Collaborative fisheries management agreement between Abegweit First Nation and the Government of Canada

(Hereinafter this “Agreement”)

THIS AGREEMENT made in triplicate this 14 day of April, 2023.

1. Parties

ABEGWEIT FIRST NATION on behalf of itself and its members, as represented by the Chief and Council

and

HIS MAJESTY THE KING IN RIGHT OF CANADA as represented by the Minister of Fisheries, Oceans, and the Canadian Coast Guard and the Minister of Crown-Indigenous Relations (“Canada”)

Collectively referred to as “the Parties”

2. Preamble

WHEREAS this Collaborative Fisheries Management Agreement (“Agreement”) seeks to, among other things, address and preserve the recognized historic treaty rights of the Mi’kmaq and advance self-determination to close socio-economic gaps and improve the quality of life of the Mi’kmaq;

WHEREAS this Agreement is time-limited, incremental in nature, and will build toward the longer term objective of reconciliation and aims to provide predictability, stability and clarity regarding the exercise of rights for the Parties for the duration of this Agreement;

WHEREAS the Parties wish to enter into this Agreement in a manner and spirit that respects and upholds the significance of the Peace and Friendship Treaties and the continuing treaty relationship of the Parties;

WHEREAS this Agreement is not intended as a re-negotiation of the Peace and Friendship Treaties of 1760-61, nor as a process leading towards their extinguishment;

WHEREAS Canada recognizes that the Mi’kmaq have rights protected under Section 35 of the Constitution Act, 1982;

WHEREAS Canada is committed to a renewed, nation-to-nation relationship with the Mi’kmaq based on recognition of Mi’kmaq Aboriginal and treaty rights, including the rights of self-determination and self-government, respect, co-operation and partnership, and rooted in the principles of the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”);

WHEREAS Canada adopts and is committed to following the Principles respecting the Government of Canada’s relationship with Indigenous peoples to guide reconciliation and renewal of the nation-to-nation relationship with the Mi’kmaq;

WHEREAS the Supreme Court of Canada in R. v Marshall [1999] 3 S.C.R. 456 and R. v Marshall [1999] 3 S.C.R. 533 Marshall (D.J.) has recognized the existence of certain Mi’kmaq harvesting and trading rights pursuant to the Peace and Friendship Treaties of 1760-61;

NOW THEREFORE, the Parties agree as follows:

3. Definitions

In this Agreement, in addition to any term defined in the Preamble:

“Board” means the Executive Oversight Board established pursuant to Section 11.21.

“Committee” means the Joint Operational Committee established pursuant to Section 11.6.

”Mi’kmaq People’s Laws” means laws adopted through a law-making process to be developed by the Abegweit First Nation.

“Chief” means the elected Chief of the Abegweit First Nation, or a person appointed by the respective Chief with appropriate authority and capacity to fulfil the commitments of the Chief under the terms of this Agreement.

“Minister” refers to the Minister of Fisheries, Oceans and the Canadian Coast Guard.

4. Shared principles

4.1 The relationship between the Fisheries and Oceans Canada and Abegweit First Nation is based on the stewardship of our fisheries and our Waters. The Parties wish to work together to implement this Agreement, and are guided by the following principles:

4.1.1 A shared commitment to work together to explore, define, develop, and implement a common understanding of shared stewardship over our fisheries and our Waters, which includes:

1. the Mi’kmaq perspective of the responsibility given to the Mi’kmaq by the Creator;
2. collaborative governance of the use and management of the Waters; and
3. conservation and sustainable Mi’kmaq harvesting activities in accordance with this Agreement.

4.1.2 A shared commitment to develop and strengthen our relationship over time, to reaffirm and advance reconciliation, and to work together in an open and transparent manner.

4.1.3 A shared wish to honour and live the Peace and Friendship Treaties.

4.1.4 A shared recognition of the rich Indigenous knowledge of the Mi’kmaq, which affirms the ongoing relationship with the Lands and Waters of Mi’gma’qi since time immemorial, and which includes Mi’kmaq People’s Laws.

4.1.5 A shared respect for the unique connection of the Mi’kmaq to Waters, and a commitment to renew and strengthen those connections, and allow for knowledge transfer to future generations of Mi’kmaq, to help facilitate cultural integrity and well-being, and the cultural survival of the Mi’kmaq.

4.1.6 A shared respect for two-eyed seeing, combining the strength of Mi’kmaq Indigenous knowledge and western scientific knowledge, in managing the Waters, and in seeking solutions to challenges such as climate change and environmental degradation, in a spirit of collaboration, and co-learning.

5. General

5.1 The Preamble is incorporated into this Agreement to serve as an aid in interpreting the Agreement and the Schedule.

6. Recognition language

6.1 Canada recognizes the Mi’kmaq have Aboriginal rights, including the rights to self-government and self-determination, and treaty rights. More specifically Canada recognizes that the Mi’kmaq have the treaty right to harvest and sell fish for the purpose of earning a moderate livelihood for individual Mi’kmaq and their families.

7. Status of the agreement

7.1 This Agreement does not create Section 35 rights of the Constitution Act, 1982 nor does this Agreement define the nature, scope or location of specific Section 35 rights of the Constitution Act, 1982 and it will not have a permanent effect on the rights. The Parties may have differing views on the scope, nature and extent of these rights.

7.2 Nothing in this Agreement recognizes, affects, or infringes any rights, claims, or interests of any other Indigenous nation or community.

7.3 Fisheries and Oceans Canada acknowledges and agrees that any duty to consult Mi’kmaq on subject matters other than those addressed in Sections 11 and 12 are unaffected by this Agreement.

7.4 This Agreement does not constitute a treaty within the meaning of Section 25 or 35 of the Constitution Act, 1982.

7.5 This Agreement is binding on the Parties.

7.6 Upon signature, the Abegweit First Nation or Canada may make this Agreement public, upon notification to the other Party, except for the funding amounts found in Schedule A of this Agreement which will remain confidential and only released if required by law.

8. Fish for food, social and ceremonial purposes

8.1 The Parties agree that:

1. the First Nation’s right to fish for food, social and ceremonial purpose is not addressed as part of this Agreement, and;
2. nothing in this Agreement will prejudice, limit, substitute for or otherwise interfere with the First Nation’s right to fish for food, social and ceremonial purposes.

9. Operational predictability

9.1 Rights and benefits provided under this Agreement for the Mi’kmaq are vested collectively and may be exercised by Mi’kmaq community members subject to any limitations established by or under any provision of this Agreement.

9.2 Where the Mi’kmaq have or assert Aboriginal or treaty rights which are related to those subject matters addressed in Sections 11 and 12 of this Agreement, the Mi’kmaq will not assert or exercise Aboriginal or treaty rights except in a manner consistent with this Agreement, during the term of this Agreement.

9.3 Except as otherwise provided for in this Agreement, the Abegweit First Nation agrees not to initiate or support legal proceedings related to the exercise of asserted or established Aboriginal and treaty rights pertaining to the subject matters addressed in Sections 11, 12 and 13 in this Agreement if the cause of the proceedings arises or arose while this Agreement is or was in force.

9.4 Subject to the dispute resolution process established by this Agreement, nothing in this Agreement prohibits the Abegweit First Nation from initiating or supporting legal proceedings against Canada in relation to an alleged breach of this Agreement by Canada.

10. Representations and warranties

10.1 Abegweit First Nation represents and warrants to Canada that, in respect of the matters dealt with in this Agreement, it has the authority to enter into this Agreement on behalf of all persons who are Mi’kmaq and to carry out its provisions on behalf of the Mi’kmaq.

10.2 Canada represents and warrants to the Abegweit First Nation that, in respect of the matters dealt with in this Agreement, it has the authority to enter into this Agreement.

10.3 Ownership of Mi’kmaq Indigenous knowledge shared with Canada does not transfer to Canada.

11. Fisheries governance

Management of fisheries resources

11.1 Fisheries and Oceans Canada and Abegweit First Nation undertake to implement collaborative management in relation to fisheries and oceans.

11.2 Collaborative management includes, amongst other things:

1. ensuring mutual and reciprocal sharing of knowledge and expertise related to fisheries and oceans;
2. enabling participating in the decision‑making process related to the identification and sharing of commercially exploitable fisheries resources, the development of integrated fisheries management plans affecting Abegweit First Nation fisheries activities, and any decision that affects them;
3. making provision for learning the methodology and issues related to the identification and sharing of commercially exploitable fisheries resources and the development of integrated fisheries management plans; in a manner that honours the Peace and Friendship Treaties;
4. promoting a common understanding of the Parties’ respective needs and issues in relation to fisheries and oceans;
5. working with the Abegweit First Nation to align Mi’kmaq practices of research, developing and implementing measures to protect fisheries resources and their habitat and those Fisheries and Oceans Canada uses to achieve those objectives; and
6. such other functions as are necessary to carry out this Agreement or as Fisheries and Oceans Canada and Abegweit First Nation may mutually agree.

11.3 Fisheries and Oceans Canada and Abegweit First Nation undertake to set up the Joint Operational Committee with the mandate to take the necessary steps to achieve the objectives listed above, and an Executive Management Board with the mandate to provide oversight and direction to the Joint Operational Committee.

11.4 The Joint Operational Committee and the Oversight Board will have authority to develop their own process and procedures beyond what is contained in this agreement.

11.5 Recommendations of the Joint Operational Committee and the Oversight Board does not discharge any duty of the Minister to consult with the Mi’kmaq.

Joint operational committee

11.6 Within six (6) months of signing the Agreement, Fisheries and Oceans Canada and Abegweit First Nation will establish a Joint Operational Committee (the “Committee”).

1. The Committee will be composed of four (4) representatives, the Director, Natural Resources and the Director of Economic Development appointed by Abegweit First Nation and the Area Aboriginal Programs Coordinator and Senior Regional Advisor, Indigenous Affairs, Gulf Region appointed by Fisheries and Oceans Canada.
2. Initial appointments will be for staggered terms, and subsequent appointments will be for three-year terms.
3. Quorum of the Committee will require one representative appointed by each Fisheries and Oceans Canada and Abegweit First Nation.
4. The Committee may agree upon the attendance of experts or advisors at its meetings as required.
5. Meetings of the Committee will be closed to the public, except where the Committee decides otherwise.

11.7 Within 12 months of signing the Agreement, the Committee will adopt operational guidelines to guide the conduct of Fisheries and Oceans Canada and Abegweit First Nation in implementing the Agreement.

11.8 The operational guidelines must provide for collaborative, participatory and evolving measures, supporting the Agreement’s objectives and, in particular, providing for:

1. fisheries activities of interest to the Mi’kmaq, current and future activities; and
2. mechanisms for communication and the exchange of documents and information relevant and useful for the purposes of the Agreement.

11.9 The Committee will, on an annual basis, assess the degree of attainment of objectives set out in the Agreement and will update, diligently and in good faith, the operational guidelines for Abegweit First Nation’s fisheries activities to ensure that these objectives are met.

11.10 In addition to establishing operational guidelines, the Committee may discuss any issues and make recommendations to the Minister and to the Abegweit First Nation Chief concerning:

1. existing or new and emerging fisheries activities in areas of interest to the Mi’kmaq;
2. measures necessary for fisheries resources conservation; and
3. all other points related to fisheries activities, including:
   1. discussing how Abegweit First Nation fisheries activities can be coordinated with other fisheries management activities and processes (e.g. fisheries management advisory processes);
      
   2. discussing how Abegweit First Nation fisheries activities and Indigenous knowledge may be integrated into the fisheries management planning process;
      
   3. considering information provided related to measures necessary for conservation, public health or public safety;
      
   4. making provisions for gathering and exchanging data on fisheries activities;
   5. discussing the enforcement of fisheries legislation, including provisions respecting an annual interim livelihood fishing plan;
   6. discussing any measure to protect and prioritize Abegweit First Nation fisheries activities;
   7. communicating with other fisheries management and scientific advisory bodies (e.g. Indigenous and non-indigenous) regarding questions of common interest;
      
   8. examining the proposals concerning commercially exploitable enhancement initiatives and development opportunities for fisheries activities;
   9. exchanging information about questions related to international agreements that could have an impact on fisheries activities;
      
   10. requiring an analysis, report or scientific assessment regarding harvesting and fisheries resources;
       
   11. facilitating access to capacity development initiatives, particularly with existing programs where possible;
   12. collaboration on the preparation and the development of integrated fisheries management plans;
   13. making modifications to fisheries activities during the season;
   14. any other element that constitutes an issue for the Abegweit First Nation or that could have an impact on fisheries activities;
   15. consulting any other third party when deemed desirable.

11.11 In making recommendations, the Committee will have regard to the principles set out in Section 4 of this Agreement.

11.12 Fisheries and Oceans Canada is committed to informing the Committee in a timely manner of any factors that could affect Abegweit First Nation fishing activities, including, for example, the issuance of potential exploratory, experimental, educational and commercial licences or additional licences.

11.13 For the purposes of its mandate, the Committee may strike one or more technical committees to support certain fisheries activities, such as the assessment of commercially exploitable fisheries resources, the collection of the necessary information and data, as well as scientific and technical questions.

11.14 The Committee will strive to operate based on consensus and to promote mutual and reciprocal access to all data and information relevant to the topic being debated.

11.15 If the Committee is unable to reach a consensus on a question, the Executive Oversight Board (the “Board”) will endeavour to assist in reaching one.

11.16 If a consensus cannot be reached despite the support of the Board, Fisheries and Oceans Canada and Abegweit First Nation may submit its own written recommendations to the Minister and provide a copy to the other.

11.17 The Minister will conduct a complete and impartial review of any recommendation(s) received pursuant to the Agreement, whether consensual or not.

11.18 When issuing new exploratory, experimental, educational and commercial licences or additional licences or supplemental licences in Abegweit First Nation fishing areas, with respect to existing fisheries, the Minister will take special consideration to the recommendations from the Committee.

11.19 Except when accepting consensual recommendations from the Committee, the Minister will provide written reasons for his or her decision before the decision is implemented.

11.20 The Joint Operational Committee will meet at the times and in the manner it deems appropriate to ensure adequate monitoring of the Agreement and the decision‑making processes of the Minister.

Executive oversight board

(Board with a mandate to protect what the Parties have agreed upon).

11.21 Within six (6) months of signing the Agreement, Fisheries and Oceans Canada and Abegweit First Nation will establish the Executive Oversight Board made up of four (4) representatives. The Regional Director General, Gulf Region and the Area Director Prince Edward Island Area Office will be appointed by Fisheries and Oceans Canada and the Chief of Abegweit First Nation and Director of Operations will be appointed by Abegweit First Nation, which have the required authority to perform the functions of the Board.

1. Initial appointments will be for staggered terms, and subsequent appointments will be for three-year terms.
2. Quorum of the Board will require one representative appointed by each Fisheries and Oceans Canada and Abegweit First Nation.
3. The Board may agree upon the attendance of experts or advisors at its meetings.
4. Meetings of the Board will be closed to the public, except where the Board decides otherwise.

11.22 The Board will oversee the implementation of and ensure compliance with the Agreement, and will have the following mandate, amongst others:

1. to ensure harmonious implementation and respectful and efficient monitoring of the Agreement and its objectives, in particular, to ensure its evolving nature;
   
2. to be a platform for promoting ongoing interaction between Fisheries and Oceans Canada and Abegweit First Nation for all matters pertaining to fisheries activities and any other topic concerning the marine domain;
3. to identify and allow access to contacts likely to contribute to the smooth operation and successful implementation of the Agreement;
4. to address any recommendations and guidance to Fisheries and Oceans Canada and Abegweit First Nation and the Minister regarding the efficiency and improvement of management measures and the collaborative approach put in place, and on any other question that may be useful for achieving the objectives of the Agreement;
5. to serve as a preferred forum between Fisheries and Oceans Canada and Abegweit First Nation for finding mutually satisfactory solutions to disputes with respect to the interpretation or implementation of the Agreement, and to address any other ensuing topic; and
6. to support the Committee in reaching a consensus on any question.

11.23 The Board will meet at the times and in the manner it deems appropriate to ensure adequate monitoring of the Agreement.

11.24 Each year, the Board will assess the degree of attainment of the objectives set out in the Agreement and will make any recommendation and guidance in relation to achieving the objectives set out in Section 11.2 of the Agreement.

12. Priority allocation

12.1 Fisheries and Oceans Canada and the Abegweit First Nation remain committed to ongoing discussions, through the Committee or Board, to address the priority to facilitate the further implementation of the right to fish in pursuit of a moderate livelihood.

12.2 Where the Minister proposes to establish a new or emerging commercial fishery within traditional fishing areas, the Minister will advise the Committee or Board of the proposal to establish the fishery and will consult with the Committee or Board on a process for Abegweit First Nation community members to enter the fishery on a priority basis and for the preferential allocation of quota/licences to the Abegweit First Nation for the further implementation of the right to fish in pursuit of a moderate livelihood.

12.3 Where the Committee or Board may have recommendations around the preferential allocation of quota/licences in established fisheries within traditional fishing areas, the Minister will consider such recommendations on a priority basis for the further implementation of the right to fish in pursuit of a moderate livelihood.

12.4 Considerations for Ministerial Decision-Making:

1. In responding to any recommendation of the Committee or Board or either Party, including by issuing and setting or amending the conditions of an Aboriginal Communal Licence, the Minister will take into account, amongst other things:
   1. Indigenous knowledge that the Abegweit First Nation has provided to the Minister;
   2. community knowledge that the Abegweit First Nation has provided to the Minister;
   3. the Abegweit First Nation’s relevant interim livelihood fishing plan(s);
   4. the rationale for any recommendations by the Committee or Board or either Party; and
   5. social, economic, and cultural factors relevant to the Abegweit First Nation in the management of fisheries about which the Abegweit First Nation has informed the Minister.
2. When making any decision in relation to the Abegweit First Nation fisheries, the Minister will consider any adverse effects that the decision may have on the rights of the Mi’kmaq recognized and affirmed by Section 35 of the Constitution Act, 1982.
3. When making any decision in relation to the Abegweit First Nation fisheries, the Minister will ensure that, in a manner in keeping with this Agreement and the process set out above, the Crown has discharged its duty to consult and, if appropriate, accommodate the Abegweit First Nation with respect to that decision.
4. When making any decision in relation to the Abegweit First Nation fisheries, the Minister will not impose any restriction on the conduct of the Mi’kmaq fisheries, including by imposition of a licence condition, that amounts to an unjustified infringement, as defined in the applicable jurisprudence, of the Aboriginal right or treaty right of the Mi’kmaq.
5. The Minister will provide written reasons to the Committee or Board if any decision made by the Minister differs from the recommendations of the Committee or Board under Sections 11.16, 11.18 and 12.3.

13. Funding

Funding for governance and collaborative management

One-time Mi’kmaq governance development funding

13.1 Upon ratification of a contribution funding agreement for governance development, Fisheries and Oceans Canada will provide Abegweit First Nation with one-time funding in the amount specified in paragraph 1 of Schedule A of this Agreement.

13.2 The one-time governance development funding will support the establishment of the governance structures required to facilitate governance and collaborative management of the Abegweit First Nation Fishery.

Annual implementation and governance funding

13.3 Upon ratification of a contribution agreement for implementation and governance, Fisheries and Oceans Canada will provide the Abegweit First Nation with annual funding in the amount specified in paragraph 2 of Schedule A of this Agreement for the duration of this Agreement. These monies are incremental to the monies that the Abegweit First Nation receives through an Aboriginal Fisheries Strategy agreement.

General

13.4 Any work plan, budget or contribution agreement described in this Agreement shall be consistent with the Policy on Transfer Payments of the Treasury Board of Canada, and is subject to the appropriation of funds by Parliament for the fiscal period(s) in which the funds are provided.

Upon termination or expiration of this Agreement:

1. Abegweit First Nation shall reimburse Fisheries and Oceans Canada for amounts unspent and uncommitted from the annual governance and implementation funding in Schedule A, paragraph 2 at the time of termination; and
2. Abegweit First Nation will no longer be eligible to receive annual implementation and community governance funding as described in this Agreement.

14. Dispute resolution

14.1 The Parties agree that the only matters that can be referred to dispute resolution are those in relation to the interpretation or implementation of this Agreement.

14.2 If there is a dispute concerning the interpretation, breach, or anticipated breach of this Agreement, the parties to the dispute must in good faith make every reasonable effort to resolve the dispute informally and quickly, failing which they may agree on mediation, arbitration, or both, on such terms as they agree.

14.3 A party to the dispute will bear its own costs, and an equal share of the costs of the mediation, including remuneration and expenses of the mediator, unless otherwise agreed in writing by the parties to the dispute.

15. Term of the agreement

15.1 The term of this Agreement is five (5) years.

16. Ratification

16.1 Each Party represents and warrants to and agrees with the others that it has the power, capacity, and authority to enter this Agreement.

17. Effective date

17.1 This Agreement will come into force on the date of signature by the Parties (the “Effective Date”) and will continue in force and effect unless terminated by one or both of the Parties upon six months written notice to the other Party.

18. Review and amendment

18.1 The Board must monitor the implementation of this Agreement and whether the commitments set out in this Agreement are being achieved. The Board must provide a report regarding the foregoing annually and in such form as the Board deems appropriate.

18.2 Without limiting the generality of the foregoing, either Party may make a request in writing to review this Agreement.

18.3 Either Party may propose, in writing, an amendment to this Agreement for consideration by the Parties.

18.4 This Agreement may only be amended with the written consent of both Parties.

18.5 At the request of either Party, the Parties will discuss and if requested by a Party, endeavour to negotiate potential amendments to this Agreement or other measures relating to any of the following developments:

1. new developments in the jurisprudence related to the matters set out in this Agreement;
2. changes to federal legislation that relate directly to the matters set out in this Agreement;
3. any developments in federal policy related to the matters set out in this Agreement;
4. innovations in agreements with other Indigenous groups, with a view to incorporating such innovations into this Agreement, if applicable;
5. changes required because of unforeseen circumstances that significantly impact the Fist Nation’s participation in the commercial fishery;
6. other matters with respect to the implementation of the provisions of this Agreement as the Parties may agree in writing.

19. Renewal

19.1 Twelve (12) months prior to the end of the term of this Agreement, each Party will provide the other Party written notice of its intent to seek the necessary authorities to renew, extend, replace or request amendments to the Agreement. The Agreement is renewable for one or more additional period(s) of five (5) years or more, up to a maximum term of twenty-five (25) years.

19.2 Should the Parties obtain the appropriate authorities to renew, extend, replace or amend the Agreement, the Parties will meet to commence discussions regarding additional funding.

20. Termination and withdrawal

20.1 No Party may terminate this Agreement without first having provided the other Party with written notice explaining the reason(s) for the intended termination and having pursued good faith efforts to resolve the issue(s) in question using the dispute resolution process provided for in Section 14, following which either Party may terminate this Agreement immediately on provision of written notice of intent to terminate, including their reason(s) for termination.

20.2 Notwithstanding paragraph 18.1, the Parties may terminate this Agreement at any time upon written mutual consent.

20.3 Following termination, Canada shall seek to negotiate in good faith the recognition, respect, and implementation of the Abegweit First Nation’s aboriginal and treaty rights concerning fisheries governance and fishing.

20.4 Upon termination of this Agreement, the Abegweit First Nation will no longer be eligible to receive annual implementation and governance funding as outlined under Section 13.3 and Schedule A.

20.5 Sections 7.1, 7.3. 9.2, 9.3, 10.1, 10.2, 10.3 and 20.3 of this Agreement will survive and continue to have effect following the termination or expiration of this Agreement.