First Annual (2015) Statutory Report Pursuant to Section 2 of the Indian Act Amendment and Replacement Act, Statutes of Canada, Chapter 38, 2014

On this page

• A Diversity of Priorities, Capacities, and Structures
• Resolving Claims and Negotiating Self-Government Agreements
• Filling Gaps and Providing Alternatives
• Addressing the Unique Federal Jurisdiction of Reserve Lands
• Leveraging Land and Building Economic Opportunities
• Moving Forward in Collaboration with Willing Partners
• Appendix A
• Appendix B
• Footnotes

A Diversity of Priorities, Capacities, and Structures

While there is general consensus that the Indian Act is an archaic and paternalistic statute that is holding First Nations back from achieving their full potential, there is no clear consensus on a way forward for large-scale, comprehensive change to the Indian Act. Over the years, there have been several unsuccessful attempts to reform the Act, due largely to disagreement amongst First Nations on process or the path forward. For example, there are some First Nations that would like to maintain some of the Act's elements, while others would like to see it abolished altogether in favour of implementing treaties and their inherent right to self-government.

The Government of Canada is committed to creating the conditions for stronger, healthier, more self-sufficient First Nation communities. While the ultimate goal is for all First Nations to be fully self-sufficient and self-governing, there are many First Nations who are still developing the capacity needed to negotiate and implement comprehensive self-government agreements, or whose priorities lie elsewhere. Given the broad spectrum of First Nation governments, including those who are at the final stages of self-government negotiation, those whose priority is to develop stronger governance structures and improve economic prospects in their communities, and those who rely on the Indian Act as written, the Government cannot take a "one-size fits all" approach to Indian Act reform.

In January 2012, at the Crown-First Nations Gathering, the Government made it very clear that no grand scheme exists to unilaterally replace the Indian Act. In his remarks, the Prime Minister noted that the Indian Act cannot be replaced overnight: "After 136 years, that tree has deep roots, blowing up the stump would just leave a big hole". Rather, the Prime Minister concluded that "there are ways, creative ways, collaborative ways, ways that involve consultation between our Government, the provinces, and First Nation leadership and communities. Ways that provide options within the Act or outside of it, for practical, incremental and real change...So that will be our approach to replace elements of the Indian Act with more modern legislation and procedures in partnership with provinces and First Nations ^{Footnote 1}."

Since 2006, the Government has made significant progress to provide First Nations with practical, incremental and real alternatives to move beyond the Indian Act. Progress has been made on a number of self-government and land claims agreements for First Nations who are ready and willing to negotiate, and this progress will continue. In collaboration with willing partners, the Government has also used legislation to create optional and incremental tools that provide First Nations with the opportunity to work outside of some outdated provisions of the Indian Act to develop structures that better serve their citizens, as well as immediately filling critical gaps in the Indian Act, while providing the opportunity for First Nations to develop their own laws and systems. Finally the Government continues to work with First Nations to develop and improve upon legislative options that allow for the development of self-sufficient communities through the leveraging of land and the improvement of tools for land-use planning.

Resolving Claims and Negotiating Self-Government Agreements

Constitutionally protected land claim agreements have existed since 1995, and since February 2008, with royal assent of the Nunavik Inuit Land Claims Agreement Act, the Government has signed, and subsequently legislated, six constitutionally protected land claims agreements, or "modern treaties." These include agreements negotiated under the British Columbia treaty process, overseen by the British Columbia Treaty Commission, with the most recent successes being the Tla'amin Final Agreement Act and the Yale First Nation Final Agreement Act which received royal assent in 2014 and 2013 respectively.

Negotiated with First Nations, these agreements provide certainty of Aboriginal and treaty rights, transfer land to First Nations in fee simple, and in some cases end lengthy litigation processes. Together, these settlements provide clear Aboriginal ownership of over 7,700 square kilometers of land, protection of traditional ways of life, access to resource development opportunities, and participation of First Nations in land and resources management decision-making ^{Footnote 2}.

Four of these modern treaties also include provisions related to self-government. Unless they have negotiated self-government or other similar agreements, First Nations are governed by the Indian Act. The Indian Act establishes a limited and dependent form of local administration that is overseen by a federal Minister and does not take into account the specific circumstances of the community. Self-government brings First Nations out from under the Indian Act, providing First Nations with greater control over decisions affecting their communities. These agreements address the structure and accountability of Aboriginal governments, their law-making powers, financial arrangements, and responsibilities for providing programs and services to members. Self-government enables Aboriginal governments to work in partnership with other governments and the private sector to promote economic development and improve social conditions.

On July 1, 2014, the Sioux Valley Dakota Nation Governance Act came into force. This self-government agreement, negotiated over 21 years, and ratified by the citizens of Sioux Valley Dakota Nation, is the first self-government agreement in the prairies, and an example of how innovative structures and strategies can be developed in cooperation with First Nations to meet their goals. This is not a land claim agreement or modern treaty. With self-government, Sioux Valley Dakota Nation laws will apply on its reserve lands and will operate in harmony with federal and provincial laws within the Canadian constitutional framework.

In addition to furthering the negotiation of self-government agreements and land claims, the Government has taken action to speed up the resolution of specific claims to provide justice to First Nation claimants and certainty for all Canadians. The Specific Claims Tribunal Act received royal assent in June 2008, and came into effect on October 16, 2008. Developed jointly with the Assembly of First Nations, the Act created an independent tribunal with the power to make binding decisions on the validity of and compensation for specific claims. The Tribunal is a key part of an overall action plan to improve and speed up the resolution of specific claims across the country.

The Government has also made the devolution of northern governance a key pillar of Canada's Northern Strategy with the goal of providing Northerners with more control over their own economic and political destiny. Subsequent to passage of the Northwest Territories Devolution Act, which received royal assent on March 25, 2014, the Northwest Territories became the second territory to take over land and resources responsibilities on April 1,  2014, as the final major step in the territory's devolution process. Building on the Government's efforts to create a strong and prosperous North, that realizes its resource potential while safeguarding the environmental health and heritage of the region, includes passage of the Northern Jobs and Growth Act in 2013 and the introduction of Bill S-6, Yukon and Nunavut Regulatory Improvement Act, currently before the House of Commons.

Filling Gaps and Providing Alternatives

First Nations have also sought the support of the Government to develop regimes that allow them to move out of some provisions of the Indian Act by providing robust and modern regimes that remove barriers, and allow interested First Nations to opt-in or develop new laws when they are ready.

For example, the First Nations Jurisdiction over Education in British Columbia Act received royal assent in December 2006. The First Nation Education Steering Committee and the Province of British Columbia were consulted extensively on the bill, and publicly indicated their support. The Act gives the force of law to subsequently negotiated Canada-First Nation Education Jurisdiction Agreements. It also established the First Nation Education Authority in British Columbia with the prescribed powers to establish standards for curricula and exams, and to certify schools and teachers for all participating First Nations. Importantly, should a participating First Nation and the Government of Canada ratify a Canada-First Nation Education Jurisdiction Agreement, the education provisions in the Indian Act would no longer apply, ultimately transferring responsibility of on-reserve K-12 education from the Minister of Aboriginal Affairs and Northern Development to First Nations.

In addition to this Act, the Government has taken steps to ensure that all First Nations students have access to a quality education regardless of where they live. Following years of dialogue, studies and unprecedented consultations with First Nations across the country, the Government of Canada and the Assembly of First Nations announced on February 7, 2014, that they had reached an historic agreement to reform First Nations elementary and secondary education. In April 2014, the Government introduced Bill C-33, the First Nations Control of First Nations Education Act, in the House of Commons. The proposed Act would provide stable, predictable, and sustainable funding, clarify roles and responsibilities, and establish First Nations control of First Nations education as a central principle. However, following the resignation of the then National Chief in May 2014, and subsequent decisions by Chiefs-in-Assembly to withdraw support, the Bill was placed on hold. The Government has been clear that the legislation will not proceed without the support of the Assembly of First Nations, however remains committed to working with First Nations parents, teachers, schools, and leaders to improve the quality of education on reserve.

Another example of how the Government is filling gaps in the Indian Act is the Act to amend the Canadian Human Rights Act, which received royal assent in June 2008. The Act repealed section 67 of the Canadian Human Rights Act, enabling First Nation individuals who are registered Indians and members of Bands, or individuals residing or working on reserves to make complaints of discrimination to the Canadian Human Rights Commission relating to decisions or actions taken by band councils and the federal government arising from or pursuant to the Indian Act. As part of the legislative requirements in the Act, the Government of Canada conducted two joint reviews with organizations representing the interests of First Nations and culminating in reports to Parliament. The first of these reviews, tabled in Parliament on June 17, 2011, focused on the readiness of First Nations to comply with the amended Canadian Human Rights Act. The second, tabled in Parliament on September 15, 2014, focused on the impacts of the repeal.

The First Nations Elections Act, which received royal assent on April 11, 2014, was developed in response to concerns raised by many First Nations' leaders that the Indian Act election system inherently destabilizes their governments and prevents them from moving forward on important long-term projects. Chiefs argued that the two-year electoral term makes capacity development almost impossible, and the development of a community, or "custom" election code is not possible due to the constant turnover in leadership. With support from the Government, the Assembly of Manitoba Chiefs and the Atlantic Policy Congress of First Nations Chiefs led a national engagement on electoral reform to discuss key concerns with the Indian Act electoral regime. The resulting recommendations are the basis of the First Nations Elections Act. First Nations who opt-in will have access to modern electoral provisions including longer terms of office; more robust nomination processes; defined penalties; a common election day for interested First Nations; and removal of the Minister's role in election appeals.

The Indian Act is also silent on the accountability of First Nation governments and elected officials to their citizens. While many First Nations have developed comprehensive annual reporting regimes to keep members apprised of the financial situation of their communities, there were band councils that were not sharing this information with their members, even when it was requested. In response to concerns raised by individual First Nation citizens, the First Nations Financial Transparency Act closes this accountability gap by requiring First Nations to post consolidated financial statements and schedules of remuneration and expenses for elected officials online. This Act furthers the Government's commitment to support democratic, transparent and accountable First Nation governments, and ensures that band members have the information they need to fully participate in decision-making in their communities.

Addressing the Unique Federal Jurisdiction of Reserve Lands

The Family Homes on Reserves and Matrimonial Interests or Rights Act, which is now fully in force, was developed through an extensive collaborative process, including nation-wide consultations, engagement on a draft legislative proposal, and a report by a Ministerial Representative. The Act addresses a long-standing and unacceptable legislative gap, and provides a mechanism for First Nations to develop their own matrimonial real property laws to ensure rights and protections related to the matrimonial home for individuals living on reserve in the event of a relationship breakdown, divorce, or death. Previously, individuals in relationships living on reserve lacked the legal protections afforded to other Canadians by provincial laws.

The Government recognizes that many First Nations want to develop their own laws and processes related to this issue, but also recognizes that this lack of rights is an urgent issue that has devastating impacts on individuals. For these reasons, the Family Homes on Reserves and Matrimonial Interests or Right Act, provides provisional federal rules to fill the legislative gap in communities that are not ready to develop matrimonial property laws, and also provides a mechanism through which interested First Nations can develop and ratify their own legally enforceable laws. To aid First Nation governments in the development of their laws, the Government has created a Centre of Excellence to provide governments with toolkits, training, and assistance in developing their laws and their law-making capacity. On April 8, 2014, the Algonquins of Pikwàkanagàn First Nation became the first community to develop and enact a matrimonial property law under the new Act. Subsequently Pictou Landing First Nation, Aundeck-Omni-Kaning First Nation, Millbrook First Nation, Bear River First Nation, and Paqtnkek Mi'Kmaw Nation have all developed and enacted their own laws.

Provincial and territorial governments have legislated systems to govern drinking water and wastewater safety and standards; however, these provincial rules do not apply on reserve land. As a result, there was no legislative framework to ensure compliance and enforcement with the Government's various protocols ^{Footnote 3} related to drinking water and wastewater systems in First Nation communities. To address this gap the Government brought forward the Safe Drinking Water for First Nations Act, which received royal assent in June 2013. The federal government has maintained an open dialogue on safe drinking water and wastewater issues within First Nation communities, and is continuing to do so by engaging with First Nations on a region by region basis on viable options for a regulatory regime and on the development of regulations stemming from the Act.

Leveraging Land and Building Economic Opportunities

The Indian Act provisions related to land use are particularly problematic for First Nations that wish to develop their land and use their land base as leverage for economic opportunities. The outdated Indian Act land system creates a climate of uncertainty which discourages developers and investors from working with First Nation governments. Recognizing the vast potential of reserve land, First Nations and the Government have worked together to develop legislation that increases certainty of land title, and enhances the value of Aboriginal assets by addressing legislative and regulatory barriers to Aboriginal economic development.

The First Nations Commercial and Industrial Development Act enables the Government to make regulations for complex commercial and industrial development projects on reserves at the request of a First Nation. Federal regulations developed under the First Nations Commercial and Industrial Development Act apply only to a specific project and parcel of reserve land where there are gaps between federal and provincial regulations. The Act was amended in 2010 with the passage of the First Nations Certainty of Land Title Act. These amendments provide for on-reserve commercial real estate projects to benefit from greater certainty of title, by allowing First Nations to request that their on-reserve commercial real estate projects benefit from a property rights regime, including a land title system and title assurance fund, identical to the provincial regime off reserve. These amendments were championed by the Squamish Nation when they discovered that the existing Act would not allow them to capitalize on a commercial development on their reserve land. The certainty created by the amended regime will contribute to increased investor confidence, making the value of property on reserve comparable to similar property off reserve and increasing opportunities for partnership-based economic development projects.

In addition to the ability to leverage land title for economic development, many First Nations have sought tools to improve their ability to manage their lands. The First Nations Land Management Act enables participating First Nations to manage reserve land, resources and environmental considerations under a land code established by the First Nation. Participating First Nations opt out of the 34 land-related sections of the Indian Act and enact their own laws, taking into consideration the development, conservation, use and possession of reserve lands. Over time, shortcomings in the Act were identified by First Nations operating in the regime as well as those in developmental stages. Consequently, the Government undertook consultations with the First Nations Lands Advisory Board to develop legislative amendments to enable First Nations to better take advantage of the regime. An Act to amend the First Nations Land Management Act received royal assent in June 2007. There are presently 94 First Nations operating under, or developing, their own land codes for operation under the First Nations Land Management Regime, and funding is available to support First Nations through the developmental phase, as well as with operational land management activities.

Moving Forward in Collaboration with Willing Partners

In June 2010, as a gesture of reconciliation, the Government of Canada committed to repeal those sections of the Indian Act that allowed for the establishment of Indian Residential Schools and the removal of children from their homes and communities. The Indian Act Amendment and Replacement Act removes all references to residential schools, and repeals those provisions which allowed for forcible removal of children from homes to attend school. It has always been the Government's intention to proceed with the repeal of these sections, and provisions for this repeal were included in Bill C-33, First Nations Control of First Nations Education Act. By supporting Bill C-428, the Government ensured that these sections of the Indian Act were repealed, regardless of the progress of Bill C-33.

In addition to repealing outdated and antiquated sections of the Indian Act, many of which have not been used for decades, the Indian Act Amendment and Replacement Act also amends several sections of the Indian Act related to by-laws. The revised language eliminates the Minister's oversight in regard to the submission, coming into force and disallowance of by-laws and gives First Nations more autonomy and greater responsibility over their development, enactment and coming into force. The Government is proud to support these changes that increase the autonomy of First Nations' governments.

Recognizing the cultural diversity of First Nation communities, as well as the diversity of their priorities, capacity, and governance structures, the Government has developed a practical and incremental approach to supporting First Nations to move beyond the Indian Act. The Indian Act Amendment and Replacement Act requires that the Minister of Aboriginal Affairs and Northern Development report on work undertaken in collaboration with First Nations and other interested parties to develop new legislation to replace the Indian Act. While much work has been accomplished to conclude final agreements with First Nations, develop tools and strategies to bring communities out from under the Indian Act, and fill legislative and regulatory gaps, there is still work to be done to improve social well-being and economic prosperity and develop healthier and more sustainable First Nation communities.

The Government has made significant progress in implementing practical and incremental alternatives to the Indian Act, and will continue working with First Nations partners to achieve concrete results on shared priorities in order to achieve outcomes that will result in more self sufficient and prosperous First Nations communities.

Appendix A

Appendix B