Seventh Annual (2021) Statutory Report Pursuant to Section 2 of the Indian Act Amendment and Replacement Act, Statutes of Canada, Chapter 38, 2014
The Indian Act Amendment and Replacement Act received Royal Assent in December 2014. The Act requires the Minister of Indigenous Services to report annually, within the first 10 sitting days of the House of Commons in every calendar year, on the work undertaken in collaboration with First Nations and other interested parties to develop new legislation to replace the Indian Act.
The Government of Canada remains focused on implementing its commitments as it walks the shared path of reconciliation with Indigenous Peoples. This includes continuing to shift its policies to recognize the inherent rights of self-government and self-determination of First Nations, Inuit, and Métis. Canada's commitment to recognizing and implementing Indigenous rights, and the work accomplished to date, is accelerating the ongoing affirmation of jurisdiction by First Nations and their movement out from under the Indian Act.
Ongoing work to transfer services to Indigenous Peoples
The Government of Canada continues to support Indigenous peoples on the path toward self-determination and moving out from under the Indian Act. Under the Department of Indigenous Services Act, Indigenous Services Canada is mandated to work towards the transfer of departmental responsibilities to Indigenous organizations. The transfer of services to Indigenous-led control and responsibility is intrinsically linked with the Government's commitment to advance self-determination, nation-to-nation, Inuit-to-Crown, and government-to-government relationships and reconciliation, including moving past the Indian Act.
The Government has been working with Indigenous partners to advance the process of transferring control over services to Indigenous peoples. The environment in which the transfer of services is occurring is complex, with many different accountabilities, partners, service areas, delivery mechanisms, funding arrangements and requirements, and linkages with other systems. Indigenous Services Canada will continue to work with First Nations, Inuit, and Métis peoples to determine pathways forward that reflect unique needs and choices of different communities, including different positions on the Indian Act. Work to advance Indigenous control over services will continue to occur at both the individual program level, as well as holistically at the departmental level.
Indigenous Services Canada is required to report annually to Parliament on progress towards fulfilling its mandate, including the progress made towards the transfer of responsibilities, and the first report was tabled on October 5, 2020.
As outlined in the 2020 Speech from the Throne, the Government of Canada is expediting work to co-develop distinctions-based Indigenous health legislation with First Nations, Inuit, and the Métis Nation, and a distinctions-based mental health and wellness strategy. In December 2020, the Government committed $15.6 million over two years to support this initiative. The pandemic is the most serious public health crisis Canada has ever faced and highlights the importance of ensuring appropriate health-related measures exist. Co-development of distinctions-based health legislation to provide high quality health care for Indigenous peoples, from coast-to-coast-to-coast, is one element.
This will build on health transformation efforts across the country to establish new governance models that will assume control over federal operations in health service delivery. In January 2020, Canada's first province-wide First Nations Health Authority (FNHA) released its five-year evaluation demonstrating how the new governance relationship has improved access to services and contributed to improving health outcomes.
In June 2020, a Memorandum of Understanding was signed between Canada and the Southern Chiefs Organization in Manitoba to work collaboratively together on a system-wide approach to improving health services.
The Government is also working on including a national outcome-based framework to measure the closing of the socio-economic gaps that exist, and continues to invest in specialized surveys on Indigenous populations. These include the Surveys on Indigenous Peoples, which received permanent funding of $49.4 million over five years and $9.9 million per year ongoing through Budget 2019; the First Nations Regional Health Survey, which received permanent funding in Budget 2019 of $24.7 million over four years and $4.9 million ongoing; and a new Inuit Health Survey, which received permanent funding in Budget 2018 of $82 million over 10 years and $6 million per year ongoing. These surveys provide robust socio-economic and health data related to First Nations living on and off-reserve and in northern First Nations communities, and for Inuit across Inuit Nunangat, allowing for programming and services that are more responsive to the needs of those being served.
During the COVID-19 pandemic, new approaches to service delivery were adopted. For example, in May 2020, Indigenous Services Canada supported the Sioux Lookout First Nations Health Authority to take over COVID-19 contact tracing as part of the Health Authority's gradual transfer of control in support of the 33 Sioux Lookout First Nation communities. This builds on their past successes with tuberculosis control. The Assembly of Manitoba Chiefs also reached the first agreement of its kind with the Province of Manitoba to share COVID-19 epidemiological data to better empower First Nations in their preparedness and response efforts. Indigenous Services Canada also provided $250,000 to the First Nations Information Governance Centre to advance COVID-19 surveillance and research controlled by and for First Nations across Canada in partnership with a strategic alliance of First Nations, Inuit and Métis researchers and community partners.
Additional supports to Indigenous communities during COVID-19
It has been clear, throughout this pandemic, that when local Indigenous leadership is given the necessary resources, they are best placed to successfully respond to a crisis with immediate, innovative and proactive measures to ensure the safety of their members. The low case numbers experienced by First Nations communities in the first wave was evidence of this.
To support communities, the Government of Canada is taking immediate, significant and decisive action to support Canadians and businesses facing hardship as a result of the COVID-19 outbreak. The health, safety and well-being of all people in Canada, including First Nations, Inuit and Métis and urban Indigenous communities remains a top priority. Indigenous communities face unique challenges in addressing COVID-19 and the Indigenous Community Support Fund $685 million directly to Indigenous communities and groups across the country to provide leadership with the flexibility needed to address immediate needs as a result of COVID-19. In addition, $285 million was provided to support the public health response at the community level and $10 million to a network of 46 shelters on reserve and in Yukon to support Indigenous women and children escaping violence while preventing and managing outbreaks in their facilities. In June 2020, an investment of $17.1 million was also announced to provide interest payment relief to First Nations with existing loans under the First Nations Finance Authority.
To support surge capacity and the adaptation of existing mental wellness services to address COVID-19 related mental wellness needs and pressures in Indigenous communities, the Government of Canada announced in August 2020 an investment of $82.5 million.
At the individual level, the Government of Canada also provided $270 million in funding to help ensure First Nations individuals and families who rely on income assistance are able to cover their essential living expenses during the pandemic. With these varied supports, and others, the Government of Canada continues to support First Nations individuals, families, and communities across the country meet their needs throughout the pandemic.
First Nations education
The Government is committed to continuing a collaborative approach, working in partnership with First Nations peoples, and provincial and territorial governments, on transferring the control of First Nations' education to First Nations communities.
For example, in 2018, Canada and the Nishnawbe Aski Nation reached an Agreement-in-Principle with respect to Indigenous jurisdiction over education. Canada is now working collaboratively with the Nishnawbe Aski Nation to reach a final agreement to implement a territory-wide education system.
In addition, in September 2020, two education agreements were signed with First Nations in Saskatchewan that support approximately 1,578 students. The first, built upon the existing tripartite relationship between Whitecap Dakota First Nation, the Saskatoon public school division, and the federal government by formalizing the funding and support that has been provided to the approximately 148 Whitecap students since 2014. The second education agreement, also in Saskatchewan, established an independent Education Authority for Peter Ballantyne First Nation and will now provide direct funding to the Education Authority. Peter Ballantyne Cree Nation represents eight communities spread out over 20,000 square kilometers. They administer education services for seven on-reserve schools with approximately 1,430 students attending band operated schools.
These agreements reflect the Government's commitment to working at a tripartite level to close the education gaps between Indigenous and non-Indigenous students in Canada. In December 2020, the Government of Canada committed $70 million over five years, starting in 2021-22, and $15 million ongoing to sustain the existing federal Indigenous Early Learning and Child Care Secretariat, and to help build Indigenous governance capacity and support Indigenous participation in the development of a Canada-wide Early Learning and Child Care system.
In response to the COVID-19 pandemic, the Government of Canada invested $112 million to support First Nation communities to ensure a safe return to First Nation schools on-reserve. Of these funds, $100 million was invested to directly support the needs of First Nation students and education staff, including salaries for staff (who may work additional hours during the pandemic), access to technology, purchase of e-learning software, and the development of take-home learning materials. The remaining $12 million was invested support schools to undertake retrofits needed to follow public health guidelines and respect adequate physical distancing as school activities resume. This includes support for safety checks of HVAC systems, installation of plexiglass separators and marking floors with physical distance indicators. This funding included the flexibility necessary for First Nations to make decisions about their own schools reopening, based on what they determine is safest for students and families in their communities.
Child and family services
The Government continues to advance work under the Act respecting First Nations, Inuit and Métis children, youth and families, which came into effect on January 1, 2020. This work advances progress on the Truth and Reconciliation Commission's Calls to Action 1 to 5, especially Call to Action 4, as it:
- affirms the inherent jurisdiction of First Nations, Inuit and Métis over child and family services
- contributes to the implementation of the United Nations Declaration on the Rights of Indigenous Peoples; and
- establishes national principles such as best interests of the child, cultural continuity and substantive equality to help guide the provision of child and family services in relation to Indigenous children
The Government of Canada believes that the Act is an important step toward comprehensive reform and remains committed to pursuing nation-to-nation, government-to-government, and Inuit-Crown relationships based on the recognition of rights, cooperation and partnership with Indigenous peoples in Canada. To continue in the spirit of co-development, Indigenous Services Canada has committed to continuing to co-develop transition and implementation of the Act with partners. This includes over $542 million over five years announced in November 2020 to support its implementation, specifically to assist Indigenous communities and groups to undertake engagement with their members, start building the capacity needed to establish their own child and family services systems, and be in a good position to enter into coordination agreement discussion tables. In addition, on July 7, 2020, the Assembly of First Nations and the Government of Canada signed a co-developed protocol to establish a structure to further support the implementation of the Act.
Additionally, as of December 23, 2020 there have been 26 requests and notices to exercise jurisdiction under the Act received from Indigenous governing bodies - representing over 60 communities. Of these 17 requests have been assessed as 20(2), starting the Act's 12 month clock to conclude coordination agreement.
Jordan's Principle makes sure that First Nations children living in Canada, as defined by the eligibility criteria within the orders of the Canadian Human Rights Tribunal (CHRT), can access the products, services and supports they need, when they need them. Funding can help with a wide range of health, social and educational needs, including the unique needs that First Nations Two-Spirit and LGBTQQIA children and youth and those with disabilities may have.
Jordan's Principle has seen an accelerated growth year over year since the implementation of the CHRT order of 2016. Between 2018 and 2019, Jordan's Principle approved products and services 83%, and then 149% between 2019 and 2020.
During the COVID-19 pandemic, in the period between March 20, 2020 and January 2, 2021, Jordan's Principle approved 1,163 products and services related to COVID-19 needs, for a total of $6.8 million, and 59 products and services under the Inuit Child First Initiative, for a total of $675,000. Requests that are COVID-19 related include laptops, tablets, internet access, allied health services, and others.
Amendments to the Indian Act to eliminate sex-based inequities in registration
In August 2019, An Act to amend the Indian Act in response to the Superior Court of Quebec decision in Descheneaux c. Canada (Procureur général) (Bill S-3) fully came into force. According to independent demographic estimates, the new legislation could result in between 270,000 to 450,000 individuals newly entitled to registration under the Indian Act. As required by Bill S-3, a report on the review and implementation of the new legislation was tabled in Parliament on December 11, 2020 by the Minister of Indigenous Services. With S-3 in full force, known sex-based inequities in the registration provisions of the Indian Act have been eliminated. However, residual impacts from years of sex-based inequities continue to be felt today in the registration context.
As part of the continued implementation of Bill S-3, the Department continues to engage with First Nations to monitor impacts on their communities and to identify longer term solutions to resolve remaining inequities not based on sex in Indian registration. In addition, the Department continues to work with provinces and territories to better understand impacts to the provision of programs and services to registered individuals and communities.
Lands and economic development
The Government continues to engage in work to eliminate barriers for First Nations to exercise their own jurisdiction and lawmaking authority. This includes working with Indigenous institutional partners to support First Nations that opt-out of parts of the Indian Act and participate in alternative land and fiscal management frameworks. The Government of Canada and Indigenous institutions are working together with First Nations to develop the tools they need to drive local economic development, empower their communities and promote prosperity. There are 97 First Nations exercising governance over land and resource management as signatories to the Framework Agreement on First Nation Land Management, a nation-to-nation agreement that Canada ratified in 1999 with the passage of the First Nations Land Management Act. The Lands Advisory Board, the First Nations institutional partner representing First Nation signatories to the agreement, is working with the Government to co-develop replacement legislation that better recognizes the First Nations-led nature of this agreement.
As well, 302 First Nations have opted into the First Nations Fiscal Management Act, allowing them to work with the fiscal institutions and to assert their jurisdiction in the area of fiscal governance.
The Addition of Lands to Reserves and Reserve Creation Act facilitates the setting apart of lands as reserve for the use and benefit of First Nations and the addition of land to reserves. In fiscal year 2019-2020 alone, 50 addition proposals were approved, including eight urban reserve additions. As First Nations select lands to add to reserves or to create new reserves, they are able to increase the number of viable economic and social development opportunities in their communities.
Significant work has also has also been undertaken to advance the economic well-being of Indigenous communities across Canada. This includes initiatives to support capacity building on reserve and private sector involvement to increase community employment and revenue generation. These goals were the impetus behind a $129 million investment in Indigenous business development.
The significant gap in infrastructure in Indigenous communities can affect overall quality of life, widen socio-economic gaps and reduce Indigenous peoples' participation in the economy. The Government of Canada committed $25.9 million in 2020-21 to accelerate the 10 year commitment to closing the infrastructure gap in Indigenous communities by supporting the co-development of infrastructure plans with Indigenous partners, which will help pave the way to address critical needs in First Nations, Inuit and Métis Nation communities. To support early action, $1.8 billion over seven years, starting in 2021-22, will be directed to support community infrastructure priorities.
Economic prosperity and closing of socioeconomic gaps will also be strengthened as Canada works to renew its fiscal relationship with Indigenous peoples so as to reinforce self-determination and mutual accountability while ensuring sustainable and predictable funding. To that end, ISC remains committed to building a new fiscal relationship with First Nations that is forward-looking, long-term, reliable, flexible and predictable. ISC continues to implement the 10-year grant, which has been co-developed with First Nations partners like the AFN and the First Nations Financial Management Board (FMB), in order to provide greater long-term financial flexibility and predictability. The department provided 110 grants to eligible First Nations as of April 2020, and continues to work with the FMB to ensure that First Nations remain eligible for the grant, as well as in the research, co-development and implementation processes.
ISC also continues to explore the interim recommendations of the AFN-ISC Joint Advisory Committee on Fiscal Relations to further advance the new fiscal relationship. This includes: co-development of a mutual accountability framework supported by stronger First Nation-led institutions; continued work with First Nations to replace the Default Prevention and Management Policy with a new and proactive approach that supports capacity development in partnership with Indigenous-led organizations; and, collaboration with Indigenous leaders to finalize a National Outcome-Based Framework, including co-development of baseline indicators, to comprehensively measure and track the closure of socio-economic gaps.
Supporting Indigenous governance and implementation of rights
The Government of Canada is now implementing 25 signed modern treaties, of which 19 contain provisions pertaining to self-governance or accompanying self-government agreements. Additionally, there are three non-treaty, standalone self-government agreements and two sectoral self-government agreements in education. By March 31, 2021, the Government has targeted that 197 communities will benefit from the conclusion of 48 negotiated treaties, self-government and other constructive arrangements.
Since 2015, Canada has been engaged with Indigenous communities across the country through more than 150 rights-based negotiations tables based on the affirmation of rights, respect, cooperation, and partnership. These discussions involve engaging with more than 500 communities and involving nearly one million Indigenous people, to support Indigenous peoples in realizing their vision of self-determination.
In recent years, Canada has been undergoing a shift from settling claims towards recognition and implementation of rights in partnership with Indigenous peoples. A significant achievement in this regard was made through the co-developed Recognition and Reconciliation of Rights Policy for Treaty Negotiations in British Columbia in September 2019. A central feature of the policy is that negotiations recognize the continuation of rights without modification, surrender or extinguishment when a treaty is reached. Under this policy, future treaties, agreements and other constructive arrangements will set out guidelines for reconciling Crown and Indigenous rights based on co-existence that can evolve over time. It also provides greater flexibility to develop agreements incrementally in the province.
The Government of Canada also continues to take concrete steps towards supporting the redesign of the Comprehensive Land Claims Policy and the Inherent Right Policy, as well as unique models of government tailored to the needs and aspirations of each Indigenous group. For example, in 2019 Canada and the Anishinabek Nation initialed the Anishinabek Governance Agreement. This agreement (if successfully ratified) would establish a nation-level Anishinabek government while preserving the distinct institutions and structures of the individual First Nation governments. Once concluded, the Governance Agreement would mark the first such self-government agreement in Ontario and will enable these groups to transition from the current Indian Act regime to one of self-determination.
The Government of Canada continues to provide support to Nations in their work to develop their own constitutions, furthering efforts to move out from under the Indian Act. For example, in November 2020, two of six communities of the Stó:lō Xwexwilmexw Treaty Association (SXTA) passed a constitution for a nation government. The other four communities will be determining the next steps for ratifying the nation constitution. The SXTA have been in negotiations with Canada and British Columbia since 1995, and in October 2018, signed a Memorandum of Understanding to move into the final stage of negotiating a treaty. In addition, Indigenous groups are seeking to rebuild their nations in a manner that responds to their priorities and the unique needs of their communities. Through Budget 2018, funding is available to support activities that would facilitate Indigenous communities' own path to reconstituting their nations. The total amount of funding available for the Nation Rebuilding Program is $100 million over five years, amounting to $20 million per fiscal year to distribute across the country. The program funded 48 projects in 2019-2020 and 60 projects in 2018-2019.
For Indigenous governments with existing self-government arrangements, the Government of Canada and the 25 existing self-governing Indigenous governments achieved a pioneering milestone in their work under the Collaborative Fiscal Policy Development Process: in late 2019 Canada released the co-developed Canada's Collaborative Self-Government Fiscal Policy. This was followed soon after by a second milestone with the renewal of financing agreements with the 25 self-governing Indigenous Governments, which took effect April 1, 2020. Representatives of the governments involved continue to work together on funding methodologies and other aspects of fiscal relations informed by the practical experiences of self-government.
The Government of Canada continues to work with First Nations who decide to opt out of the Indian Act election provisions. Since the First Nations Elections Act came into force on April 1, 2015, 73 First Nations have chosen to use the Act to benefit from a more robust and modern election system. First Nations may also be removed from the election provisions of the Indian Act by developing and adopting their own community election code and 19 First Nations have done so since April 1, 2015.
Finally, as per the September 2020 Speech from the Throne, the Government introduced Bill C-15, United Nations Declaration on the Rights of Indigenous Peoples Act. If passed by Parliament, this legislation will commit the Government to progressively aligning federal laws with the standards set out by the Declaration. In addition, it will mandate the Government to establish a National Action Plan to implement the Declaration, thereby fulfilling the Truth and Reconciliation Commission's Call to Action 44. Finally, the legislation will commit the Government to reporting annually on actions taken towards the implementation of the Declaration. Canada has engaged Indigenous peoples across the country, as well as Provincial and Territorial Governments and industry to strengthen the existing draft legislation and establish a pathway towards reconciliation and the rebalancing of the Crown-Indigenous relationships in Canada.
While the Government's highest priority at this time is ensuring the health and safety of First Nations, Métis, and Inuit communities as everyone addresses the COVID-19 pandemic, the Government of Canada continues to take concrete steps towards a comprehensive transformation, which includes new structures and processes, changes to legislation and, most importantly, new approaches to advancing self-determination and the inherent right of self-government with First Nations, Inuit and Métis.
For most of this past year the focus has been on the pandemic and the work of the health professionals, in particular Indigenous Services Canada nurses who continue to support Indigenous communities across the country to provide quality and culturally appropriate care, testing, contact tracing, prevention and treatment. This work remains paramount as other steps are taken, in full partnership with First Nations, Inuit, and Métis to advance self-determination. This includes taking steps to move First Nations beyond the Indian Act.