Federal implementation approach for An Act Respecting First Nations, Inuit And Métis Children, Youth And Families

Distinctions-based governance engagement mechanisms

• To further discuss how the Act is implemented, ISC has committed to explore distinctions-based governance engagement mechanisms which would be venues for partners to discuss high-level policy issues relating to transition and effective implementation of the Act. These structures will be co-developed with regional Indigenous partners and the department may hold additional engagement sessions to include other diverse and expert voices.
• The governance engagement mechanisms will be organized by Indigenous partners where possible. Governance engagement mechanisms will supplement previous engagement throughout the development of the Act and will result in recommendations to governments on issues such as regulations, governance, capacity-building, funding models and a data and reporting strategy.
• Engagement and dialogue may occur at the community, regional and national level, and could include the participation of:
  • national, regional, and community organizations representing First Nations, Inuit and Métis peoples
  • Treaty Nations
  • self-governing First Nations
  • federal, provincial and territorial governments
  • experts
  • those with lived experience, including Elders, youth and women
• Through the distinctions-based governance engagement mechanisms, ISC will maintain on-going dialogue with Indigenous groups, provinces, and territories to address issues raised by partners, provide policy support on principles and standards set out in the Act, and help identify best practices.
• Eligible recipients for funding to host distinctions-based governance engagement mechanisms include:
  • community, regional and national Indigenous organizations;
  • existing Indigenous governing bodies (a council, government or other entity that is authorized to act on behalf of an Indigenous group, community or people that holds rights recognized and affirmed by section 35 of the Constitution Act, 1982)
  • newly designated Indigenous governing bodies under the Act
  • friendship centres
  • any other Indigenous group wishing to host a distinctions-based governance mechanism

Other engagement

• Additional technical briefings provided by ISC could occur at the national and regional levels, including meetings with federal, provincial and territorial governments and Indigenous groups to provide information to partners.
• ISC will continue to work closely with national Indigenous organizations, such as through the Joint Protocol with the Assembly of First Nations signed on July 7, 2020.
• Discussions between provincial, territorial and federal governments will happen throughout the process. Provinces and territories will be invited to participate at distinctions-based governance engagement mechanism fora. Provinces and territories will also be involved at the coordination agreement discussion tables.

Capacity-building

Capacity-building for communities preparing to enter coordination agreement discussions would include:

• Funding for Indigenous governing bodies, meaning a council, government or other entity that is authorized to act on behalf of an Indigenous group, community or people that holds rights recognized and affirmed by section 35 of the Constitution Act, 1982 (section 35 rights holder) who have indicated an interest in exercising jurisdiction in relation to child and family services pursuant to the Act.
• Funding will enable Indigenous groups, before coming to a coordination agreement discussion, to work within and across their communities to build strong foundations for a successful transition toward the exercise of jurisdiction.
• Capacity-building activities for communities preparing to enter coordination agreement discussions that could be funded include:
  • self-assessment on readiness to exercise jurisdiction
  • community consultation
  • development of financial models for child and family service governance, management, and delivery of services
  • legislation, regulation and policy development and implementation
  • child and family services systems and program model development
  • costs related to harmonization of First Nations jurisdiction with other relevant legislation and court systems
• This list is not exhaustive and we will be including additional activities identified through continued engagement with Indigenous partners.
• Funding for permanent structures for the implementation of Indigenous laws, training of staff, programs and service delivery will be discussed through the coordination agreement discussion process.
• Eligible recipients for capacity-building funding are Indigenous governing bodies as defined under the Act. National Indigenous organizations will also be eligible for capacity-building funding in order to advance culturally appropriate reform of child and family services.

Coordination agreement discussions

• The Act provides a framework within which Indigenous groups, communities or peoples may engage with other parties such as the Government of Canada and provinces and territories around the exercise of jurisdiction in order to ensure a smooth transition into an Indigenous-led child and family system and long term success. In order to refine the process, the Government of Canada will continue to engage with Indigenous, provincial and territorial partners, with the goal of establishing a long-term approach to the implementation of the framework.
• When a section 35 rights holder has authorized an Indigenous governing body to act on its behalf, has requested to begin coordination agreement discussions, and ISC has confirmed the mandate of the Indigenous governing body with the section 35 rights holder, Formal coordination discussions will take place to determine the distinct needs of each community and their unique circumstances in order to determine funding needs.
• Coordination agreement discussions may occur through ISC or Crown-Indigenous Relations and Northern Affairs-led tables. Discussions about the establishment of coordination discussions will commence shortly after ISC receives the official request by an Indigenous governing body. ISC will also discuss providing financial support for the participation of the Indigenous governing body as part of coordination agreement discussions.
• Under the Act, in order for an Indigenous child and family services law to prevail over conflicting federal, provincial and territorial laws, the Indigenous governing body must make a request to enter into a coordination agreement and make reasonable efforts for a period of 12 months or conclude a coordination agreement, as described in subsection 20(2), 21 and 22 of the Act.
• The request to the Minister of Indigenous Services and to the applicable provincial or territorial government will trigger a 12-month period during which tripartite discussions will take place to establish the necessary transition and coordinating measures.
• A coordination agreement would include the necessary transition and coordination measures that ensure the effective exercise of jurisdiction by Indigenous governing bodies over child and family services programming.
• If no agreement is reached during the 12 months following the request, provided that the Indigenous governing body has made reasonable efforts to reach a coordination an agreement, the law will start to prevail over conflicting federal and provincial or territorial laws in case of conflict. Should the Indigenous governing body determine that it is preferable to wait for a longer period prior to having their Indigenous legislation come into force as federal law, they are free to do so.
• Subsection 20 (7) of the Act makes it clear that a coordination agreement can still be negotiated after the period of 12 months. Neither the federal or a provincial or territorial government may delay the coming into force of an Indigenous governing body's legislation.
• ISC has already received numerous requests to enter into coordination agreement discussions, and is working closely with all partners to provide support to Indigenous groups, communities and peoples in relation to exercising their jurisdiction related to child and family services.

Operationalization of Indigenous child and family services laws

• ISC remains committed to providing support to Indigenous groups as they exercise jurisdiction which will be discussed through coordination agreement discussions. In the preamble of the Act, it is stated:

  "And whereas the Government of Canada acknowledges the ongoing call for funding for child and family services that is predictable, stable, sustainable, needs-based and consistent with the principle of substantive equality in order to secure long-term positive outcomes for Indigenous children, families and communities"

• Section 20 (2) (c), the Act states:

  "20 (2) The Indigenous governing body may also request that the Minister and the government of each of those provinces enter into a coordination agreement with the Indigenous governing body in relation to the exercise of the legislative authority, respecting, among other things,

  (c) fiscal arrangements, relating to the provision of child and family services by the Indigenous governing body, that are sustainable, needs-based and consistent with the principle of substantive equality in order to secure long-term positive outcomes for Indigenous children, families and communities and to support the capacity of the Indigenous group, community or people to exercise the legislative authority effectively;"

• Support to Indigenous groups will be for, and participation in, coordination agreement discussions, whereas discussions on funding the operationalization of coordination agreements will take place with Indigenous governing bodies within the framework and goals set out in preamble to the Act as well as Section 20(2)(C).