Canada: Indigenous And Northern Affairs Canada (INAC) Portfolio To Be Split, In Initial Step Towards Ending The Indian Act And Accelerating The Move To Self-Government

Last Updated: September 4 2017
Article by Canadian ERA Perspectives, Stephanie Axmann and Bryn Gray

Most Read Contributor in Canada, September 2018

On August 28, 2017, the Federal Government announced a cabinet shuffle that includes plans to split the current Ministry of Indigenous and Northern Affairs Canada (INAC) into two distinct Departments: (1) Crown-Indigenous Relations and Northern Affairs and (2) Indigenous Services.

The new Department of Crown-Indigenous Relations will be led by the former INAC Minister Carolyn Bennett and in essence will "guide the Government's forward-looking and transformative work to create a new relationship with Indigenous Peoples." The new Department will be tasked with improving "nation-to-nation, Inuit-Crown, and government-to-government relationships, to accelerate self-government and self-determination agreements based on new policies, laws and operational practices, and to develop a framework to advance a recognition of rights approach". Accordingly, the Department will likely deal with matters that currently fall within the Treaties and Aboriginal Government section of INAC, such as the negotiation of land claims/modern treaties, sector specific self-government agreements (i.e. in education, health-care etc.), and specific claims, treaty implementation, and the government's overall policy and approach to consultation and accommodation. It is likely that the current Policy and Strategy Direction division or at least a large portion of it would also fall under this new department, which would include management of most of the government's extensive portfolio of Aboriginal litigation (shared with the Department of Justice), coordination with provincial governments on Indigenous issues, and the current reconciliation secretariat.

The new Department of Indigenous Services will be led by the former Health Minister Jane Philpott. It will be tasked with improving the quality of services delivered to non-self-governing Indigenous communities, focusing on improving outcomes in six priority areas: child and family services, health care, infrastructure, education, food security, and shelter and housing. Certain services currently delivered to Indigenous peoples by other departments will also be considered for transfer into the new Department, which will likely include many of the services currently delivered by Health Canada to Indigenous peoples. Based on the described mandate, this may include reserve land management issues (i.e. leases, permits, and licences relating to the use of reserve land and the successful First Nations Land Management Regime) or the Lands and Economic Development division may be divided between the two departments.

The Federal Government views these changes as a step towards improving the delivery of services as well as accelerating a move towards self-government and self-determination of Indigenous peoples. In his statement on the changes, Prime Minister Trudeau indicated that these changes are needed "to shed the administrative structures and legislation that were conceived in another time for a different kind of relationship." More particularly, he indicated that there is a need to moving beyond existing colonial structures, with a view to moving beyond the Indian Act and moving forward with a true nation-to-nation partnership. The Prime Minister stated that "INAC is charged with implementing the Indian Act, a colonial, paternalistic law" and "INAC was also not designed or conceived of to support and partner with Inuit and Métis peoples, based on their unique histories, circumstances and aspirations."

The Federal Government modelled the changes on a recommendation in the five-volume Report of the Royal Commission on Aboriginal Peoples released in 1996. The Royal Commission was established with a broad mandate to study and determine the foundations of a fair and honourable relationship between the Aboriginal and non-Aboriginal people of Canada, and to propose practical measures to repair the past relationship and establish a new relationship. The Report called for a split model to replace the then Department of Indian Affairs and Northern Development with an Aboriginal Relations Department and an Indian and Inuit Services Department. One department would implement the new relationship with Aboriginal nations, while the second would administer continuing services for groups that had not yet opted for self-government. The Report continues to be regarded by the Federal Government as one of the key policy documents to be consulted as it moves forward in establishing a renewed nation-to-nation relationship, in addition to the calls to action of the Truth and Reconciliation Commission and the Kelowna Accord.

While some view the changes to the current model with skepticism about the potential to increase bureaucracy and create competition for government resources between the two Departments, Chief Perry Bellegarde of the Assembly of First Nations views the change favourably and stated that the dissolution of INAC is a significant step "towards restoring and revitalizing the nation-to-nation relationship between First Nations and the Crown" and "signals a new approach to increasing action across our agenda" to move beyond the Indian Act and re-assert jurisdiction and sovereignty over lands, title and rights.

Although all changes of this nature depend on proper implementation, it is a change in our view that is worth pursuing as the mandate of the current INAC department is too broad and the divided focus has contributed to slow progress in both areas over many years. There will likely be some duplication between the two departments given that all of the government's dealings with Indigenous peoples raise relationship issues and can positively or negatively impact the overall relationship. It will also be important to ensure that the new Department of Crown-Indigenous Relations is not seen as being solely responsible for the Crown's relationship with Indigenous peoples. All departments have some role in the overall relationship, many of which can have a significant impact on the overall relationship such as the Department of Fisheries and Oceans and Ministry of Environment and Climate Change and its agencies. This issue is discussed in further detail in a report to Minister Carolyn Bennett titled Building Relationships and Advancing Reconciliation through Meaningful Consultation which was authored by McCarthy Tétrault lawyer and former INAC Ministerial Special Representative, Bryn Gray.

The Federal Government states that the dissolution of INAC will occur in stages, and legislative amendments will be required in order to effect the dissolution of INAC and form the new Departments. Further, the Federal Government intends to undertake the restructuring process in cooperation with Indigenous peoples and through extensive consultations. One of Minister Bennett's tasks will be to lead such a consultation process on the restructuring. Considering the work ahead, the anticipated timeline for finalizing such changes, as well as the potential practical effects of these new changes are not yet known. However, further details of the particular mandates of each Department are expected to be released in mandate letters to the Ministers in the coming weeks.

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