Evaluation of the Management and Implementation of Agreements and Treaties

Overview

The Audit and Evaluation Sector of Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC), led a mixed-methods evaluation of Management and Implementation (M&I) activities (i.e., the 'program') in accordance with CIRNAC's Five-Year Evaluation Plan and in compliance with the Treasury Board Policy on Results and Section 42.1 of the Financial Administration Act. The evaluation covered the period between April 2015 and March 2021. Activities and outcomes specific to provinces and territories, other government departments and agencies, the Modern Treaty Implementation Office (MTIO), and the Deputy Ministers' Oversight Committee were not in scope as they fall beyond the direct influence and control of the Implementation Branch (IB).

Overall findings and conclusions related to relevance, design and delivery, effectiveness, and efficiency of M&I activities are summarized below. Findings were triangulated across multiple lines of evidence, which included a review of program documents, files, grey literature, performance data, interviews with a total of 69 key informants and three case studies focused on best practices and emerging issues. Recommendations to support improvements in CIRNAC's approach to working with Indigenous partners and managing and implementing Treaties and Agreements follow.

Relevance

M&I activities align with the Government of Canada and departmental priority of reconciliation. There is a continuing need to ensure full and honourable, whole-of-government implementation of Treaties and Agreements, which mark the beginning of a new relationship between Indigenous signatories and the Crown and support reconciliation. Successful implementation of Treaties and Agreements also supports the Government's overall objective of improving the relationship with Indigenous Peoples based on rights, respect, cooperation, and partnership.

M&I activities are aligned with the continuing need for implementation coordination and expertise across the federal government, particularly in relation to managing intergovernmental relationships with Indigenous signatories and supporting other government departments to navigate implementation issues and fulfill their obligations. However, framing M&I as a 'program' and funding Indigenous signatories through program authorities may not reflect a true Crown-Inuit and nation-to-nation approach given associated requirements and oversight that constrain Indigenous signatories' autonomy. Modern treaty and self-government arrangements are about an enduring intergovernmental relationship. The context of these relationships has changed greatly since the M&I program was established. Viewing the implementation of these agreements through a program lens does not adequately reflect the whole-of-government responsibilities set out in these Treaties and Agreements. If anything, the need for appropriate, effective, and efficient intergovernmental relationships will only grow with the finalization of new agreements for which implementation coordination responsibilities are likely to land with the IB.

Design and Delivery

Particularly due to recent organizational changes and an evolving understanding of what implementation requires, there is a need for greater clarity around implementation roles and responsibilities within CIRNAC and across the federal government. The extent to which IB personnel can advocate on behalf of Indigenous partners within the federal system and support a coordinated, whole-of-government approach to implementation is limited as a result.

Comprehensive mechanisms to fully and accurately assess IB resource requirements against defined roles and strategies and a fluctuating workload have not yet been established. Indigenous signatories are also insufficiently resourced to implement their obligations and respond to emerging implementation issues and opportunities, although emerging practices such as the Collaborative Fiscal Policy (CFP) development process and related offshoots (i.e., the M5^{Footnote 1} table and education annex) are being utilized to incrementally define and address unmet resource needs.

There are several challenges with the performance measurement system that limit CIRNAC's ability to generate valid and reliable information to support decision-making. While the IB has undertaken recent work to enhance performance measurement, further effort appears to be needed to delineate performance measurement needs and responsibilities for IB-specific versus whole-of-government implementation and to ensure that performance data reflects and assesses the intended intergovernmental relationships. For instance, some performance data were unavailable, incomplete, and/or untested. In addition, the M&I logic model and corresponding performance measurement data reflect some activities and expected outcomes that do not reflect the intergovernmental relationship with Indigenous partners. Meanwhile, the strength and effectiveness of working relationships and Indigenous partners' satisfaction with implementation were frequently identified as useful, but unmeasured, indicators of progress.

Effectiveness

Activities prioritized by the IB over the evaluation period were intended to support engagement of Indigenous partners and respond to their priorities, especially the need to redefine and evolve the fiscal relationship between Indigenous partners and Canada. While Indigenous partners' experiences varied, the evaluation found that M&I activities such as Implementation Committees, the CFP development process, and the COVID-19 Working Group contributed to improvements in relationships by providing opportunities for Indigenous partners and federal government representatives to develop and maintain positive working relationships, engage in two-way conversations, address issues and concerns, collaborate, and build trust. Leading or supporting training sessions, conducting outreach to other government departments, and providing opportunities for other government departments to engage with Indigenous partners also contributed to improvements in federal officials' awareness of Treaties and Agreements and their capacity to fulfill obligations.

M&I activities and the IB indirectly contributed in supporting Indigenous governments and groups to the extent that they supported full, honourable implementation of Treaties and Agreements, responded to Indigenous partners' needs and priorities, and provided Indigenous partners with resources to implement their obligations, self-govern, and address underlying inequities. Work is ongoing to address Indigenous signatories' unmet resource needs.

Indigenous partners with higher levels of satisfaction with M&I activities tend to be those who experienced greater responsiveness to their needs and priorities. However, Indigenous partners overall have not been consistently experiencing a timely, whole-of-government response to implementation issues or other priorities, and stakeholders expressed a clear desire for enhanced accountability. Other factors that have limited Indigenous partners' satisfaction with implementation include resourcing constraints, insufficient coordination across the federal government, implementation delays, narrow or restrictive interpretations of Treaties and Agreements, federal turnover and lost corporate memory, and limitations in the extent of partnership offered by Canada. Further efforts are needed to spread awareness of Treaties and Agreements across government and ensure that officials are fully equipped to understand and respond to department-specific as well as whole-of-government obligations and issues. There is also an opportunity for the IB to develop in-house subject matter expertise related to common implementation issues (e.g., fiscal matters, impact assessments, fisheries) or to establish stronger links to implicated other government departments to develop issue-specific implementation expertise.

Efficiency and Economy

Establishing a new department and sector required a significant investment of time and resources. There are opportunities to strategically analyze IB activities to identify efficiency improvements that can support the IB to better work with other government departments and Indigenous partners to further support a timely, coordinated response to implementation issues as well as fulfilment of Canada's obligations. There may also be opportunities for the IB to develop in-house subject matter expertise or establish stronger links to other government departments, which could enhance efficiency by providing means for the IB and other government departments to better leverage existing knowledge, capacity, and lessons learned through prior experiences.

Finally, given the significant time and resource requirements of emerging practices such as the CFP development process, there is a particular need to assess when and how they can be utilized to best support implementation and address Indigenous partners' resource needs while also respecting the opportunity costs they present. In doing so, there is a need to centre partners' priorities and cost-benefit considerations so that Canada's approach, facilitated by the IB, can allow for meaningful involvement and support the intended nation-to-nation, Crown-Inuit, and government-to-government relationships and self-determination.

Recommendations

Based on evaluation findings and conclusions, it is recommended that CIRNAC:

1. Lead collaborative work to move away from a programmatic approach to the implementation of Agreements and Treaties to an approach that reflects the enduring and evolving nature of intergovernmental relationships.
2. Undertake a comprehensive analysis of implementation roles & responsibilities, resources, processes, and linkages to partners and stakeholders, in order to strengthen the implementation of Modern Treaties and Agreements and to fully reflect the intergovernmental relationship.
3. Collaborate with Self Government and Modern Treaty partners to develop data options that reflect self-determination and facilitate the integration of this data and approach by whole-of-government when designing new programs and other initiatives.
4. Determine that emerging mechanisms (such as CFP) should be used to better enable Self Government and Modern Treaty partners to contribute to Government of Canada decision making processes and to foster the intergovernmental relationship.

1. Management Response

This Management Response and Action Plan has been developed to address recommendations made in the Evaluation of the Management and Implementation of Agreements and Treaties.

The Implementation Sector (IS) welcomes the important findings and recommendations of this report. Many of the recommendations put forward will need to be addressed cohesively by the Implementation Sector even though the report itself is focused almost exclusively on one of the three branches within Implementation Sector (Implementation Branch). The reason for this focus is linked to the Policy on Results and associated programs. The Policy was established in 2016, prior to the creation of the Implementation Sector, when IB existed as a branch within Treaties and Aboriginal Government (TAG). As the volume and complexity of implementation issues have increased over the past several years (e.g., volume of agreements to be implemented, new authorities related to treaty renewal, new programs, policies and legislation that impact modern treaty and self governing groups such as Child and Family Services and United Nations Declaration on the Rights of Indigenous Peoples), there has been a continual need to revisit where the work rests within the sector and thus our recommendations are focused at the sector level as opposed to the branch level. This level of response allows us to set ourselves up internally in the most efficient manner possible, within the confines of existing resources, to meet expectations of our modern treaty and self governing partners. Our hope is that the growth will allow us to be able to better grapple with whole-of-government implementation challenges, while ensuring that individual implementation matters, such as treaty renewals and implementation committees, can continue to be addressed through the direct relationships with implementation coordinators and managers. This is in line with CIRNA's current mandate commitment to support Indigenous-led processes for rebuilding and reconstituting their nations and advancing self-determination, and work in partnership on the implementation of the spirt and intent of treaties, and land claim and self-government agreements with appropriate oversight mechanisms to hold the federal government accountable.

The Evaluation acknowledges limitations to evaluating Management and Implementation activities that fall beyond the scope of the evaluation, and a challenge to distinguish work done by Implementation Branch from those of other parts of the Implementation Sector and Treaties and Aboriginal Government (TAG) Sector. Moving forward, the action plan includes a commitment to continue to build critical feedback loops between IS, TAG and other sectors, and other federal departments. Moreover, this evaluation builds on work underway to address Action Plan associated with the 2020 Evaluation of the Cabinet Directive on the Federal Approach to Modern Treaty Implementation, which was undertaken as per requirements in the Directive. The combined results of these evaluations, and their associated action plans, will help to bolster the work of the Implementation Sector.

Indigenous signatories enter into treaties and self-government agreements with Canada with the expectation that Canada will meaningfully implement its agreement obligations in a manner that respects the Honour of the Crown. This relationship, led by CIRNAC, is perpetual and enduring in nature, and takes into account the evolving nature of new federal policies or legislation impacting Indigenous signatories, the transfer of program authorities, as well as ongoing attainment of Indigenous partners' interests and objectives.

Although the evaluation is clear that other government departments (OGDs) were not considered in the original scope, their role in implementation is critical. Over 30 federal departments have direct implementation obligations outlined in treaties, and all federal departments need to be aware of whole-of-government obligations, such as specific procurement and consultation obligations.

The scope of this evaluation commenced in 2015. Since then, Canada's relationship with Indigenous Peoples has evolved greatly. As the journey of reconciliation continues, more and more unique arrangements honouring nations unique self-determination goals will come into effect and require implementation support. In order to successfully implement current and forthcoming agreements, as well as to implement the recommendations put forward within this evaluation, Implementation Sector will need support across government to ensure that other departments are aware of, and have the capacity to meet their obligations within each agreement. This equally applies within CIRNAC, as the successful implementation of these agreements involves close collaboration with subject matter experts in other sectors.

The action plan has been developed with a view towards ensuring the proposed measures represent appropriate and realistic efforts to address the evaluation. A number of key initiatives that align with the recommendations of this evaluation are already underway.

2. Action Plan

1.1 Background

Overview of Treaties and Agreements

There have been four phases of treaty-making in Canadian history: commercial compacts; Peace and Friendship Treaties; Historical Treaties; and Modern Treaties.^{Footnote 2} Since 1975 when the first Modern Treaty was signed, Treaties and Agreements have been negotiated based on two federal government policies that provide the foundation for how Canada negotiates with rights holders under Section 35 of the Constitution Act, 1982:

• The Comprehensive Land Claims Policy (1986), with origins dating back to 1973, specifies that land claims may be negotiated in areas where claims to Indigenous title have not been addressed by Historical Treaties or through other legal means. Modern Treaties, also known as Comprehensive Land Claims (CLCs), are based on the assertion of continuing Indigenous rights and titles. They are tripartite constitutionally protected agreements that provide clarity and predictability with respect to the ownership and management of land and resource rights and serve as living relationships that advance a broad set of objectives in support of reconciliation with Indigenous Peoples.
• The Inherent Right Policy (1995) recognizes the inherent right of Indigenous Peoples of Canada to govern themselves in relation to matters internal to their communities, integral to their unique cultures, identities, traditions, languages, and institutions, and with respect to their special relationship to their land and resources. Self-Government Agreements (SGA) negotiated under this policy are legally binding arrangements that give practical effect to the inherent right of self-government by setting out the structure and resources for Indigenous governments to govern their internal affairs and assume greater responsibility and control over the decision-making that affects their communities. SGA may be standalone or included as part of a CLC. Sectoral agreements are a related option that establish self-government over specific jurisdictions, such as primary and secondary education.

CLCs, SGA, and Sectoral agreements generate new nation-to-nation, Crown-Inuit, and government-to-government relationships and significant changes to the political and socio-economic landscape. They are also accompanied by new federal funding for implementation costs incurred by Indigenous signatories and federal departments in fulfilling agreed obligations as well as for any statutorily protected settlement benefits (including financial transfers to designated Indigenous governments / groups).^{Footnote 3}

As of March 2018, there were 32 completed Treaties and Agreements involving 53 First Nations, 46 Inuit communities, and three Métis communities corresponding to:

18	CLCs with SGAs	4	Standalone SGAs (no CLC)
7	CLCs without SGAsFootnote 4	3	Sectoral agreements

Figure 1 shows the distribution of completed CLCs and SGA across Canada (including standalone SGA), as well as the effective date of each.^{Footnote 5} Sectoral agreements are not pictured.

Detailed text description of Figure 1 : Map of Modern Treaties and Self-Government Agreements

Figure 1 shows the map of modern treaties and self-government agreements on the map of Canada, along with the date they were made effective.

In Newfoundland, there is the Labrador Inuit Land Claims Agreement effective from 2005.

In Quebec there is the James Bay and Northern Quebec Agreement effective 1977; the Northeastern Quebec agreement effective in 1978; and the Cree Nation Governance Agreement effective 2018.

Overlapping Newfoundland, and some of the Hudson’s Bay is the Nunavik Inuit Land Claims Agreement effective 2008.

On the border of Quebec and Hudson’s Bay, is the Eeyou Marine Region Land Claims Agreement, that was made effective in 2012.

Encompassing Nunavut is the Nunavut Land Claims Agreement, effective 1993.

In Manitoba, there is the Sioux Valley Dakota Nation Self-Government Agreement, made effective in 2014.

In British Columbia, is the Westbank First Nation Self-Government Agreement, effective 2005; the Tsawwassen First Nation Final Agreement, effective 2019; the Sechelt Indian Band Government Act effective 1986; the Tla’amin Nation Final Agreement, which was made effective in 2016; the Nisga’a Final Agreement, effective the year 2000; and lastly, the Maa-nuith First Nations Final Agreement on Vancouver Island, effective 2011.

In the Yukon, there are eleven agreements. The Kluane First Nation Final Agreement, effective 2004; the Champagne and Aishihik First Nations Final Agreement, effective since 1995; the Carcross/Tagish First Nation Final Agreement, effective 2006; the Kwanlin Dun First Nation Final Agreement, effective 2005; the Ta’an Kwach’an Council Final Agreement, effective 2002; the Little Salmon/Carmacks First Nation Final Agreement, effective 1997; the Teslin Tlingit Council Agreement, effective 1995; the Selkirk First Nation Final Agreement, effective 1997; the First Nation of Nacho Nyak Dun Final Agreement, effective 1995; the Tr'ondëk Hwëch'in Final Agreement, effective 1998; and the Vuntut Gwitchin First Nation Final Agreement, effective 1992.

Overlapping the Yukon and Northwest Territories, is the Inuvialuit Final Agreement/Western Arctic Claim, effective 1984.

In the Northwest Territories there the Gwich’in Comprehensive Land Claim Agreement, effective 1992; the Sahtu Dene and Metis Comprehensive Land Claim Agreement, effective 1994; the Déline - Sahtu Dene and Métis - Self-Government Agreement, effective 2016; and the Tlicho Agreement, effective 2005.

Throughout this report, CLCs (with or without SGA) will be referred to as 'Treaties' and standalone SGA and sectoral agreements will be referred as 'Agreements' unless otherwise specified.

1.2 Program Profile

Management & Implementation Activities

The Implementation Branch (IB) is one of three branches within the IS. It is accompanied by the Consultation and Accommodation Unit and the Policy, Planning and Coordination branch, which houses the MTIO.

Figure 2 depicts the organizational structure of the IS, illustrating the separation between implementation (led by the IS) and negotiation (led by TAG).

Text alternative for Figure 2: Organizational Structure of Implementation Sector and Implementation Branch

Figure 2 shows the current organizational structure of the Implementation Sector and Implementation Branch, organized by hierarchy.

At the highest level is Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC).

At the next level, there is the Implementation Sector (IS) and Treaties and Aboriginal Government (TAG).

At the next level under Implementation Sector, there is Policy, Planning and Coordination (PPC), which houses the Modern Treaty Implementation Office (MTIO) and the Secretariat for Deputy Ministers Oversight Committee (DMOC). At this level, there is also the Implementation Branch (IB) and Consultation and Accommodation (CAU).

At the next and last level, there are the Treaty Management Directorates: Treaty Management East (Atlantic Provinces, Nunavut, Ontario, and Quebec); Treaty Management West (Northwest Territories, Prairie Provinces, Yukon); Treaty Management BC (British Columbia, Fiscal Policy, Collaborative Working Group Coordination); and Funding Services Unit (FSU) (Central agency reporting, budget management, advisory services, administration of Gs&Cs).

The IB administers the Management & Implementation (M&I) 'program', herein referred to as "M&I activities", in support of its objective to create and maintain ongoing partnerships and support the full and fair implementation of Treaties and Agreements and, by extension, reconciliation between Canada and Indigenous Peoples.^{Footnote 7} As shown in Figure 2, there are three Treaty Management Directorates within the IB – each a geographical unit led by a Director – and a dedicated Funding Services Unit responsible for central agency reporting, budget management, advisory services, and administration of all sector Grants and Contributions.

M&I activities undertaken by each Treaty Management Directorate, supported by the Funding Services Unit, include:

• Coordinating/implementing obligations under Treaties and Agreements;
• Managing intergovernmental relationships with Indigenous signatories (inclusive of representing Canada on tripartite Implementation Committees, engaging Indigenous signatories in negotiations/consultations);
• Working bilaterally to support other government departments and agencies, inclusive of supporting capacity building and facilitating dispute resolutions; and
• Where requested, supporting Indigenous communities in articulating their interests, participating in economic activities, and managing and developing land and resources.

1.3 Expected Results

Indigenous Peoples, Canadians, and Indigenous and federal/provincial/territorial governments are expected to benefit through the implementation of Treaties and Agreements, supported by M&I activities; however, the primary beneficiaries are expected to be the citizens of Indigenous signatory groups.

Broadly, M&I activities are intended to: improve knowledge and understanding of Treaties and Agreements across the federal government to ensure that Canada's obligations are fulfilled; improve nation-to-nation, Crown-Inuit, and government-to-government relationships; and contribute in supporting Indigenous Peoples to advance their governance institutions and manage and control programs and services as they desire. Progress in each of these areas is ultimately expected to contribute in supporting self-determination by Indigenous Peoples and addressing socio-economic inequities. As such, M&I activities strongly align with the Rights and Self-determination core responsibility of CIRNAC's Departmental Results Framework and work towards achieving the Departmental Result: Indigenous Peoples and Northerners determine their political, economic, social, and cultural development (see Appendix A for the program logic model).

1.4 Program Resources

Indigenous Self-Governments are autonomous governments as set out in Modern Treaties and self-government agreements. Through the signing of these Agreements and Treaties, partners have moved out from under the Indian Act and are accountable primarily to their people and work to protect and preserve beneficiaries' rights, advocate for their interests, and implement their respective Treaties and Agreements. A fundamental principle of the Government's intergovernmental relationship with Self-Governing Indigenous Governments is that they are best-placed to deliver programs and services to their citizens. These include the delivery of programs and services to their citizens in relation to lands and resource management, heritage and culture, social services, health, capital and community infrastructure, economic development, and education. As such, they have expenditure responsibilities and obligations that are generally broader than those of First Nations under the Indian Act, or Inuit or Métis groups that are not self-governing.

Grants to Indigenous governments and organizations designated to receive claim settlement payments pursuant to Comprehensive Land Claim Settlement Acts are statutorily protected. As such, these transfer payments are treated similarly to Provincial/Territorial Government transfers, and limited reporting requirements apply.^{Footnote 9}

Between April 2015 and March 2021, M&I transfer expenditures totalled $4.5 billion. Table 1 provides the breakdown of actual expenditures by fiscal year over this period.

Grants and Contributions accounted for the majority of expenditures (92%), covering several program authorities, as shown in Table 2.

2.1 Purpose and Scope

In accordance with the CIRNAC's Five-Year Evaluation Plan and in compliance with the Treasury Board Policy on Results, the purpose of this evaluation was to examine the M&I of Treaties and Agreements for the period between April 2015 and March 2021. As the program includes ongoing Grants and Contributions, the evaluation was further subject to Section 42.1 of the Financial Administration Act.

The evaluation covered activities and outcomes specific to the IB's management and implementation of Agreements and Treaties, post 1975, that were negotiated in alignment with the Comprehensive Land Claims and Inherent Rights policies. Issues of relevance, design & delivery, effectiveness, and efficiency were addressed. While important, the activities and outcomes specific to Provincial/Territorial Government and other government departments implementation were out of scope of this evaluation. 

This evaluation builds upon several recent reviews including the 2020 Evaluation of the Cabinet Directive on the Federal Approach to Modern Treaty Implementation, 2016 Evaluation of the Impacts of Self-Government Agreements, and predecessors. Findings are intended to inform evidence-based decision-making for policy and program improvements and renewals in support of the program's unique role in advancing Crown-Inuit and nation-to-nation relationships.

2.2 Methodology

The evaluation utilized a mixed-methods approach with multiple lines of inquiry to comprehensively address the identified issues and key evaluation questions. The Evaluation Matrix in Appendix B provides additional information. Lines of evidence included:

2.3 Limitations

Overall conclusions and recommendations were developed on the collective basis of all findings to further enhance validity, reliability, and credibility, as well as utility.

3.1 Relevance

Federal and departmental priorities include recognizing Indigenous rights, supporting self-determination, and advancing reconciliation, as stated in:

• Speeches from the Throne: Speeches from the Throne in 2020 and 2021 emphasized the federal government's commitment to reconciliation, inclusive of addressing systemic racism and inequities ('gaps') faced by Indigenous communities and implementing the Truth and Reconciliation Commission's Calls to Action, among others.
• Ministerial Mandate Letters: Letters state that "No relationship is [or remains] more important to me and to Canada than the one with Indigenous Peoples", emphasizing that strengthening this relationship involves working to advance self-determination and reconciliation.^{Footnote 11}
• Departmental Plans and Reports: Departmental materials routinely acknowledge a commitment to advancing self-determination and reconciliation.^{Footnote 12}

In its Final Report, the Truth and Reconciliation Commission defined reconciliation as an ongoing process of establishing and maintaining respectful relationships, inclusive of repairing damaged trust by making apologies, providing individual and collective reparations, and following through with concrete actions that demonstrate real societal change. Key informants across groups emphasized the alignment between M&I activities and Canada's stated priorities of reconciliation and improving relationships with Indigenous Peoples, characterizing the transfer of rights and land through Treaties and Agreements as the pinnacle of reconciliation. Similar sentiment was shared at the Canada Modern Treaty and Self-Governing First Nations Forum (2017), during which implementation of Treaties and Agreements was identified as one of the most important ways to define and establish respectful nation-to-nation relationships and advance self-determination.

There is an ongoing need to facilitate and support implementation of Treaties and Agreements to align with federal legislation, particularly Indigenous rights affirmed in Section 35 of the Constitution Act (1982), the Inherent Right Policy (1995), and the United Nations Declaration on the Rights of Indigenous Peoples,^{Footnote 13} as well as to fulfill legal obligations and legislative requirements stemming from finalized Treaties and Agreements themselves. Treaties and Agreements create a distinct order of government within Canada's constitutional framework. Treaties and Agreements articulate the terms for new, living relationships between Canada and Indigenous signatories, and in doing so, support progress towards reconciliation to the extent that commitments are subsequently realized and upheld. CLCs (with or without a SGA component) are constitutionally protected, while standalone SGA are legislatively backed. Thus, there will be a continuing need for federal resources, leadership, structures, and processes to support full and honourable implementation of Treaties and Agreements as well as to develop and maintain the intended nation-to-nation, Crown-Inuit, and government-to-government relationships they set forth.

As previously described in Section 1.1, the Cabinet Directive on the Federal Approach to Modern Treaty Implementation and the Statement of Principles on the Federal Approach to Modern Treaty Implementation together call for a whole-of-government approach to managing the Crown's obligations and establishing long-term, effective intergovernmental relationships with Indigenous partners to support implementation. The Royal Commission on Aboriginal Peoples (1996) as well as recent CIRNAC materials also specify that reconciliation is supported by promoting new bilateral mechanisms to work more closely with Indigenous leaders, establishing a new fiscal relationship with Indigenous signatories, and ensuring federal capacity "to facilitate and implement new policies and relationships", supported by "specialized expertise" on implementation.

Key informants similarly noted the continuing need for dedicated resources and processes to support implementation across the federal government (inclusive of capacity building, dispute resolution, and oversight) and to develop and maintain corporate knowledge and relationships with Indigenous partners. They also highlighted the need for personnel with specialized implementation knowledge to navigate emerging issues (e.g., major projects with impacts on Treaty partners, passage of legislation such as Bill C-92), evolving contexts (e.g., new obligations being triggered or disputes arising), and the time-limited nature of some Implementation Committees.

M&I activities encompass management of intergovernmental relationships with Indigenous signatories, co-development of fiscal policy with Indigenous partners, administration of Fiscal Financial Agreements/Financial Transfer Agreements, and working bilaterally with other government departments around specific issues. In doing so, M&I activities respond well to the identified needs for federal coordination and expertise with respect to implementation of Agreements and Treaties.

Various M&I activities incorporate Crown-Inuit and/or nation-to-nation approaches in the way that they provide opportunities and support for Indigenous partners to come together with Canada (represented by the IB and involving other government departments as needed) to engage in discussions and negotiations, develop and strengthen relationships, and share in decision-making (e.g., co-development of fiscal policy) and responsibility (e.g., for co-management board appointments). Examples include Implementation Committees, the CFP development process, and the COVID-19 Working Group. Input from key informants across groups also highlighted that mostly utilizing grants to fund Indigenous partners aligned with a Crown-Inuit and nation-to-nation approach more so than the alternative program authority – Contribution Agreements – since grants allow comparatively greater flexibility and place fewer requirements and constraints on recipients.

Nonetheless, several key informants across groups expressed confusion or disagreement with the characterization of M&I activities as a 'program' because such framing minimized the breadth and significance of Canada's enduring commitments to Indigenous signatories. Instead, key informants likened the IB's role and associated M&I activities to Intergovernmental Affairs or Global Affairs, which was seen to better reflect the living relationships Treaties and Agreements signify as well as the intended Crown-Inuit and nation-to-nation approach. The Statement of Principles on the Federal Approach to Modern Treaty Implementation similarly emphasizes that establishing and maintaining intergovernmental relationships are vital to implementation.

The CFP development process provides a clear example of the need for alternative fiscal measures and redefined relationships: in addition to all 25 Self-Governing Indigenous Groups (SGIG) entering into parallel Fiscal Financing Agreement/Financial Transfer Agreement negotiations under the new CFP, demand for a similar, more collaborative approach among groups without SGA led to the creation of the M5 table for Treaty holders without self-government and an annex specific to education Sectoral Agreements. Canada's willingness to work with Indigenous partners in this novel manner underscores the evolving context of its relationship with Indigenous signatories, as do developments external to the IB, such as the establishment of tables and passage of the United Nations Declaration on the Rights of Indigenous Peoples Act.

Key informants' responses also called into question the compatibility of using standard program authorities (Grants and Contributions) given the evolving nature of the relationship between Canada and Indigenous signatories, coupled with discrepancies in the treatment of SGIG versus other governments (e.g., Provincial/Territorial Government or foreign governments). In particular, Contribution Agreements were described as being at odds with the intended intergovernmental relationship in the instances they were used. For example, 'gaps'-closing funding for infrastructure development had reporting requirements to substantiate future internal funding requests, which was seen to be inconsistent with the spirit and intent of Treaties and Agreements and infringe on the autonomy of SGIGs. Modern Treaty and Self-Governments are accountable to their citizens, and not beholden to Indian Act program reporting and performance requirements. Data sovereignty needs to be recognized and considered in the context of whole of government M&I activities.

A comparison of funding arrangements and oversight associated with legislated fiscal transfers to SGIG under the M&I 'program' versus transfer payments to provinces under the Equalization Program was undertaken to explore whether (and if so, how) Canada's intergovernmental approach to each level of government differed. The comparison was informed by publicly available information on each program and key informant feedback. As summarized in Table 3, differences were observed in Parliamentary oversight of expenditures between the programs despite both involving federal transfer payments to another level of government on the basis of a federal legislative authority. No provincial reporting requirements were identified in relation to the Equalization Program, although some reporting requirements for SGIG were, as in the example of the CFP 'gaps'-closing initiative. This finding would seem to run contrary to the Royal Commission on Aboriginal Peoples recommendation that accountability requirements for Indigenous governments "not be more onerous" than those imposed upon provincial governments.

Finally, key informants across groups flagged additional M&I terminology that they saw to be at odds with a respectful approach to improving Crown-Inuit, nation-to-nation, or government-to-government relationships. Concerns were raised over the term 'gaps', which reflects a limiting and deficit-based view and distances inequities from their cause (e.g., past and present structural racism and colonialism), as well as the term 'capacity', which can reflect biased western assessments and value judgments about the sufficiency of individual, group, or organizational knowledge, skills, and/or resources. Scoping the evaluation to M&I activities without fulsome consideration of implementation activities or performance of the federal government as a whole was also seen by some to not reflect the intended intergovernmental relationship.

3.2 Design and Delivery

There were several organizational changes throughout the evaluation period that affected key structures, roles, and responsibilities related to implementation of Treaties and Agreements. These included the creation of CIRNAC, the IS, and the Funding Services Unit, among others. Despite changes, the IB retained responsibility for creating and maintaining ongoing partnerships to support implementation of Treaties and Agreements and for working bilaterally with other government departments on implementation issues. There was also increased attention and emphasis on implementation following the 2015 federal election.

Particularly due to organizational changes, key informants identified several roles and responsibilities that required or would benefit from additional clarity. For instance, it was observed that the relocation of the MTIO to Policy, Planning and Coordination Branch created a continuing need to establish structures and processes within the IB to manage and respond to horizontal implementation issues. Relatedly, key informants identified an opportunity to better clarify and coordinate roles and responsibilities between the IB and the MTIO to ensure that the MTIO is equipped with greater understanding of the current implementation context when engaging with Indigenous partners.

Key informants also saw room to clarify roles and responsibilities for training and implementation of obligations between CIRNAC and other government departments, inclusive of clarifying which department is the lead for shared or whole-of-government obligations. For instance, some key informants raised concerns about other government departments representatives' limited knowledge of departmental roles and responsibilities or tendency to defer to CIRNAC in circumstances of shared obligations. In addition, there were reports that some other government departments are unsure of their departmental requirements or obligations in certain circumstances and would welcome additional guidance and information from the IB through additional documentation, policies, or notifications, such as about annual reporting requirements or when obligations are triggered.

Table 4 identifies implementation roles and responsibilities across departments, across CIRNAC (particularly TAG and the IS), and within the IS that may benefit from clarification.

As illustrated by these examples, existing processes and structures do not make implementation roles and responsibilities sufficiently clear across the federal government. For example, there is little documentation of IB roles and responsibilities (e.g., no CIRNAC intranet page, Funding Services Unit inherited little documentation alongside new responsibilities, such as performance reporting), nor are there requirements for other government departments to consult the IB or partners while conducting an Assessment of Modern Treaty Implications, despite concerns flagged in the 2020 Evaluation of the Cabinet Directive on the Federal Approach to Modern Treaty Implementation. Instead, public servants rely on existing knowledge, relationships with IB personnel, and 'learning on the job' to develop their understanding of the IB's function. Not only does this present a risk of lost institutional knowledge when there is turnover in key roles, it also limits other government departments'ability to identify opportunities for coordination and for the IB to provide (or other government departments to access) "Treaty expertise" or support.

Some key informants reported that their ability to fulfill departmental obligations is hindered by resource constraints resulting from limited clarity of their department's roles and responsibilities in relation to implementation. While some attributed the lack of clarity to having an incomplete understanding of what the Crown committed to during the negotiation phase for Treaties and Agreements, others stressed ongoing challenges due to implementation roles and responsibilities not being clearly stated in foundational material such as Ministerial mandate letters. IB documentation also identifies a need for the IS to engage other government departments, supported by TAG's Fiscal Policy Branch, to strengthen forecasting for other government departments funding requirements to implement obligations, further highlighting the need to enhance clarity of roles and responsibilities to enable fulsome implementation.

Several key informants expressed that there was a limited extent to which Indigenous partners experienced a whole-of-government response to implementation, inclusive of difficulty gaining traction with some other government departments. As a result, a need was identified for processes and structures to support greater coordination and awareness of implementation roles and responsibilities across the federal government. Several key informants across groups also called for mechanisms to enhance accountability given the challenges faced by Indigenous partners when attempting to engage other government departments on implementation matters. Previous evaluations similarly identified a need to clarify implementation-related roles and responsibilities within the Department and across the federal government as well as to document processes and formalize coordination across departments, especially around cross-cutting issues. These included the 2020 Evaluation of the Cabinet Directive on the Federal Approach to Modern Treaty Implementation and the 2009 Impact Evaluation of Comprehensive Land Claim Agreements.

There is some recent evidence of attempts to enhance clarity in program documentation. For example, the Funding Services Unit developed a Directive on annual adjustors and an overview of the respective roles and responsibilities of TAG versus the IB in relation to resource management. Nonetheless, many of the challenges or limitations regarding clarity of implementation roles and responsibilities had not yet been addressed as of the writing of this report, suggesting a need for continued efforts in this area.

In line with the Statement of Principles on the Federal Approach to Modern Treaty Implementation's recognition that "Modern Treaty implementation is an ongoing process", key informants across groups described how there has been an evolving understanding of the requirements and activities needed to implement Treaties and Agreements. For example, experiences over the evaluation period underscored to key informants that: 

• Treaties and Agreements represent much more than the end of negotiations between the Crown and Indigenous Peoples; they articulate the rights and benefits of each party and mark the beginning of a new relationship;
• Developing and maintaining relationships requires sufficient, ongoing, and coordinated structures and processes that can respond to implementation issues and Indigenous partners' needs and priorities as they arise; and,
• Other government departments may not have the understanding or the structures and processes required to readily adapt to the new context and relationship that a Treaty or Agreement presents. For example, in the absence of established alternatives, other government departments may be reliant on Contribution Agreements to fund Indigenous partners.

The evolving Treaty and Agreement landscape has affected the volume and predictability of the IB's workload, as has organizational change. Key informants across groups acknowledged that the IB's resources are constrained given the extent of new, continuing, and upcoming demands related to M&I activities, which has direct implications for the IB's ability to develop and maintain relationships with Indigenous partners and support implementation in a timely, coordinated manner. The scope of activities that partners undertake to implement their Treaties and Agreements have grown significantly, as intergovernmental relations, management and stewardship of lands and resources, consultation processes, and co-developing policy with Canada all involve significant effort by partners.

There were notable changes over the evaluation period in the way that Canada, represented by the IB, works with Indigenous partners to implement Treaties and Agreements. New developments included establishment of the CFP development process and COVID-19 Working Group, both of which provide greater opportunity, support, and structure for collaboration and co-development between Canada and Indigenous partners in priority areas, such as redefining fiscal relationships and responding to the COVID-19 pandemic. Each of these emerging mechanisms will require ongoing resources and leadership from the IB.

Further, program documents indicate that the IB holds several significant implementation responsibilities that were not initially anticipated and should be a consideration given the relative risk to sound departmental financial management. These include responsibilities for Section 35 forecasting, providing high-demand support to other government departments, supporting and leading central agency submissions, and undertaking the Modern Treaty Management Environment data validation and collection. Key informants as well as program documents and data also indicate that the IB's workload has been increasing as additional Agreements are finalized and new obligations are triggered. As an example, Table 5 shows the number of agreements, amendments, and funding requests processed by the Funding Services Unit over the evaluation period to illustrate the increasing amount of work undertaken by the IB.

As identified, the IB is currently responsible for the implementation of 32 concluded Treaties and Agreements under which CIRNAC has obligations. As of October 2020, 151 Indigenous groups were engaged in 155 discussions, negotiations, and consultations with objectives to reach Agreements with the Crown.

While the exact impact of upcoming Treaties and Agreements on IB workload remains unclear, it is likely that the IB will be responsible for supporting implementation of upcoming Agreements in the same manner as those previously concluded. For instance, it is anticipated that the IB will maintain overall responsibility for managing relationships with Indigenous signatories as well as coordinating and implementing obligations, including agreements signed at Recognition of Rights and Self-Determination tables. Not only could new Agreements therefore increase the IB's workload significantly in coming years, but they may also introduce new and more complex implementation considerations with unknown impacts on IB activities. For example, the IB has found that the 12 agreements signed at Recognition of Rights and Self-Determination tables have had more complex implementation requirements, further stretching the IB's resources and ability to strategically plan.

Some key informants reported recent attempts to clarify the IB's resource needs given current workload and constraints faced – for example, one unit assessed time allocated to documented responsibilities versus other activities required to support implementation. Nonetheless, feedback suggests that the IB resource requirements have not yet been comprehensively nor systematically assessed against defined roles, plans, and strategies for implementation of Treaties and Agreements (concluded or upcoming). There also appears to be limited performance data on core program activities (e.g., liaising, building relationships) that could support an assessment of resourcing sufficiency if available. Taken together, these data suggest a clear, imminent, and unmet need for mechanisms to fully and accurately assess workload and resource requirements so that the IB is adequately equipped to fulfill its roles and responsibilities for implementation.

Key informants across groups agreed that there is an ongoing need to fund Indigenous partners to implement Treaties and Agreements and be meaningfully involved in fiscal policy development and decision-making. Sufficient funding is also needed for SGIG to self-govern (e.g., for ongoing management of lands, programs, and services, etc.) and address underlying socioeconomic inequities that fall beyond the scope of the Treaties and Agreements signed. However, key informants recognized that past and current resourcing have been insufficient for undertaking all of the above.

Factors contributing to insufficient resourcing levels for Indigenous partners include:

• Fiscal Financing Agreements/Financial Transfer Agreements providing insufficient funding for implementation, such as no core governance funding for Treaties with no SGA component and not accounting for added expenses in remote locations;
• Underlying inequities or 'deficits' due to past policy and underinvestment, resulting in persistent challenges such as inadequate infrastructure, among others; and
• Continued funding limitations in areas of priority for Indigenous partners, such as special education and post-secondary education, language revitalization, and housing.

The CFP development process was initiated in recognition of the need to develop a new fiscal relationship between Canada and SGIG to address unmet needs and persistent inequities such as those described above and to redefine the fiscal relationship between Canada and Indigenous partners moving forward. As articulated in the CFP Steering Committee meeting notes, "The whole fiscal policy is about reconciliation and supporting [Indigenous governments]. Reconciliation is about putting things right and dealing with the real impacts of legacy policy choices over the years". Additional documentation and input from CIRNAC's officials and Indigenous partners similarly emphasize that initial goals of the CFP development process included providing viable funding for SGIG to self-govern as well as to address persistent socio-economic inequities.

The co-developed CFP outlines processes for collaboratively identifying and defining areas in need of increased investment (commonly referred to as 'gaps'-closing funding) and developing funding methodologies. Key informants across groups also identified a need for fiscal policy and associated processes to recognize and respond to different considerations and contexts for different Indigenous partners to ensure that clauses in specific Agreements are followed and that funding methodologies take into consideration unique circumstances (e.g., First Nations that have non-members living on their lands). Similar goals to define and address unmet resource needs for signatories without SGA underpinned the subsequent establishment of the M5 table and education annex.

The CFP development process and related offshoots reflect a shared understanding that Indigenous partners require additional resources and provide a new mechanism for iteratively and collaboratively addressing unmet needs. While these emerging processes have so far increased funding in some areas, such as advancing governance structures and capabilities (see Finding 10 for more), there is agreement that additional resources are needed. For instance, insufficient human and financial resources continue to present implementation challenges for some Indigenous governments. As a result, staff may be too few and stretched too thin to participate in all the implementation activities they may like to, with some relying on continued support from external consultants as a result. Hiring was also flagged as a key challenge for some Indigenous governments due to factors such as limited availability of personnel or ability to offer competitive salaries given available resources.

Several phases of the CFP development process are ongoing or upcoming, with plans to shape policy development and address SGIG funding needs in additional areas. Internal program documents indicate that these areas include: treaty, land, and resource management (in a coordinated effort with five Treaty signatories from the Northwest Territories and Quebec); culture, language, and heritage; infrastructure and housing; and annual funding adjusters. Key informant feedback indicates that continued work to address resource needs through the M5 table and education annex is also planned.

There was a general perception among key informants that the performance measurement system has not been generating valid and reliable performance data, although there have been recent actions undertaken to address challenges, including development of a new Performance Information Profile in 2021. The review of performance data also revealed that some planned metrics were not available or up to date. For example, education data was not provided by the program and, as shown in Figure 3, most obligations had not yet been accepted and updated in the Modern Treaty Management Environment by the respective federal government department (of 8,612 total obligations).

Text alternative for Figure 3: Status of Canada's Obligations in the Modern Treaty Management Environment, October 2021

Figure 3 shows a pie graph comparing the status of Canada’s obligations in the Modern Treaty Management Environment in October 2021.

84% of obligations are pending.

12% of obligations are accepted.

5% of obligations are rejected.

Some new performance measures (e.g., the number of times advice was provided to federal officials regarding the Assessment of Modern Treaty Implications) were also untested as of the writing of this report, so their utility is not yet known.

Challenges measuring the performance of M&I activities and their contribution to intended outcomes have been long acknowledged. For instance, the Inuvialuit Final Agreement of the October 2007 Report of the Auditor General of Canada noted that Indian and Northern Affairs Canada had not developed performance indicators or other means to "ensure measurement of progress toward achievement of the principles that the Agreement embodies". Recent evaluations including the 2009 Impact Evaluation of Comprehensive Land Claim Agreements, 2016 Evaluation of the Impact of Self-Government Agreements, and 2020 Evaluation of the Cabinet Directive on the Federal Approach to Modern Treaty Implementation also identified collaborative development of performance measures as a priority, underscoring that adequate performance measures had yet to be developed.

Based on the input received from key informants, a central tension appears to be at the heart of the IB's performance measurement challenge. On one hand, there is demand to assess both the performance of M&I activities and the federal government's overall implementation of Treaties and Agreements and fulfillment of obligations as a whole. On the other, there is also a need for the IB and IS leadership to systematically analyze the delivery and performance of the M&I activities over which they have direct influence and control. This is challenging to do in practice because of the interconnectedness of M&I activities undertaken by the IB and related activities undertaken by other branches/sectors within CIRNAC and other government departments to support implementation. Training on Treaties and Agreements provides a good example: IB, MTIO, other government departments, and the Canada School of Public Service each undertake and contribute to training on Treaties and Agreements, and the action of one or more parties can affect actual or perceived performance or effectiveness of the other(s). Shared responsibilities may also present data access challenges depending on who collects, stores, and has access to data. The same applies to intended outcomes, which may depend on multiple inputs and actors – including Indigenous partners. 

Assessing performance of M&I activities is further complicated by the incomplete, evolving, and largely undocumented understanding of implementation roles and responsibilities across the federal government, including within the IB (as discussed in findings 3 and 4). This presents a practical challenge for performance measurement: it is difficult to measure the performance and contribution of select activities to intended outcomes if those activities are not clearly and consistently defined.

The logic model for M&I activities (see Appendix A: M&I Logic Model) is a practical tool to support 'program' planning, implementation, and assessment by providing a visual outline of the linkages between inputs, M&I activities, and intended outcomes. The logic model is not intended to depict the theory of change for whole-of-government implementation of Treaties and Agreements. Nonetheless, documents and key informant feedback indicate that the M&I logic model and corresponding performance data reflect that the IB can only influence some of the outcomes, and a whole-of-government approach, is required to achieve all of the outcomes. These include training (as described above) and providing advice on Assessment of Modern Treaty Implications, which is now a responsibility of the MTIO. The IB also has shared or indirect influence on some expected outcomes, such as those related to Indigenous Peoples advancing their governance institutions and determining their political, economic, social, and cultural development. These observations about inconsistencies between the M&I logic model and the IB's locus of control appear consistent with challenges raised by key informants.

To enhance performance measurement, key informants across groups identified several measures that would be appropriate, useful indicators of progress and/or success for M&I activities but that are not currently measured. Preferred measures largely centered on the effectiveness of – and Indigenous partners' satisfaction with – relationships with the IB, CIRNAC, other government departments, and the federal government as a whole, as well as overall progress on implementation of obligations. Additional indicators identified by some key informants included Indigenous partners' perceptions of the sufficiency of support they receive from Canada to undertake implementation and the extent of progress made by the federal government in priority areas identified by individual Treaty and Agreement signatories, such as annual goals or priorities shared at Implementation Committee meetings. Some public servants added that avoidance of litigation would also be a useful indicator of whether implementation activities were reducing disputes or providing effective mechanisms to resolve disputes out of court. Continued interest in measuring socioeconomic well-being and progress were also expressed, echoing a recommendation from the 2016 Evaluation of the Impact of Self-Government Agreements.

Notably, there was strong alignment between factors identified as drivers of Indigenous partners' overall satisfaction with M&I activities and enablers of improved relationships between Indigenous partners and each of CIRNAC, other government departments, and the federal government as a whole. This demonstrates that perceived effectiveness of M&I activities are closely linked to Indigenous partners' experiences with – and observed outcomes of – activities undertaken by the IB, other government departments, and the federal government as a whole.

Taken altogether, the evidence indicates that attention is required to refine the M&I performance measurement system so that it is specific to activities undertaken by the IB and suitable for providing leadership with valid and reliable data to inform decisions. While beyond the scope of this evaluation, evidence also suggests a need for broader performance measurement, taking into consideration data sovereignty and Modern Treaties and Self-Government accountability to citizen related to whole-of-government implementation, which IB measures may also support.

3.3 Effectiveness

Key informants typically reported that M&I activities contributed to improving relationships between Indigenous partners and the IB, as well as between Indigenous partners and some other government departments. However, there were exceptions as well as differences in the extent of relationship building that occurred depending on the context and experiences of Indigenous partners. M&I activities that contributed to relationship building are discussed below, while challenges and issues that impeded or limited satisfaction and relationship building are discussed separately in Finding 11.

Having structures and processes such as Implementation Committees, the CFP development process, and the COVID-19 Working Group supported continuous and coordinated two-way discussion between Canada and Indigenous partners, especially around fiscal matters. By bringing parties together on a regular basis around shared goals and objectives, structures and processes such as these provided opportunities for public servants and Indigenous partners to collaborate, address issues and points of friction, strengthen working relationships, and build trust. The 2014-15 Maa-nulth First Nations Final Agreement Annual Report provides an example of this function, stating that its Tripartite Implementation Committee was initiated with the goal of working collaboratively to resolve implementation issues and any potential challenges of the government-to-government relationship.

Further, departmental data indicates that three of four past implementation issues raised by Indigenous partners (75%) were resolved before they rose to the level of a formal dispute. Of the active issues and disputes (n=17), a minority (n=6) have risen to the level of a formal dispute. These data suggest that M&I structures and processes can and do support Indigenous partners and federal government departments to discuss and address issues and concerns, although sometimes more formalized dispute resolution is required (see Finding 11 for more).

The following highlights from the CFP development process and COVID-19 Working Group case studies further illustrate ways in which each activity contributed to improving relationships. It is important to note, however, that views and experiences of Indigenous partners varied, so highlights should be interpreted alongside other evaluation findings and overall conclusions.

Finally, key informants across groups noted that M&I activities such as those discussed above facilitated important learning about on-the-ground realities of Indigenous partners (e.g., actual implementation costs and appropriate approaches for working with Indigenous partners). This helped inform more respectful approaches, which also contributed to strengthening relationships.

Key informants across groups identified a role for CIRNAC to support and respond to Indigenous partners' implementation needs as the 'holder' of the relationship between Canada and Indigenous signatories, whose "main currency" is the ability to foster, maintain, and nurture relationships. The IB fulfills this role by building and maintaining relationships with Indigenous partners, serving as a clear point of contact for implementation coordination, facilitating connections and engagement, and acting as an 'interpreter' (or liaison) between the federal government and Indigenous partners. This includes accommodating the approach to engagement preferred by individual partners – whether trilateral or bilateral, individual or collective, a combination of these, or another approach.

Supporting a timely response to Indigenous partners' priorities and emerging implementation issues on a case-by-case basis was identified as beneficial to Canada's relationship with Indigenous partners and supportive of implementation. This was especially true when the IB responded to partners' priorities and implementation issues in a manner consistent with the spirit and intent of Treaties and Agreements, even when the requirement to do so was not explicitly articulated in plans (e.g., Implementation Plans) and Agreements. This aligns with the Statement of Principles on the Federal Approach to Modern Treaty Implementation, which asserts that "The implementation of modern treaties supports a set of broad objectives".

Examples of common ways the IB has supported responsiveness to Indigenous partners' priorities and emerging implementation issues include: coordinating the federal government's response to ensure that shared obligations are fulfilled once triggered; supporting Indigenous partners' response to the COVID-19 pandemic; and facilitating engagement between Indigenous partners and other government departments within the context of major projects and impact assessments. Proactive outreach by the IB in response to emerging issues that may have implications for Indigenous partners was also seen as beneficial – for example, if the IB provides Indigenous partners with notifications about upcoming developments (e.g., new programs or funding from other government departments).

The IB's involvement in impact assessments was explored further in the case study on ad hoc implementation support. Highlights are summarized below.

Where present, responsiveness was perceived as a key contributor to Indigenous partners' overall satisfaction with M&I activities and the IB. However, the frequency and degree to which Indigenous partners experienced responsiveness from the IB and other government departments varied, and with it, Indigenous partners' satisfaction with implementation. Finding 11 provides more detail on issues and challenges that limited satisfaction with M&I activities. 

In addition to contributing positively to relationships, responsiveness from Canada also indirectly supported Indigenous partners to manage and control programs/services and self-govern to the extent that it provided Indigenous partners with the information and resources needed to do so. The contribution of M&I activities to longer-term intended outcomes is further discussed in finding 10.

Coordination and support activities undertaken by the IB contributed to improving federal officials' awareness and understanding of Treaties and Agreements, in turn supporting fulfilment of obligations. The IB's contributions included developing and maintaining working relationships with public servants in other government departments – which could be leveraged when information or support on implementation matters were needed – as well as supporting direct engagement between other government departments and Indigenous partners. The latter included providing support for bilateral engagement as well as involving other government departments in Implementation Committee meetings and collaborative processes (e.g., COVID-19 Working Group meetings) that were led or facilitated by the IB. While beyond the evaluation scope, feedback from key informants indicated that these activities helped to enhance understanding and awareness of Treaties and Agreements among Provincial/Territorial Governments as well.

Examples from case studies on the CFP development process and ad hoc implementation support are presented below, each of which builds on highlights previously discussed. 

There was common acknowledgement that activities undertaken by other groups also contributed to improvements in awareness. In particular, key informants across groups emphasized that establishment and promulgation of the Cabinet Directive and Deputy Ministers' Oversight Committee prompted departments to develop their understanding and awareness of Treaties and Agreements, as did early and ongoing involvement of other government departments in Treaty and Agreement negotiations (led by TAG) and department-specific training on Treaties and Agreements. Department-specific training was led by other government departments and supported by the IB.

As Figure 4 and Figure 5 show, 76 training sessions for federal officials were held over the evaluation period (2016-21) with a collective a total of 1,356 participants. Assessment of Modern Treaty Implications (AMTI) training and 'Other' training (similar to Assessment of Modern Treaty Implications training but with less of a focus on Assessment of Modern Treaty Implications) were delivered by the MTIO (housed within the IB prior to January 2019).^{Footnote 16} Meanwhile, Modern Treaty Implementation (MTI) and SGA training were delivered by Canada School of Public Service in partnership with the MTIO.

Text alternative for Figure 4: Number of Federal Officials Trained by Fiscal Year

Figure 4 shows a bar graph comparing the number of federal officials trained by fiscal year.

In 2016-2017, 171 federal officials were trained in Modern Treaty Implementation (MTI) training.

In 2017-2018, 30 federal officials were trained in Modern Treaty Implementation (MTI) training. 114 federal officials were trained in Assessment of Modern Treaty Implications (AMTI) training.

In 2018-2019, 10 federal officials were trained in Other training. 95 federal officials were trained in Modern Treaty Implementation (MTI) training. 56 federal officials were trained in Assessment of Modern Treaty Implications (AMTI) training.

In 2019-2020, 106 federal officials were trained in Other training. 281 federal officials were trained in Modern Treaty Implementation (MTI) training. 138 federal officials were trained in Assessment of Modern Treaty Implications (AMTI) training.

In 2020-2021, 83 federal officials were trained in Other training. 93 federal officials were trained in Modern Treaty Implementation (MTI) training. 179 federal officials were trained in Assessment of Modern Treaty Implications (AMTI) training.

Text alternative for Figure 5: Number of Training Sessions by Fiscal Year

Figure 5 shows a bar graph comparing the number of training sessions by fiscal year.

In 2016-2017, 9 Modern Treaty Implementation (MTI) training sessions were held.

In 2017-2018, 2 Modern Treaty Implementation (MTI) training sessions were held. 11 Assessment of Modern Treaty Implications (AMTI) training sessions were held.

In 2018-2019, 2 Other training sessions were held. 5 Modern Treaty Implementation (MTI) training sessions were held. 5 Assessment of Modern Treaty Implications (AMTI) training sessions were held.

In 2019-2020, 4 Other training sessions were held. 8 Modern Treaty Implementation (MTI) training sessions were held. 10 Assessment of Modern Treaty Implications (AMTI) training sessions were held.

In 2020-2021, 4 Other training sessions were held. 5 Modern Treaty Implementation (MTI) training sessions were held. 11 Assessment of Modern Treaty Implications (AMTI) training sessions were held.

Public servants reported that training had been useful or very useful overall, providing good basic information about Treaties and Agreements and contributing to some progress. However, the extent of the IB's specific contribution was unclear. 

Nonetheless, key informants acknowledged that continued awareness-raising is needed to ensure that federal officials develop sufficient understanding of department-specific obligations and how they can support a coordinated, whole-of-government approach moving forward. A need for more general and issue-specific advocacy and awareness-raising was also identified, with key informants noting that  there continues to be limited understanding of the difference between self-government and the Indian Act, narrow interpretation of obligations, and a tendency towards 'one size fits all' thinking. Feedback echoed findings from the recent Evaluation of the Cabinet Directive on the Federal Approach to Modern Treaty Implementation.

Key informant responses also underscored that some other government departments have more knowledge about Treaties and Agreements and greater capacity to deliver in-house training and implement obligations than others, which may modulate the support needs of some other government departments. Differences were attributed to factors such as the number and extent of departmental obligations, public servants' pre-existing familiarity with Treaties and Agreements, and departmental legislation, policies, and materials.

In general, additional guidance and outreach from the IB were welcome, as were increased linkages between the IB and other government departments to support development of implementation subject matter expertise in key portfolios (e.g., fisheries, environmental assessments) and structures to streamline communication and coordination (e.g., clearer points of contact). Key informants across groups also identified opportunities for the IB to provide more support for department-specific training and more systematically contribute implementation expertise to other government departments to further their ability to interpret and contextualize department-specific obligations and approach implementation matters in a manner reflective of the intended intergovernmental approach.

Key informants across groups cited noticeable differences between Indigenous governments/groups with a Treaty and/or Agreement versus those without. Having a Treaty and/or Agreement has been beneficial to Indigenous signatories by providing enhanced resources and jurisdiction to support self-determination and the ability to prioritize community needs and well-being. This has included addressing issues and priorities related to prior underinvestment and neglect by Canada – for example, infrastructure development, education, and social services, among others.

Differences between Indigenous governments/groups with and without a Treaty and/or Agreement are reflected in data from the Community Well-Being Index, which measures the state of education, labour force activity, income, and housing in a community to assess socio-economic well-being. Most recent data is based on the 2016 Census and 2011 National Household Survey data. Results from an analysis conducted by CIRNAC are shown in Figure 6.

Text alternative for Figure 6: Average Community Well-Being Scores for First Nation, Inuit, and Non-Indigenous Communities, 1981-2016

Figure 6 shows a line graph which compares the average community well-being scores for First Nation, Inuit, and non-Indigenous Communities from 1981 to 2016. On the Y-axis is the Average Community Well-Being Score and on the X-axis are the years 1981, 1986, 1991, 1996, 2001, 2006, 2011, and 2016. The five trends represent Historical Treaty (First Nations), Non-Treaty (First Nations), Modern Treaty (First Nations), Stand-Alone Self-Governing Agreement (First Nations), Modern Treaty (Inuit), and Non-Indigenous. The line graph shows that since 1981, community well-being scores have continued to trend upwards in historic, modern, stand-alone self-governing, and non-treaty First Nations as well as in modern treaty Inuit communities.

The Provisional Annual Report on the implementation of Modern Treaties and Self-Government Agreements concluded that well-being improved in First Nations and Inuit communities with and without Treaties and/or Agreements over the period from 1981 to 2016. Findings were also suggestive (although not conclusive) that Modern Treaties were associated with improved socio-economic outcomes and well-being relative to other arrangements. For instance, Figure 6 shows that self-governing First Nations had the highest Community Well-Being score and the smallest 'gap' relative to non-Indigenous Canadians in 2016, followed by First Nations with a Modern Treaty. These data align with findings from several studies that found self-determination and engagement to be key elements for Treaty-making and improving well-being for Indigenous Peoples.

Key informants across groups described how M&I activities indirectly contributed in supporting Indigenous governments/groups to manage and control programs and services to the extent that they facilitated full and honourable implementation of Treaties and Agreements, provided Indigenous partners with resources for implementation, and responded to partners' needs and priorities. While there were limitations in the extent of each of the above (discussed more in Finding 11), key informants conveyed that the following M&I activities generally contributed positively in supporting Indigenous partners:

• Resources: There were several avenues through which M&I activities affected funding levels for Indigenous governments/groups. For instance, 'gaps'-closing funding was provided through the CFP development process and associated offshoots, a moratorium on considering own source revenue in the calculation of fiscal transfers was instigated in response to concerns raised through the CFP development process, and some SGIG received increased funding through renewed Fiscal Financing Agreements/Financial Transfer Agreements that were negotiated under the new CFP. While experiences of Indigenous partners varied, key informants communicated that, overall, M&I activities contributed to enhancing resources, which in turn supported Indigenous governments/groups to self-organize and self-govern (e.g., develop legislation, hire employees, undertake research or data initiatives).
• Authorities: Administering funding to Indigenous governments/groups predominantly through grants (instead of Contribution Agreements) reduced federal control and provided Indigenous partners with enhanced flexibility to manage and control programs and services with less oversight and interference, though with some exceptions (see Finding 11 for more). The IB encouraged and supported other government departments to evolve their practices and processes so that funding (e.g., for program enhancements) could be transferred to CIRNAC and then provided to Indigenous governments/groups through consolidated grants.
• IB Support: In some instances, the IB provided information and system navigation to respond to Indigenous partners' needs and priorities, as requested.

An example from the COVID-19 Working Group case study is detailed below.

There was considerable variation in Indigenous partners' experiences and perceptions related to implementation. The following were repeatedly identified by key informants as challenges or areas of frustration that impeded or limited progress in relationship building and detracted from Indigenous partners' overall satisfaction with implementation:

• There is a perception that there is insufficient support and leadership across the federal government to ensure that other government departments understand and act upon their obligations and that Canada takes a coordinated, whole-of-government approach to implementation. Similar sentiment was shared in the Evaluation of the Cabinet Directive on the Federal Approach to Modern Treaty Implementation and a proposal published by the Land Claims Agreements Coalition.
• Indigenous partners have encountered limited direct access to, and engagement by, certain other government departments, including central agencies to discuss and respond to partners' priorities and issues related to implementation.
• Indigenous partners have experienced implementation delays (particularly with funding) and slow or non-responsiveness of CIRNAC/IB and other government departments to issues or concerns raised by partners, including those identified as areas for improvement through past evaluations and engagement.
• Limited understanding and awareness of Treaties and Agreements and limited maintenance of institutional knowledge on implementation throughout the federal government has resulted in Indigenous partners having to continually re-educate and retrain public servants.
• High turnover and variable attendance of departmental representatives at meetings (some of whom are not known to Indigenous partners) has reduced comfort and trust, stalled progress, and necessitated continued investment of partners' time and effort to rebuild relationships and educate new personnel.
• In some circumstances, Indigenous partners have encountered public servants who have taken disrespectful actions or approaches that did not reflect partnership nor the intended intergovernmental relationship. For example, there were accounts of a public servant referring to a 'never again' clause in a Treaty/Agreement and Indigenous partners being given inappropriately short timelines for their participation in M&I activities, such that they did not have adequate opportunity for meaningful review and input.

Many of the above challenges were openly acknowledged by public servants and can be seen reflected in performance data. For instance, as of October 2021, a total of 21 disagreements had been initiated by Indigenous partners, with one third (33%) having escalated to the level of a formal dispute. Of seven formal disputes, six remained active (86%). These figures highlight that some implementation issues have not been readily resolved through IB-facilitated discussion, which has left Indigenous partners with few options but the legal system to gain clarity and prompt action. Utilization of formalized dispute resolution exemplifies how Indigenous partners can find it difficult to gain traction with other government departments, such as in instances where other government departments interpret Treaties and Agreements narrowly or delay fulsome implementation of their obligations.

In response to the issues and challenges encountered by Indigenous partners, key informants expressed a desire for CIRNAC and the IB to be more proactive, further enhance coordination and awareness of Treaties and Agreements across the federal government, and provide greater advocacy and leadership for the structural changes and resources required to enable and ensure full, honourable, and timely implementation.

5.1 Conclusions

Systematic efforts are required for Canada, and Canadians, to build and strengthen relationships with Indigenous Peoples, address structural racism and inequities embedded within the fabric of Canadian society, and repair hundreds of years of historical and ongoing colonial harm. There will never not be a need for federal resources, leadership, structures, and processes to support a full and honourable implementation of Treaties and Agreements, as well as to develop and maintain the intended nation-to-nation, Crown-Inuit, and government-to-government relationships they set forth. If anything, the need for appropriate, effective, and efficient intergovernmental relationships will only grow as more Indigenous Peoples articulate and exercise their rights. Thus, the relevance of the M&I activities will only increase in significance.

M&I activities are aligned with the continuing need for implementation coordination and expertise across the federal government, particularly in relation to managing intergovernmental relationships with Indigenous signatories and supporting other government departments to navigate implementation issues and fulfill their obligations. Further, M&I activities contribute to improving relationships between Indigenous partners and some other government departments. Structures and processes such as Implementation Committees, the CFP development process, and the COVID-19 Working Group provided opportunities and support for Indigenous partners to come together with Canada to collaborate, address issues and points of friction, strengthen working relationships, and build trust.

The evaluation found that framing activities as a 'program' and utilizing program authorities (Grants and Contributions) may not fully align with the intended approach to nation-to-nation and Crown-Inuit relationships. Specifically, doing so perpetuates the unequal balance of power between Indigenous Peoples and Canada, constrain Indigenous partners' autonomy to self-govern and self-determine (e.g., as a result of reporting requirements or unauthorized data sharing), and stop short of initiating or enabling the structural changes required to reflect true nation-to-nation and Crown-Inuit relationships, to clearly differentiate Treaties and Agreements from the Indian Act, and to meaningfully advance reconciliation. Additionally, while beyond the scope of this evaluation, findings also raise questions about what structural change(s) may be required to ensure that Indigenous partners experience a coordinated, whole-of-government response and that Provincial/Territorial Governments fulfill their obligations as well.

The coordination and support activities undertaken by the IB contribute to improving federal officials' awareness and understanding of Treaties and Agreements, in turn supporting fulfilment of obligations. This includes developing and maintaining working relationships with public servants in other government departments, as well as supporting direct engagement between other government departments and Indigenous partners with stakeholders expressing a desire for additional processes and mechanisms to enhance efficiency and accountability in the federal response to implementation. Some also voiced that there is an opportunity for the IB to develop in-house subject matter expertise related to common implementation issues (e.g., fiscal matters, impact assessments, fisheries) or to establish stronger links to implicated other government departments to develop issue-specific implementation expertise. Either approach could support a more efficient response by providing means for the IB and other government departments to better leverage existing knowledge, capacity, and lessons learned through prior experiences.

The ability for CIRNAC to generate valid and reliable information to support decision-making should be reflected through the performance measurement system. This includes, but is not limited to the access to up-to-date performance data and associated systems, such as the Modern Treaty Management Environment. While the IB has undertaken recent work to enhance performance measurement (e.g., development of a new Performance Information Profile), further efforts appear to be needed to delineate performance measurement needs and responsibilities for IB-specific versus whole-of-government implementation and to ensure that performance data reflects and assesses the intended intergovernmental relationship. The indicators established within the Performance Information Profile are required to measure the strength of the working premise and to assess the intergovernmental relationships between Canada and Indigenous signatories called for in Treaties and Agreements.

Activities prioritized by the IB over the evaluation period were intended to support engagement of Indigenous partners and respond to their priorities, especially the need to redefine and evolve the fiscal relationship between Indigenous partners and Canada. Additionally, proactive outreach by the IB in response to emerging issues that may have implications for Indigenous partners was seen as beneficial. For example, coordinating the federal government's response to ensure that shared obligations are fulfilled once triggered; supporting Indigenous partners' response to the COVID-19 pandemic; and facilitating engagement between Indigenous partners and other government departments within the context of major projects and impact assessments. The evaluation found that these activities prioritized by the IB were successful in contributing to improvements in relationships and supporting implementation progress.

Finally, there is a continued need for Canada and Indigenous partners to work together to define and resolve resource needs and underlying equity needs through the emerging CFP development process and related offshoots (i.e., M5 table and education annex). The scope of activities that partners undertake to implement their Treaties and Agreements have grown significantly and intergovernmental relations, management and stewardship of lands and resources, consultation processes, and co-developing policy with Canada all involve significant effort by Self Government and Modern Treaty partners. Partners have advocated for resourcing that reflects their increased activity and provides them with sustainable and predictable funding to advance their self-determination. Given the opportunity costs faced by Indigenous partners, there is a need to centre partners' priorities and cost-benefit considerations so that Canada's approach, facilitated by the IB, allows for meaningful involvement and supports the intended nation-to-nation, Crown-Inuit, and government-to-government relationships and self-determination.

5.2 Recommendations

Based on evaluation findings and conclusions, it is recommended that CIRNAC:

1. Lead collaborative work to move away from a programmatic approach to the implementation of Agreements and Treaties to an approach that reflects the enduring and evolving nature of intergovernmental relationships.
2. Undertake a comprehensive analysis of implementation roles & responsibilities, resources, processes, and linkages to partners and stakeholders, in order to strengthen the implementation of Modern Treaties and Agreements and to fully reflect the intergovernmental relationship.
3. Collaborate with Self Government and Modern Treaty partners to develop data options that reflect self-determination and facilitate the integration of this data and approach by whole-of-government when designing new programs and other initiatives.
4. Determine that emerging mechanisms (such as CFP) should be used to better enable Self Government and Modern Treaty partners to contribute to Government of Canada decision making processes and to foster the intergovernmental relationship.