Appearance before the Standing Committee on Indigenous and Northern Affairs (INAN) - Bill C-51, An Act to give effect to the self-government treaty recognizing the Whitecap Dakota Nation / Wapaha Ska Dakota Oyate and to make consequential amendments to other Acts (June 19, 2023)
The Honourable Marc Miller, Minister of Crown-Indigenous Relations
Table of contents
Scenario Note
Committee: Standing Committee on Indigenous and Northern Affairs
Date: Monday June 19, 2023 at 3:30 p.m.
Location: Room 415, Wellington Building, 197 Sparks Street
Witnesses:
(4:30 p.m. – 5:30 p.m.):
Honourable Marc Miller, Minister of Crown–Indigenous Relations
Department officials:
(4:30p.m. – 5:30 p.m.):
- Martin Reiher, Sr. Assistant Deputy Minister, Treaties and Aboriginal Government
- Blake McLaughlin (TBC), Director General
- Martin Labelle, Director of Negotiations
- Aayah Shadad, Manager, Federal Negotiations
Department of Finance
- Brent Almond, Director, Indigenous Taxation Policy
Department of Justice
- Mary Jean Rolando, Legal Counsel
- Tyler Paquette, Legal Counsel
Committee Members (12):
- John Aldag (Liberal)
- Jenica Atwin (Liberal – Chair)
- Jaime Battiste (Liberal)
- Michael V. McLeod (Liberal)
- Marcus Powlowski (Liberal)
- Patrick Weiler (Liberal)
- Marilène Gill (Bloc Québécois – Second Vice-Chair)
- Lori Idlout (New Democratic Party)
- Eric Melillo (Conservative)
- Gary Vidal (Conservative)
- Bob Zimmer (Conservative)
- Jamie Schmale (Conservative – First Vice-Chair)
Procedure:
- The Minister and departmental officials will be invited to sit at the table by the Chair or Clerk of the Committee.
- Quorum to hear testimony requires at least three members, including one member of the opposition and one member of the government.
- The Minister typically provides opening remarks of no more than 5 minutes, followed by a question and answer period.
- Time limits for questions (including responses) and order of rotation is as follows:
| 1st round (6 min.) | CPC | Liberal | BQ | NDP | ||
|---|---|---|---|---|---|---|
| 2nd round (5 min.) | CPC | Liberal | BQ (2.5 min.) |
NDP (2.5 min.) |
CPC | Liberal |
- If the appropriate documentation is provided to the Clerk, associate members may substitute as members of the committee; ask questions of the witnesses, move motions and vote.
- The Minister's appearance is scheduled to conclude at 5:30 p.m. or at the call of the Chair.
Context:
- On June 16, unanimous consent was given for the Ways and Means Motion to be deemed concurred in, that the bill be introduced and read a first time, deemed read a second time and referred to the Standing Committee on Indigenous and Northern Affairs (INAN).
- Whitecap Dakota First Nation, located 30 kilometers south of Saskatoon Saskatchewan, is one of the nine Dakota-Lakota First Nations located in Manitoba and Saskatchewan.
- The Government of Canada and Whitecap Dakota have been engaged in negotiations since 2009, following the First Nation's expressed interest in moving out from under the Indian Act.
- Negotiations were highly successful and culminated with the initialing of a comprehensive Self-Government treaty in April 2023.
- Following the conclusion of negotiations, the Self-Government treaty, entitled "A Self-Government Treaty Recognizing the Whitecap Dakota Nation / Wapaha Ska Dakota Oyate" was approved by Whitecap Dakota membership through a community approval campaign that was aligned with their customary decision-making practices.
- The Minister of Crown Indigenous Relations on behalf of the Government of Canada and Chief Bear on behalf of Whitecap Dakota signed the Governance Treaty at an in-person ceremony held in May 2023.
- One of the jurisdictions recognized under the Governance Treaty is taxation. The Department of Finance has also been working with Whitecap Dakota to negotiate a complementary Real Property Tax Agreement and Tax Treatment Agreement, setting out the scope of Whitecap Dakota's tax jurisdiction on its reserve lands.
- This Governance Treaty will mark the first agreement of its kind with a First Nation in Saskatchewan, serving as a model for the region and beyond.
- Should this proposed bill receive Royal Assent by Parliament, the parties will be able to proceed on time for an Effective Date as early as September 1, 2023.
Opening remarks
Check on delivery
Hello, Bonjour.
Before I begin I want to acknowledge that Canada's Parliament is located on the unceded traditional territory of the Anishinaabeg Algonquin people.
I'm glad to be here today to speak about Bill C-51, An Act to give effect to the Self-Government Treaty Recognizing the Whitecap Dakota Nation / Wapaha Ska Dakota Oyate. I will focus my remarks on the potential impact this Self-Government Treaty has for Whitecap, why it matters to Canada, and when this legislation is passed, how it will deliver on Canada's commitment to implement the United Nations Declaration on the Rights of Indigenous Peoples.
Madame Chair, as you know, the Truth and Reconciliation Commission Calls to Action call on federal, provincial, territorial and municipal governments to fully adopt and implement the Declaration as the framework for reconciliation.
In 2021 in the United Nations Declaration on the Rights of Indigenous Peoples Act came into force. It provides a roadmap for us to work with First Nations, Inuit and Métis to implement the Declaration. It is the lens that guides all of our work.
Madame Chair, allow me to read Article 4 of the Declaration:
"Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions."
As members of this committee know, the Indian Act is a colonial and racist piece of legislation that stripped away rights to self-determination and self-government of First Nations.
The Indian Act took away Whitecap Dakota's, and so many other Nations, inherent right to govern themselves, to build their own economy, to have a say in programs and services delivered on their own lands.
For the past 40 years, the Whitecap Dakota have worked to move out from under the Indian Act. For example, they implemented a custom Election Code in 1989. In 2003, the community became one of the first signatories to the Framework Agreement on First Nation Land Management. This enabled Whitecap to exercise control over its lands and resources without ministerial oversight and approval, replacing 25% of the Indian Act. Whitecap Dakota developed business laws and policies that enable it to operate efficiently.
Similarly, under the First Nations Fiscal Management Act, Whitecap Dakota levies a real property tax on reserve, which funds community development and social programs and businesses. Underpinning all of these initiatives is a desire to respond nimbly to economic and development opportunities.
When I visited Whitecap Dakota this Spring, I had the opportunity to see the impacts of their vision, determination, and efforts through the impressive infrastructure that they have in community due to the leadership of Chief Darcy Bear. From the golf course, to the Dakota Dunes Resort that was supported by Indigenous Services Canada's Community Opportunity Readiness Program, to their casino; Whitecap has shown their success over and over the last few decades and is an excellent example of the importance of self-determination of Indigenous communities across Canada.
For over a decade, guided by their membership's vision, Chief Bear and his council have been in negotiations with the Government of Canada on a self-government agreement to remove the remaining pieces of the Indian Act that is impeding their full vision of self-government.
That is the Bill we're talking about today.
The Self-Government Treaty Recognizing the Whitecap Dakota Nation / Wapaha Ska Dakota Oyate Bill enacts a comprehensive self-governance Treaty that aligns with the UN Declaration and responds to Whitecap Dakota's desire to move out from under the Indian Act.
If passed, the Bill and Treaty would affirm the Whitecap Dakota Government as an "Indigenous Peoples of Canada" with an inherent right of Self-Government as a constitutionally-protected right under section 35 of the Constitution Act, 1982.
It would recognize Whitecap Dakota as a self-governing entity, with jurisdiction and authority over a broad range of authorities related to the community's administration, reserve lands, membership, and programs and services.
It would further establish a new, Nation-to-Nation relationship between the Government of Canada and Whitecap Dakota with practical mechanisms for intergovernmental cooperation.
In closing, I would encourage the members of this committee to come together to act swiftly to pass this Bill, in order to meet the September 1 coming into force date for the agreement, to take this step towards implementing the United Nations Declaration on the Rights of Indigenous Peoples, and support Whitecap Dakota Nations vision of self-determination.
I look forward to your questions.
Thank you, Merci.
Bill C-51
Clause-by-Clause Analysis
Long Title
Provides for the long title of the Act, "An Act to give effect to the Self-Government Treaty Recognizing the Whitecap Dakota Nation / Wapaha Ska Dakota Oyate and to make consequential amendments to other Acts".
Preamble
The preamble sets out the context for the Act. For instance, some of the key preamble clauses:
- highlight the historical allyship and alliances between the Crown and certain Dakota communities;
- recognize that Whitecap Dakota Nation is one of the Indigenous Peoples of Canada and holds an inherent right of self-government that is recognized and affirmed by section 35 of the Constitution Act, 1982;
- affirm that the Whitecap Dakota Nation's members have expressed their support of this Treaty and in moving forward with its implementation; and,
- confirm that the passage of enabling legislation is required to give effect to the Treaty.
Clause 1: Short Title
Provides for the short title of the Act, "A Self-Government Treaty Recognizing the Whitecap Dakota Nation / Wapaha Ska Dakota Oyate Act", a simpler way of citing the Act than the long title.
Clause 2: Interpretation
Provides for the definitions that apply in this Act. For instance, it defines the term "Treaty", as used in the Act, to mean "A Self-Government Treaty Recognizing the Whitecap Dakota Nation / Wapaha Ska Dakota Oyate", including any amendments made to it from time to time. This provision makes it unnecessary to name and give full details of the Treaty each time it is referred to in the Act.
Clause 3: Status of Treaty
Provides that the Act will be given effect as a treaty within the meaning of section 35 of the Constitution Act, 1982.
Clauses 4-5: Treaty
Provides that the Treaty is given effect and the force of law and may be relied on by all persons and entities.
Provides that persons and bodies referenced in the Treaty have the powers, rights, privileges, benefits, duties, and liabilities as set out in the Treaty.
Provides that the Treaty prevails over this Act and any other federal law to the extent of an inconsistency or conflict. It further provides that the Act prevails over any other Act of Parliament to the extent of any inconsistency or conflict.
Clause 6: Whitecap Dakota Nation
Provides that, on the coming into force of the Act, the Whitecap Dakota First Nation ceases to exist as a band within the meaning of the Indian Act. On the coming into force of the Act, the Whitecap Dakota Nation is created as a legal entity, with all of the capacity, rights, powers, and privileges as outlined in the Treaty, and assumes the rights, interests, assets, and obligations of its predecessor, the Whitecap Dakota First Nation. Further, the Whitecap Dakota Nation will exercise these powers and law-making authorities through the Whitecap Dakota Government.
Clause 7: Whitecap Dakota Laws
Provides that the Treaty outlines the binding nature of Whitecap Dakota laws passed by the Whitecap Dakota Nation through the Whitecap Dakota Government or some Whitecap Dakota Institutions, which may be relied on by all persons.
Clauses 8-9: Taxation
Provides that the complementary Tax Treatment Agreement is given the force of law through this Act for as long as it is in effect.
Affirms that the Tax Treatment Agreement does not form part of the Treaty and it is not to be considered a Treaty within the meaning of sections 25 and 35 of the Constitution Act, 1982.
Clauses 10-11: Application of Other Acts
Provides that on the coming into force of the Act, the sections of the Indian Act identified in the Treaty will cease to apply to the Whitecap Dakota Nation.
Provides that the Statutory Instruments Act will not apply to Whitecap Dakota Nation laws.
Clauses 12-16: General
Provides that judicial notice must be taken of the Treaty and Tax Treatment Agreement and publication by the King's Printer is evidence of the Treaty.
Provides for judicial notice of a Whitecap Dakota Nation law that is registered in the official registry of laws maintained by the Whitecap Dakota Nation, in accordance with the Treaty. Such a law is evidence of that law in any proceeding.
Provides that a decision-making body established under a Whitecap Dakota law is not to be considered a federal board, commission, or other tribunal within the meaning of subsection 2(1) of the Federal Courts Act.
Provides that the Saskatchewan Court of King's Bench will have jurisdiction to make orders and issue injunctions and declaratory relief against a decision-making body established under a Whitecap Dakota law and may undertake a judicial review of the decisions of any such decision-making body. This route may only be pursued, however, after all other review or appeal mechanisms set out in Whitecap Dakota laws have been exhausted.
Describes the notice requirements for any judicial or administrative proceeding. If an issue arises in respect of the Treaty or this Act, notice must be served on the Attorney General of Canada and the Whitecap Dakota Nation. Likewise, service must be on the Whitecap Dakota Government if the issue is in respect of its law.
Provides that Chapter 33 and Schedule B of the Treaty will be given retroactive effect dating back to August 22, 2022.
Clause 17: Orders and Regulations
Gives the Governor in Council the authority to make regulations or orders it considers necessary to carry out the provisions of this Act, the Treaty, the Tax Treatment Agreement, or other agreements related to the implementation of the Treaty.
Gives the Governor in Council the authority to make regulations or orders it considers necessary to ensure that Whitecap Dakota Nation can continue to benefit from the First Nations Fiscal Management Act.
Clauses 18-25: Consequential Amendments and Coordinating Amendments
Consequential amendments will be made to the Access to Information Act, Payments in Lieu of Taxes Act, First Nation Goods and Services Tax Act, First Nations Fiscal Management Act, and the Privacy Act and ensures that all sections related to amendments made by the Yale First Nation Final Agreement Act or this Act are coordinated, given that either of these two amending Acts might come into force first or both come into force at the same time.
Clause 26: Coming into Force
Provides that this Act, other than clause 16 (regarding the retroactive effect of Chapter 33 and Schedule B of the Treaty), comes into force on a day to be fixed by order of the Governor in Council.
Overview
Background
Since 2009, the Government of Canada and Whitecap Dakota First Nation ("Whitecap Dakota") have worked in partnership to complete a comprehensive self-government treaty that is responsive to the community's expressed desire to move out from under the Indian Act.
The self-government treaty, entitled, "A Self-Government Treaty Recognizing the Whitecap Dakota Nation / Wapaha Ska Dakota Oyate" ("the Governance Treaty"), would recognize the Whitecap Dakota Nation as a self-governing entity, acting through the Whitecap Dakota Government, with jurisdiction and authority over a broad range of subject matters related to the community's governance and administration, reserve lands, membership, and programs and services. The Governance Treaty also affirms Whitecap Dakota's right to self-government as a constitutionally-protected right under section 35 of the Constitution Act, 1982.
This Governance Treaty will mark the first agreement of its kind with a First Nation in Saskatchewan, serving as a model for the region and beyond. Significant portions of the Indian Act, as they relate to Whitecap Dakota, its members, and reserve lands, would no longer apply to Whitecap Dakota. The only exceptions would be sections 2(1) (definitions), 3 (administration), 5-7 (Indian register), 87 (property exempt from taxation), 89 (restriction on mortgage, seizure, etc., of property on reserve), and 90 (property deemed situated on reserve) of the Indian Act.
Whitecap Dakota will be able to enact laws that set out how it will manage its own resources, promote and enhance its culture, and build on its successes in community and economic development — with full transparency and accountability to its members. The Governance Treaty will further establish a new, government-to-government relationship between the Government of Canada and Whitecap Dakota and practical mechanisms for intergovernmental cooperation.
This initiative will also mark a concrete demonstration of the implementation of aspects of the United Nations Declaration on the Rights of Indigenous Peoples; specifically, the right of self-determination, including self-government, enshrined in Articles 3 and 4 as well as the rights of Indigenous peoples to direct and maintain institutions that reflect their distinctive needs and customs, in accordance with Articles 20, 23 and 34.
Engagement Process
The Governance Treaty is the product of approximately 12 years of collaborative negotiation between the parties. Over the course of that period, the parties jointly developed, refined and finalized the Governance Treaty, with negotiations formally concluding in April 2023.
During the negotiation process, Whitecap Dakota also undertook two community engagement campaigns to inform, and eventually seek the direction of, its members. In Fall 2022, the community reviewed the main substance of the Governance Treaty and then, in April 2023, Whitecap Dakota undertook a second engagement campaign to consult members on several proposed amendments. Throughout both engagement periods, innovative engagement methods were employed, such as various telecommunications approaches to address demographic barriers and consultation sessions expressly designed to meet the different needs of members. For example, during the October 2022 community ratification, members could vote in-person, by mail and electronically, and Whitecap Dakota offered extended voting hours to promote accessibility. This inclusive process ultimately resulted in a highly positive response from the community. The approval vote saw 63% of eligible Whitecap Dakota voters participate and vote overwhelmingly in support of the agreement, with 92% of votes cast in support of the agreement. Following their second community engagement campaign in April 2023, 100% of participating Whitecap Dakota members approved the proposed amendments, in a manner that respected their customary and communal decision-making practices. The community approval process was centered on ensuring full transparency, accountability, and community involvement. This consisted of several informed community information sessions with members followed by a secret ballot vote.
Co-development
The Government of Canada is committed to a renewed relationship with Indigenous Peoples and to ensuring that federal programs and initiatives meet the needs and expectations of communities from coast to coast to coast. Co-development has been a guiding principle throughout the negotiation process between the parties to ensure that the Governance Treaty reflects Whitecap Dakota's unique vision of self-determination.
The co-development of the Governance Treaty adopted best practices and approaches from other concluded self-government agreements, yet also contains unique aspects that reflect Whitecap Dakota's particular needs and interests, as they relate to its successful business ventures and land-management experiences.
Furthermore, at key stages in the process, Whitecap Dakota engaged its members on the Governance Treaty and on the draft legislation to solicit their feedback and make any necessary accommodations.
Key Elements of the Bill
The proposed bill seeks to give effect to the Governance Treaty, which would recognize the Whitecap Dakota Nation, acting through the Whitecap Dakota Government, and its jurisdiction and authority over:
- Core Governance Functions: Core governance (inclusive of elections, membership, citizenship, taxation, administration and enforcement of Whitecap Dakota laws); emergencies, public order, peace and safety.
- Lands and Resources: Environment, lands and natural resources management; public works, infrastructure, services; landlord and tenant matters; local traffic and transportation
- Regulations: Alcohol and intoxicants; gaming; licensing, regulation and operation of businesses; economic development.
- Programs and Services: wills and estates; child and family services; education; health; language and culture.
As one of the jurisdictions recognized under the Governance Treaty is taxation, the Department of Finance has also been working with Whitecap Dakota to negotiate a complementary Real Property Tax Agreement and Tax Treatment Agreement, setting out the scope of Whitecap Dakota's tax jurisdiction on its reserve lands. Given Whitecap Dakota's proven success with innovative taxation tools and powers, the agreements will equip the community with added taxation powers to advance this interest and the Real Property Tax Agreement would be the first of its kind in the country.
The Governance Treaty also provides Whitecap Dakota the option to take over jurisdiction over child and family services through the Governance Treaty or, if they prefer, the process under An Act respecting First Nations, Inuit and Métis children, youth and families (Bill C-92).
Implementation and Next Steps
Should this proposed bill receive Royal Assent by Parliament, the parties will be able to proceed on time for an Effective Date as early as September 1, 2023. Following the Effective Date, the parties will enter into the implementation phase of the Governance Treaty. The Governance Treaty has an accompanying Implementation Plan, and will be supported by the establishment of a joint Implementation Committee to guide the parties in their new intergovernmental relationship.
Background
Whitecap Dakota First Nation
Whitecap Dakota First Nation ("Whitecap Dakota") is one of the nine Dakota-Lakota First Nations located in Manitoba and Saskatchewan. Their reserve is located approximately 30km south of Saskatoon, Saskatchewan. The First Nation has a membership of 692, with 324 members living on reserve. Chief Darcy Bear is the current elected Chief, a position he has held since 1991.
Whitecap Dakota is well known for its strong socio-economic development, which is highlighted by its 5% unemployment rate on reserve and various successful business ventures (i.e. casino, gas bar, hotel and conference center) and partnerships, which generate millions annually in own-source revenue for the community. This prosperity extends beyond the parameters of Whitecap Dakota's reserve; it also has significant spin-off benefits for neighboring local businesses and the city of Saskatoon writ large. The success of the many on-reserve businesses employs more than 650 non-members from Saskatoon.
Whitecap Dakota also has an excellent record of leadership and has consistently been a supportive partner in local governance. This is demonstrated by the numerous bilateral agreements with the Government of Saskatchewan concerning housing, gaming, off-reserve education, liquor taxation, court services, and environmental protection as well as with the private sector.
History of Negotiations
The Government of Canada and Whitecap Dakota have been engaged in negotiations since 2009, following the First Nation's expressed interest in moving out from under the Indian Act. The discussions have centered on the means to re-affirm the section 35 rights of the Whitecap Dakota Nation in order to facilitate continued economic growth and strengthen its governance, social, and cultural institutions.
Negotiations were highly successful and culminated with the initialing of a comprehensive self-government treaty in April 2023. Following the conclusion of negotiations, the self-government treaty, entitled "A Self-Government Treaty Recognizing the Whitecap Dakota Nation / Wapaha Ska Dakota Oyate" ("the Governance Treaty"), was approved by Whitecap Dakota membership through a community approval campaign that was aligned with their customary decision-making practices.
In April 2023, Whitecap Dakota Nation undertook a community approval vote on the Governance Treaty, which saw 100% of votes cast in support of moving ahead with the arrangement. With the community's will and perspective clearly known in April 2023, the Minister of Crown Indigenous Relations on behalf of the Government of Canada and Chief Bear on behalf of Whitecap Dakota signed the Governance Treaty at an in-person ceremony held in May 2023.
The Governance Treaty
The Governance Treaty recognizes the Whitecap Dakota Nation as a self-governing entity, acting through the Whitecap Dakota Government, with jurisdiction and authority over a broad range of subject matters related to the community's governance and administration, reserve lands, membership, and programs and services.
The Governance Treaty affirms Whitecap Dakota's inherent right of self-government as a constitutionally-protected right under section 35 of the Constitution Act, 1982. The Governance Treaty provides for the Government of Canada's recognition of the Whitecap Dakota Nation, acting through the Whitecap Dakota Government, with jurisdiction over: core governance; membership; language and culture; lands management; emergencies, public order, peace and safety; taxation; environment; resource management; agriculture; public works and infrastructure; local traffic and transportation; wills and estates; education; health; licensing, regulation and operation of businesses and economic development; alcohol, gaming and intoxicants; landlord and tenant matters; and, the administration and enforcement of Whitecap Dakota laws.
As one of the jurisdictions recognized under the Governance Treaty is taxation, the Department of Finance has also been working with Whitecap Dakota to negotiate a complementary Real Property Tax Agreement and Tax Treatment Agreement, setting out the scope of Whitecap Dakota's tax jurisdiction on its reserve lands. Given Whitecap Dakota's proven success with innovative taxation tools and powers, these complementary agreements will provide the community with added taxation powers to advance this interest, with the Real Property Tax Agreement being the first agreement of its kind in the country.
This Governance Treaty will establish a new government-to-government relationship between Whitecap Dakota and the Government of Canada to promote cooperation and partnership between both parties, while reducing the application of the Indian Act.
Should the proposed bill receive Royal Assent, upon the Effective Date which may be as early as September 1, 2023, the majority of the Indian Act will cease to apply to Whitecap Dakota with the exceptions of Sections 2(1) (definitions), 3 (administration), 5-7 (Indian register) and 90 (property situated on reserve). Additionally, Section 87 (property exempt from taxation) and 89 (restriction on reserve property seizure), would continue to apply unless provided for by Whitecap Dakota Law.
Frequently Asked Questions
Q. What is the purpose of the proposed Bill entitled An Act To Give Effect To The Self-Government Treaty Recognizing The Whitecap Dakota Nation / Wapaha Ska Dakota Oyate And To Make Consequential Amendments To Other Acts?
A. The proposed Bill seeks to give effect to the comprehensive self-governance Treaty concluded between Canada and Whitecap Dakota First Nation ("Whitecap Dakota"), entitled "Recognizing the Whitecap Dakota Nation / Wapaha Ska Dakota Oyate" ("Governance Treaty").
Q. What is the self-governance treaty entitled Recognizing the Whitecap Dakota Nation / Wapaha Ska Dakota Oyate?
A. The Governance Treaty affirms Whitecap Dakota's inherent right of Self-Government under section 35 of the Constitution Act, 1982. It also recognizes the Whitecap Dakota Government and its jurisdiction and authority over: core governance; membership; language and culture; lands management; emergencies, public order, peace and safety; taxation; environment; resource management; agriculture; public works and infrastructure; local traffic and transportation; wills and estates; education; health; licensing, regulation and operation of businesses and economic development; alcohol, gaming and intoxicants; landlord and tenant matters; and, the administration and enforcement of Whitecap Dakota laws.
Consistent with other Self-Government arrangements, the Governance Treaty sees the removal of significant portions of the Indian Act, equipping Whitecap Dakota with the tools to develop its own laws in the areas outlined in the Governance Treaty, which will be recognized by Canada.
Q. What is Canada's role if the proposed Bill is passed and given effect?
A. If passed, Canada will continue to have a role in implementing the Governance Treaty and working in equal partnership with the Whitecap Dakota Government. In support of the Governance Treaty, the parties co-developed an Implementation Plan that will guide their new intergovernmental relationship and fulfill their respective obligations.
In addition, Canada has an ongoing obligation to provide fiscal support to Whitecap Dakota in its exercise of Self-Government. The parties have co-developed a Fiscal Relationship Agreement that will ensure a stable, predictable and flexible fiscal relationship for Whitecap Dakota.
Q. How will the Bill be implemented?
A. The Implementation Plan commits the parties to establishing an Implementation Committee that will oversee the implementation of the Governance Treaty. The co-developed Implementation Plan will assist this new committee to ensure obligations are met, outline the activities to be undertaken, identify implementation activity timelines, and address other matters relating to implementation as agreed to by the parties.
Q. Will the Canadian Constitution continue to apply to Whitecap Dakota First Nation?
A. Yes. Whitecap Dakota's Governance Treaty, their institutions, and laws will be exercised within the framework of the Constitution Act, 1982 and the First Nation government will respect the Canadian Constitution, including the Charter of Rights and Freedoms.
Q. Has the First Nation ratified the Governance Treaty?
A. Yes, Whitecap Dakota successfully ratified the agreement. Ratification was undertaken in two phases. A community engagement campaign was first launched by Whitecap in Fall 2022. Through this campaign, Whitecap Dakota members were informed of the substance of the agreement. A referendum vote was then held, in which 63% of eligible Whitecap Dakota voters participated, 92% of which voted in support of the agreement.
A subsequent community engagement period was held in April 2023 on amendments to the Governance Treaty, which included provisions in the Governance Treaty to affirm Whitecap Dakota's recognition as an Aboriginal Peoples of Canada and its inherent right of Self-Government. This second community approval period followed Whitecap Dakota's customary decision-making practices. This community campaign resulted in 100% of participating voters (approximately 40%) approving the amendments to the Governance Treaty.
Q. If the legislation is introduced and approved, how long until the Governance Treaty takes effect?
A. The parties have set an effective date of September 1, 2023. This date is contingent on the proposed Bill receiving Royal Assent ahead of that date. To achieve the effective date, it is necessary to seek the introduction and passage of the enabling legislation before the end of June 2023.
Q. What is the role of the provincial government in the Governance Treaty?
A. At this time, the Governance Treaty with Whitecap Dakota is a bilateral agreement between Canada and Whitecap Dakota. Although the Government of Saskatchewan is not a party to the Governance Treaty, it has attended many meetings regarding the Governance Treaty as an observer and has been consulted on the final Governance Treaty.
The primary consequence of Saskatchewan's non-participation is that the Governance Treaty does not address Whitecap Dakota jurisdiction or authority in areas of provincial jurisdiction; as such, provincial laws continue to apply in the same manner and to the same extent as they did before the Governance Treaty comes into effect.
Q. Can the provincial government partake in the Governance Treaty in the future?
A. The Governance Treaty does not close the door to future arrangements with Saskatchewan. Whitecap Dakota has a positive working relationship with Saskatchewan and the parties have jointly concluded various agreements on housing, gaming, off-reserve education, liquor taxation, court services and environmental protection. Nothing precludes Saskatchewan from entering into agreements on matters under its jurisdiction through bilateral negotiations with Whitecap Dakota or trilateral negotiations with Whitecap Dakota and Canada.
Q. What if there is a conflict between a Whitecap Dakota law and a federal or provincial law when the Governance Treaty comes into effect?
A. Whitecap Dakota laws prevail only on Whitecap Dakota First Nation where they have law-making power under this Governance Treaty. This includes authority over: core governance; membership; language and culture; lands management; emergencies, public order, peace and safety; taxation; environment; resource management; agriculture; public works and infrastructure; local traffic and transportation; wills and estates; education; health; licensing, regulation and operation of businesses and economic development; alcohol, gaming and intoxicants; landlord and tenant matters; and, the administration and enforcement of Whitecap Dakota laws.
Should a conflict between a Whitecap Dakota law and a federal or provincial law arise, the Governance Treaty provides provisions to resolve the conflict in question.
In areas of key federal interest (such as peace, order and good government, protection of human rights, agriculture, environmental protection, heath services, public safety and policing, among others), the Governance Treaty stipulates that federal laws will prevail. Moreover, the Constitution Act, 1982, including the Canadian Charter of Rights and Freedoms, continues to apply to the Whitecap Dakota Government and Whitecap Dakota institutions after the effective date.
The Governance Treaty also confirms that Whitecap Dakota will exercise its jurisdiction and authority in a manner consistent with Canada's international legal obligations.
Further, the Governance Treaty identifies areas in which Whitecap Dakota will not have jurisdiction. These areas include criminal law and criminal procedures, intellectual property, and shipping, navigation and aeronautics.
Q. Which parts of the Indian Act no longer apply?
A. Should the proposed Bill pass, the majority of the Indian Act would no longer apply to Whitecap Dakota, its governance, administration, citizens, and reserve, with certain exemptions that are noted in the Governance Treaty. Exemptions that would continue to apply include certain sections that relate to: status definitions, administration, Registers, taxation, and property on reserve, as described in Sections 2(1), 3, 5-7, 87, 89, and 90, respectively.
Q. What are the risks of the proposed Bill?
A. The Governance Treaty is a low-risk initiative. Canada now has many decades of experience with Self-Government and, to date, no substantive risks have emerged from the other concluded self-governance arrangements that are already in effect with Indigenous Nations across Canada.
Technical Questions
Q. Do the First Nations Land Management Act and the Framework Agreement on First Nations Land Management still apply?
A. The First Nations Land Management Act (FNLMA) and the Framework Agreement on First Nations Land Management no longer apply. However, the Governance Treaty allows Whitecap Dakota to enter into agreements with the Land Advisory Board to benefit from any aspect of the FNLMA. Similar provisions were also included pertaining to the First Nation Fiscal Management Act (FNFMA), to allow the Governor in Council to make any regulations considered necessary to enable Whitecap Dakota to benefit from the provisions of the FNFMA or obtain the services of any body created under the FNFMA.
Q. How do the recent amendments to the First Nation Fiscal Management Act relate to the Governance Treaty?
A. As part of the shift to a new Nation-to-Nation approach with Whitecap Dakota Nation, the Governance Treaty, like other self-government agreements, gives the Nation autonomy over its internal financial matters. One of the jurisdictions recognized under the Governance Treaty is taxation. The Department of Finance has also been working with Whitecap Dakota to negotiate a complementary Real Property Tax Agreement and Tax Treatment Agreement, setting out the scope of Whitecap Dakota's tax jurisdiction on its reserve lands.
Given Whitecap Dakota's proven success with innovative taxation tools and powers, the agreements will equip the community with added taxation powers to advance this interest and the Real Property Tax Agreement would be the first of its kind in the country.
Q. Does the Governance Treaty speak to Whitecap Dakota's jurisdiction over child and family services? If so, does the Governance Treaty relate and/or interact with Bill C-92 in any way?
A. As a Section 35 rights holder, the Governance Treaty provides Whitecap Dakota to pursue either option. It may elect to pursue jurisdiction over child and family services under their inherent right of self-government or, alternatively, under An Act respecting First Nations, Inuit and Métis children, youth and families (Bill C-92). Nothing in the Governance Treaty limits Whitecap Dakota from exercising its jurisdiction under Bill C-92. However, should Whitecap Dakota wish to exercise jurisdiction under their inherent right of self-government, the Governance Treaty sets out the means through which that interest may be advanced.
Q. Does the recognition of Whitecap Dakota's inherent right to self-government under Section 35 of the Constitution Act, 1982, change the agreement in any way?
A. Recognition of Whitecap Dakota's inherent right to Self-Government will acknowledge the arrangement as a Treaty within the meaning of Section 35 of the Constitution Act, 1982. However, the Governance Treaty remains a stand-alone self-government Treaty, whereby the key elements – i.e. the First Nation's constitution, governance structure, jurisdictions and law-making powers – remain unaltered.
In substance and practice, the Governance Treaty negotiated with Whitecap Dakota is similar to the one concluded with Sioux Valley Dakota Nation, which received Royal Assent and came into effect in 2014. These stand-alone self-government arrangements address governance jurisdictions within the First Nations' respective reserves.
Q. What does the Governance Treaty mean for the engagement plan with the other eight Dakota-Lakota First Nations regarding self-governance and their Section 35 rights?
A. The Governance Treaty has no implications for the engagement with the other eight Dakota-Lakota Nations as this is a stand-alone Governance Treaty with Whitecap Dakota.
Canada would continue engaging the other Dakota-Lakota individually to understand their communities' unique needs and interests, and to find negotiated solutions that may address their rights and vision of self-determination. The respective Recognition of Indigenous Rights and Self-Determination discussion tables with each community will continue to serve as a vehicle to support renewed government-to-government relationships, increase Indigenous self-determination, and address socio-economic gaps.
Q. Will any subsequent arrangements between Crown-Indigenous Relations and Northern Affairs Canada and Dakota-Lakota First Nations be Treaty-protected?
A. Negotiated arrangements between Crown-Indigenous Relations and Northern Affairs Canada and the other Dakota-Lakota First Nations will be based on the individual needs, interests, and visions of self-determination unique to each community. Should they desire that their arrangements be Treaty-protected, Crown-Indigenous Relations and Northern Affairs Canada will work with each community to determine how best to support this interest. The Governance Treaty concluded with Whitecap Dakota could serve as a model for any such discussions.
Q. How does this initiative support the principles of the United Nations Declaration on the Rights of Indigenous Peoples?
A. The Governance Treaty represents an opportunity to effect wide-ranging social and structural change for Whitecap Dakota citizens. This supports key Government of Canada priorities, as outlined in the 2021 Speech from the Throne, Ministerial mandate letters, the Principles Respecting the Government of Canada's Relationship with Indigenous Peoples and the United Nations Declaration on the Rights of Indigenous Peoples.
Specifically, the Governance Treaty supports: an effective and democratic Whitecap Dakota Government, with full transparency and accountability to their citizens; self-determination and reduced application of the Indian Act; preservation of Whitecap Dakota language and culture; further inclusion of Whitecap Dakota in the economy; the rebuilding and reconstitution of Whitecap Dakota on their own terms; and, sufficient, stable, and predictable fiscal relationships.
History
Advancing Indigenous Self-Government
Indigenous Peoples have practiced their own forms of government for thousands of years before the arrival of European and other settlers in what is today Canada. These forms of government reflected the economic, social and geographic diversity of Indigenous Peoples, as well as their cultural practices and spiritual beliefs.
Early partnerships between colonial governments with Indigenous nations were forged through treaties, trade, and military alliances. Over many centuries, these relationships were eroded by successive laws, policies and decisions that were based on a colonial and paternalistic approach. This includes the Indian Act, which was passed in 1876 and continues to determine how most First Nations in Canada are governed to this day, resulting in egregious harm to communities. The Indian Act imposed a colonial governance system on First Nation communities, with a limited form of local administration that does not take into account the specific circumstances of individual communities.
The Government of Canada is working with partners to address historical grievances and advance reconciliation between Indigenous and non-Indigenous Peoples, by undoing federally-imposed systems of governance and administration in favor of Indigenous control and self-governance. This supports the transition away from the Indian Act towards Indigenous self-government. It is a necessary journey intended to address a long history of colonialism and continued impacts with the goal of renewing the nation-to-nation relationship.
Self-government negotiations are one way to work together in partnership toward this goal and advance Indigenous self-determination, which is a fundamental Indigenous right and principle of international law, as set out in the United Nations Declaration on the Rights of Indigenous Peoples. Self-government is also a pathway to development and economic growth that generates benefits for Indigenous Peoples.
The starting principle is that the Government of Canada recognizes that Indigenous Peoples have an inherent right of self-government guaranteed in section 35 of the Constitution Act, 1982. Negotiated self-government agreements put decision-making power into the hands of Indigenous governments, to make their own choices about how to deliver programs and services to their communities. This can include making decisions about how to better protect their culture and language, educate their students, manage their own lands and develop new business partnerships that create jobs and other benefits for their members.
Advancing Whitecap Dakota First Nation's Vision of Self-Governance
Despite the inherent limits of the Indian Act, Whitecap Dakota has attained a high degree of financial autonomy. In 1991, this small community had an unemployment rate of 70%, the on-reserve education system was failing youth with low retention and graduation rates, and decades of poor financial management had led to significant deficits. Between 1993 and the present day, the community initiated a series of targeted actions and investments that have completely reversed this trend. Today, their median income on reserve is $34,841 and 80% of members hold at least a high school diploma. The figures for other Saskatchewan reserves are $13,100 and 50%, respectively. The unemployment rate in the community now hovers at 5%.
The many on-reserve business ventures and partnerships – including a casino, golf course, gas bar, hotel and conference centre – generate own-source revenue for the community; however, this prosperity extends beyond the parameters of Whitecap Dakota's reserve lands. It also has significant spin-off benefits for neighboring local businesses and the city of Saskatoon writ large. The many on-reserve businesses employ hundreds of non-members from Saskatoon. Whitecap Dakota also contributes millions of dollars towards the construction of schools and the development of culturally-appropriate curricula in Saskatoon, where only 10% of the student body is from Whitecap Dakota. Whitecap Dakota's is also a strong partner in local governance with the Government of Saskatchewan on housing, gaming, off-reserve education, liquor taxation, court services and environmental protection.
Many Canadian businesses also have deep and productive relationships with Whitecap Dakota as investors, partners, and employers. Business ventures on Whitecap Dakota's reserve lands have attracted significant investments from the private sector. Where such partnerships were once considered the exception, they are now the norm on Whitecap Dakota's reserve.
Whitecap Dakota has also consistently been one of the earliest adopters of innovative statutory federal regimes. As one of the first Indigenous groups to sign on to what is now the Framework Agreement on First Nation Land Management Act (formerly the First Nations Land Management Act), Whitecap Dakota has implemented its own land use, environmental, and natural resource laws since 2004, enabling the community to operate at the speed of business. Similarly, under the First Nations Fiscal Management Act, Whitecap Dakota levies a real property tax on reserve, which in turn funds various community development and social programs and businesses. Underpinning all of these initiatives is an interest in being able to respond nimbly to economic and development opportunities.
Whitecap Dakota has cultivated a unique climate on reserve that has undoubtedly aided it in achieving economic, employment, and social success. Yet its potential is limited; unless First Nations have negotiated self-government or other similar agreements, they remain governed by the Indian Act. This paternalistic and antiquated regime has been recognized as the single largest barrier to First Nation entrepreneurship and inclusion in the Canadian economy.
The next step along the continuum of Whitecap Dakota's vision of self-determination is moving out from under the Indian Act to facilitate further economic growth and strengthen its governance, social, and cultural institutions. While it has, to date, focused mostly on using existing policy levers, Whitecap Dakota is ready to establish the added tools and levers that come with being a recognized, self-governing entity and further its inclusion in the Canadian political, economic, and social structure.
The Government of Canada and Whitecap Dakota have worked in partnership to conclude a final treaty entitled, "A Self-Government Treaty Recognizing the Whitecap Dakota Nation / Wapaha Ska Dakota Oyate" (the "Governance Treaty"), which affirms Whitecap Dakota's inherent right of self-governance under section 35 of the Constitution Act,1982.
The Governance Treaty will mark the first self-government agreement with a First Nation in Saskatchewan, serving as a model for the region and beyond. Significant portions of the Indian Act, as they relate to the jurisdictions set out in the Governance Treaty, would no longer apply to Whitecap Dakota, its members, and reserve lands.
Whitecap Dakota will be able to enact laws that set out how it will manage its own resources, promote and enhance its culture, and build on its successes in community and economic development – with full transparency and accountability to its members. The Governance Treaty will further establish a new, government-to-government relationship between the parties and practical mechanisms for intergovernmental cooperation.
Engagement Process
History of Community Engagement
Engagement on the comprehensive self-government treaty entitled, "A Self-Government Treaty Recognizing the Whitecap Dakota Nation / Wapaha Ska Dakota Oyate" ("the Governance Treaty") has been ongoing since the beginning of negotiations in 2009. Throughout this process, Whitecap Dakota First Nation ("Whitecap Dakota") has continually kept its members apprised of the status of negotiations and sought their direction at key junctures.
By way of example, after the parties initialed the self-government agreement in August, 2022, the parties embarked on a 45-day community engagement process which culminated with a community vote on October 6-7, 2022. The community vote saw 63% of eligible Whitecap Dakota voters participate and vote overwhelmingly in support of the agreement, with 92% of votes cast in favour. This outcome can be attributed to strong engagement efforts undertaken by Whitecap Dakota leadership throughout negotiations and in the lead up to the community vote that was informed by members according to their particular needs and interests.
Whitecap Dakota tailored their engagement strategy to meet the different needs of specific demographics within its community, including women, Elders, people with disabilities, and 2SLGBTQQIA+ members. Specific methods were adopted to enhance member engagement and support improved voter access and participation, such as:
- Employing telecommunications such as social media, community newsletters, and email as additional mediums for community engagement and information sharing outside of the traditional in-person sessions held;
- Utilizing three methods of voting (mail-in ballot, electronic voting, and in-person voting stations) to increase accessibility and maximize voter participation for members both on- and off-reserve; and,
- Increasing the voting period (hours and number of days) and information sessions to ensure voter participation from members pressured for time.
In addition, recognizing that women, youth, Elders and other groups may experience unique engagement barriers, Whitecap Dakota implemented several activities to bolster the inclusivity and accessibility of the community engagement and ratification process. This approach included:
- free and accessible transportation to and from the polls for members, along with free childcare during engagement sessions; and,
- information written in plain language text and Indigenous translators at information sessions to ease interpretive burdens.
Following the October 2022 community vote, the federal government announced its preparedness to formally recognize Whitecap Dakota, and all nine of the Dakota-Lakota First Nations in Canada, as one of the Aboriginal Peoples of Canada. Whitecap Dakota expressed an interest in amending the Governance Treaty to include provisions that affirm this long-overdue recognition and particularly its inherent right of self-government. This amendment would make the Governance Treaty a constitutionally-protected self-government treaty, one of the first of its kind in Canada.
Recognizing that this was a material change, the Government of Canada worked with Whitecap Dakota to engage community members once again on these proposed amendments. An alternative approach to ratification was used, which is more aligned with Whitecap Dakota's traditional and communal decision-making processes. Consequently, in April 2023 Whitecap Dakota concluded its community engagement on the amended Governance Treaty, which saw Whitecap Dakota members approve the Governance Treaty by way of a community information meeting and secret ballot.
The Governance Treaty has no impact on other Indigenous communities as it does not limit or define the existing Aboriginal or Treaty rights of other Indigenous Nations. As such, no consultation was required with other Indigenous Nations on the Governance Treaty.
Government of Canada Internal Engagement
With respect to the Government of Canada, internal engagement has been ongoing throughout the course of negotiations and heightened at key junctures in the negotiation process (i.e. with the conclusion of the Agreement-in-Principle in 2017 and the final Governance Treaty in 2023). With a whole-of-government support, the Governance Treaty was finalized and initialed by the parties in April 2023.
Consultation and Parliamentary Ratification
With the community's will and perspective clearly known, the Government of Canada worked closely with the Whitecap Dakota to draft legislation intended to give effect to the Governance Treaty.
In April 2023, the Government of Canada shared the draft legislative proposal with Whitecap Dakota to ensure that it was duly consulted and to solicit its feedback. Whitecap Dakota signaled its support for the draft legislative proposal and any feedback provided was incorporated into the final, co-developed bill to give effect to the Governance Treaty.
To bring the Governance Treaty into effect, the Government of Canada is required to introduce proposed legislation in Parliament and that proposed legislation would need to be adopted by Parliament. If the proposed bill is passed, an Order-in-Council will confirm the Effective Date of the Governance Treaty to be as early as September 1, 2023, which Whitecap Dakota has requested.
Implementation and Next Steps
Implementation Plan
In support of the comprehensive self-government treaty entitled, "A Self-Government Treaty Recognizing the Whitecap Dakota Nation / Wapaha Ska Dakota Oyate" ("the Governance Treaty"), the parties co-developed an Implementation Plan that would guide their new intergovernmental relationship and fulfill their obligations set out in the Governance Treaty, if the Treaty is given effect through federal legislation.
The Implementation Plan would commence on the Effective Date of the Governance Treaty and would:
- identify the obligations of the parties;
- outline the activities to be undertaken to fulfill those obligations;
- identify the timeframes for completion of implementation activities; and,
- address other matters agreed to by the parties.
The Implementation Plan would expire after ten years, unless otherwise extended by the parties on the recommendation of the Implementation Committee.
Implementation and Operations Committee
When the bill is passed by Parliament, and on the Effective Date, an Implementation Committee would be established to support the ongoing implementation of the Governance Treaty. The Implementation Committee would be comprised of two representatives, one from the Government of Canada and one from Whitecap Dakota.
The Implementation Committee would meet regularly to assess progress and should any implementation issues arise, it would provide advice and recommendations to the parties on ways implementation can be strengthened, including whether any amendments to the Treaty should be considered and would be the first forum for engaging in dispute resolution. To ensure transparency on the progress made, an annual update on the implementation of the Governance Treaty would be prepared.
A New Fiscal Relationship
In support of the Governance Treaty, the parties have co-developed a Fiscal Relationship Agreement that would ensure a stable, predictable and flexible fiscal relationship for Whitecap Dakota in its exercise of its self-government responsibilities.
The Fiscal Relationship Agreement is predicated on the Government of Canada's Collaborative Self-Government Fiscal Policy, which was co-developed with, and addresses the true expenditure needs of, Indigenous governments. For Whitecap Dakota, it provides for financial support that includes:
- start-up funding to support the costs associated with the transition to self-government; and,
- ongoing, annual governance funding in recognition of the fact that a self-governing Whitecap Dakota Nation would have greater responsibilities associated with the operation and management of government.
In addition, Whitecap Dakota's existing Indian Act program and service funding, which consists of funding for governance, health, education, social development, general band support, land management, economic development, and infrastructure operation and maintenance, would be transferred from Indigenous Services Canada to Crown-Indigenous Relations and Northern Affairs Canada and would be included in the self-government grant to Whitecap Dakota.
Next Steps
When the bill is passed by Parliament, and on the Effective Date of September 1, 2023, the Whitecap Dakota Nation, acting through the Whitecap Dakota Government, would assume jurisdiction over a comprehensive range of subject matters, as outlined in the Governance Treaty. The obligations outlined in the Implementation Plan and Fiscal Relationship Agreement would both commence.