consultation obligations with sufficient guidance to
develop operational implementation procedures specific to their unique mandate and
activities.

Consultation Process
Step 1: Pre-Consultation Assessment
Determining if consultation is required
The threshold for triggering the duty to consult is low. The courts have ruled that the
nature, scope and intensity of the consultation required will vary along a spectrum
according to the potential impact on rights arising from a Government activity or
decision.

When determining if consultation is required, and the subsequent level of consultation

activity that may be appropriate, Government will consider:

1. If the decision or action being contemplated has the potential to adversely

impact a Treaty and/or Aboriginal right and/or traditional use;
2. The duration or length of time the potential adverse effect may persist; and
3. The magnitude or extent of the potential adverse impact.

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 The Consultation Matrix set out in Figure 1 will guide Government assessment on
the level of consultation and time frames. If it is not clear whether an activity triggers
a consultation requirement, Government ministries and agencies are advised to
undertake a Level 2 Consultation as described in the Consultation Matrix.

Figure 1: Consultation Matrix

Potential Impact of Level of Notification and Timeline Anticipated
Decisions or Actions on Consultation Follow up for Timeline for
Treaty and Aboriginal response Government
Rights and Traditional from First Decision
Uses Nations/ from Day of
Mtis Notification
No impact. LEVEL 1 No notification is required N/A N/A
beyond what is typically
provided to the public or is
required by legislation.
Short-term disturbance LEVEL 2 Written notice is provided. Response Decision
to land and/or change in requested anticipated
resource availability with within 21 within 30 days
potentially minor impact. days
Short-term disturbance to LEVEL 3 Written notice is provided with Response Decision
land and/or a change in offer to meet with community to requested anticipated
resource availability with discuss project and seek input. within 30 within 60 days
a potentially significant days
impact. Follow up is not required, but Reporting back
OR may be appropriate. is not required
Long-term disturbance but may be
to land and/or change in appropriate.
resource availability and/or
permanent uptake of land
with a potentially minor
impact.
Long-term disturbance LEVEL 4 Contact First Nation and/or Response Decision
to land and/or change in Mtis community to advise of requested anticipated
resource availability with upcoming review and official within 30 within 90 days
a potentially significant notification to follow. days
impact. Reporting back
Written notice is provided with is required.
offer to meet with community to
discuss project and seek input.

Follow up is required.
Permanent disturbance LEVEL 5 Contact First Nation and/or Response Decision
to land and/or change in Mtis community to advise of requested anticipated to
resource availability and/ upcoming review and official within 45 exceed 90 days
or permanent uptake of notification to follow. days
land with a potentially Reporting back
significant impact. Written notice is provided with is required.
offer to meet with community
to discuss project, develop a
consultation plan and determine
capacity needs.

Follow up is required.

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The Government recognizes that there is a duty to consult in connection with the
taking up or sale of Crown land as a result of the Supreme Courts decision in
Mikisew Cree. The Government will assess the level of consultation required in
these cases by examining the potential adverse impacts on the exercise of Treaty
and Aboriginal rights and traditional uses. Where it is contemplated that the adverse
impact will be minor, consultations will be assessed at Level 3. Where the adverse
impacts will be significant, consultations will be assessed at Level 5.

When the decision under consideration is the renewal, extension or transfer of an

existing disposition, only potential new adverse impacts on Treaty and Aboriginal
rights and traditional uses will be considered in determining if consultations are
required and what level of consultation is required. Where the renewal or extension is
provided for in the original disposition and no changes to the authorized activity are
contemplated, consultations will be assessed at a Level 1.

Identifying Potentially Impacted First Nations and Mtis

Consultation is required with First Nations and rights-bearing Mtis communities
whose traditional territories coincide with the geographic area where the adverse
impact would occur. Traditional territory refers to the geographic area within which
First Nations and Mtis people historically exercised Treaty and Aboriginal rights and
undertook traditional uses and continue to do so today. There may be circumstances in
which more than one First Nation and/or Mtis community must be consulted owing
to overlapping traditional territories.

Treaty and Aboriginal rights are collective rights held by a community of people.
Consultations must therefore be targeted to the elected leaders or representatives
of First Nations and Mtis communities. For the purpose of these guidelines, the
Government recognizes the Chief and Council of a First Nation, the President of
a Mtis Nation - Saskatchewan Local or their authorized designates. Regional or
provincial First Nations and Mtis entities may be consulted only if the elected
leadership has delegated this authority through its constitutional decision-making
process, and the consulting ministry has a written, signed copy of the authorization.

When in doubt as to whom to consult, Tribal Councils or the Mtis Nation -

Saskatchewan provincial head office may be contacted for advice.

Step 2: Consultation
Providing Notice
Notification will be provided in writing to the leadership in the First Nations and
Mtis communities that may potentially be adversely affected by a Government
decision or action, or their delegates as noted above. Notification must be as early
as possible and in advance of the decision to be made and may require the active
participation of the proponent.

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Notification should provide clear, complete and understandable information and
include the following:
Description of the decision or action that Government is contemplating that
could adversely impact Treaty or Aboriginal rights;
The extent, and likely duration of the impact on rights and traditional uses;
Specific questions about the information being requested on impacts to Treaty
and Aboriginal rights and traditional uses;
Identification of a timeline for response from the community and the
anticipated timeline for a Government decision following notification;
An assessment of likely impacts on the environment and/or renewable
resources; and
Identification of any mechanisms that will be applied to mitigate potential
impacts.

In keeping with the Consultation Matrix in Figure 1, adequate time should be allowed
for the First Nations and/or Mtis leadership to receive, consider and respond to the
notification. Additional follow-up methods such as phone calls, registered letters or
personal visits can be used as appropriate to ensure the First Nations and/or Mtis
communities are aware of the proposal.

Considering the Response

The First Nations and/or Mtis response to Governments notification may confirm
the Governments preliminary assessment of the potential impact of the proposed
decision or action on Treaty and Aboriginal rights and traditional uses. In this case, a
decision will be made to proceed, subject to appropriate mitigative measures.

Alternatively, the response may provide Government with a better understanding

of potential impacts on Treaty and Aboriginal rights and traditional uses. Specific
steps can then be taken to avoid, minimize or mitigate the impacts of its decisions or
actions on those rights and uses. The Government response to concerns expressed by
First Nations and/or Mtis about potential impacts to the exercise of specific rights
and/or traditional uses will be unique to the particular facts of the situation. Project
proponents must be made aware that the content of the response(s) from First Nations
and/or Mtis community(ies) may affect the timelines for a decision.

Consultation may result in new information being identified. That information will
then be applied to re-assess the impact or extent of the potential impact, and may
elevate the level of consultation required. Such reassessment may result in new
consultation activities and adjustments to associated timelines.

There may be circumstances where the First Nations or Mtis response to the
Government notification is an adverse impact to an asserted right not covered in this
policy. In these cases, guidance should be sought from the Ministry of First Nations
and Mtis Relations.

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Accommodating
An outcome of consultation could be actions to accommodate Treaty and/or
Aboriginal rights and/or traditional uses. Accommodation means that the Government
and the proponent will use what they have learned about impacts to rights and
traditional uses during the consultation process to minimize or avert the adverse
impacts by avoiding, changing, or amending the plan or action. In the event that a
plan or development requires alteration, the proponent will be responsible for costs.

Accommodation may include one or more of the following:

attaching certain conditions to approvals to undertake activities;
requiring proponents to adjust the proposed activity or program;
delaying making a decision or issuing an approval pending further
consultations; or
denying the application to conduct an activity.

In instances where a Government decision or action results in a significant,

unavoidable infringement on Treaty and Aboriginal rights, financial compensation
may be required for loss of use or access to exercise the right. Government will
determine compensation on a case-by-case basis and will not address past actions.

Reporting Back
In keeping with guidance in the Consultation Matrix in Figure 1, the Government
will report back to the First Nations and Mtis leadership being consulted as to its
decision. The report will explain the rationale for the decision, how First Nations and/
or Mtis concerns regarding impacts to Treaty and Aboriginal rights and traditional
uses were taken into consideration and, where relevant, what form of accommodation
was used to avoid or minimize impacts to those rights.

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4. Context for the Duty to Consult

This section provides background information to assist the reader to understand the
policy content and Government direction.

Treaty Context
Treaties are living, breathing documents that continue to bind us to promises made
generations ago.1 There are six different Treaties applicable in Saskatchewan Treaty
Nos. 2, 4, 5, 6, 8 and 10. The earliest of these Treaties, No. 2, was entered into in
1871. The purpose of the Treaties was to forge a new relationship between the Crown
and First Nations and to open up the West for developments, like the construction of
the transcontinental railway and agricultural settlement. The terms of each of these
Treaties are similar. According to their written text, in exchange for giving up their
title to the land, the First Nations received promises of reserve lands, guaranteed
hunting, fishing and trapping rights, annual payments and other commitments. The
oral histories of the First Nations offer a different view of the intent of the Treaties. It
is not the purpose of this Policy to attempt to resolve these differences.

Treaty Rights Pertaining to the Duty to Consult

From the Provinces perspective, the Treaty right that is most often engaged in
connection with the duty to consult is the Treaty right to hunt, fish and trap for food.
While the wording of this clause varies slightly from Treaty to Treaty, the clause in
Treaty No. 6 is representative. It provides as follows:
Her Majesty further agrees with Her said Indians that they, the said Indians, shall
have right to pursue their avocations of hunting and fishing throughout the tract
surrendered as hereinbefore described, subject to such regulations as may from
time to time be made by Her Government of Her Dominion of Canada, and saving
and excepting such tracts as may from time to time be required or taken up for
settlement, mining, lumbering or other purposes by Her said Government of the
Dominion of Canada, or by any of the subjects thereof duly authorized therefore
by the said Government.2

These rights may be exercised on unoccupied Crown lands and other lands to which
First Nations have a right of access for hunting, fishing and trapping throughout
the Province by virtue of the provisions of paragraph 12 of the Natural Resources
Transfer Agreement of 1930 which was the legal instrument that transferred
administration and control of Crown lands from Canada to Saskatchewan. The duty to
consult requires consultations with those First Nations whose traditional territories are
potentially impacted by a proposed decision.

1
Speech from the Throne, 2007, Province of Saskatchewan, December 2007.
2
Treaty 6, Indian Claims Commission: http://www.indianclaims.ca/publications/treaties-en.asp

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Aboriginal Rights
While Treaty rights are enshrined in agreements between the Crown and First
Nations, Aboriginal rights reflect the fact that Aboriginal communities existed in
North America prior to the arrival of Europeans. Aboriginal rights encompass the
customs, practices and traditions that were an integral part of the distinctive cultures
of these communities prior to their first contact with Europeans and which continue
to have this significance in their cultures today. Even though distinctive Mtis
communities did not arise until after contact between Europeans and First Nations,
Mtis also possess Aboriginal rights. These rights are determined by examining the
customs, practices and traditions that were an integral part of the distinctive culture
of Mtis communities at the date when a European or Canadian government asserted
effective control over the area and which continue to have this significance in the
culture today. Aboriginal rights have always existed as part of the common law in
Canada. Aboriginal rights were given constitutional status by section 35(1) of the
Constitution Act, 1982. The courts have recognized that Mtis Aboriginal rights to
hunt, fish and trap for food exist in some parts of the Province, such as in Northern
Saskatchewan.

Mtis Aboriginal Rights Pertaining to the Duty to Consult

The Government recognizes that it has legal obligations to consult with rights-
bearing Mtis communities. The Mtis Aboriginal right that is most often engaged in
connection with the duty to consult is the Aboriginal right to hunt, fish and trap for
food. One of the challenges associated with meeting the duty to consult for the Mtis
is the lack of consensus on the definition of a rights-bearing Mtis community. To
date, the courts suggest that these communities should be defined on a regional basis,
as opposed to an individual community or a province-wide basis. The Government
will consult with Mtis leadership in communities or regions where Mtis Aboriginal
rights have already been recognized, such as in Northern Saskatchewan. Where Mtis
Aboriginal rights have not yet been recognized, the decision to consult will be made
on a case-by-case basis. Government will take into account the strength of the claims
supporting the asserted rights and the extent of the potential impact on the exercise of
the asserted rights.

Asserted Rights
The Supreme Court recognized in Haida Nation that governments may be required
to consult with First Nations and Mtis communities when governments have
knowledge, real or constructive, of asserted rights, even if governments do not
recognize the rights being asserted. In these cases, consultations may be required
where the Government determines that there is a credible basis for the asserted
right and the community is actively pursuing recognition of the right either through
negotiations or litigation. The degree of consultations required in these cases will
depend upon the strength of the claim supporting the asserted right as well as the
extent of the potential adverse impact from the proposed government action.

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5. Interest-based Engagement

The Government of Saskatchewan recognizes the benefits of engaging First Nations

and Mtis when making decisions that affect their interests, people and communities.

There are important reasons to engage First Nations and Mtis communities on
issues that affect them, outside of any legal consultation obligations the Government
may have. For many years, governments have been engaging citizens, stakeholders
and First Nations and Mtis communities and organizations as a matter of choice,
in order to understand and integrate their interests into government decisions. This
engagement is interest-based rather than rights-based.

The primary objective in undertaking interest-based engagement is to ensure that

Government policies, plans and actions will effectively meet their intended goals and
objectives. This is done by working with the particular group/s to better understand
the nature of the policy problem and how it should be resolved. Engagement comes
in many forms, such as information-sharing meetings, public hearings and meetings,
advisory groups, surveys and polls and focus groups. In many cases, there is benefit
in going beyond this kind of engagement to creating partnerships for joint action to
solve a problem or take advantage of an opportunity.

Good interest-based engagement includes taking time to develop and maintain

positive relations with First Nations and Mtis communities. Both public and private
sectors have realized that engaging Aboriginal people early, well before making
policies or decisions, can avoid problems, delays and ultimately resources required to
manage conflict.

Ministries will make best efforts to engage First Nations and Mtis communities
in the decision-making processes related to policies, programs and legislation that
have the potential to directly impact them, where they have an interest or where First
Nations have jurisdiction on-reserve. However, there may be situations where either
the sensitive nature of a proposed policy change or its broad application may prevent
the Government from consulting with any community in advance.

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 Report on How Feedback was Addressed

in the Government of Saskatchewan

First Nations and Mtis Consultation Policy Framework

June 2010
Contents

Introduction .......................................................................................................... 1

Background .......................................................................................................... 1

Who Responded to the December 2008 Draft Policy? ........................................... 2

What We Heard .................................................................................................... 2

How Input was Addressed in the Government of Saskatchewan First Nations

and Mtis Consultation Policy Framework............................................................ 3

Tables

Table 1: Summary of Feedback and How Addressed ........................................... 3

Table 2: Comparison of Key Points in FSIN and MNS Documents with the
2009 First Nations and Mtis Consultation Policy Framework ................ 6
Introduction

During the past two years the Government of Saskatchewan has been engaged in a process
to revisit the guidelines on First Nation and Mtis consultation. The participation of First
Nations and Mtis leadership, industry representatives, the municipal sector and other
interested groups has been vitally important to this process. Government has listened to
your comments and concerns through this process and, where possible, included them in
the new First Nations and Mtis Consultation Policy Framework (CPF).

The purpose of this document is to provide a summary of the feedback received by the
Government on the December 2008 Draft First Nation and Mtis Consultation Policy
Framework, and show how it was used in drafting the final policy.

Background

Prior to the November 2007 Provincial election, Premier Brad Wall, then Leader of the
Opposition, committed to a review of the Governments approach to consultation with
First Nations and Mtis. The Ministry of First Nations and Mtis Relations (FNMR) led
the review process on behalf of Government. The May 2008 Roundtable Conference on
First Nations and Mtis Consultation and Accommodation was held to receive input from
First Nations, Mtis, industry, municipal sector and others. More than 400
representatives of these groups attended the conference. Further information was
received at subsequent summits and meetings with tribal councils, Treaty organizations,
the Mtis - Nation Saskatchewan (MNS), industry and municipal associations.

Government then released its Draft First Nation and Mtis Consultation Policy
Framework on December 22, 2008 (December 2008 draft policy) for further feedback.
The draft took into consideration input received at the Roundtable, as well as papers
provided by First Nations, Mtis and industry representative groups. It was mailed to
approximately 250 individuals including the Chiefs of all First Nations, tribal councils
and the Federation of Saskatchewan Indian Nations (FSIN); Mtis Local Presidents,
Mtis Regional Directors and the Executive of the MNS; chief executive officers of
companies and industry associations impacted by consultation, in particular mining, oil
and gas and forestry; and municipal sector representatives. The document was also
placed on FNMRs website allowing comment from other interested parties.

In response to requests from some respondents for more time to effectively review the
draft policy, the two-month review period was extended to a five-month period, ending
June 1, 2009. Information received from the FSIN and MNS after that date was also
taken into consideration. In December 2009, the Government indicated that it would
defer releasing the policy until after March 31, 2010 in order to receive consultation
policies it understood were to be forthcoming from the FSIN and MNS and to have the
opportunity for discussion with the organizations on their respective policies.

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Who Responded to the December 2008 Draft Policy?

In developing the new policy, FNMR considered responses from several interested
groups. They were:
Seven Saskatchewan First Nations: English River First Nation, Big Island Lake Cree
Nation, Beardys and Okemasis First Nation, Birch Narrows Dene Nation, Gordon
First Nation, Sweetgrass First Nation, Moosomin First Nation;
Cold Lake First Nations, Alberta;
Two Treaty Groups: Participating Treaty 6 First Nations and Treaty 4 First Nations
in Saskatchewan and Manitoba, together representing approximately 50 First Nations;
Federation of Saskatchewan Indian Nations;
Mtis Nation Saskatchewan;
Two municipal organizations: Saskatchewan Urban Municipalities Association and
Saskatchewan Rural Municipalities Association;
Seven companies and industry associations: Saskatchewan Mining Association, Canadian
Association of Petroleum Producers, Enbridge Inc., Husky Energy, Weyerhaeuser, Small
Explorers and Producers of Canada, and Saskatchewan Chamber of Commerce; and
One individual: PhD Candidate, University of Manitoba.

What We Heard

The feedback and recommendations provided by respondents on the December 2008

draft policy submitted to FNMR were carefully reviewed and categorized into broad
thematic groups as part of the analysis of the overall content. While a summary of the
feedback can be found in Table 1, the main thematic groups are:
Greater clarity in relation to how the Government intends on assessing when the duty
to consult is triggered and, if so, what level of consultation is required for the
purposes of fulfilling that duty.
More detailed information and clarity respecting the types of decisions subject to the
consultation policy and the rights that may be affected by these decisions.
A greater level of attention to important policy implementation mechanisms such as
consultation participation funding, traditional territory mapping and consultation
protocols, which may improve efficiency.
The provision of clearer definition of accommodation, including accommodation
options available to decision-makers and the parties responsible for providing
accommodation, including financial compensation.
A clearer definition of the roles and responsibilities of the parties involved in
consultation processes, including those of First Nations, Mtis, industry and
municipalities.
Greater clarity around timeframes and timelines associated with the consultation
process, including information on how the Government intends on enforcing
timelines.
The need for consultation to be directly linked to constitutional rights, resource
revenue-sharing, consent on decisions, inclusion of mineral dispositions, past
decisions and requirement for economic accommodation and compensation.

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Both the FSIN and MNS formally rejected the December 2008 draft, the FSIN by
resolution at its Legislative Assembly on February 18, 2009 and the MNS at a meeting of
the Provincial Mtis Council, February 22 - 23, 2009. However, FNMR received a
document from the FSIN dated August 27, 2009 entitled The Duty to Consult First
Nations, which includes 10 Treaty Implementation Principles and 16 legal principles
established by the courts on the duty to consult. As well, in August 2009, MNS provided
FNMR with a draft document entitled Mtis Nation Saskatchewan: Duty to Consult
and Accommodate Policy and Principles which was approved by the Provincial Mtis
Council, but not the Mtis Nation Legislative Assembly held in November 2009. Both
these documents were considered in the policy development process.

How Input was Addressed in the Government of Saskatchewan First

Nations and Mtis Consultation Policy Framework

Table 1 provides a more detailed breakdown of the main issues and concerns raised by
respondents during the review period and how they were addressed in the final CPF.
A summary of how the CPF compares with the key principles in the FSIN and MNS
documents appears in Table 2.

Table 1: Summary of Feedback and How It Was Addressed

Feedback Common Among Respondents
1. Most respondents wanted greater clarity on
how Government assesses when the duty is
triggered, the criteria for project size and
type, and what level of consultation is
required.
How Addressed in the CPF
1. The CPF includes a list of decisions subject to an
assessment for consultation obligations as well as
matters not subject to the policy. Further detail on
this assessment is provided in the Consultation
Matrix. These concerns will also be addressed in
greater detail in the ministries operational
procedures when they are developed or updated.

2. First Nations, industry and municipalities
wanted the policy to address private lands
and leased agricultural Crown lands. This is
important to industry when developments
cross these lands.
2. The CPF includes a section explaining how the
policy to consult applies or does not apply to
private lands and leased agricultural Crown lands.

3. First Nations, Mtis, industry, municipalities
and Crown corporations wanted the policy to
address sacred sites and/or traditional uses.
3. Potential adverse impacts on traditional uses of
lands and resources is included in the policy
application. Traditional uses includes gathering
plants for food and medicinal purposes and
carrying out ceremonial and spiritual observances
and practices on unoccupied Crown lands and
other lands to which First Nations and Mtis have
a right of access for these purposes.

4. First Nations and industry stated that
clarification is required regarding the link
between the duty to consult and regulatory
processes such as environmental assessment
and land use planning.
4. The CPF includes a statement that the
consultations undertaken to satisfy regulatory
processes, such as environmental assessment and
land use planning, may also satisfy, in whole or in
part, the duty to consult.

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5. Industry felt the time periods for notification
and consultations were too long, First
Nations believed them to be too short.
6. First Nations and industry felt that economic
benefit sharing, environmental stewardship,
traditional territory mapping and traditional
use studies, appropriate capacity and dispute
resolution were important factors for
successful consultation.
7. First Nations and industry wanted more
examples, options and/or mechanisms for
accommodation.
First Nations and Mtis Feedback
1. First Nations wanted to see reference to
sacred sites and use of traditional knowledge
in consultation.
2. Most First Nations stated that the CPF needs
to include consultation on mineral
disposition, and a requirement for economic
accommodation.
3. Consultation needs to include compensation
for past infringements and First Nation
consent to developments.
5. Timelines were adjusted to reflect the level of
consultation required and a compromise between
industry and First Nation interests. Parties are
required to use best efforts to adhere to them.
Proponents are encouraged to begin early in the
pre-planning and planning stages with information
sharing and relationship-building.
6. These matters will be addressed in the Exploratory
Phase.
7. The CPF provides the various forms of
accommodation that could be considered.
How Addressed in the CPF
1. These are now recognized in the CPF as noted in
#3 above.
2. The CPF confirms that Governments issuance of
mineral dispositions under The Crown Minerals
Act will not trigger the policy. Matters related to
economic accommodation are not addressed in
the policy. Sharing in the Provinces economic
growth will be discussed as part of the Exploratory
Phase
3. The CPF generally does not apply to decisions and
actions that have occurred in the past and
specifically provides that compensation will not be
provided for past actions. The policy states that in
instances where a Government decision or action
results in a significant, unavoidable infringement
on Treaty and Aboriginal rights, financial
compensation may be required for loss of use or
access to exercise the right. Government will
determine compensation on a case-by-case basis
and will not address past actions.
The CPF specifically provides that Government
retains final decision-making authority and that
First Nations and Mtis do not have a veto.
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4. The concept of a consultation assessment
matrix aligning intensity of consultation with
intensity of impact was generally endorsed.
However, there was an issue with
Government undertaking the initial
assessment unilaterally and with the draft
matrix focusing on scope of Government
activity rather than impact on rights.
5. First Nations and Mtis said that industry
should be required to enter into agreements
with them to derive benefits from activity in
their traditional territory, including training,
employment, contracts, equity participation
and profit-sharing.
6. First Nations want free, prior and informed
consent.
7. First Nations and Mtis are concerned about
the cumulative environmental impacts of
development on the environment and erosion
of the ability to exercise their rights.
Municipality Sector Feedback
1. Municipal sector representatives had the
view that, if municipalities have a duty to
consult, it is delegated by the Province who
must provide funds to them to undertake
consultation.
Industry and Crown Corporation
Feedback
1. Some industry sectors supported delegation
of procedural aspects to proponents while
others did not support delegation.
2. Industry wanted more information on what
triggers consultation.
4. The Consultation Matrix focuses on the impact on
the exercise of rights and traditional uses as
opposed to the scope of the activity. The CPF still
provides for Government to initially make an
assessment about the level of consultation required
in a particular case but specifically acknowledges
that any new information received from First
Nations and Mtis will be used to reassess the
impact and may elevate the level of consultation
required.
5. The CPF does not require industry to enter into
these sorts of agreements with First Nations and
Mtis. Industry engagement with First Nations
and Mtis will be further examined in the
Exploratory Phase.
6. The CPF does not provide for consent and states
that First Nations and Mtis do not have a veto
over Government decisions.
7. Cumulative environmental impacts are not
specifically addressed in the CPF; however, they
may be considered in the Pre-Consultation
Assessment to assist in determining the level of
consultation required and may also be raised by
First Nations and Mtis as part of their responses
during consultation processes, at which time they
will be seriously considered.
How Addressed in the CPF
1. The CPF states that municipalities may have a
duty to consult whenever they independently
exercise their legal authority in a way that might
adversely impact the exercise of Treaty and
Aboriginal rights and/or traditional uses on
unoccupied Crown land. Municipalities may also
be proponents and would have responsibilities as
outlined in the CPF.
How Addressed in the CPF
1. The CPF states that Government will not delegate
its responsibility for consultation; however the
CPF provides that Government may assign to
proponents procedural aspects of consultations,
such as information-sharing. Any related costs
would be the proponents responsibility.
2. A list of the types of decisions that may trigger
and that dont trigger consultation is provided in
the CPF.
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3. Industry raised concerns about the need for
clarity around who pays for compensation
and accommodation, where it is determined
that rights are impacted.
4. Industry endorsed the consultation matrix
concept but wanted more definition and
clarity in it to enable them to determine what
kind of consultation and timelines to expect.
5. Industry wanted to know how the policy
would apply to past decisions and actions,
and permit renewals, extensions or transfers.
Table 2: Comparison of Key Points in FSIN and MNS Documents with the
Government of Saskatchewan First Nations and Mtis Consultation Policy
Framework
Federation of Saskatchewan Indian
Nations: The Duty to Consult First
Nations, August 27, 2009 document,
Legal Principles Section
1. Consultation is an ongoing process and is
always required. (Haida)
2. Consultation is a two-way street with
obligations on each side. (Ryan, Halfway
River)
3. The CPF states that proponents will pay the costs
of their engagement in consultation processes and
procedures that may be assigned to them, as well
as costs of adjustments to projects to avoid or
lessen impacts on rights. In instances where a
Government decision or action results in a
significant, unavoidable infringement on Treaty
and Aboriginal rights, financial compensation may
be required for loss of use or access to exercise the
right. Government will determine compensation
on a case-by-case basis and will not address past
actions.
4. The Consultation Matrix was reconfigured for
additional clarity, however, it could not address
the many kinds of specific exploration and
development projects possible on the land. When
finalized, ministries operational procedures
should provide another level of detail.
5. The CPF is not retroactive and does not address
past decisions or actions. The renewal, extension
or transfer of an existing disposition does not
automatically trigger the duty. Only new potential
adverse impacts on rights and traditional uses will
be considered when determining if consultation is
required and at what level.
How Addressed in the CPF
1. Consultation is not always required for every
Government decision; however, the policy will be
triggered by Government decisions and actions that
have the potential to adversely impact the exercise
of Treaty and Aboriginal rights and traditional
uses.
2. The CPF deals with the obligations of Government
to consult and recognizes under the Guiding
Principles that First Nations and Mtis have a
reciprocal responsibility to participate in good faith
and make their concerns known to Government.
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3. Consultation and accommodation are
constitutional obligations. (Kapp)
4. First Nations input must be seriously
considered, substantially addressed and, as
the context requires, may require
accommodation. (Mikisew, Halfway River)
5. Stakeholder processes will not be sufficient
to discharge the Crowns duty to consult
(Mikisew) nor will public processes open to
First Nations, such as participation in public
hearings, be sufficient to discharge the
Crowns duty to consult. (Dene Tha)
6. The Crown has a positive obligation to
provide full information on an ongoing
basis, so that First Nations can understand
potential impacts of decisions on their rights
(Jack, Sampson, Halfway) and such
information must be responsive to what the
Crown understands to be the concerns of the
First Nations (Mikisew).
7. The Crown must properly discharge both its
procedural and substantive duties in any
consultation process (Mikisew) and a failure
to properly satisfy process-related concerns
of First Nations, irrespective of the ultimate
impact on substantive rights, may be a basis
upon which a decision can be struck down
(Mikisew).
8. The Crown must have sufficient, credible
information in decision-making and must
take into account the long term sustainability
of s. 35 rights (Roger William).
3. The CPF is premised on the understanding that the
duty to consult is a constitutional obligation. The
CPF sets out the policy Government will follow in
order to meet its obligations. The CPF goes
beyond Governments strict legal obligations with
respect to certain matters, such as inclusion of
traditional uses.
4. The CPF generally affirms that First Nations and
Mtis input must be taken seriously and that
specific steps should be taken to avoid, minimize or
mitigate the impact of decisions on Aboriginal and
Treaty rights including, in some instances,
accommodation.
5. Where there might be an adverse impact on
Aboriginal or Treaty rights or traditional uses, the
CPF does not consider First Nations and/or Mtis
to be mere stakeholders. The CPF does provide
that Government may consider opportunities for
First Nation and Mtis consultation that are
available within the existing regulatory processes,
such as environmental assessment or land use
planning, to satisfy in whole, or in part, the duty to
consult.
6. The Guiding Principles and the Consultation
Process outlined in the CPF are built on openness,
integrity and good faith. The CPF requires that the
notification provided to First Nations and Mtis be
Clear, complete and understandable and that it
provides information on the extent and likely
duration on any impacts on rights and traditional
uses. As well, the project proponent may be asked
to provide specific information on the project and
its scope.
7. The CPF sets out how the Government will fulfill
both its procedural and substantive obligations with
respect to the duty to consult. The CPF does not
address the consequences of any failure to follow
the process that it sets out as this is a legal issue
that would have to be addressed by the courts.
8. The CPF provides that Government must notify First
Nations and Mtis about pending decisions that could
adversely affect Aboriginal and Treaty rights and
traditional uses in order to obtain the necessary
information to make well informed decisions and
requires Government to seriously consider the
information received from First Nations and Mtis.
Government decisions must take into account various
interests, including Treaty rights.
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9. The purpose of consultation is reconciliation
and not simply the minimization of adverse
impacts (Dene Tha).
10. Consultation must take place early, before
important decisions are made at the
strategic planning stage (Haida, Dene Tha,
Squamish Nation).
11. Consultation cannot be postponed to the last
and final point of a series of decisions
(Squamish Nation).
12. Consultation is required in respect of the
design of the consultation process itself
(Huu-ay-aht).
13. First Nations must be consulted about the
design of environmental and regulatory
review processes (Dene Tha).
14. Consultation cannot just be in respect of
site specific impacts of development but
must also focus on the cumulative impacts,
derivative impacts, and possible injurious
affection resulting from development (Dene
Tha, Taku River, Mikisew, Roger William).
15. The Crown must approach consultation with
an open mind and must be prepared to alter
decisions depending on the input received
(Haida).
9. One of the objectives of the CPF is to advance the
process of reconciliation between Aboriginal and
non-Aboriginal peoples and their respective claims,
interests and ambitions.
10. The CPF states, Notification must be as early as
possible and in advance of the decision to be
made.
11. The CPF provides that Government must initiate
consultation as early as possible and in advance of
the decision to be made and emphasizes that the
proponents should engage First Nations and Mtis
early and prior to pursuing specific projects.
12. In cases where there will be permanent uptake or
alteration of land and/or permanent change in
resource availability with a potentially significant
impact, a Level 5 Consultation is required. The
CPF instructs that written notice is provided with
offer to meet with the community to discuss
project, develop a consultation plan and determine
capacity needs.
13. Where Level 5 consultations are required and the
Government intends to rely upon existing
regulatory processes such as environmental
assessment and land use planning to fulfill the
policy, in whole or in part, First Nations and Mtis
will be consulted about the design of the process
and the role they will have.
14. The CPF does not specifically address cumulative
impacts, but this is a factor that may be taken into
account in determining the level of consultation
required with respect to any specific decision. First
Nations and Mtis can also raise concerns about
cumulative impacts during consultations and the
CPF commits the Government to seriously consider
those concerns.
15. The CPFs Guiding Principles say the Government
will approach consultations with an open mind,
conduct itself with integrity during consultation
processes and deal in good faith with First Nations
and Mtis. The Government will listen to and
consider seriously First Nations and Mtis concerns
respecting potential impacts on Treaty or
Aboriginal rights and traditional uses when making
decisions.
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16. Consultation cannot be determined simply
by whether or not a particular process was
followed, but on whether the results are
reasonable in light of the information
presented, degree of impacts, and related
matters (Wilitsxw).
Mtis Nation Saskatchewan: Duty to
Consult and Accommodate Policy and
Principles. Section 1.2 Consultation and
Accommodation Principles
1. The fulfillment of the duty requires good
faith on the part of all parties and
consultations must be conducted in an
equitable, transparent and respectful manner.
2. Timelines must be reasonable and provide
sufficient opportunity for the parties to
exchange, review and assess information
developed through a duty to consult activity.
3. The Crown must recognize and support the
unique capacity needs and realities of the
Mtis people and their elected governance
structures at the local, regional and
provincial levels and provide necessary
funds.
16. An objective of the CPF is to respect and protect
Treaty and Aboriginal rights by ensuring, through
the consultation process and subsequent decisions,
that negative impacts on these rights and uses are
avoided, minimized or mitigated and rights and
traditional uses are accommodated, as appropriate.
The CPF is not simply about process but rather is
intended to ensure that Government receives the
information that it needs about the potential impact
of pending decisions on Treaty and Aboriginal
rights and traditional uses in order to make fully
informed and reasonable decisions, with the
recognition that Government decisions must take
into account and balance a number of competing
interests in addition to the impacts on rights and
traditional uses.
How Addressed in the CPF
1. The Guiding Principles in the CPF set out that the
Government will approach consultations with an
open mind, conduct itself with integrity during
consultation processes and deal in good faith with
First Nations and Mtis people and that
consultations will be undertaken in a spirit of
mutual respect and trust and be transparent.
2. The CPF provides that adequate timelines should
be allowed for First Nations and Mtis to receive,
consider and respond to notifications. The
timelines, as outlined in the Consultation Matrix,
should be sufficient to review materials, assess the
information and respond with concerns. Timelines
are also flexible depending upon information
received and capacity of First Nations and Mtis to
participate.
3. The CPF acknowledges that consultation funding
may be required to allow the affected community
to participate in consultations and provides a
website address for First Nations and Mtis
Consultation Participation Fund information.
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4. Consultations must be with the Mtis
government structures that are elected and
supported by the Mtis people. Consultation
with individual Mtis, service delivery
organizations, mayors and municipal
councils and pan-Aboriginal structures
cannot discharge the duty owed to the Mtis,
as a rights-bearing people.
5. The Mtis Nation has the responsibility to
consult with its citizens and represent its
citizens, not the Crown or industry.
6. Mtis consultation processes must provide
all Mtis citizens the opportunity to
participate and be heard.
7. Ultimate decision-making with respect to
consultation and accommodation must rest
with the affected rights-bearing Mtis
community.
8. Consultation must be conducted in good
faith.
9. Consultation will occur before decisions are
made. Rights-bearing Mtis communities
are not limited to individual villages, towns
or cities. Consultation must occur with the
potentially affected rights-bearing Mtis
community and its citizens.
4. For the purposes of the CPF, the Government
recognizes the Presidents of Mtis Locals or their
authorized designates as the appropriate
representatives of Mtis communities. Regional or
provincial Mtis entities may be consulted only if
the community leadership has delegated this
authority through its constitutional decision-
making process, and the consulting ministry has a
written, signed copy of the authorization.
5. The CPF outlines the roles and responsibilities of
all parties. Aboriginal rights are collective rights
held by a community of people. Consultations
must therefore be targeted to the elected leaders or
representatives of Mtis communities. It is their
responsibility to consult with their community
members, not that of Government or industry.
6. This is a matter internal to the Mtis community.
As noted above, the CPF provides for consultations
with the elected leadership or representatives of
Mtis communities. The policy does not require
consultation with individual community members.
7. Under the CPF, the Government makes the
decision with respect to whether consultations are
required and the level of consultations required; in
the case of Level 5 consultations, the community to
be consulted will be provided with an opportunity
to assist in developing a consultation plan.
However, ultimate decision-making with respect to
consultation, proposed decisions and actions is
retained by Government. Mtis communities do
not have a veto over these decisions.
8. See #1 in this section.
9. The CPF provides that notification must be as early
as possible and in advance of the decision to be
made. In addition, proponents are encouraged to
engage Mtis communities early in the planning
stages of projects in order to share information and
to build relationships. The CPF does not purport to
define Mtis communities but it does indicate that
the Presidents of Mtis Locals or their authorized
representatives are considered to be the proper
representatives of the communities.
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10. The MNS has a responsibility to the Mtis
people of Saskatchewan to protect and
preserve their collective rights. Through the
policy and principles set out in this
document, the MNS does not waive the right
to pursue legal avenues in order to protect or
preserve the rights of the Mtis people of
Saskatchewan.
11. For the purposes of this policy, it is asserted
that the Crown has real knowledge of
credible Mtis rights claims throughout the
entire province.
12. The Crown must give notice that it is
considering a development project, activity,
legislative and regulatory changes, or other
activities triggering a duty to consult. The
notice, in writing, must go to the MNS
governance entity.
13. The Crown must fully inform the Mtis
about the proposed development. The Mtis
must fully inform the Crown about the land
and resource use of the Mtis people in the
project area. Since Mtis may not have
necessary information in aggregate form or
research and study is required, funding will
be used to undertake necessary work.
14. Consultation should be conducted with the
objective of avoiding infringement on Mtis
lifestyles and traditional land uses. Where
avoidance is not possible, consultation will
be conducted with the goal of mitigating
such infringement commonly referred to as
the Crowns responsibility of
accommodation.
10. The CPF does not deny the right of communities to
pursue legal challenges; however it is expected that
the processes set out in the CPF will lead to serious
discussions that will result in avoiding or
mitigating adverse impacts on Aboriginal rights
and traditional uses, with recourse to the courts
being unnecessary.
11. The Government will consult with Mtis leadership
in communities or regions where Mtis Aboriginal
rights have already been recognized, such as in
Northern Saskatchewan. Where Mtis Aboriginal
rights have not yet been recognized, the decision to
consult will be made on a case-by-case basis.
Government will take into account the strength of
the claims supporting the asserted rights and the
extent of the potential impact on the exercise of the
asserted rights.
12. Notification will be provided in writing to the
Mtis communities that may potentially be
adversely affected by a Government decision or
action. Notification will be as early as possible,
and in advance of the decision to be made. Notice
will be to the Mtis Local or Locals potentially
affected by the decision or to a regional or
provincial body if duly delegated by the Local/s.
13. The CPF provides that notification should provide
clear, complete and understandable information in
order to inform Mtis communities about a
proposed development, where it may impact
Aboriginal rights or traditional uses. The Mtis
have a reciprocal obligation to respond to the
Governments notification, making their concerns
known about adverse impacts on Aboriginal rights
and traditional uses. Where necessary, consultation
participation funding may be made available.
14. One of the objectives of the CPF is to respect and
protect Aboriginal rights and traditional uses by
ensuring, through the consultation process and
subsequent decisions, that negative impacts on
these rights and uses are avoided, minimized or
mitigated, and rights are accommodated as
appropriate. Accommodation means that
Government and the proponent would use their
better understanding found through consultation
with Mtis to avoid, change, or amend the plan or
action so as to minimize or avert negative impacts
on any Aboriginal right and/or traditional use.
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