FOR DISCUSSION

Strategic Slides on Changes to

Federal Policy, Laws and
Structure
Prepared By Russell Diabo, December 26, 2017
 Introduction
• I put these slides together to provide some preliminary background
information for Indigenous First Nations Peoples and allies, especially
those who are active in the Defenders of the Land and Idle No More
Networks.
• These changes are happening so fast even many community Chiefs,
Councillors, band staff don’t know about the changes, let alone the
grassroots peoples.
• I hope you read through these slides and seek more information from
your local band council, your Treaty or Provincial organization and of
course the AFN.
• Hopefully, my suggestions to DoL and INM are followed-up.
• There can be no Free, Prior Informed Consent if you aren’t INFORMED!
 OVERVIEW
1. AFN-Canada MOU’s on Fiscal Relations (Co-
Developed INAC-AFN Vision/Actions) & Joint
Priorities.
2. Federal 10 Principles on Indigenous
Relationships.
3. AFN Slides on Dissolving of INAC into Two New
Departments.
4. Highlights of PM Mandate Letters to Bennett &
Philpott.
National INAC-AFN Fiscal Relations Table
2016

INAC-AFN Joint
Committee: Minister
& National Chief

Technical Working
Groups: Federal &
AFN
 Co-Development of New Fiscal Relationship
Between Canada and First Nations
• AFN-Canada Shared Vision:
• That the new fiscal relationship should constitute a regime that by design
recognizes and is responsive to First Nations’ right to self‐determination –
a recognition‐of‐rights approach;
• That the new fiscal relationship should strengthen First Nations’ exercise of
their right to self-determination by supporting First Nations‐led capacity
enhancement;
• That the new fiscal relationship should be a learning, evolving and
empowering relationship – a conscious break from rigid colonial structures
‐ with whole‐of‐Government approaches that address the realities of all
First Nations;
• That a new fiscal relationship will ensure sufficient funding;
 Co-Development of New Fiscal Relationship
Between Canada and First Nations
• That the new fiscal relationship will empower First Nations to plan and invest
based on their own priorities, by ensuring greater predictability, flexibility and
autonomy of funding arrangements;
• That the new fiscal relationship should be founded on a mutual
accountability relationship whereby First Nations governments operating
under the auspices of the Indian Act are primarily accountable to their own
citizens, while the Government of Canada and First Nations governments
hold one another mutually accountable for the commitments they make to
one another and work together to achieve results for First Nations citizens;
and,
• That a new fiscal relationship will underpin progress toward the elimination of
socio‐economic gaps between First Nations citizens and other Canadians.
 Co-Development of New Fiscal Relationship
Between Canada and First Nations
• AFN-Canada Actions:
• 1. Establish a permanent advisory committee that could be appointed by Order in
Council that would reflect regional circumstances and interests. By April 1, 2019,
core areas of advice from the Advisory Committee will include:
• a. Recommendations for a new Fiscal Policy Framework to address sufficiency and
identify priority funding areas;
• b. Recommendations to increase revenue generation opportunities for First Nations,
developed in collaboration with provinces and territories;
• c. Recommendations to finalize new funding arrangement policies to strengthen the
commitment to flexible and predictable funding, the reduction of reporting burdens
and a shift from program to outcome‐based reporting, and the elimination of
General Assessment Scoring of First Nation communities in favour of First
Nations‐led tools; and,
• d. Recommendations to finalize a Mutual Accountability Framework, including a
national outcome‐based framework aligned with United Nations Sustainable
Development Goals.
 Co-Development of New Fiscal Relationship
Between Canada and First Nations
• 2. Take immediate action to create ten‐year grants for qualified
First Nations to leverage full flexibility under the Policy on Transfer
Payments, to be implemented on or before April 1, 2019. A plan
will be prepared for the orderly preparation and inclusion of
additional First Nations over time, based on a co‐developed
approach between the Government of Canada, the AFN, and First
Nation Fiscal Institutions.
• 3. Co‐develop an approach to repeal the First Nations Financial
Transparency Act in 2018 and replace it with a co‐developed
mutual accountability framework supported by First Nations
Institutions‐led audit and statistical functions.
 Co-Development of New Fiscal Relationship
Between Canada and First Nations
• 4. Replace the Default Prevention and
Management Policy (DPMP) with a new, proactive,
approach that includes continued work under the
First Nations Financial Management Board pilot
project to move First Nations out of third party
management and direct funding from the
Government of Canada to pay for third party
managers.
 3.2 ‐ Insufficient and Under‐Utilized Revenue
Generation Opportunities
• Transfers are not the only means by which First Nation governments are
financed. Revenue generation by First Nations can play an important role in
building a stronger fiscal relationship, reducing reliance on federal transfers
and strengthening First Nations self‐determination.
• There are several means by which First Nations can generate revenue,
including:
• Increasing economic development by growing First Nations businesses;
• Resolving comprehensive and specific land claims and additions to reserve;
• Creating and increasing resource revenue sharing;
• Increasing other forms of revenue sharing, such as gaming; and
• Taxation.
 4.2 – Enhancing Revenue Generation
Opportunities
• During the regional engagement sessions, officials from the AFN and the
Government of Canada heard from numerous First Nations leaders and
institutions with expertise in the area of First Nations revenue generation
opportunities, including many First Nations who were generating own source
revenues and supplementing federal transfers in order to improve the quality
of programs and services. Also represented were institutions such as the
First Nations Taxation Commission, the First Nations Financial Management
Board and the First Nations Finance Authority. As work continues on these
issues, AFN and Government of Canada officials should be able to continue
to turn to these First Nations and centres of expertise for guidance.
• With respect to taxation matters, the AFN and the Government of Canada
agree that generating revenues through taxation can play an important role
in supporting a renewed fiscal relationship. The AFN and the Government of
Canada will continue to explore approaches to pursuing taxation‐related
discussions in a forum that would meet the interests of the parties.
 AFN-Canada MOU on
Joint Priorities (June 2017)
 AFN-CANADA JOINT PRIORITIES
• 1. policing and community safety issues affecting First Nations;
• 2. co-development of an Indigenous Languages Act to support
the preservation, revitalization and strengthening of Indigenous
Languages;
• 3. work in partnership on measures to implement the United
Nations Declaration on the Rights of Indigenous Peoples,
including co-development of a national action plan and
discussion of proposals for a federal legislative framework on
implementation;
• 4. implementation of the 94 Calls to Action of the Truth and
Reconciliation Commission of Canada;
 AFN-CANADA JOINT PRIORITIES
• 5. ongoing work to develop options for consideration by
Chiefs-in-Assembly and federal decision-makers for a new
fiscal relationship to ensure sufficient, predictable and
sustained funding for First Nations governments;
• 6. work jointly to decolonize and align federal laws and
policies with the United Nations Declaration on the Rights of
Indigenous Peoples and First Nations’ inherent and Treaty
rights;
• 7. dialogue and planning to identify priorities and measure
progress to close the socio-economic gap between First
Nations and other Canadians; and
• 8. such other priorities as may be jointly agreed to.
 Trudeau’s Nation-to Nation
Process = Using AFN & PTO’s
• AFN accepted a Joint AFN-Federal Cabinet Committee (Bilateral
Mechanism) process on “joint priorities” where Trudeau has a veto
on funding, agenda items and process while AFN and Provincial-
Territorial Organizations (PTO’s) are funded under federal-AFN
consultation processes supposedly to review & “co-develop” law
and policy, including the land claims & self-government policies.
• So far, Tribal Councils and bands are not funded to prepare for
participation in the federal-AFN review of law and policy. The
Harper policy of no political advocacy by Tribal Councils remains
in place under the Trudeau government.
• The AFN Vice-Chief from each Region/Province leads these joint
AFN-Federal processes for the Chiefs of the Regions and sits on
the AFN Executive Committee with the AFN National Chief.
 Trudeau’s Operational Nation-
to-Nation Process in Canada

AFN-Canada Cabinet Committee (Bilateral Mechanism)

Federal Minister’s Policy & Law Working-Group

AFN Executive Committee

AFN National Chief

 Critique of Federal 10 Principles on
Relationship with
Indigenous Peoples
• Federal 10 Principles neither substantively nor procedurally meet
international minimum standards.
• First of all, although purporting to relate to the relationship with
Indigenous Peoples, the principles were unilaterally released by
the Canadian federal government under Prime Minister Justin
Trudeau and Justice Minister Jody Wilson Raybould.
• They did not engage with, consult, let alone seek the consent of
Indigenous Peoples and Nations as the proper Aboriginal and
Treaty Rights Holders. Under international law, Indigenous Peoples
are subjects of international law and the holders of internationally
protected Indigenous rights.
 Critique of Federal 10 Principles on
Relationship with
Indigenous Peoples
• The most important right recognized in UNDRIP is the right of Indigenous Peoples
to self-determination This is now enshrined in Article 3 of UNDRIP, which replicates
Article 1(1) of the International Covenant on Civil and Political Rights (ICCPR) and
the International Covenant on Economic, Social and Cultural Rights (ICESCR) and
makes it clear that this right applies to Indigenous Peoples.
• The right to self-determination is the overarching umbrella right; much of its
essence is then spelled out further in UNDRIP, in regard to land rights, governance
and Indigenous free prior informed consent (FPIC).
• Indigenous FPIC and therefore Indigenous decision-making power regarding access
to their lands and resources has to be recognized if UNDRIP implementation is real.
• The Canadian federal government’s “10 Principles” do not do that, rather they
attempt to lessen and undermine those fundamental principles of international
law.
 Critique of Federal 10 Principles on
Relationship with
Indigenous Peoples
• The Federal “10 Principles” are based on the racist, colonial Christian
Doctrine of Discovery.
• In the Federal “10 Principles” Canada does not refer to, but it continues to
rely on its Constitution Act 1867, which was unilaterally passed by British
parliament as the British North America Act 150 years ago and enshrines
these colonial systems and structures and the division of powers between the
federal and provincial government, leaving no room for recognition of equal
Indigenous jurisdiction and power, absent fundamental (constitutional)
reforms, which are not contemplated in the “10 Principles”.
• This is also reflected by the fact that the federal government stated that
these “10 Principles” are to guide the federal Working Group of Ministers on
the Review of Laws and Policies Related to Indigenous Peoples, but it is now
clear these “10 Principles” are being used in negotiations, agreements &
funding such as the Education Funding Agreements for Elementary &
Secondary Education.
 December 15, 2016 - Trudeau
Announces Two Track Reconciliation Approach
 Trudeau’s Two-Track Plan

Sec.
Sec. 35
91.24
Dissolving INAC & Creating Two New Departments:
Indigenous Crown Relations & Indigenous Services

L to R: Carolyn Bennett, Minister of Indigenous-Crown

Relations Northern Affairs (CIRNA) & Jane Philpott,
Minister of Indigenous Services (DISC)
 AFN Slides on
Dissolving INAC
Presented December 4, 2017
Changing Landscapes: The Dissolution of INAC, the
Emergence of CIRNA and DIS, and the FNIHB Move
 Dissolving INAC
• On August 28th the Prime Minister made a
surprise announcement on dissolving INAC.
• In its place, the GOC intends to create two
new departments
– Crown-Indigenous Relations and Northern Affairs
(CIRNA)
– Department of Indigenous Services (DIS)
 Why Dissolve INAC?
• The announcement pointed to the fact that the Royal
Commission on Aboriginal Peoples (RCAP) report in
1996 called for a similar structural change

• Some insiders pointed to the fact that the bureaucracy

needed a jolt from the old way of doing business
– This could explain why the announcement was made
without notice to anyone
 What will replace INAC?
• Two Ministers named right away
– Dr. Carolyn Bennett from INAC to CIRNA
– Dr. Jane Philpott from Health Canada to DIS
• Responsibilities identified in ministerial mandate
letters
– CIRNA to focus on relationship issues
– DIS to focus on providing services & may have other
services added, e.g. Health, ASETS, Policing, etc.
 How will it be done?
• Minister Bennett to lead a “consultation process”
to identify how to best make the change and
make recommendations to the PM
• Legislation will be presented in Parliament
– To dissolve INAC and to create CIRNA and DIS
– Will set ministerial powers
– This does not change the Indian Act in any way
 Concerns
• Some have expressed concerns
– Lack of consultation prior to announcement
– Possible increase or duplication of bureaucracy
– Corporate culture at INAC may negatively
influence other services transferred to DIS
 FNIHB-Specific Concerns
The Prime Minister’s Mandate letter to Minister Philpott made it clear that FNIHB would be
moving to Indigenous Services.
• A number of concerns have been identified:
– Increased distance to other Health Canada functions (PHAC)
– Compartmentalization of the Rights Agenda away from health functions (ie- Treaty right
to Health)
– Positive developments in the First Nations/FNIHB Relationship must be protected
• Relative flexibility in agreements
• Shared decision-making at regional governance tables
• Improved communications
 Opportunities
• Change can lead to transformation
• RCAP intended that the department inheriting
the service role would reduce as FN
governments & institutions increase
– GOC officials confirm this is the intent for DIS
• Department with relationship role would
continue
FNIHB Move and Opportunities for Change
• Minister Philpott’s mandate letter tasks her with innovating
FNIHB in a manner which supports health and wellness
models that are patient-centred, community wellness
oriented, and holistic, through mechanisms which bring
control and jurisdiction to First Nations themselves.

• These kinds of changes are welcomed, but require

thorough and meaningful engagement with rights-holders.
 Moving Forward
• AFN will advocate for a careful dialogue with
First Nations prior to introducing new
legislation
• Goals will be to guard RCAP vision, to ensure
concerns are addressed and opportunity is
seized
 Questions for Discussion
• What would a successful transformation look like, from a First
Nation perspective?
• What are the key roles for “relations” under CIRNA? What are the
future roles for regional offices?
• Are there programs that should not be moved to DIS and why?
What are the potential impacts?
• What parts of FNIHB are important to maintain in the move to
Indigenous Services?
• What are your expectations for engagement on the initial move,
and the transformation piece?
End of AFN Slides on
Dissolving INAC
 Trudeau’s Two-Track Plan
91(24) - 1867
• Maintain (& amend) Indian Act
Indefinitely
• Legislation Over First Nations
(Fiscal Institutions, FNLMA, etc.)
• Additions-to-Reserve Policy
• On-Reserve Programs & Services:
Infrastructure, Housing &
Education, etc. (Budget 2016-
2017: $11.8 Billion-5 Years)
• FNIHB under DISC
• INDIGENOUS SERVICES
Sec. 35 - 1982
• Unilateral Aboriginal & Treaty Rights
Interpretation (Federal Consultation Policy)
• Self-Gov’t Policy (Municipalization)
• Comprehensive & Specific Land Claims
Policies (Denial & Extinguishment)
• SCC Decisions/Legal Tests
• TRC Calls to Action & UNDRIP Articles (Nat’l
Reconciliation Table)
• Federal 10 Principles Indigenous Relationships
• 50 Rights & Recognition Tables Secret Talks
• INDIGENOUS-CROWN RELATIONS
 Highlights of Prime Minister’s Mandate Letter
to Bennett
• I recently announced our government’s intention to dissolve the Department
of Indigenous and Northern Affairs and to replace it with two distinct,
though complementary, departments, each with its own minister. I expect
that you and your colleague, the Minister of Indigenous Services, will
collaborate closely to advance the Government’s ambitious agenda.
• As Canada’s first Minister of Crown-Indigenous Relations and Northern
Affairs, you will accelerate the work you have already begun to renew the
nation-to-nation, Inuit-Crown, and government-to-government relationship
between Canada and Indigenous Peoples. You will also modernize our
institutional structure and governance so that First Nations, Inuit, and Métis
Peoples can build capacity that supports implementation of their vision of
self-determination.
 Highlights of Prime Minister’s Mandate Letter
to Bennett
• I expect you to build on the progress that has been made already, including
the establishment of 50 rights and recognition tables across the country,
the creation of bilateral mechanisms with National Indigenous Organizations
to make progress on shared priorities, and the progress made across
government on the Truth and Reconciliation Commission’s Calls to Action.
• Develop and lead consultations as we adopt machinery of government
changes to renew the relationship with Indigenous Peoples. This will include
the dissolution of Indigenous and Northern Affairs Canada, and the creation
of two new departments.
• identify those services across the Government of Canada that are best
delivered by a Department of Indigenous Services. Please provide
recommendations to me, under my prerogative for the machinery of
government, on the division of responsibilities between you and the Minister
of Indigenous Services and your respective departments.
 Highlights of Prime Minister’s Mandate Letter
to Bennett
• Please prioritize consultations relating to the anticipated transfer of responsibility
for the First Nations and Inuit Health Branch from the Minister of Health to the
Minister of Indigenous Services.
• Continue to develop and lead a whole-of-government strategy to include
Indigenous representatives in meaningful ways in Canada’s federal-provincial-
territorial dialogues.
• Increase the number of comprehensive modern treaties and new self-government
agreements in a manner that reflects a recognition of rights approach and
reconciliation. Accelerate progress on existing rights and recognition tables to
identify priorities for individual Indigenous communities.
• Deepen work with the Minister of Finance to establish a new fiscal relationship with
Indigenous Peoples that moves towards sufficient, predictable, and sustained
funding for communities, a renewed economic and fiscal relationship that ensures
nations have the revenue generation and fiscal capacity to govern effectively, and
to provide programs and services to those for whom they are responsible.
 Highlights of Prime Minister’s Mandate Letter to
Bennett
• Continue to be a member of the Working Group of Ministers on
the Review of Laws and Policies Related to Indigenous Peoples,
chaired by the Minister of Justice. Drawing on the Principles
respecting the Government of Canada’s relationship with
Indigenous Peoples, and in full partnership and consultation with
First Nations, Inuit, and the Métis Nation, the Working Group is
developing a recognition of rights framework and ensuring the
Crown is fully executing its legal, constitutional, and international
human rights obligations and commitments, including
constitutionally protected treaty rights.
 Highlights of Prime Minister’s Mandate Letter to
Bennett
• Work with the Minister of Justice to implement the United Nations
Declaration on the Rights of Indigenous Peoples (UNDRIP) in full partnership
with Indigenous Peoples.
• to drive progress on implementation of recommendations of the Truth and
Reconciliation Commission, and establish a National Council for
Reconciliation.
• supporting the National Inquiry into Missing and Murdered Indigenous
Women and Girls.
• I expect you to support these Ministers to develop governance models that
bring control and jurisdiction back to communities.
 Highlights of Prime Minister’s Mandate Letter to
Philpott
• Identify the best models for delivering improved services to Indigenous
Peoples and improve accountability to Indigenous Peoples for the quality of
services delivered, including:
• work to leverage the ingenuity and understanding of Indigenous Peoples as
well as experts from the private sector, provincial, territorial, and municipal
governments and international experts on service delivery. I expect you to
assess how Indigenous Peoples experience the delivery of government
services on a day-to-day basis and identify ways to improve delivery that are
holistic, community-based, and put the needs of the person first; and
• ensure that we are working with Indigenous Peoples to measure progress and
improve service delivery on an ongoing basis. Please work across
government and with the Privy Council Office's Central Innovation Hub to
co-create new and meaningful partnership models with Indigenous
communities and civil society partners.
 Highlights of Prime Minister’s Mandate Letter to
Philpott
• As we move towards greater Indigenous self-government, continue to
oversee the provision of existing services to Indigenous Peoples, and
particularly First Nations under the Indian Act, including the provision of
community infrastructure, emergency management, water, education,
moneys and trusts, and registration.
• Ensure the successful delivery of the significant investments made in
Indigenous services through Budget 2016 and Budget 2017. This includes
new and repaired housing, ensuring First Nations children on reserve receive
a quality education, and eliminating all long-term boil water advisories by
2021 as a key measure in ensuring First Nations people on reserve have
access to clean drinking water.
 Highlights of Prime Minister’s Mandate Letter to
Philpott
• Lead work to create systemic change in how the federal government delivers
health services to Indigenous Peoples in collaboration with the Minister of
Health and the Minister of Crown-Indigenous Relations and Northern Affairs.
• Develop and implement an improved response to the provision of child
welfare and health care under Jordan’s Principle that focuses on the best
interests of the child. This will require a holistic approach to the delivery of
services that focuses on prevention, family preservation and well-being, and
community wellness.
• Work in collaboration with the Minister of Infrastructure and Communities,
and in consultation with First Nations, Inuit, and the Métis Nation, as well as
provinces and territories, to improve essential physical infrastructure for
Indigenous communities, including improving housing outcomes.
 Highlights of Prime Minister’s Mandate Letter to
Philpott
• Work with the Minister of Families, Children and Social Development to
support the implementation of a distinct Indigenous framework as part of
the National Early Learning and Childcare Framework…
• Continue work with the Minister of Status of Women to support the Minister
of Families, Children and Social Development in ensuring that no one fleeing
domestic violence is left without a place to turn…
• Implement Budget 2017 enhancements to the Post-Secondary Student
Support Program, and work with the Minister of Employment, Workforce
Development and Labour as well as Indigenous partners to undertake a
review of all current federal programs that support Indigenous students
choosing to pursue post-secondary education. The purpose of the review
is to ensure these programs meet the needs of individual students while
supporting completion of a post-secondary credential.
 Highlights of Prime Minister’s Mandate Letter to
Philpott
• Work with the Minister of Employment, Workforce Development
and Labour and the Minister of Innovation, Science and Economic
Development to promote economic development and create jobs
for Indigenous Peoples.
• Support the Minister of Sport and Persons with Disabilities to
leverage investments in Indigenous youth and sport and ensure
promotion of culturally relevant sport as an important means to
strengthen Indigenous identity and cultural pride.
 Suggested 2018 Actions for Defenders of the
Land & Idle No More Networks
• Sponsor critical analysis of federal (and Provincial) processes and proposed policy
and law changes impacting on Indigenous Pre-Existing Sovereignty, Historic
Treaties, Lands/Waters/Territorial Rights, UNDRIP & International Human Rights
Law implementation in Canada.
• Prepare multi-media education materials for public dissemination.
• Organize regional discussion forums & networking of Indigenous Peoples and allies
to prepare action plans for implementing Indigenous Sovereignty, Historic Treaties,
Lands/Waters/Territorial Rights, UNDRIP & International Human Rights Laws in
Canada.
• Organize public campaigns to counter any federal attempts to by-pass rights
holders/Indigenous Peoples from communities/Nations in order to water-down/re-
write UNDRIP minimum standards or International Human Rights Laws, including the
federal unilateral “10 Principles for Indigenous Relationships” and unilateral
changes to the federal structure/machinery of government.