THE STANDING SENATE COMMITTEE ON INDIGENOUS PEOPLES
EVIDENCE
OTTAWA, Wednesday, February 28, 2024
The Standing Senate Committee on Indigenous Peoples met with videoconference this day at 6:45 p.m. [ET] to examine the implementation of the United Nations Declaration on the Rights of Indigenous Peoples Act, 2021 by Canada and First Nations, Inuit and Metis peoples.
Senator Brian Francis (Chair) in the chair.
[English]
The Chair: I would like to begin by acknowledging that the land on which we gather is the traditional, ancestral and unceded territory of the Anishinaabe Algonquin Nation and is now home to many other First Nations, Métis and Inuit peoples from across Turtle Island.
I am Mi’kmaq Senator Brian Francis from Prince Edward Island, also known as Epekwitk, and I am the Chair of the Committee on Indigenous Peoples.
I will now ask committee members in attendance to introduce themselves by stating their names and province or territory.
Senator Arnot: David Arnot, Saskatchewan. I live in Treaty 6 territory.
Senator Martin: Yonah Martin from British Columbia.
Senator McNair: John McNair from New Brunswick, traditional lands of the Mi’kmaq, Wolastoqiyik and Passamaquoddy.
Senator Hartling: Nancy Hartling, another New Brunswicker, from Mi’kma’ki.
Senator Tannas: Scott Tannas from Alberta.
Senator White: Judy White, Newfoundland and Labrador, proud Mi’kmaw on the Mi’kmaq territory also known as Ktaqmkuk.
Senator Greenwood: Margo Greenwood from Treaty 6, the very best of Treaty 6. I am from British Columbia.
The Chair: Thank you, senators.
Tonight we’ll begin our new study: to examine the implementation of the United Nations Declaration on the Rights of Indigenous Peoples Act, 2021 — also known as UNDRIP — by Canada and First Nations, Inuit and Métis peoples. The committee is hearing from witnesses to further refine its study topic.
This evening, we will hear four departments give us an overview of the implementation by the federal government.
With that, I would now like to introduce our witnesses. From Crown-Indigenous Relations and Northern Affairs Canada, Valerie Gideon, Deputy Minister; from the Department of Justice Canada, Jean-François Fortin, Associate Deputy Minister; and Laurie Sargent, Assistant Deputy Minister, Indigenous Rights and Relations Portfolio.
From Canadian Heritage, Charles Slowey, Assistant Deputy Minister, Community and Identity Sector; and from Indigenous Services Canada, Danielle White, Assistant Deputy Minister, Strategic Policy and Partnerships Sector, who will be joining us by video conference.
These officials are accompanied by other departmental representatives who may be called to the table to answer any technical questions. In that case, I would ask the officials to provide their name and title before they begin speaking.
Wela’lin. Thank you all for joining us today.
Each department will have opening remarks of five minutes, which will be followed by a question-and-answer session with the senators. I now invite Valerie Gideon to give her opening remarks.
[Translation]
Valerie Gideon, Deputy Minister, Crown-Indigenous Relations and Northern Affairs Canada: Kwe kwe [Indigenous language spoken], tansi, hello.
My name is Valerie Gideon and I am the Deputy Minister of Crown-Indigenous Relations and Northern Affairs Canada.
[English]
I am Valerie Gideon, Deputy Minister of Crown-Indigenous Relations and Northern Affairs, and thank you very much for the invitation to speak to you today.
[Translation]
We are gathered here today on the unceded traditional territory of the Anishinabe Algonquin people. I am here to answer your questions as you launch this study on implementation of the United Nations Declaration on the Rights of Indigenous Peoples Act.
[English]
As is evident from the departments here, the implementation of the United Nations Declaration on the Rights of Indigenous Peoples Act, or UNDRIP Act, and the United Nations Declaration on the Rights of Indigenous Peoples Act Action Plan, or Action Plan, is a whole-of-government endeavour. My department recognizes its significant role in this, being responsible for about one third of the 181 Action Plan measures. We also have a critical role in ensuring alignment with the UN declaration.
The Act and its supporting Action Plan launched in June 2023 are transformational. As a Mi’kmaq woman from Gesgapegiag, I didn’t think I would see this in my lifetime, but I’m quite proud and humbled to be able to say that I have.
Through forums like the permanent bilateral mechanisms, rights-based negotiation tables, implementation committees with Indigenous governments and the Modern Treaty Implementation Policy Working Group, we have changed the way we advance priorities with Indigenous partners, which is at the heart of the UN declaration.
[Translation]
My department is proud of steps we are taking to implement the action plan. For example, in line with section 5 of the act, my department ensures that bills introduced in Parliament under the purview of CIRNAC ministers align with the UN declaration, in consultation with Indigenous partners.
For example, the proposed amendments to the First Nations Fiscal Management Act were co-developed with First Nations financial institutions and impacted First Nations.
Self-determination is only meaningful if Indigenous governments are properly resourced, and continuing the co‑development work on the collaborative self-government fiscal policy is important in terms of ensuring the necessary capacity for self-determining Indigenous governments.
[English]
We are working with Indigenous partners to co‑develop and redesign, for example, the Additions to Reserve Policy. The goal is a more streamlined process to add land to reserves, providing greater economic benefits for First Nations.
We are working to implement the Calls for Justice from the National Inquiry into Missing and Murdered Indigenous Women and Girls. Through the federal pathway, we’re making this a safer country for Indigenous women, girls and gender-diverse people. The hours immediately after a person goes missing are crucial in finding them, so we are discussing a Red Dress Alert system. We are being more proactive by funding programming like the Ontario Native Women’s Association’s Indigenous Victim and Family Liaison program. Last year alone, 136,000 people received the support they needed, in the form of assistance with the criminal justice process and police, crisis and emergency response for victims and families in need, counselling and access to elders and traditional healing ceremonies.
As well, through the federal initiative on consultation, my department is supporting the implementation of 12 consultation protocols and is working closely with Indigenous partners to develop an additional seven. These protocols are fully co‑developed with Indigenous partners, and provide a clear, agreed-upon process to follow when the Crown has a legal duty to consult. They facilitate engagement, promote relationship building, and clarify roles and responsibilities between governments and Indigenous communities.
In this way, we will build a better, more equitable future where the rights of Indigenous peoples are respected, protected and fulfilled.
I’ll be happy to provide further details during our subsequent discussion. Meegwetch. Qujannamiik. Marsee. Thank you. Wela’lioq.
The Chair: Thank you, Ms. Gideon. I will now invite Jean-François Fortin to give his opening remarks.
[Translation]
Mr. Jean-François Fortin, Associate Deputy Minister, Department of Justice Canada: Honourable senators, I am very pleased to be here with you this evening. Thank you for the invitation.
Before I begin, I would like to acknowledge that the land on which we gather is the traditional territory of the Algonquin Anishinabe people. I am Jean-François Fortin, Associate Deputy Minister at Justice Canada, and it is my pleasure to be with you today to provide an update on implementation of the UN declaration on the Rights of Indigenous Peoples Act.
As you know, the act, which came into force on June 21, 2021, creates a lasting, whole-of-government framework to advance federal implementation of the UN declaration. Key to this act are obligations to work in consultation and co‑operation with Indigenous peoples to align federal laws with the declaration, develop and implement an action plan to achieve the declaration’s objectives and report annually to Parliament on progress.
I would like to start by highlighting some of the key progress we have made in implementing these obligations, while also acknowledging from the outset that this is long-term, generational work that will require sustained effort for many years to come. Since 2021, Justice Canada has been working to raise awareness across government about the UN declaration, the act and more recently the action plan. This includes providing training and tools to support officials in their work, wherever possible, in co‑operation with Indigenous peoples.
For example, Justice Canada, in collaboration with the Canada School of Public Service and Indigenous experts, has held UN declaration Act training sessions in 2022 and 2023, engaging over 4,000 officials. These efforts are key to equip officials to think about whether and how their work intersects with the declaration and to identify where and when consultation and co‑operation with Indigenous peoples are needed as part of ensuring that federal laws are consistent with the declaration.
Within the Department of Justice, guidance tools to assist officials in assessing consistency with the declaration and compliance with the act are being used to inform the development of departmental legislative initiatives that impact the rights of Indigenous peoples.
It is also important that Canadians learn about the UN declaration and the actions being taken at the federal level to implement the UN declaration Act, since we all have a role to play in better understanding the reality and challenges faced by Indigenous peoples. To this end, we have developed a comprehensive website, including relevant information, educational videos and translations of the UN declaration in 14 Indigenous languages. Moving forward, we are committed to working in consultation and co‑operation with Indigenous peoples on the development of further public awareness material.
Another significant stride is the launch of the UNDA action plan on National Indigenous Peoples Day last year. This action plan was the result of two years of working in consultation and co‑operation with Indigenous peoples from across Canada to develop a distinctions-based road map of actions to implement the UN declaration. The action plan outlines 181 measures relating to a wide range of priority areas, like establishing adequate oversight and accountability mechanisms, advancing self-determination, upholding modern and historic treaties and enhancing participation of Indigenous peoples in the economy and in decision-making processes.
Justice Canada leads on a number of these measures, including developing an Indigenous justice strategy and introducing Bill S-13, and coordinates the efforts of more than 25 departments and agencies implicated by the action plan.
As this action plan is intended to be implemented over several years, different measures are at different stages of implementation and will proceed at different rates. Together, my colleagues and I before you today are leading over 60% of these measures and will be pleased to share key areas of progress since the release of the action plan.
By way of a more personal reflection, since the action plan was released, I have heard many officials talking about how inspired they are by these goals. I firmly believe that the conversations the action plan has sparked — as well as the path forward it lays out — are having a very positive impact on the federal public service and our relationships with Indigenous peoples.
All that said, the action plan is very ambitious, and we are all very well aware that there is still much left to do. All of our work needs to be done in partnership with Indigenous peoples.
As illustrated in the document we shared, we have been working to leverage existing tables with First Nations, Inuit and Métis, as well as setting up new ones on a regional basis. We’d be happy to provide you with additional information about these opportunities for co‑operative work to advance implementation, as well as how we’re bringing a diversity lens to this work.
The act also requires us to report annually and be transparent about our work. Justice Canada is already working to pull together information about progress for our next annual report, to be tabled in summer 2024, which will be very important as it will begin to track progress against the action plan, as well as the act itself.
In closing, we look forward to the results of this committee’s study contributing to generating additional dialogue about practical strategies for implementation of the core rights and principles set out in the UN declaration.
We will be pleased to respond to questions and will listen carefully to what you hear from others, guided always by the overarching goal of building a better, more equitable future for Indigenous peoples and, in doing so, a more inclusive Canada for this and future generations.
Thank you.
[English]
The Chair: Thank you, Mr. Fortin. We’ll now invite Charles Slowey to give his opening remarks.
[Translation]
Charles Slowey, Assistant Deputy Minister, Community and Identity Sector, Canadian Heritage: Before I begin, I would also like to acknowledge that the land on which we gather is the traditional and unceded territories of the Algonquin Anishinabe people. My name is Charles Slowey. I’m the Assistant Deputy Minister of the Community and Identity Sector at Canadian Heritage. It’s my pleasure to be with you today.
Canadian Heritage plays a vital role in the cultural and economic life of Canadians. The department delivers a wide variety of programs and services to support Canada’s arts, culture, heritage and languages, just to name a few.
The department is the lead for 14 measures in the plan. I’ll use my opening remarks to highlight the work that we’re doing on a few of those measures.
[English]
I’ll use my time to give a few examples of some of the measures we’re leading.
Several of the measures focus on Indigenous languages. We’ve been working with Indigenous partners on the implementation of the Indigenous Languages Act since 2019 and we’ve made some significant progress, for example, in establishing long-term funding through the introduction of new distinction-based funding models. This new funding approach provides greater Indigenous autonomy and is more responsive to First Nations, Inuit and Métis priorities.
We’ve made efforts to advance a model for urban and multi-distinctions and we continue to work with Indigenous partners to implement these new funding models.
The funding models complement the work of our Indigenous partners to develop costing models. For example, we’re nearing the finalization of the work to co‑develop a funding methodology for language revitalization with self-governing Indigenous governments under the collaborative fiscal policy. We’re also working to advance other areas of the act like access to federal services in Indigenous languages. I do that through an interdepartmental steering committee that I co‑chair with Service Canada in partnership with 15 other departments and agencies, which includes things like the translation of key departmental documentation, access through services through technology and other forms.
We recognize the urgent need for action and resources as important in Indigenous languages and we will continue to seek every opportunity to do so.
[Translation]
In June 2017, the Indigenous Screen Office, or ISO, was established as an independent and Indigenous-led organization designed to enhance Indigenous narrative sovereignty in the audiovisual sector. A program was created and delivered by the ISO to support and advance Indigenous self-determination and narrative sovereignty by increasing the creation and consumption of Indigenous audiovisual products. This includes film, television and interactive digital media. The program contributes to the authentic representation of Indigenous peoples on screen and supports the development, production and marketing of Indigenous content. In the action plan measures, Canadian Heritage has committed to providing increased ongoing funding for the ISO program to support Indigenous narrative sovereignty and self-determination in the audiovisual sector.
The repatriation and rematriation of cultural belongings and ancestral remains to First Nations, Inuit and Métis communities is an important step to reconciliation.
[English]
Preliminary discussions have begun to deliver on the action plan measures for a co‑developed, distinction-based approach that will include new legislation for the repatriation and rematriation of cultural artifacts and of human remains. At the same time, Canadian Heritage continues to take concrete steps to support these measures through programs like the Museums Assistance Program, technical services of the Canadian Conservation Institute and the renewal of Canada’s Museum Policy.
These highlight just a few of the areas that we’re responsible for and leading on and I’m pleased to respond to any questions. Thank you.
The Chair: Thank you, Mr. Slowey. I’ll now invite Danielle White to give her opening remarks.
Danielle White, Assistant Deputy Minister, Strategic Policy and Partnerships Sector, Indigenous Services Canada: [Indigenous language spoken.]
I’m originally from Mi’kma’ki territory, the community of St. George’s on the west coast of Newfoundland. I’m of mixed Mi’kmaq and settler ancestry. I would like to acknowledge that I’m joining you this evening from Mi’kma’ki territory on the Membertou First Nation in Unama’ki on Cape Breton Island. I would also like to acknowledge the territory that you are gathered on this evening, the unceded Algonquin territory where I make my home, live and work.
[Translation]
Thank you for inviting Indigenous Services Canada to speak today and for giving me the chance to participate by video conference. I’m pleased to share some of the department’s early experiences with implementing the United Nations Declaration on the Rights of Indigenous Peoples Act. I want to echo the importance of whole-of-government implementation of the act. Within Indigenous Services Canada, implementation is foundational to our mandate. This mandate serves to advance partnerships, close socio-economic gaps and transfer responsibilities and services to Indigenous partners and institutions. We have heard time and time again that Indigenous peoples must be at the table for any decisions affecting their rights. We can’t do any of this work without an equitable relationship.
[English]
Whether we consult and cooperate with individuals affected by specific initiatives — such as the work we’ve undertaken to address discrimination and the registration and membership provisions of the Indian Act, or to leverage the existing permanent bilateral mechanisms to identify and co‑develop joint education priorities — we work closely with our partners at all levels to advance self-determination and equity.
We also know that implementing the Declaration on the Rights of Indigenous Peoples Act requires internal changes to government. Within Indigenous Services Canada, or ISC, we’re committed to raising awareness of our obligations and of supporting this change.
About three and a half years ago, the department implemented a mandatory cultural competency learning policy. We’re now in the process of developing and honouring our journey survey to assess its effectiveness. Under this policy, each employee is required to complete 15 hours per year of cultural competency training in terms of learning about the history and experiences of Indigenous people. In addition, we offer a range of job-specific training. In that regard, this year training sessions on the United Nations Declaration Act and Action Plan were delivered to over 900 employees to raise awareness of how our work intersects with the declaration. We’re also working to ensure policy consistency across the department through the creation of UN declaration tools, for example, to guide the development of cabinet documents as well as a monthly community of practice that’s been established to build capacity around implementation and working in partnership, consultation and cooperation with Indigenous people.
ISC is responsible for leading or co‑leading on 19% of the action plan measures, or 34 of the 181 measures, and every sector of the department has a role to play. Approximately 88% of these action plan measures are already under way at various stages of implementation, including work on advancing the new fiscal relationship; while others are in the early stages and still require further co‑development such as our approach to service transfer.
Other examples where we’ve made important progress include engagement on the First Nations data governance strategy to support the commitments around Indigenous data sovereignty; ongoing co‑development of federal distinctions-based Indigenous health legislation; and continuing to implement the act respecting First Nations, Inuit and Métis children, youth and families which affirms the inherent right of self-government, including jurisdiction in relation to child and family services.
I would also like to highlight how we are addressing proposed section 5 of the act regarding the consistency of laws which my colleague spoke about, in particular, how we are seeking to work with the partners whose rights are most affected.
Extensive engagement and consultation were conducted on both the repeal of the Safe Drinking Water for First Nations Act in 2022 and the recent introduction of its proposed replacement, Bill C-61, with the short title of First Nations Clean Water Act, which recognizes and affirms the inherent right of First Nations to self-government in relation to water, source water, drinking water, waste water and the related infrastructure in and around First Nations lands.
We’ve heard from Indigenous partners which ISC legislation should be prioritized for review. Obviously, this includes the Indian Act, a colonial and paternalistic piece of legislation that is fundamentally at odds with the UN declaration. However, we know this is a complex space and it will take time. Still, we’ve made important progress through Bill C-38 to amend the Indian Act to address inequities in registration and First Nations membership, as well as the newly launched Indigenous advisory process on broader reform of the Indian Act aimed at designing a robust collaborative process aligned with the declaration on the issue of second generation cut-offs.
[Translation]
These are just a few examples. We recognize that there’s much work left to do to implement the declaration. We’ll continue to navigate it with our partners at all stages. We’re happy that the committee is undertaking this important study. We look forward to the results. Thank you. Wela’lioq.
[English]
The Chair: Thank you, Ms. White. We’ll now open the floor to questions from senators. I’ll start with the first question and go to my deputy chair following my question.
This is for Justice Canada, but I invite other witnesses to comment.
The action plan states that Justice Canada will support the ongoing work of the independent special interlocutor and act upon their recommendations, including to align federal laws with the UN declaration. Has Justice Canada contemplated any legislative measures to protect unmarked graves and burial sites, and to combat the violence of denialism related to residential schools and associated sites?
Ms. White: Thank you. We are, of course, following the special interlocutor’s work closely. It carries on. As you are no doubt well aware, her final report will be coming in June of this year. We are not yet at the stage of looking at draft legislation ourselves. We are awaiting the results of her work, but we fully expect that her recommendations will cover many aspects of potential legislation, and we’ll be looking forward to continuing that work forward. Thank you.
The Chair: Thank you.
Senator Arnot: Thank you, witnesses, for coming today, and thank you for the energy and passion you have for the work that you’re undertaking in the implementation of UNDRIP. I can hear it in your voices and in what you’re saying, and you are enthusiastic about it. I want to thank our Library of Parliament researchers for giving me some of the background information. I think it is really important.
I want to focus on measure 19 in the action plan. Measure 19, I think, is really critical. It says:
The Government of Canada will take the following measures in consultation and cooperation with Indigenous peoples:
19. Establish an independent Indigenous rights monitoring, oversight, recourse or remedy mechanism or mechanisms to provide Indigenous peoples with access to and prompt decision through just and fair procedures for dispute and conflict resolution and effective remedies for infringements/violations of their individual and collective rights.
It also outlines a series of functions, including public education and research, many of the things we heard from witnesses when we were listening to concerns over Bill C-29.
That measure, number 19, fills in a lot of gaps, which were identified by the witnesses we have heard in the past. I’d like to know what you’re doing to make this happen in a concrete way. I would like to know the key areas of progress you have made so far in dealing with number 19. I want to know what you have done together to ensure that it is, considering that you’re using a whole-of-government approach. I’m particularly interested because this connects human rights, Indigenous rights and treaty rights like no other idea that I have seen so far from the government.
This should be priority one for your work, because if this were in place, it would answer many of the questions that First Nations have been posing over the course of the three years that I have been in the Senate about the deficits in the relationship. This mechanism could hold the Government of Canada accountable.
I’m wondering if you are thinking of an independent auditor model where an individual heading this organization would report directly to the Parliament of Canada and all Canadians rather than report through the executive branch of government. I say that because I think there is a broken relationship with the Government of Canada consistently failing to live up to the fiduciary duty, failing to live up to the high standard of the honour of the Crown and failing to hold up to the high principles of the treaty relationship and what it entails. I am very interested in this idea and measure 19. I want to know where you are and how you are implementing that — all of your departments — in a whole-of-government mechanism.
Laurie Sargent, Assistant Deputy Minister, Indigenous Rights and Relations Portfolio Department of Justice Canada: Thank you, Senator Arnot. You have gone straight to one of the core and key elements of the action plan that was a priority, particularly for Inuit and Métis partners. It is also one of the more complex measures that we are looking at implementing.
I have to be honest, we are still in relatively early stages on this one. I will give you a couple of thoughts around some of the work that is needed, but then I will turn to Ms. Gideon to also speak to the MMIWG-related work that is also quite relevant to this measure.
We have begun conversations throughout the action plan process, hearing from partners and, as you are well aware, the Inuit have put forward a very specific proposal for an Indigenous rights mechanism that is publicly available on their website. That has informed our thinking to date. We are still in very early days. We continue to need to obtain more understanding, particularly, from First Nations partners and peoples about how they would foresee this working.
I’ll point to the fact that it says a rights “mechanism or mechanisms.” The more we discussed, the more we started to realize that a single national mechanism was going to be a challenge. Distinctions-based and reflecting realities is something we will need to explore. This is one that will still take some work. I look forward to hearing from others who may come before you and share their thoughts. It is an area we need to keep moving forward on.
Ms. Gideon: Thank you. You might recall I came and testified before you not long after my appointment, and it was prior to the final report of the ministerial special representative with respect to missing and murdered Indigenous women and girls and gender diverse peoples. It reports specifically to an ombuds function, although it includes other areas that she heard over the course of her extensive engagement. She has also had the opportunity to provide a briefing at an Indigenous federal-provincial-territorial round table, the second national round table that was held just a few weeks ago.
The next steps for us are to engage with our core partners in terms of where they see this work unfolding. To Ms. Sargent’s point, she is looking at more than just one national mechanism and looking at distinctions-based and regional approaches to that delivery.
At the federal level, we have to ensure that the advice we will be providing to ministers will be coordinated, because the last thing we want to do is create further complexity or make the systems difficult to navigate in terms of how we move that forward. Ms. Sargent is correct that we need to coordinate between the MMIWG work and the work of this particular action plan measure, as well as the Indigenous Justice Strategy and other aspects where people have asked for greater independent monitoring and accountability mechanisms.
Senator Arnot: I think that this should be priority one for all of your agencies because this is at the core of everything. I am disappointed to hear that it is just early days. You’re two years into this. This is one that should have a high priority.
In terms of mechanisms, we heard from other witnesses that mediation is a big feature. Maybe binding arbitration or looking at something other than litigation, which is the go-to response that Canada has looked to in the past, which is costly, ineffective and takes a long time. I’m focusing on this. I would like to know more about your plans and how you will implement it. One year from now, I would like to see some fairly advanced progress on what I consider to be the core and critical issues that could be a solution rather than wait decades. It allows you to be creative and work collaboratively with Indigenous people in Canada to address the issues that they have identified for years.
I’m really putting a lot of emphasis on that, and it might be something that the Senate will look at in greater detail. Anything you can give me in writing about what you are doing or planning on implementing measure 19, your approaches to it and the flexibility that the item gives you. There are not many parameters there. I would like that answer in writing.
The Chair: You will provide that in writing, Ms. Gideon.
Ms. Sargent: It might be more for the Department of Justice. I would like to caution that we won’t have much to provide at this early stage, partly because we need to co‑develop and work with Indigenous partners. We’re still not quite at the point where we would have something policy-wise to actually share. We can, of course, provide what we have by way of some initial steps that have been taken. Thank you.
Senator Arnot: It is always good to set a baseline, no matter what it is. If it is zero, I wouldn’t be surprised, but that’s okay. I am looking to what you will do in the next, say, 24 months.
Senator Tannas: Thank you for being here. I noticed in some of the materials that you referenced the First Nations Financial Management Board, or FMB, and things they have been able to help with. I’m a huge admirer of the work they have done, the practical and measurable value that they provide to the governance system for Indigenous governments across the country and the thoughtful way in which they approach things. I’m also in awe of the fact that they have enough credibility in all corners of Ottawa, including in this institution, that they can pick up the phone and say, “We need a change to the law. Do you mind if we come and talk to you about it, and, oh, by the way, we would like to get it by next month,” and actually get it done. These are get-it-done people in that institution. To me, if we could have the 10 most important subjects to create success for Indigenous communities across the country turned into institutions that were half as effective as the First Nations Financial Management Board, we would be rocking.
In all of this, I don’t see a lot — and maybe I’m not — this is a lot of information for a guy with my attention span to try to wade through. What do you see — you don’t have to point me anywhere — but tell me where you see the role of Indigenous-led, as the First Nations Financial Management Board is, institutions there to help get us to the next level? Is there a table where that is being worked on? Are there task forces trying to visualize what institutions will be needed to support First Nations governments, people, society, et cetera, and provide those resources that the 650 different governments are going to need in order to take the next steps? Where is that in here? Can you give me some glimpses of where you see that?
Ms. Gideon: Maybe I can start and then turn it over to Ms. White to talk about the new fiscal relationship table with the Assembly of First Nations. I’m happy that you are so impressed. I do meet with them on a regular basis.
Just to give you a couple of data bits, and then I will more directly answer your question. The data shows that 56% of First Nations have opted into alternatives to the Indian Act as a result of the First Nations fiscal institutions’ work, 48% have fiscal bylaws or laws and 17% have land codes.
In terms of how the work fits in, part of our obligations in the federal government is to look at every piece of legislation or statute that we have and ensure we are working in a co‑development fashion with either First Nations, Inuit, Métis representatives, or whoever is implicated by that legislation and statute, to ensure we are aligning with the United Nations Declaration on the Rights of Indigenous Peoples Act. We were able to do this recently by amending the First Nations Fiscal Management Act, or FMA. We did the co‑development with First Nations, all the First Nations fiscal institutions, in addition to doing broader engagement, and we were able to expand and modernize the mandates of the First Nations Tax Commission and the FMB. Also, we were able to update their board governance positions. We were able to introduce and establish a new institute, which is the First Nations Infrastructure Institute. We expanded their lawmaking powers to ensure that First Nations are able to make laws that respect the provision of services, as well as regulatory to prohibit and impose requirements with respect to services on reserve lands. We’ve also provided some additional enforcement powers for First Nations relating to local revenue and service laws as well as new data collection powers that enable these institutions to monitor growth and enhance capacity to support evidence-based planning.
These are examples of things this legislation was able to do. It is seen to be a really successful process, and I heard this directly from the institutions. I am sure you will invite them to testify before you in this process.
This is a concrete manifestation of how we are responding to legislative developments or legislative amendments in order to be in a better position to reflect our commitments under the UNDRIP Action Plan measures.
Ms. White has information with respect to new fiscal relationships and the co‑development with First Nations there.
Ms. White: Yes. Thank you for the question. In the Action Plan — and I’m trying to find the number; I don’t have it in front of me — you will see a reference to our work on the new fiscal relationship with First Nations, and the First Nations Financial Management Board is an important partner at that table. This work began in 2017. There was a joint advisory on the fiscal relationship that was established. They provided a report to the minister in 2019. And then we’ve had an ongoing co‑development table with the Assembly of First Nations, the First Nations Financial Management Board as well as the Aboriginal Financial Officers Association of Canada, or AFAO Canada, and there are a number of initiatives under way at that table. The most advanced one has been the establishment of the New Fiscal Relationship Grant, which we now have 144 First Nations participating in the grant, which allows them to draw down program funding over a 10-year period based on certification or qualification standards provided by the FMB.
Instead of the government determining who is eligible for the grant, we rely on the FMB. They certify First Nations’ financial systems. They provide support in the development of First Nations’ financial administration laws, which in turn provide access to the grant. They also provide not only to the First Nations who are in the grant itself, but a lot of work around capacity building and readiness to take on a greater role in financial management, and really shifting the accountability bargain that recognizes the primary accountability of First Nations is to their citizens. So work is under way in that regard.
Among the proposals that have been at that table include the establishment of a First Nations Auditor General and so on. That work is continuing, and they are also providing advice.
I mentioned the consistency of laws and partners’ priorities for a review of certain laws, and they have provided advice as well in relation to some of the economic barriers imposed by the Indian Act and other pieces of legislation.
I draw your attention to Action Plan measure 74, which seeks to advance economic reconciliation and address persistent economic barriers faced by communities. That work is getting under way in terms of the establishment of an Economic Reconciliation Framework, but it is founded upon important work that has been done over the last several years by both the National Indigenous Economic Development Board, their report on economic reconciliation, as well as the First Nations Financial Management Board’s RoadMap Project.
That’s helped shape that investment, including discussions on areas such as Indigenous-led investment, a financial asset management regime and addressing other barriers for Indigenous businesses and communities including the impacts of colonization. Thank you.
Senator Tannas: Thank you. I’m already on board with the First Nations Financial Management Board, and I know that a lot of the initiatives spoken about here have been bottom-up initiatives. They have proposed them, right, and you have said, “Yes, let’s get behind this” to them.
What other institutions do you see — in health, in education, in other areas of community development — where there is — is there another institution or a bunch of institutions coming, or is this — is the First Nations Financial Management Board a one‑off kind of thing and there are not other kinds of institutions in other areas being contemplated? It will have to be a quick answer. I’m surprised the chair hasn’t already cut me off.
Ms. Gideon: Ms. White, I think this is more Indigenous Services Canada. I’ll turn it over to you.
Ms. White: The very short answer is yes, there are institutions in all sectors.
For example, data sovereignty, we’re working closely with the First Nations Information Governance Centre as well as working toward the establishment of Inuit and Métis statistical capacity to support self-determination in the area of data.
Then in each program area of the department, we have partners, for example, the B.C.’s First Nations Health Authority, which has already taken over the delivery of health services for First Nations in the province of British Columbia. There are education authorities across the country. Recently, with partners we’ve established the Atlantic First Nations Water Authority, which manages water infrastructure for 17 or 19 First Nations in Atlantic Canada. These institutions are emerging, as you said, from the ground up, and we work with them to advance the mandate of Indigenous Services Canada, which is to eventually transfer out of these areas and transfer that jurisdiction and control to First Nations entities as they choose to organize.
The Chair: Thank you for that.
Senator White: First, thank you to all the presenters. I certainly appreciate your time and comments. I have to say that I have to acknowledge some of the great work that you’ve been doing. I know, as public servants, you probably don’t hear that much. I was excited to hear about the Indigenous screening program. I hope you have a lot of money in that program.
My question is for Ms. Danielle White as it relates to the Indian Act. I know that over the years we’ve tried to dismantle the Indian Act in various ways, and some people have done it through land codes and opting in and opting out. What’s happening within government in terms of how you are envisioning tackling this? I know it’s complicated, but there must be some thoughts now on how you’re going to do it. Are you going to do it regionally? Are you going to bring people together? I’m very curious.
Ms. White: Thank you for the question. As you can imagine, there is no consensus yet on the way forward when it comes to the Indian Act. It is a challenging file. However, there is specific work under way in consultation and cooperation with partners. I mentioned Bill C-38, which is around registration. Specifically, it included a collaborative process, designed, implemented and aligned with the obligations under the act. There was a robust engagement process that included recommendations from First Nations and Indigenous partners on areas to reform the Indian Act. Really, it starts with membership and registration. I think that is one of the things most fundamental to First Nations and all Indigenous people, and it’s referenced in the declaration itself with regard to the right to determine who your people are.
Bill C-38 is a first step. It includes proposed amendments that would address inequities in registration specifically around issues of enfranchisement and would provide for voluntary deregistration, because at the moment if you’re registered under the Indian Act there is no way to deregister, should you wish. The specific issue regarding women, who, when they married out, were registered with their husband’s band, and want to reclaim membership in their natal band. It provides for those provisions. That’s the first piece, and it’s in Parliament as we speak.
At the same time, we’ve also launched an advisory process on broader reform that just began last November regarding the second generation cut-off issue. The goal there is to design a more robust consultation process on both the second generation cut-off and also the section 10 threshold. I’m sorry, I’m getting technical there, but section 10 allows First Nations to take control of their own electoral process membership lists, but in order to do that, it requires a double majority. If there’s an influx of new members coming in, who may not have strong connections to the community, First Nations are concerned about being able to reach their population and achieve the required level of voter participation in making those kinds of decisions. That’s just one example. We’re working closely as well with Crown-Indigenous Relations and Northern Affairs Canada, or CIRNAC, on broader engagement options around potential alternatives to registration and membership as the first step, recognizing that there are other provisions. We know we will hear about it through engagement and consultation on the economic reconciliation framework. A lot of the barriers to economic development on the reserve are inherent in the act.
The other approach we’ve taken over the last number of years — going back a decade or more through largely First Nations-led initiatives — is legislation that allows First Nations to opt out of a set of provisions of the Indian Act, whether it’s the First Nations Land Management Act to opt out of the land management provisions, the Elections Act, or the matrimonial real property. So providing off-ramps without recognizing there’s no consensus on full-scale reform of the Indian Act, moving forward on some specific pieces as identified by First Nations as their priorities.
Senator White: To clarify: The advisory committee you’re talking about. Is it comprised of people within government or a multitude of people outside of government, such as elders?
Ms. White: It’s an advisory process, not a committee per se. My colleague Stuart Hooft is in the gallery, and perhaps he could provide more specific information on that point. He’s with the registration team.
Stuart Hooft, Director of Registration Reform, Indigenous Services Canada: Thank you very much for the question. My name is Stuart Hooft, Director of Registration Reform, Indigenous Services Canada. In response to your question, the Indigenous advisory process is part of our co‑development approach to addressing the issue of the second generation cut‑off, which has to do with how the registration provisions work today. After two generations of out-parenting, a person ceases to have status to be able to transmit status and thus become a band member and all that entails. We’ve put together an advisory process to guide how we want to consult on addressing the issue of the second generation cut-off. As Danielle mentioned, the section 10 voting thresholds.
There are two streams to the advisory process. There’s a national one. This includes the Assembly of First Nations, or AFN, some of its regional organizations, Native Women’s Association of Canada, Congress of Aboriginal Peoples and a number of others.
Our second stream includes youth and women’s organizations, some of whom have appeared as witnesses before such as the Feminist Alliance for International Action, which although not an Indigenous organization, is a women’s organization that is very active in this space. There’s also participation from youth, so the AFN Youth Council and other youth councils, including the National Association of Friendship Centres.
We extended invitations to 22 organizations; ultimately 17 accepted, and we continue to work with them and have put together our consultation plan, in essence.
Senator White: Thank you.
The Chair: Several reports have already been presented; one from our committee, to talk about eliminating the second generation cut-off. How many more years do you think our Indigenous women will have to wait to have this remedied?
Mr. Hooft: Thank you very much for the question. I know that this has been an issue of interest for this committee for some time. Certainly, this is important work, and that’s why it is action implementation measure 8 in the United Nations Declaration on the Rights of Indigenous Peoples Act Action Plan. We have put a great deal of importance on this. This is why we’re working on Bill C-38, but also continuing on the co‑development and consultation in parallel to that work — not doing it sequentially — so that multiple things can happen at once. But it’s a difficult problem. It’s not one necessarily where the government knows best. That’s why we’re relying on input from our Indigenous advisory participants, but also to build awareness about this challenge among First Nations and how it impacts different communities differently.
In fact, over the last week we distributed an information kit to each First Nation across Canada digitally to begin with, but print eventually. It gives a breakdown of the population impacted by the second-generation cut-off in common terms, what that breakdown is on a community-by-community level so that leadership and individuals can start to see how this is an issue and that it’s only going to continue to grow in importance as time goes on. As much as I would love to be able to give a timeline about when the issue will finally be resolved, all I can say definitively is that this is very important to individuals. We heard that through consultation in 2019. We’re trying to do things in a better way, and that includes resourcing appropriately if we’re going to expand eligibility for registration.
The Chair: I would conclude by saying that as an Indigenous person and a former chief: How difficult is it to end discrimination? Because, in my opinion, this is discrimination. I’ll leave it at that.
Senator Martin: Thank you to all the witnesses this evening. As my colleagues have said, I know you’ve shared with us an interesting summary of what you are doing and what your priorities are going forward with the action plan.
My first question is to Justice Canada. The national chief of the Assembly of First Nations recently called on Canada to return to negotiations regarding the establishment of First Nations policing as an essential service.
One of the most important things for any community is that sense of safety for the community. During our review of the Cannabis Act, we heard from every chief, every witness from various nations and communities that policing is a very important need. To what extent, if at all, has progress been made on drafting legislation related to the establishment of First Nations policing as an essential service?
I was listening carefully to your presentation, Mr. Fortin, about the justice policies in key areas of progress. I’m quite interested in this area because that is something that’s been brought to our attention through other studies as well.
Mr. Fortin: Thank you for your question, senator. I think this part of policing is under the responsibility of Public Safety Canada.
Senator Martin: But the legislative framework would be under —
Mr. Fortin: Yes, but it’s also under the responsibility of the Public Safety Canada.
Senator Martin: All of it?
Mr. Fortin: Yes. All policing is under the Minister of Public Safety Canada’s department.
Senator Martin: Have you had any conversation with —
Mr. Fortin: Yes, there have been some conversations. I’m don’t have the details of it. I know it’s under consideration and there have been discussions, but I don’t know what stage they’re at. Public Safety Canada would be in a position to answer that.
Senator Martin: If you had conversations about this, it’s something you can answer but at this time you’re not able to comment on this?
Mr. Fortin: Exactly.
Senator Martin: It is essential, so I’m a bit disappointed to hear that. However, I understand your point of view.
My next question is for Canadian Heritage. You talked about the long-term funding regarding revitalization and maintenance of Indigenous languages. I know the challenges of doing that from other conversations I’ve had regarding preserving language.
My first question is this: Are you aware of how many actual programs or initiatives are happening in Canada with First Nations with regard to the revitalization and maintenance of the languages? Could you talk more specifically about some of these initiatives and programs?
Mr. Slowey: Thank you for the questions, senator. It’s core to the work we’re doing around the implementation of the act.
The act itself has unique provisions in terms of other federal legislation. It has provisions around the funding being adequate, sustainable and long term for Indigenous peoples. We’ve been working hard, as I described, to identify the needs. We’ve been referring to them as costing models and trying to understand what the communities’ true needs are for various programming. It could be things like language, mentor apprenticeship programs, immersion for adults, and so on. We’ve also been working to develop new funding models. We’re trying to put the control of that funding into the hands of Indigenous peoples.
Traditionally in our programming, you would apply for funding and then public servants would make determinations on how funds are supposed to be allocated. Starting with the implementation of the act and the early-days Indigenous review committees, we have worked hard to take that decision making out of the hands of public servants. We’re now moving to long-term agreements. This year, for example, we’ve been putting in place flexible five-year agreements. We started that with the Métis and we’ve done it with the Inuit treaty organizations as well.
When it comes to First Nations, it’s a little different in terms of the model. We’ve been trying to fund as many languages and projects as possible. To give you a sense, back in 2019, when we started with the additional funding announced in Budget 2019 — and coinciding with the act receiving Royal Assent — we were funding roughly 300 projects across the country. In 2022-23, it was over 1,000. It’s increasing dramatically. At the same time, demand is increasing. We’re seeing many more people picking up their language, usually as a second language. We’ve been counting the number of people who have been taking language training through some of those mechanisms that I described and the growth is really exponential. It’s wonderful to see.
We use a variety of models and funding structures, but the intent is to take those decisions away from the hands of public servants.
Senator Martin: Do you expect further growth? There’s over 1,000 in 2023?
Mr. Slowey: Yes. That’s part of the challenge in terms of identifying what the true long-term needs are. We’re still working toward identifying the adequate, sustainable long-term funding needs because they are growing. The demand is growing and we’re seeing more requests for funding coming in every year — not only for community-based programming but also for urban, multi-distinction. It’s quite a growth that’s occurring.
Senator Martin: Yes. Thank you for that clarification.
My last question is very specific because Senator White asked the question I had regarding the Indian Act. We’re currently looking at Bill C-62, medical assistance in dying, or MAID, and the extension of three years for eligibility of MAID for people suffering from mental illness as the sole underlying condition. There’s a concern about mental health and the programs and support for First Nations, Inuit and Métis. We haven’t seen adequate engagement on that. I was curious about the status of some of the programs that you are working on or are aware of, to give us some reassurance that this is being done.
Ms. White: That’s a good question. In terms of investments to improve mental wellness in Indigenous communities, there has been an annual investment of about $650 million in the current fiscal year. We have extended those agreements with communities until June, and we’re expecting a renewal decision in the context of Budget 2024.
The investments to date have been to meet the immediate wellness needs in communities. We’ve supported Indigenous-led suicide prevention, life promotion and crisis response and enhancing the delivery of culturally appropriate substance use and prevention services. We continue to fund a network of community-based, trauma-informed health and wellness services accessible, in particular, to intergenerational survivors of colonial sources of trauma — that is, from residential schools to Sixties Scoop to missing and murdered Indigenous women and girls. We have contribution agreements with over 148 partners to establish and maintain those supports in communities, as well as mental wellness teams and opioid support. There has been significant investment and significant partnerships. We are working to ensure that those services are maintained.
The Chair: With regard to your first question on policing, I’m told that we can get an answer from Public Safety on that.
Senator Hartling: Good evening, everybody. Thank you for being with us. I’m thinking back to 2020 or 2021 when we were looking at the bill. I remember that it was a hot June. It was during COVID, and many of us were working from home. I remember thinking how will this all come together because a lot of people had questions about how will each part roll out. I’m pleased to be part of this so I can learn how it’s happening. You’ve laid out good parts of it.
I’m always interested in both mental and physical health. In our Human Rights Committee, we just studied — and Senator Boyer presented the bill — coerced and forced sterilization. In fact, tomorrow morning she’s going before the Legal Committee with the bill.
In one of your priorities, I think it’s measure 13, you talked about the steps taken to protect Indigenous women and girls and 2SLGBTQ+ individuals from coerced sterilization. Is there legislation coming and how will that work with UNDRIP?
A lot of things intersect. I’m wondering how that might intersect with a bill like Senator Boyer’s, or other kinds of things. I don’t know who could answer that.
Ms. Gideon: I would love to answer that question.
Senator Hartling: It’s nice to see you again.
Ms. White: I thought you were going to jump in. Yes, you do see action plan measure number 6, which includes a specific reference to Joyce’s Principle. I know you’re all familiar with Joyce Echaquan and the very severe consequences of anti‑Indigenous racism in the health system. Our commitment is that Joyce’s Principle will guide work on distinction-based Indigenous health legislation. Over the past two years, we’ve been working with Indigenous leadership to support extensive engagement and co‑development on this Indigenous health legislation, and we’ve had significant engagement activities. We’re now exploring options for the way forward. In January 2023, we published a What We Heard report as well as a key elements document in the fall of 2024. There’s been significant feedback, not all of it positive, so that work is continuing in terms of how we move forward.
We’ve also been working closely with provincial and territorial governments in terms of ensuring that the proposed legislative and policy options are comprehensive and are reflective of their jurisdiction and service delivery contexts.
At the same time, there have been significant investments and initiatives related to anti-Indigenous racism in health care. There was $126.7 million provided over three years in Budget 2021, and over the last three years, 218 discrete projects have been funded in that area on a range of issues, including not limited to forced and coerced sterilization.
An important area that I’d like to highlight, which is almost the other end of the spectrum, is the investments in midwifery projects. There have been over 95 community-based projects funded around rematriating birth and bringing birthing back to communities, which has also had a significant impact, for example, in keeping children out of the child welfare system.
Another example of work that’s been achieved with that funding is support to the Federation of Sovereign Indian Nations in Saskatchewan to create the first-ever Indigenous health ombudsperson office, which improves supports and accountability by providing a point of contact to report concerns related to access to health care and incidents of discrimination. These kinds of initiatives will help not only Indigenous women, but all Indigenous people who are interacting in the health care system.
Senator Hartling: Are you aware of the bill she’s proposing? I know you are. Is that something that will fit into the plan somehow? How would that fit? Or how do you think it might fit?
Ms. White: Is this Senator Boyer’s bill?
Senator Hartling: Yes.
Ms. White: I’m not familiar with the specifics. If it is a bill that’s moving through, the government will adopt a position on the bill. Ms. Gideon, I’m not sure if you’re familiar with it as well. I don’t know where it is in the parliamentary process, but there will be a process for taking that into consideration.
Ms. Gideon: I can’t speak to the parliamentary process around the bill, but I think both Indigenous Services Canada and Crown-Indigenous Relations and Northern Affairs Canada has been gathering Indigenous women’s voices through the Indigenous Women’s Wellbeing Advisory Committee, and they have been very strong advocates in support of the work on forced and coerced sterilization, which is the funding that Ms. White was referencing. It also includes some funding to support the healing of victims of forced and coerced sterilization. Although we would remain neutral with respect to the government’s position on this, I think that we are very much in a place where we want to continue to ensure that Indigenous women’s voices are supported and that there are healing supports for victims as well as preventative measures, some of which Ms. White mentioned.
There is also the child and family services investments, which have been extremely significant, and the transition whereby prevention funding is now greater than funding for apprehensions. You’ll remember that in Senator Boyer’s report with Dr. Bartlett, there was a direct link established between victims of forced and coerced sterilization and child and family services. For CIRNAC, the department I’m in now, is very much in support of the recognition of First Nations, Inuit and Métis jurisdiction over child and family services.
Ms. Sargent: Justice Canada is also very much following that bill and other efforts in relation to criminalization and that aspect. What I wanted to do is take a step back and note that the action plan is a set of measures that, of course, we work together with Indigenous peoples to develop, but we don’t want it to be seen as the limit or the sum total of how the declaration and other international instruments can be implemented in Canada. There are, of course, a number of different ways. We do see the human rights framework outlined through the declaration as hopefully informing the work that Canada is doing. I would like to think that the themes that were developed through the action plan can help overarching consideration of any number of different initiatives. I just wanted to make that observation.
The Chair: I’ll remind our witnesses and senators that time is moving on, if you can keep your questions and answers as concise as possible. You can also provide written submissions in addition to the testimony that you provide tonight.
Senator Greenwood: Thank you all for being here this evening. It’s great to have this conversation.
I want to follow up quickly on my first question. It is a follow-up to what Senator Tannas was talking about in the First Nations Financial Management Board. Will or do First Nations communities still have the ability to access funding directly from ISC or the equitable funding opportunities? I ask this question because not everybody is involved with the First Nations Financial Management Board. There are other communities, and I’ve had this conversation with them when they visited here before and I have asked about small communities that don’t have a lot of resources.
How do we make sure that they’re experiencing equity if they can’t meet the threshold? Do they still have the opportunity to go directly to the government? Is that correct? How does that work?
Ms. White: Yes, all First Nations receive direct funding from the department in one form or another. There is what we call “core governance funding,” so band support funding and core funding for the governance activities of First Nations governments that are distributed via a formula, and it’s allocated to all communities.
What I was speaking of, specifically, was the 10-year grant and how to enter into the grant as a way of accessing programs and services funding with a reduced reporting burden, fewer strings attached and greater flexibility to reallocate among programs with a built-in escalator over a 10-year period. That’s where the First Nations Financial Management Board helps communities build the capacity and develop the financial administration laws and systems they need to access that, but the same program funding continues to be available to all communities. What the grant provides is the ability to lock it into a 10-year agreement with a set escalator so communities can plan year over year in terms of their allocation.
Right now, 144 communities of the non-self-governing communities, with new communities coming online next year, will be close to a third of First Nations operating under the 10‑year grant in only three or four years since it’s been in place. Progress is being made. It’s a perpetual challenge in terms of smaller communities with less capacity being able to access those services.
One of the proposals that has come up at our co‑development table with FMB and AFN is to extend that grant eligibility to organizations like tribal councils, health authorities and educational authorities, who already deliver funding for many First Nations on an aggregate level, which also helps with the capacity concern. That’s an option we’re looking at in terms of the next phase of that new fiscal relationship work and what the grant may look like going forward.
Senator Greenwood: It’s a capacity issue because smaller communities will not have the same capacity as others. Okay.
Ms. White: Yes.
Senator Greenwood: I have a few more questions, so I will hurry along here. This is for you, Mr. Slowey. There have been calls for Indigenous languages to be made official languages. I’ve spoken about this in the chamber myself. For example, in the Calls for Justice in the Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls, there is a call for this.
Has there been or will there be any movement on this Call for Justice?
Mr. Slowey: Thank you for the question, senator. It is tied into the Action Plan measure 91. We had a number of suggestions, proposed Action Plan Measures, that touched upon the legislation, the Indigenous Languages Act and suggested a variety of ways to strengthen the Act. So official languages have come up in several discussions as well as putting in some obligations around access to services and things like. It would be tied into the Action Plan measure number 91.
There are two triggers in the Act for reviewers. The first one is the parliamentary review that starts three years — it’s supposed to be every three years, and then there is an independent review every five years. The clock starts on both of those as of October 2020 when all the provisions of the Act took force.
We have tied the commitment in the Action Plan measure to the independent review, because the independent review itself — not only is it independent, but any conclusions or recommendations that come out of that independent review must be consulted and engaged upon. So it gives us a mechanism then to go out across the country and engage.
That independent review has to start no later than October 2025. We’ve started the work toward that, and we’ve started discussing this with our partners.
Senator Greenwood: One comment, not a question. I think that recognition of Indigenous languages as official languages, the recognition of first languages of this land, is critical to reconciliation, and the second — and then we look at implementation.
But simply having the recognition is a statement of those languages as first languages, and some provinces and territories have done this.
Thank you, chair.
Senator McNair: Thank you to the representatives here tonight and from Cape Breton.
Quick question — or I think it will be a quick question — according to the UNDRIP Act Action Plan and Department of Justice Canada’s own 2023-24 Departmental Plan, one of the priorities is to develop an Indigenous Justice Strategy to address systemic discrimination and overrepresentation of Indigenous peoples in the criminal justice system.
Among other matters, the department is expected to lead the pan-Canadian strategy to address overrepresentation by identifying concrete actions to undertake.
Can you identify what actions have been undertaken or are to be undertaken in 2023-24 to reduce the numbers of Indigenous peoples in the criminal justice system? That question is obviously for Justice Canada.
[Translation]
Mr. Fortin: Thank you for your question, senator. A great deal of work has been done on the Indigenous Justice Strategy. It hasn’t yet been implemented, since consultations with partners are still in progress. An initial phase of consultations resulted in a first What We Heard Report. However, one of the main goals of the Indigenous Justice Strategy is to address systemic discrimination and the under-representation of Indigenous peoples in the justice system.
In addition, to round out the Indigenous justice-led engagement, two waves of engagement were launched. The first wave has ended, the What We Heard Report has been prepared and the results of this first wave led to a second consultation last fall with more specific groups in different areas. The outcome of this second wave of discussions will culminate in a second report. This second report will lead to a consultation with a view to proposing an Indigenous Justice Strategy. We aren’t there yet. However, we should be able to carry out this consultation with a view to implementing Indigenous justice in the coming months.
The work is still in progress. However, a great deal has been accomplished. The release date and content of the strategy have yet to be determined. Clearly, in light of the comments made by the people consulted, the goal is to cover the whole continuum of the justice system, from prevention to reintegration. This includes crime prevention; restorative and Indigenous approaches to justice; revitalization of the justice system and Indigenous legal traditions; self-determination in the administration of justice; and reforms to the Criminal Code. We’ve reached this point with our Indigenous Justice Strategy. At the end of this consultation and process, we can begin to address the overrepresentation issues in the communities.
[English]
Senator McNair: Thank you for that. Mr. Fortin, you mention consultation with your partners. Who falls within that category of partners, or definition?
[Translation]
Mr. Fortin: When it comes to stakeholders, I could provide the details of all the parties consulted. However, we define a partner as anyone with whom we interact in order to consult all the parties involved. Would you like to add anything regarding the consultation aspect, Valerie?
[English]
Ms. Sargent: On the Indigenous Justice Strategy in particular, we have provided funding to a range of rights-holding organizations, to national Indigenous organizations and have worked with more community-based organizations.
We have a lot of Justice programs already out in the field, supporting communities, looking at restorative justice or other measures.
We’re trying to leverage a number of different connections. We have the Indigenous Bar Association as well, so a mix of expertise on the ground and rights-holding organizations.
I will take a minute to say that provinces and territories, of course, play a very important role in relation to Indigenous justice, and we have been working through existing federal-provincial-territorial mechanisms, and Indigenous representatives have also participated in those conversations a couple of times over the last few years.
There are a range of different ways in which we are working with Indigenous rights holders, organizations and then bringing in provinces and territories.
The Chair: I have two questions for all witnesses. Could you share what criticism you and your departments received from Indigenous people following the release of the Action Plan? That is the first question.
Second, some Indigenous groups said they were not consulted during the development of the initial Action Plan. What have you done to ensure these groups participate and inform future work? Whoever would like to start.
Ms. Sargent: Thank you for the question.
The first part about the criticism of the Action Plan since it was released. Inevitably, we heard that certain priorities were not reflected. We received thousands of submissions from partners seeking to have their priorities reflected in the Action Plan.
Based on our analysis of what we received, we think about 80%, we can fairly say, is reflected in this Action Plan, but inevitably there were some priorities that were not. Some of those priorities would have reflected matters that were really in provincial jurisdiction, and this Action Plan is a federal action plan. So we weren’t able to capture absolutely everything.
I will say that, overall, I think the response was generally quite positive and was a reflection of the extensive work that Keith Smith, who has joined us here, and his team did. I will turn it to Mr. Smith to speak to the question of those who may not have felt as included as they might have been.
Keith Smith, Director General, United Nations Declaration Act Implementation Secretariat, Department of Justice Canada: My name is Keith Smith. I am the Director General of the UN Declaration Act Implementation Secretariat. I am a member of the Thessalon First Nation, near Sault Ste. Marie, Robinson-Huron Treaty. I have been working on the implementation of the UN Declaration Act for about three years. It has been a busy few years, but I do have incredible staff that helped support this work.
It was back in December 2021 when we launched a broad, two-phased inclusive and distinctions-based consultation and cooperation process with Indigenous Peoples to advance the implementation of the UN Declaration Act as well as to develop the action plan.
I mentioned broad and inclusive, and that focused on First Nations, Inuit, Métis, rights holders, Modern Treaty partners, self-governing nations, historic treaty partners — at the national and regional level, to be clear.
It also included engagement with Indigenous women, elders, youth and urban and off-reserve groups.
Phase one, which took place between December 2021 and 2022 focused on consultation and cooperation, with Indigenous partners through their governments and their representative organizations, to better understand their priorities for the action plan and to help shape a draft action plan. To support Indigenous participation, I think about $26 million was made available to over 150 Indigenous partners across the country.
Consultation and cooperation took place in several different ways. There was a lot of bilateral engagement, there were multilateral meetings between Justice and Indigenous partners, and then we had some regional consultation sessions as well. I think we had about 284 consultation and cooperation sessions with about 123 Indigenous partners.
Also during that time, Indigenous partners provided some incredibly rich written submissions. We got about 60 in total. In that first phase, in those 60 submissions, they identified about 1,300 proposed action plan measures; however, many of them addressed similar topics. We did finish that phase one with a “what we learned today report,” and a draft action plan, which was an important part of that process.
That initial draft action plan included 101 measures, so that launched phase two, and an intensive amount of consultation and cooperation with Indigenous partners at the national, regional and local levels and very short time frames. What we wanted to do was validate the proposed measures in the action plan, try to improve those measures through consultation and cooperation with Indigenous partners and, very importantly, try to identify gaps in that draft action plan.
That validation process occurred through over 100 additional bilateral meetings, thematic sessions, et cetera. We also received an additional 60 written submissions and 84 new measures were added to the action plan. In addition 77 action plan measures were revised based on that engagement.
It was broad and inclusive. It was a short time frame, but I am confident that we reached a lot of Indigenous rights holders and the institutions they choose to represent them. It was not perfect, but I think it was a good starting point for the important work, which is the implementation of the action plan. So we are laser focused on ensuring that inclusive approach to the next steps when it comes to the implementation of the action plan.
Ms. Gideon: I think for us — and Ms. Heather McLean, Assistant Deputy Minister, Implementation Sector, who was a strong advocate for this — having a Modern Treaty partner chapter was extremely important to be able to reflect those particular action plan measures. I think this helped significantly to address criticisms that we would have had.
I would say, broadly, that Indigenous partners’ communities want to see — just our first question with respect to what the accountability and oversight will be, and how will you measure progress?
We also have the Calls to Action, the Calls for Justice and the action plan measures. Some of these things absolutely align, but the concern that partners would understandably have, is how the federal government is going to figure all this out. Even just on the ones that CIRNAC leads or is a strong supporter of, there are a number of them that require funding, policy authorities and partner mandates. So that will also take time to secure.
That’s not an excuse, but it’s the fact that the more you have these co‑developed mechanisms, the federal public service or even ministers cannot drive all of that change. I think that is something that I would fully expect you will hear from a number of witnesses that you will have before you doing this study.
Senator Arnot: Thank you, witnesses. I’m really interested in understanding what the key areas of progress are on the Collaborative Modern Treaty Implementation Policy, and I’m also interested in the same key areas of progress on the Collaborative Self-Government Fiscal Policy. I don’t expect an answer today, but if you could put that in writing, that would be helpful. I believe it creates a baseline the committee can use.
Ms. Gideon: Let’s give Ms. McLean a chance to be a witness. She is responsible for the secretariat in CIRNAC, and is also head of the implementation sector which works with Modern Treaty partners.
Senator Arnot: I will make it even harder, Heather, so hold on.
Senator Francis asked a question about membership. We have Bill C-53 coming before us, and it seems that in that bill it contemplates that in a Modern Treaty and a self-government agreement with the Métis people, the Métis nation will be able to find its own members, whereas existing First Nations can’t. It seems to be a clear human rights violation. Again, it touches human rights, Indigenous rights and treaty rights, specifically with respect to First Nations. So the 6(1)-6(2) issue moves toward diminishing or extinguishing Indigenous people from the roles, I guess, in the Crown-Indigenous Relations office.
Isn’t it better to try to, perhaps through a modern treaty implementation or a modern self-government agreement, address these issues in the same way that they are being addressed with the Métis, rather than having future litigation on this? I will let Ms. McLean answer those questions. But I do want this in writing in any event because I know you won’t be able to capture everything.
Heather McLean, Assistant Deputy Minister, Implementation Sector, Crown-Indigenous Relations and Northern Affairs Canada: I’m the Assistant Deputy Minister of the Implementation Sector in Crown-Indigenous Relations, so I work closely with Modern Treaty self-governing partners. Thank you for the questions; I’ll do my best to answer the first couple of them.
In terms of the Modern Treaty Implementation Policy, it was co‑developed with modern treaty partners, and it is essentially what you see in the Modern Treaty chapter of the action plan.
It was about a year of very intense work, and I think we’re starting to see the results. It is about ensuring the whole-of-government approach to meaningful modern treaty implementation. There is a section in there for future work that is more specific and speaks to particular areas of priority that partners want to do further work on, which we have been doing, such as discussing potential alternative models for dispute resolution, updating the cabinet directive, which is an internal-facing process, to ensure that whole-of-government implementation. Those discussions have been going very well. It puts the onus on deputy heads to ensure their departments understand their obligations and are filtered through the departments in terms of that policy.
We’ve seen a significant demand for training from departments to ensure they are understanding their Modern Treaty obligations and implementing them and looking for guidance, so we’re developing training programs and offering them to departments.
We have worked closely with partners to co‑develop a proposal for an independent oversight commission in terms of modern treaty implementation. That proposal has been co‑developed and is with the federal system at this point in time.
Those are some of the key things we’ve done.
The collaborative fiscal process is an incredible process, from my perspective. It includes most modern treaty partners. Through that process, a number of years ago, long before my time in this role, there was co‑development methodology around governance needs.
Following that, we were successful in obtaining infrastructure funding as well for what we call phase 1 infrastructure, helping to ensure that funding is there so that modern treaty partners are able to ensure that their assets are comparable to communities of similar size. That work is continuing in what we call infrastructure phase 2.
Charles’s team is working on languages and we are also working on lands and resources to address the gap. Modern treaties and self-government agreements need to evolve, and we want to make sure that gap is closed.
Being able to do this with that many partners has been, I think, an impressive endeavour. The work will continue. There are future thematic areas that will need to be tackled once we’re able to move forward on the three I mentioned.
Senator Arnot: You’re painting a picture that the whole-of-government approach is working quite well so far, from your perspective, and you are hopeful that it will resolve some of the issues that have plagued the relationship between Indigenous people and the Crown for a long time.
Ms. McLean: Absolutely, and there is more to be done. We are looking at the tools we’ve put in place and trying to put the other tools in place, because a policy is only as good as its implementation. We know that more will need to be done, but we are seeing the impact of the policy and the collaborative fiscal work as well.
Senator Arnot: Do you see these mechanisms as a way to address the membership issue that is at the heart of many of the things we’ve heard in the last three years in this committee?
Ms. McLean: I don’t know that I’m the best placed to answer that question.
Ms. Gideon: Under the First Nation chapter, there is an action plan measure, number 9, which is to consult First Nations and other impacted groups to support the co‑development of opt-in alternatives to Indian Act registration and membership among First Nations.
That will require us, for sure, to seek some specific policy authorities to be able to advance that work, but it is something that we have committed to doing under the United Nations declaration action plan. Of course, the Métis Nation treaties and negotiations that you’re talking about will be a mechanism to support action plan measures in the Métis chapter, but we do have this commitment in the First Nations chapter.
Senator Arnot: What you’re saying is that you’re hopeful that some of these long-standing issues could be resolved fairly with both the First Nations and the Métis people?
Ms. Gideon: That would be the whole objective of why it would be in the UNDA.
Senator Arnot: Thank you.
Senator Tannas: I have a couple of quick questions, first of all, for the folks from Justice.
Measure 78 of the Action Plan priorities is around advancing discussions on the participation of Indigenous peoples in the gaming industry and its regulation across Canada. I have some interest and some knowledge of this — a private member’s bill that would place jurisdiction of Indigenous governments for gaming with them.
Could you give us a flavour of how the discussions are going, if they are going, whom you’ve met with out of the 30 communities that are involved in Indigenous gaming?
Ms. Sargent: Senator, I will say this is a long-standing discussion that has come in waves. Former minister Lametti met with many nations — the Federation of Sovereign Indian Nations, or FSIN, among others, Mohawk nations, et cetera. There have been meetings, and officials have also had discussions.
Ultimately, at this point, we are not seeing a consensus around the way forward. I recognize that you have, of course, proposed legislation. As with other Senate bills, we will be studying that as well.
It is an area where we’re still seeing a diversity of views in relation to the Criminal Code, which is, of course, the piece we are looking at. I’m not sure that I can provide much more tonight in relation to that work. It is definitely one of the measures that will require some ongoing work.
Senator Tannas: Are there ongoing meetings? Could you provide us with a list of the meetings that you’ve had, and with whom?
Ms. Sargent: Yes, we will go back and provide that.
Senator Tannas: Thank you.
Ms. Gideon, you mentioned the proposed Red Dress Alert system and some discussions that are ongoing there. It seems to me that has to be something where talk can turn to action fairly quickly. Where are you in that process, and when could we see that system up and running?
Ms. Gideon: A number of engagement sessions were undertaken in fall 2023 and beginning of 2024. The leaders of those engagement sessions presented their “what they heard” findings. About two weeks ago, we had the Indigenous federal-provincial-territorial round table on MMIWG and gender-diverse peoples. Generally speaking, it was quite well received. We do need to work on a distinctions basis. That is something that has been noted.
There are different considerations, for example, for more remote communities, where there are potentially some operational challenges to this type of system being fully accessible. But there is some interest across the country. We have had some Indigenous partners come forward to say that they would have an interest in pursuing that.
We are also exploring the interests of provinces and territories to see if there are any that would be interested in participating. Obviously, we would need a link to local services to ensure that there could be a response measure.
We’ve received the “what we heard” findings about two weeks ago and we will be doing further work with partners to identify who would be interested in terms of this rollout.
The Chair: The floor is still open if there are further questions from senators. Not seeing any hands raised, the time for this meeting is complete.
I wish to thank all our witnesses for joining us today. If you wish to make subsequent submissions, please submit them by email to our clerk, Andrea, within seven days.
(The committee adjourned.)