Appearance before the Standing Senate Committee on Indigenous Peoples (APPA) regarding the UN Declaration Act Overview (February 28, 2024)

Logistics

Date: Wednesday, February 28, 2024

Time: 6:45 p.m. – 8:45 p.m. ET

Location: In-person, Room C128, Senate of Canada Building

Subject: The implementation of the United Nations Declaration on the Rights of Indigenous Peoples Act, 2021

Appearing

Context

Officials from CIRNAC, ISC, Justice, and Heritage Canada have been invited to appear before the committee to provide a briefing on the implementation of the United Nations Declaration on the Rights of Indigenous Peoples Act, 2021.

From the motion passed by the Committee:

That the Standing Senate Committee on Indigenous Peoples be authorized to examine and report on the implementation of the United Nations Declaration on the Rights of Indigenous Peoples Act, 2021 by Canada and First Nations, Inuit and Metis peoples, including, but not limited to any of the priorities raised within the Government of Canada's United Nations Declaration on the Rights of Indigenous Peoples Act Action Plan, 2023;

Previous appearances at APPA on this subject include those undertaken as part of the Committee's study of the original legislation (Bill C-15) in May 2021.

Key issues during those meetings included questioning from Senators on the following:

• Free, prior, and informed consent and "veto" potential;
• Lack of meaningful consultation and engagement;
• Non-binding aspect of UNDRIP and lack of action plan to implement it;
• Jurisdictional responsibilities for provinces and territories;
• Self-determination;
• Unclear guidance on how to implement UNDRIP;
• Economic reconciliation and improving Indigenous participation in the Canadian economy (Funding for and cancellation of Indigenous projects); and
• MMIWG and unmarked burial sites at the former T'kemlups residential school.

Many of those issues are expected to be subject of discussion during this study as well.

Senators who have remained on APPA since that time, and their respective areas of questioning directed to CIRNAC and ISC, include:

Senator Brian Francis (PSG): asked several witnesses questions relating to the role that UNDA would have in improving the interpretation of Section 35 rights to better uphold Indigenous rights and treaty rights.

Senator Mary Coyle (ISG): asked questions relating to the creation of an Indigenous Human Rights Commission; how DoJ and CIRNAC were going to work together moving forward on the Action Plan, the potential impacts of FPIC overturning existing laws, and; the impact on trust between Indigenous peoples and Canada if Bill C-15 didn't pass;

Senator Nancy Hartling (ISG): asked questions relating to the impact of passing Bill C-15 on women and girls in Inuit communities; Bill C-15's impact on fishing and fracking, and; how youth would be engaged in this initiative.

Senator Scott Tanas (CSG): asked questions relating to the difference between Aboriginal title lands in Canadian law and Aboriginal territories as written in the declaration, and how consent under FPIC works – who gives it etc.

Senators who have since joined APPA, may ask questions around the following areas:

Senator David M. Arnot (ISG): Progress on the development of an Indigenous Human Rights Commission; UNDA's impact on treaty rights, and; what needs to happen to speed up the implementation of UNDA and advancement of reconciliation initiatives such as the Calls to Action and Calls for Justice.

Senator Margot Greenwood (ISG): The impacts of UNDA on issues affecting children and youth, and how to make more rapid progress on UNDA implementation.

Senator Donald Plett (C): FPIC as a ‘veto'; the impacts of UNDA on natural resources projects; the cause of delays and perceived lack of action on UNDA implementation, Calls for Justice and Calls for Action.

Senator Paul J. Prosper (CSG): Impact of UNDA on Indigenous land and treaty rights, progress on advancing child and family services reform, and; regional specific Indigenous issues in Atlantic Canada such as fishing rights disputes.

Senator Karen Sorensen (ISG): Role of UNDA as it pertains to natural resource projects in Indigenous territories, and the lack of progress on Calls for Action and Calls for Justice.

Senator Judy A. White (PSG): Progress on the creation of an Indigenous Human Rights Commission; impact of UNDA in advancing Indigenous rights; lack of progress on Calls for Justice, and; the role and progress of collaboration between the federal government and the provinces and territories on advancing reconciliation.

In the Media

• Feds table UNDA amid calls for more consultation (June 2023)
• Federal action plan for UNDRIP lacks input from rights holders, the treaty nations, says Crowchild (June 2023)
• UNDA action plan has been released. Here are three friction points to keep tabs on going forward | Canada's National Observer: Climate News (June 2023)

Meeting Proceedings

Departmental officials will be invited to sit at the table by the Chair or Clerk of the Committee. The Chair will call the meeting to order then invite Departments to each make an opening statement of no more than 5 minutes. The witness from Justice Canada will be the first to provide opening remarks, followed by the witnesses from CIRNAC, ISC and Heritage in an order to be determined later. Remarks will be followed by a question and answer session with members of the committee. Unlike House of Commons committees, APPA does not have a predetermined speaking order for its members, nor are the question rounds timed. The Chair recognizes Senators in turn and may advise how long the Senator has for questions. The Chair generally allows 5 minutes, but this could vary depending on how many Senators have questions for officials. If there are fewer members in attendance, more time may be provided for Senators to ask follow-up questions and/or receive time for a second round of questions. The departmental officials' appearance is scheduled to conclude at 8:45 p.m. or at the call of the Chair.

Other Information for Appearing In-Person

• Witnesses should arrive early so they may go through security, especially those without a Hill pass.
• There is a maximum of 4 witnesses at the table, but additional witnesses may approach the table from the gallery as required.

Key Messages

• CIRNAC is committed to meeting the statutory obligations from the UN Declaration Act, but also ensuring the department is equipped to use the UN Declaration as an interpretive lens.
• To support a coordinated and strategic approach to implementation, CIRNAC has established a UN Declaration Secretariat.
• The UN Declaration Secretariat has developed various tools and processes to support the department's implementation efforts, including guidelines, a UN Declaration consistency assessment tool, training and awareness materials, as well as performance and data management tools.
• CIRNAC continues to advance priorities with Indigenous partners in and outside of the Action Plan, in alignment with the department's ongoing commitment and practice of meaningful consultation and cooperation with Indigenous partners.

Background

• The department's UN Declaration Secretariat was formally established through funding from Budget 2023. It coordinates the department's efforts to implement the UN Declaration Act, including establishing processes to ensure consistency of laws with the UN Declaration, coordinating implementation of around 30% of the measures in the UN Declaration Act Action Plan 2023-28, and coordinating input into the Annual Progress Report to Parliament.

Current Status

• CIRNAC is applying a centralized approach to collect data on the status of each Action Plan Measure the department is involved in. The data collected is supporting CIRNAC in tracking progress and identifying various implementation barriers.
• In recent months, CIRNAC introduced and integrated a tailored assessment tool into existing processes for submissions to Cabinet committees and for the Budgetary Cycle to support the consistency of all departmental initiatives with the United Nations Declaration.
• CIRNAC also developed and launched a 2-hour training module to increase staff awareness and understanding of the UN Declaration. A key expected outcome of this training is to promote the application of a rights-based approach throughout the department's activities.

Program-Level Data

Program/Investment: UN Declaration Secretariat

Funding / Performance Indicator Data: $2.5 million for fiscal year 2023-24

CIRNAC involvement in the action plan

Spotlight on specific action plan measures

CIRNAC consistency of laws and policy approach

CIRNAC training awareness campaign

Annual reporting

Consultation and accommodation

Key Messages

• Integration of an assessment tool into current internal procedures for Cabinet documents will help ensure that departmental legislative, policy, program, and regulatory proposals are in alignment with the UN Declaration.
• This tool will ensure that steps are taken early in the policy development process to work in consultation and cooperation with Indigenous partners and to identify and address potential impacts on the rights of Indigenous Peoples.
• In 2023, four bills fell within the purview of the Ministers of Crown-Indigenous Relations and Northern Affairs. It's reassuring to note that appropriate consultation and collaboration have been undertaken for each of these bills.

Background

• The UN Declaration Act creates an obligation for the Government of Canada to take all measures necessary to ensure that the laws of Canada are consistent with the UN Declaration, in consultation and cooperation with Indigenous peoples.
• During the Action Plan development process, Indigenous partners submitted proposals that reflect their desire to play a substantive role in the development of new laws and the review of legislation.
• CIRNAC drafters of Memoranda to Cabinet, Budget proposals and Treasury Board Submissions now have to complete a UN Declaration Consistency Assessment Tool.
• This tool allows the department to take a systematic approach to ensuring appropriate consultation and cooperation with Indigenous partners takes place throughout the development of all legislative, policy, program, and regulatory initiatives.
• CIRNAC is also working to ensure that all legislative initiatives are reviewed prior to beginning the Parliamentary process.

Current Status

• The assessment tools will be implemented for submissions to Cabinet committees and for the Budgetary Cycle process starting in April 2024.
• CIRNAC's approach aligns with interim guidance from Justice Canada and will be in place until further developments in the whole-of-government approach to consistency of laws.
• More information on the consultation and cooperation processes for bills introduced in 2023 falling under the purview of CIRNAC Ministers can be found in the table below.

Bills under the purview of CIRNAC Ministers in 2023

Key Messages

• Empowering CIRNAC employees with the expertise and competencies to champion Indigenous Peoples' rights and align initiatives with the UN Declaration is paramount.
• CIRNAC has responded to this critical learning requirement by creating an introductory training module. Its focus is to enhance staff comprehension of human rights, the UN Declaration, the UN Declaration Act, and the associated Action Plan. While the training was not developed in consultation and cooperation with Indigenous Peoples, it raises awareness of the need for CIRNAC employees to engage in cooperation and consultation with Indigenous Peoples.
• This training supports and strengthens a consistent approach to implementation across the department.

Background

• The UN Declaration Act Action Plan 2023-28 was released in June 2023, and CIRNAC plays a key role in implementing roughly 30 percent of measures in the plan.
• After release of the Action Plan, requests for ad hoc guidance and advice from employees throughout the department working to implement the Action Plan highlighted the immediate need to develop and offer training.
• The training draws on materials from the United Nations, materials developed by Indigenous partners outside the Action Plan process, and what we heard from Indigenous partners during the Action Plan development process.
• This introductory training will be augmented with additional tools, resources and learning opportunities to meet the evolving needs of CIRNAC employees.

Current Status

• The training program was launched in December. Sessions are planned for targeted groups, including CIRNAC employees involved in supporting implementation of the UN Declaration policy consistency approach in February 2024. Training will open to all CIRNAC employees in late February 2024.
• CIRNAC looks forward to working in consultation and cooperation with Indigenous partners to determine how they may wish to be involved in the further development of the training development and awareness campaign.

Key Messages

• CIRNAC played a significant role in crafting the Action Plan, collaborating closely with Justice Canada and Indigenous partners to co-develop measures. Notably, efforts included spearheading the co-development of the Indigenous Modern Treaty Partner Priorities chapter in collaboration with a coalition of Modern Treaty partners.
• CIRNAC holds a pivotal role in implementing one-third of the UN Declaration Act Action Plan Measures. Among the 55 measures that CIRNAC is leading, co-leading, or supporting, 41 measures (75%) are currently in progress, reflecting the department's proactive engagement on Action Plan Measures within its purview.
• CIRNAC is committed to contributing to whole-of-government measures and supporting other departments in initiatives under their jurisdiction.

Background

• On behalf of Justice Canada, CIRNAC administered $26.3M to Indigenous partners through 149 funding agreements in fiscal year 2022-23 to support partner participation in the engagement process.
• The UN Declaration Act Action Plan 2023-28 is divided into 5 chapters: Shared Priorities (SP), First Nations Priorities (FN), Inuit Priorities (IN), Métis Priorities (ME) and Indigenous Modern Treaty Partner Priorities (MT).
• Several Action Plan Measures are broad-ranging and complex, involving multiple elements which require sub-plans to be developed to support the overarching measure.

CIRNAC APM Involvement and Implementation Status

• CIRNAC plays a significant role in the implementation of 55 measures:
  • Lead role in 39 measures
  • Co-lead role in 13 measures
  • Critical support in 2 measures
  • Significant role in 1 measure to be confirmed
• In addition to these measures, CIRNAC may also contribute to measures involving whole-of-government or supporting other departments in measures under their purview.
• Critical support differs from the other categories as CIRNAC requires direction or initial steps from other government departments prior to implementing initiatives.

Early Implementation Successes

• Implementation planning has largely been an internal exercise to date. Ensuing steps for CIRNAC will be to discuss, refine and validate the plans with partners. Some of these discussions are now underway.
• CIRNAC continues to actively engage with other departments to coordinate efforts to advance on shared measures, and support Justice Canada in achieving whole-of-government outcomes.

Program-Level Data

Program/Investment: Supporting Indigenous Women's and 2SLGBTQI+ Organizations Program

Funding / Performance Indicator Data:

• Through Budget 21 the Supporting Indigenous Women's and 2SLGBTQI+ Organizations program was provided $36.3M over five years and $8.6M ongoing beginning in 2021-22 to enhance the ability of Indigenous women's and 2SLGBTQI+ organizations to engage with community and governments to ensure that the priorities and interests of grassroots Indigenous women and 2SLGBTQI+ people are reflected in program, policy and legislation. In 2022-23 the program provided $8,213,449 in multi-year project funding for 15 new projects.
• CIRNAC worked with 5 grassroots organizations to organize presentations to federal departments, facilitated multiple connections between organizations and departments and supported the gathering of 17 Indigenous leaders to develop recommendations to the Government of Canada to support grassroots priorities.

Key Messages

• Supporting strong Crown-Indigenous relationships is at the core of CIRNAC's mandate.
• We continue our efforts to ensure that we are engaging with partners beyond the National Indigenous Organizations, and working directly with Indigenous governments and rights holders.
• With this interest in mind, the department will continue to ensure that partners have adequate time and resources to participate in discussions that have a direct impact on their rights or interests.

Background

• Over half of the 55 Action Plan Measures in which CIRNAC is implicated explicitly require collaboration or co-development.
• The Modern Treaty Partner Priorities chapter of the Action Plan was fully co-developed with a broad coalition of Indigenous Modern Treaty partners, and implementation of these measures will also be done collaboratively.
• Recognizing that the intensity of consultation and cooperation activities are directly tied to capacity, effort will be made to respect capacity challenges and mitigate consultation fatigue.

Current Status

• CIRNAC has recently expanded its involvement in key working groups involved in implementing Action Plan Measures in consultation and cooperation with Indigenous partners. 
• Several Action Plan Measures require discussions with partners to determine how they will be operationalized, and if any existing mechanisms can be leveraged to support consultation and cooperation.
• Mechanisms through which CIRNAC is currently advancing priorities from the Action Plan include:
  • Permanent Bilateral Mechanisms; 
  • Meetings with regional or geography-based organizations;
  • Fora at the leadership level;
  • Various committees, boards and working groups;
  • Tables such as the Recognition of Indigenous Rights and Self-Determination (RIRSD) tables, Treaty Implementation Committees, the Collaborative Fiscal Policy Co-Development Process, the Common Process for Modern Treaty Implementation, the Intergovernmental Policy Circle, the First Nations Financial Management Board, MMIWG Committees, and more;
  • Networks and coalitions such as the National Urban Indigenous Coalitions Council; and
  • Bilateral meetings with individual Nations, National Indigenous Women's Organizations, and Youth Organizations

Key Messages

• Under the UN Declaration Act Action Plan, CIRNAC has committed to the co-development of consultation arrangements with Indigenous partners; the co-development and co-management of information on Aboriginal and Treaty rights with Indigenous Peoples; and the establishment of a permanent Indigenous advisory committee to guide the federal approach to consultation.
• CIRNAC is committed to meeting these obligations in consultation and cooperation with Indigenous Peoples, with a continued focus on co-development with Indigenous partners.
• Fulfilling these commitments will result in more efficient, meaningful and robust consultation processes; more collaborative approaches to information collection and sharing; and will improve the whole-of-government approach to consultation and accommodation.

Background

• The Crown has a duty to consult and, where appropriate, accommodate when it contemplates conduct that might adversely impact potential or established Aboriginal and Treaty rights.
• In Action Plan Measure Shared Priorities 68, Canada commits to strengthening the right of Indigenous Peoples to participate in decision-making through an improved whole-of-government approach to consultation and accommodation that supports:
  • The co-development of consultation arrangements with Indigenous partners that establish agreed-upon duty to consult and engagement processes, in a manner consistent with the right to self-determination and free, prior, and informed consent;
  • The co-development of information on Aboriginal and Treaty rights through a system that is newly co-managed with Indigenous partners; and,
  • The establishment of a permanent Indigenous advisory committee to guide the federal approach to consultation and to explore considerations for an Indigenous-managed consultation capacity support fund.
• CIRNAC is also responsible for the Aboriginal and Treaty Rights Information System (ATRIS), an online geography-based information system that assists in baseline understanding of potential and established Aboriginal and Treaty rights. As the perspectives of Indigenous Peoples are essential to understanding potential impacts from Crown conduct on their rights, co-developing information on Aboriginal and Treaty rights and co-managing the system with Indigenous partners will ensure that essential tools used by federal officials in assessing consultation obligations are informed by and reflective of Indigenous partners' knowledge and perspectives.
• The establishment of the permanent Indigenous advisory committee will guide the federal approach to consultation. This permanent committee will foster a more robust, meaningful approach to consultation by providing ongoing support to all activities related to Action Plan Measure Shared Priorities 68.
• Additionally, Budget 2023 provided $11.4 million over three years, starting in 2023-2024, for CIRNAC to engage with Indigenous groups in order to update the 2011 federal guidelines for federal officials to fulfill the Crown's duty to consult (the Guidelines). With this update, CIRNAC aims to move the Guidelines towards a partner-based approach that is in line with the objectives and commitments of the UN Declaration Act.

Current Status

• The Federal Initiative on Consultation supports the implementation of 12 consultation protocols and the co-development of seven (representing 93 First Nation communities and 27 Métis regions), as well as the operation of five resource centres (representing 62 Indigenous communities and 18 Métis regions).
• Co-development of Aboriginal and Treaty Rights Information System (ATRIS) profiles has commenced with a number of partners. The co-development of ATRIS profiles and co-management of the system will serve to clarify areas of interest for Indigenous partners, as well as Indigenous expectations for consultation, resulting in greater knowledge exchange and understanding across the federal system regarding Indigenous rights and perspectives. This work will also significantly contribute to Indigenous data sovereignty, a principle tied to self-determination, by providing Indigenous partners greater control over the data shared and used across government in decision-making regarding their communities.
• As we move forward with the implementation of the UN Declaration Act Action Plan, an Indigenous Advisory committee is planned to advance these initiatives in partnership with Indigenous peoples. It will support a meaningful whole-of-government approach to consultation that is respectful of Indigenous perspectives.
• Engagement with Indigenous partners to update the 2011 guidelines for federal officials on the duty to consult will begin in late February 2024, and will consist of in-person sessions across Canada, providing an opportunity to work in consultation and cooperation with Indigenous partners on the revised guidelines. A second round of consultations to validate inputs will be held in 2025; it is anticipated that the renewed federal guidelines will be released in late 2026.

Program-Level Data

Program/Investment: Funding / Performance Indicator Data

Federal Initiative on Consultation: $3.6 million for fiscal year 2023-2024 (still waiting on a renewal decision) (Vote 10)

Budget 2023 to renew the Guidelines: $11.4 million over three years, starting in fiscal year 2023-2024, ($10M Vote 10 and $1.4M Vote 1)

Key Messages

• The Indigenous Modern Treaty Partner priorities chapter of the Action Plan was co-developed with a coalition of Indigenous Modern Treaty partners.
• Since the publication of the United Nations Declaration Act Action Plan, CIRNAC has continued to work with Indigenous Modern Treaty partners to advance related Action Plan Measures (APMs).
• CIRNAC is significantly involved in 13 of the 16 APMs in the Modern Treaty Chapter, the vast majority of them are underway with significant progress being made, including on developing options for an independent Modern Treaty oversight mechanism to hold the federal government accountable to Parliament.

Background

• Initial drafts of the UN Declaration Act Action Plan did not include a Modern Treaty specific chapter. Distinctions-based chapters were limited to First Nations, Inuit, and Métis. Instead, action plan items specific to Modern Treaty partners were blended into the Shared Priorities Chapter.
• Modern Treaty partners requested a specific chapter in the Action Plan, in line with their recognition as a separate distinction under Canada's Collaborative Modern Treaty Implementation Policy. This new chapter was co-developed through a working group facilitated by the Land Claims Agreements Coalition (LCAC) and was incorporated into the final Action Plan.
• The Action Plan Measures (APM) from this chapter can be viewed as tools to advance Canada's relationships with Modern Treaty partners. The chapter provides additional momentum for work under Canada's Collaborative Modern Treaty Implementation Policy, including the following commitments:
  • to co-develop recommendations for an independent oversight mechanism to hold the federal government accountable to Parliament within a six month timeframe which concluded in September 2023 (APM MT9);
  • to support the evolution of modern treaties, recognizing them as living documents capable of evolving over time that maintain rights and governance equity between Modern Treaty and Self-Governing partners and other distinction-based section 35 rights holders (APM MT1.e);
  • to revise the Cabinet Directive on Canada's approach to Modern Treaty Implementation to strengthen the governance ecosystem for escalating and triaging modern treaty issues, and clarify Deputy Head responsibilities (APM MT1.h and MT5); and
  • to ensure that Indigenous Modern Treaty partners are able to fully exercise their jurisdictional powers and remove any barriers preventing them (APM MT1.c).

Current Status

• Significant progress has been made in supporting strong intergovernmental relations with Indigenous Modern Treaty partners through the first Intergovernmental Leaders' Forum and Intergovernmental Policy Circle meetings held in 2023-2024. Planning has begun with Modern Treaty and Self-Governing partners for future meetings in Spring 2024.
• CIRNAC and Indigenous Modern Treaty Partners have concluded the co-development of options for an independent oversight and accountability mechanism. Canada is assessing next steps.
• Work remains ongoing between CIRNAC and Indigenous Modern Treaty Partners, in consultation with other federal government departments and agencies, to co-develop solutions:
  • to improve dispute resolution processes in Modern Treaties with the design of potential avenues for solution well underway (APM MT1.f);
  • to address improvements needed to board appointment processes and remuneration rates for boards established or legislated under Modern Treaties (APM MT1.g);
  • to develop new avenues to remedy rights or governance equity gaps created as a result new federal law, policy, or practice;
  • to revise the Cabinet Directive on Modern Treaty Implementation; and
  • to contextualize, understand, and determine the scope of work to remove barriers to the exercise of Indigenous Modern Treaty partners' jurisdictions.