Sixth Annual (2020) Statutory Report Pursuant to Section 2 of the Indian Act Amendment and Replacement Act, Statutes of Canada, Chapter 38, 2014

Continuing Work on Improving 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. In June 2019, Parliament repealed the Department of Indian Affairs and Northern Development Act and adopted the Department of Indigenous Services Act and the Department of Crown-Indigenous Relations and Northern Affairs Act. In particular, Indigenous Services Canada is mandated in its enabling legislation to work towards the transfer of departmental responsibilities to Indigenous communities and bodies. Over time, one fundamental measure of success will be that appropriate programs and services will be increasingly delivered by Indigenous peoples, for Indigenous peoples.

Another key piece of legislation passed in 2019 is the Act respecting First Nations, Inuit and Métis children, youth and families, which received Royal Assent on June 21, 2019, and came into effect on January 1, 2020. The Act:

• 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 respecting First Nations, Inuit and Métis children, youth and families 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 with partners.

The Government of Canada continues to work with First Nations who decide to opt out of the Indian Act election provisions. Since it came into force on April 1, 2015, the First Nations Elections Act (FNEA) has empowered First Nations to benefit from a more robust and modern election system. To date, 68 First Nations have chosen to utilize the First Nations Elections Act opportunity, with eight First Nations choosing to opt-in in the last fiscal year. First Nations may also be removed from the election provisions of the Indian Act by developing and adopting their own community election code. Nineteen First Nations have done so since April 1, 2015.

The Government is also continuing to work on establishing a new fiscal relationship with First Nations that moves towards sufficient, predictable and sustained funding for First Nations communities. This includes the use of longer-term and more flexible funding mechanisms such as the 10-year grant. It provides increased flexibility to design and deliver services, reduces reporting for communities, and enables strengthened accountability of First Nation leadership to their members. Eighty-five First Nations communities entered into the 10-year grant in 2019-2020. Furthermore, the Assembly of First Nations-Indigenous Services Canada Joint Advisory Committee on Fiscal Relations, which was established in fall 2018 to provide advice on elements of the fiscal relationship with First Nations, provided its interim recommendations to the Minister of Indigenous Services and the National Chief in June 2019. A resolution calling for extensive engagement on the interim recommendations was adopted by Chiefs-in-Assembly in July 2019. Further engagement on continued work is planned for Winter 2020. In addition, co-development is underway to develop a replacement to the Default Prevention and Management Policy and we are currently covering costs for those communities currently under the Policy to minimize impact to the community.

To support First Nations co-development work on the new fiscal relationship, the Government and the Assembly of First Nations as well as other First Nation partners have also been co-developing a Mutual Accountability Framework,  as well as options for First Nations-led audit and statistics institutions to support First Nations governance.

The Government is also working on including a national outcome-based framework to measure the closing of the socio-economic gaps that exist. Through Budget 2019, the Government committed $78.9 million over seven years and ongoing permanent funding for the Surveys on Indigenous Peoples and the First Nations Regional Health Survey. These surveys provide robust socioeconomic and health data related to First Nations living on and off-reserve and in northern First Nations communities, as well as for Inuit and Métis, allowing for more programming and services that are more responsive to the needs of those being served.

The Government is committed to working in partnership with Indigenous peoples, as well as provincial and territorial governments, on transferring the control of services to Indigenous communities. On January 23, 2019, the governments of Canada and British Columbia along with the First Nations Education Steering Committee announced the signing of the British Columbia Tripartite Education Agreement, which will benefit First Nations students in British Columbia and 200 First Nations, supporting students who attend any one of the 131 on-reserve First Nations schools or those who attend public or off-reserve independent schools in British Columbia. The five-year agreement replaced the Agreement originally signed in 2012.

The agreement will include:

• more sustained funding for British Columbia First Nations education;
• $20 million investment in funding for First Nations schools, including increased resources for First Nations language and culture and technology to enhance learning opportunities for students;
• new policies to promote First Nations education agreements between First Nations and School Boards, including improved transportation services;
• commitments to support the creation of a First Nations language policy leading to full-course offerings of First Nations languages in public schools;
• joint efforts to monitor student achievement data in order to inform policy and practice;
• professional development and information sharing opportunities to expand and deepen understanding of issues related to First Nations education.

This agreement reflects the Government's commitment to work together with provincial, territorial, and Indigenous partners to close the education outcome gaps between Indigenous and non-Indigenous students in Canada.

The Government of Canada continues to take concrete steps towards a comprehensive transformation to support self-government and self-determination of First Nations. This includes new approaches to decision-making for First Nations, specifically through amendments to legislation and the development and enhancement of policies regarding access to, and management of, "Indian moneys" (as such term is defined under the Indian Act). These efforts also include providing funding to First Nations to develop their own capacity and management over the administration of their estates.

Amendments to the Indian Act to eliminate sex-based inequities in registration

In August 2015, a decision was rendered in the Descheneaux case by the Superior Court of Quebec which declared key provisions of the Indian Act inoperative, as they unjustifiably violated equality rights under the Canadian Charter of Rights and Freedoms by perpetuating sex-based inequities in eligibility for Indian registration between descendants of the male and female lines.

Bill S-3, An Act to amend the Indian Act in response to the Superior Court of Quebec decision in Descheneaux c. Canada (Procureur général) came into force on December 22, 2017, and remedied the issues identified in the Descheneaux decision by eliminating all sex-based inequities in Indian registration dating back to 1951.

An Act to amend the Indian Act in response to the Superior Court of Quebec decision in Descheneaux c. Canada (Procureur général) also includes provisions to remove what is commonly known as the 1951 cut-off, which will eliminate all sex-based inequities dating back to the 1869 Gradual Enfranchisement Act. However, these changes were subject to a delayed coming into force to allow for consultation on an implementation plan. Under section 11 of Bill S-3, the Minister of Crown-Indigenous Relations had to initiate consultations with First Nations and other interested parties to address, issues raised by the provisions of the Indian Act related to registration and band membership.

The Collaborative Process on broader issues related to Indian registration, band membership, and First Nation citizenship was launched in June 2018 and ended in March 2019. A report on this consultation was tabled in Parliament on June 12, 2019.

On August 15, 2019 the Government of Canada removed the 1951 cut-off from the Indian Act. This was the last remaining provision of Bill S-3 to come into force. As a result, all known sex-based inequities in the Indian Act have been eliminated.

As part of the continued implementation of Bill S-3 and the 1951 cut-off, Indigenous Services Canada, in partnership with Crown-Indigenous Relations and Northern Affairs Canada, will monitor the impacts of Bill S-3 and continue to engage First Nations in longer term solutions to resolve remaining inequities in Indian registration and move to solutions beyond the Indian Act.

A Whole of Government Approach to Reconciliation

Canada is committed to working in partnership with Indigenous rights holders to more efficiently deliver the benefits of treaty agreements, and to make the necessary policy and legislative changes to accelerate First Nations' assumption of jurisdiction over their priorities and other measures that replace colonial structures of the Indian Act.

The Government of Canada is now implementing 25 signed modern treaties of which 19 contain provisions related to self-government or accompanying self-government agreements. Additionally, there are three non-treaty, standalone self-government agreements and two sectoral self-government agreements in education. Since 2015 Canada has been working with Indigenous communities at more than 145 rights-based negotiation tables that explore new ways of working together to advance reconciliation and self-determination. These negotiations involve more than 480 First Nations communities.

The Government will continue to advance shared priorities and interests with modern treaty and self-governing partners through the Modern Treaty and Self-Governing First Nations Forum. Beginning in 2016, the Government worked directly with self-governing Indigenous governments from across Canada to build a new fiscal relationship between governments to support and advance self-government. This effort resulted in the release in August 2019 of the Collaborative Self-Government Fiscal Policy and provided for new funding approaches to support self-government that were incorporated into fiscal renewals with each self-governing Indigenous government. The initiative has established a robust platform for fiscal policy co-development and provided an example of how collaborative policy-development can succeed in shaping federal policies and providing real results for Indigenous communities. 

In September 2019, the Government of Canada, the Province of British Columbia, and the First Nations Summit released the co-developed Recognition and Reconciliation of Rights Policy for Treaty Negotiations in British Columbia. This policy replaces the Comprehensive Land Claims and Inherent Right policies in the context of treaty negotiations in British Columbia. This rights-based policy will support and enable approaches to the negotiation of treaties, agreements and other constructive arrangements between Canada, British Columbia and participating First Nations in British Columbia. It builds on many years of work to improve and expedite British Columbia treaty negotiations. It also serves as an example of what could be accomplished through co-development, collaboration and partnership in other parts of the country.

The Government is also committed to implementing the Truth and Reconciliation Commission's Calls to Action in order to provide a path forward for Canada's journey of healing and reconciliation. To date, more than 80 per cent of the Calls to Action under federal or federally-shared responsibility are well underway or complete. The Government is working with its partners, including provincial and territorial governments, to accelerate progress on all 94 of these essential steps toward reconciliation. An example of the Government's commitment to implement all of the Truth and Reconciliation Calls to Action includes the co-developed legislation on Indigenous languages Parliament adopted in June 2019. The Indigenous Languages Act recognized, among other things, that Indigenous rights as part of section 35 of the Constitution Act, 1982 includes rights related to Indigenous languages, and it created a framework by which the Minister of Canadian Heritage may enter into different types of agreements or arrangements with respect to Indigenous languages with Indigenous governments or other Indigenous governing bodies. The Government is currently working towards completely implementing the legislation.

With the support of Indigenous institutional partners, the Government continues to remove barriers for First Nations that decide to opt-out of parts of the Indian Act and participate in alternative legislative regimes to exercise their own jurisdiction and lawmaking authority. 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. Since January 2019, nine First Nations have begun operating under their community ratified land codes through the Framework Agreement on First Nations Land Management  and the First Nations Land Management Act. In addition, 18 First Nations have joined the 264 other First Nations asserting jurisdiction in the area of fiscal governance by opting into the First Nations Fiscal Management Act. In 2019, the Government of Canada also approved 57 Additions to Reserves which added 37,995 acres to First Nation communities. Together, these changes support self-determination for First Nations communities and provide better access to lands and financial resources and support greater economic prosperity in First Nations communities by improving processes, timelines and access to services, and provide greater support to First Nations institutions in their direct work with communities. The Government of Canada will continue to work in partnership with First Nations to improve processes and supports that provide access to lands and economic development opportunities.

Another legislative change from the previous Parliament includes the enactment of the Addition of Lands to Reserves and Reserve Creation Act, which came into force on August 27, 2019. The Act facilitates the setting apart of lands as reserves for the use and benefit of First Nations and the addition of land to reserves. Under this Act, all First Nations will have access to the same procedural tools currently available in the Prairie provinces in order to streamline the process for all types of Additions to Reserve/Reserve Creation proposals. This will increase viable economic development opportunities in First Nations communities.

The Government also continues to work with the Assembly of First Nations, the Inuit Tapiriit Kanatami and the Métis National Council to advance nation-to-nation, Inuit-to-Crown and government-to-government relationships by providing a distinctions-based forum to jointly identify and make progress on key issues affecting First Nations, Inuit and Métis.

Conclusion

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 the Métis Nation. There is a lot of work to be done and the Government of Canada will continue to move forward, in full partnership, in advancing self-determination for all First Nations, Inuit, and Métis, including taking steps to move First Nations beyond the Indian Act.