In order to protect First Nation homelands and traditional territories, and to develop plans for economic and resource development, NAN First Nations need to engage in land use planning (LUP). NAN First Nations are at different stages of land use planning, some completed and some near completion, but these plans have not been acknowledged by Ontario. The Land Use Planning Table of Oski-Machiitawin has been discussing with the Ministry of Natural Resources how community land use planning can be achieved. Ontario says it is committed to First Nation community-based land use planning and to legislation that will ensure community land use plans are acknowledged and respected.
Premier's Announcement
In July 2008 the Premier of Ontario announced his intention to protect 225,000 square/km of Boreal Forest in NAN territory as part of Ontario's Far North Initiative. Ontario's agenda in the North is concerned with conservation and climate change, sustainable development, and cultural landscape (First Nations). Ontario has indicated that this would be accomplished through First Nation land use plans where individual First Nations would set aside protected areas in their land use plans in order for Ontario to reach its goal of protecting 225,000 sq/km's of the Boreal Forest.
NAN Chiefs Reject 225,000 sq/km of Protected Area in the Far North
At the Winter Chiefs Assembly in March 2009, the NAN Chiefs unanimously passed Resolution 09/06. The Chiefs do not support Ontario’s plan to protect 225,000 sq/km of First Nation traditional territories without their consultation or consent, but do support land use planning for NAN First Nations.
MOU
A Daft Memorandum of Understanding (MOU) was being developed between Ontario and NAN to guide the Oski-Machiitawin LUP discussions and to ensure that land use planning will take place in all NAN communities, including those South of the Area of the Undertaking (below the 50th parallel). A final draft of the MOU did not reach the final approval stage due to the polarized positions of NAN and Ontario on some key issues.
Land Use Planning Framework Agreement
Oski-Machiitawin had been negotiating a LUP Framework Agreement with the MNR to guide community land use planning and Ontario’s broad based planning. The Province and NAN began developing a Land Use Planning Framework Agreement (LUP FA) in the summer of 2008. The LUP FA was to be the basis from which enabling legislation would be developed to support the land use plans of First Nations and also the broad based LUP initiatives of the province. The framework agreement did not reach the approval stage due to the inability of both parties to come to agreement on some key issues.
Minister's Letter
Minister Canfield provided a letter to NAN in order to address some of the outstanding issues in the Land Use Planning Framework Agreement, which included the MNR’s intent to continue to hold LUP discussions, and also to acknowledge that the discussions will take place in a government-to-government relationship.
Synthesis of Agreement
Ontario has committed to developing a Synthesis of Agreement, which will incorporate all the items that both parties have agreed to in the MOU, LUP FA, and the Minister’s Letter. This Agreement will form some of the basis of the policies and regulations that will be developed from Ontario’s LUP Legislation.
Land Use Planning Legislation
From the LUP Framework Agreement and the MOU, enabling legislation was to be developed to support First Nation land use plans including social, cultural, economic and environmental strategies and initiatives. As well the legislation would recognize Ontario’s broad based initiatives. However, the Framework Agreement and the MOU did not reach final approval. Ontario went ahead with the drafting of enabling legislation for land use planning even though the agreements were not finalized.
NAN's Involvement in Drafting of Legislation
NAN representatives were granted an early look at a draft of the legislation. They were not involved in the actual drafting. The enabling legislation was tabled in the Ontario Legislature on June 2, 2009. NAN will also be involved in the drafting of regulations and policy after the legislation is passed. NAN released a statement in response to the legislation that was tabled June 2, 2009.
DRAFT LUP MOU
Oski-Machiitawin: A Memorandum of Understanding for a New Beginning Between the Nations of the NAN Territory and the Province of Ontario
WHEREAS the combined First Nations of the Nishnawbe-Aski Nation have never relinquished title and jurisdiction over their traditional territories and the resources therein and;
WHEREAS the Province of Ontario desires to reconcile Aboriginal and Crown titles and jurisdiction with respect to its relationship with the Nishnawbe-Aski Nation First Nation Governments and;
WHEREAS the Parties wish to be respectful of each other, their jurisdictions, and their processes and;
WHEREAS the Parties are committed to co-operating and collaborating where possible to address matters of common concern; and
WHEREAS the Parties wish to maintain good communications and co-ordination with respect to land-use and;
WHEREAS the Parties share a desire to ensure that decisions on land use and related matters result in net social, economic and environmental benefits; and
WHEREAS the parties to this agreement agree that achieving the prosperity and long term economic self-sufficiency of the NAN communities rests on an agreement that recognizes the NAN First Nations’ title and jurisdiction over their lands and:
THEREFORE the parties covenant as follows:
We will mutually agree to work together based on the following principles:
- recognition of each First Nations’ decision-making authority over their traditional territory;
- financial capacity for First Nations and the Province to develop new frameworks for shared land and resource decision-making and to engage in negotiations;
- mutually construct acceptable arrangements for sharing benefits, including resource revenue sharing; and
- a mutually determined dispute resolution process for resolving conflicts.
- The parties recognize that Treaties Nos. 9 and 5 and adhesions are special forms of agreements between sovereign states and that government to government protocols must honour the spirit and intent of the Treaties signed by NAN First Nations.
- Ontario recognizes that NAN First Nation consent is required for activities within NAN First Nation Homelands and that such consent could be obtained through IBAs or similar agreements.
- The Northern Table is a government to government forum for government to government decision making and not a process in which Ontario is attempting to meet its legal requirement to consult and accommodate Nishnawbe Aski First Nations.
- The Northern Table is not a consultation tool or process and does not meet Ontario’s Constitutional duty to consult.
- First Nations will determine their ratification procedure which may require that proposed activities on their homelands be subject to community referenda.
- Protocols for obtaining consent to activities in First Nation Homelands shall not, and shall not be construed so as to or derogate from the aboriginal and Treaty Rights of NAN First Nations or their members, recognized and affirmed under section 35 of the Constitution Act. 1982, regardless of whether such rights are recognized, established, and defined before or after these protocols are developed.
We further agree to work together to achieve the following actions under this Agreement:
- Negotiate a Government-to-Government Agreement for shared decision-making regarding:
- Land Use Planning
- Licenses and Permits
- Parks and Conservation Reserves
- Mining – Early Exploration
- Funding support for First Nations’ capacity development and effective participation in the processes established through these action items;
The Parties also agree that as the work on the Government-to-Government Agreement is developing they will do advance work on an interim basis the following items and issues:
- Appoint a joint working group to review the Ontario Mining Act and make recommendations to the parties on options for amending the Act in order to make it consistent with the understandings of this MOU;
- Ontario to address the NAN position papers on:
- Revenue Sharing
- Mandatory IBA's before license and permits are issued
- Accommodation and Consultation
NOTE: These were submitted to the Ontario Government in the fall of 2007
- Develop an impartial dispute resolution process and work towards a decrease in conflicts leading to litigation; and
- Establish effective procedures for consultation and accommodation;
It is further understood by the Parties that the above interim measures may in part or in whole become part of the Government-to-Government Agreement
Term of the Agreement
- Any Party to this MOU may request that the MOU be reviewed, replaced or amended by providing three (3) months written notice to the other Parties.
- A process to review, amend or replace this MOU must be undertaken within the timeframe agreed to by all Parties at the commencement of that process.
- Any amendments to this MOU must be in writing and signed by all Parties.
- Any Party may withdraw from the MOU with three (3) months written notice.
Review
The Parties will agree to an evaluation process for monitoring and measuring the achievement of this Agreement prior to signing this MOU.
No legal effect
This MOU is a statement of political intent by the parties and is not legally binding. It is not intended to define, create, recognize, deny or amend any of the rights of the parties including Aboriginal or treaty rights within the meaning of sections 25 and 35 of the Constitution Act, 1982.
In witness whereof the parties have executed this Memorandum of Understanding
this day of , 2008.
The Nishnawbe Aski Nation Grand Chief representing the NAN Leadership
Minister representing the Province of Ontario
