Chapter 5: Indigenous Modern Treaty Partner priorities

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Indigenous Modern Treaty Partners, whether First Nations, Inuit, or Métis, have distinct priorities that arise from (1) the unique relationship they have with Canada and provinces or territories as a result of their modern treaties; (2) the integral position modern treaties hold within the constitutional framework of Canada; and (3) the particular obligations, interests, rights, jurisdictions and authorities that are recognized within their Modern Treaties.

Under article 37 of the UN Declaration, and consistent with Canada’s Collaborative Modern Treaty Implementation Policy, it is imperative that Canada and Indigenous peoples work together to co-develop legislative and policy processes, tools, and mechanisms to ensure that Modern Treaties are recognized, observed, and enforced or in other words—implemented. Implementing Modern Treaties in a broad and purposive manner to uphold the honour of the Crown is an ongoing process that can and should be supported and advanced by the UN Declaration Act. This Modern Treaty Chapter sets out key actions that the UN Declaration Act can support in pursuit of this imperative.

The Government of Canada will take the following actions in cooperation with Indigenous Modern Treaty Partners:

1. Continue co-development of the annexes to Canada’s Collaborative Modern Treaty Implementation Policy, as set out within section 8.1 of the Policy, to fulfill the following commitments within the applicable timelines:
   1. Establishing new implementation mechanisms and improving the effectiveness of existing ones. Existing implementation mechanisms, such as Implementation Panels, Committees and other coordinating entities may not be adequately designed to support timely responses to new or emerging issues relating to modern treaty implementation. Canada will work with Indigenous Modern Treaty Partners to collaboratively strengthen the role and effectiveness of these structures and develop new structures in addition to those outlined in Annex A of Canada’s Collaborative Modern Treaty Implementation Policy
   2. Developing a strategy for the comprehensive, meaningful and reliable measurement of progress in the context of implementing the broad objectives individually outlined in each modern treaty. Quantitative indicators are insufficient to measure improvements in governance, restoration of culture, language and heritage and other key elements of modern treaty implementation. Canada and Indigenous Modern Treaty Partners will collaboratively develop a measurement strategy, building off of existing efforts, to define and measure progress against the broad objectives of modern treaties
   3. Ensuring that Indigenous Modern Treaty Partners are able to fully exercise their jurisdictional powers and manage and administer programs and services to their citizens, members or beneficiaries as set out in their agreements. Crown-Indigenous Relations and Northern Affairs will ensure coordination among federal departments and agencies to develop clear and robust mechanisms with Indigenous Modern Treaty Partners and with provincial and territorial governments to ensure that barriers to Indigenous Modern Treaty Partners' exercise of jurisdiction and management and administration of programs and services are removed in a timely manner. These mechanisms will provide that Canada will use available levers and, where necessary, develop new mechanisms to influence provinces or territories, or both, to act to overcome these barriers. A cooperative federal-provincial-territorial-Indigenous approach is necessary to ensure agreements are fully implemented
   4. Ensuring that Indigenous Modern Treaty Partners without self-government are able to conclude self-government arrangements. Crown-Indigenous Relations and Northern Affairs will co-ordinate with departments to develop clear and robust mechanisms by which Canada will collaboratively work with Indigenous Modern Treaty Partners that do not yet have self-government and with the relevant province or territory, or both, to ensure that barriers to entry into self-government arrangements are resolved in a timely manner. The mechanisms developed will provide that Canada will use available levers and, where necessary, develop new mechanisms to influence provinces and/or territories in this effort
   5. Supporting the evolution of modern treaties. Modern treaties are living documents capable of evolving over time. Should an Indigenous Modern Treaty Partner so choose, Canada will support the evolution of modern treaties in various ways. This includes, but is not limited to, introducing robust periodic review and renewal processes designed to facilitate negotiated amendments to modern treaties to reflect advancements in the law, including the implementation of the UN Declaration, changes in federal policies, recommendations from review processes and contemporary contexts. Canada will collaboratively work with Indigenous Modern Treaty Partners to develop approaches that support the evolution of agreements to ensure modern treaty rights keep pace with emerging Indigenous rights frameworks, including the UN Declaration
   6. Improving dispute resolution processes. Canada's refusal to reasonably consent to arbitration has presented challenges in addressing disputes effectively, efficiently and in good faith. Canada will re-examine its approach to dispute resolution and work with Indigenous Modern Treaty Partners to co-develop solutions
   7. Addressing challenges that prevent boards established by modern treaties from recruiting and retaining qualified nominees to serve as members and chairpersons. These challenges, if not addressed, create significant risks to the ability of Indigenous Modern Treaty Partners to meaningfully participate in the co-management of lands, resources, waters and wildlife within their territories. Canada will collaboratively work with Indigenous Modern Treaty Partners to identify issues and co-develop solutions in a timely manner
   8. Establishing effective mechanisms to ensure that all federal departments and agencies are alive to implementation issues and that these issues receive the right level of attention. The tools created through the Cabinet Directive—the Deputy Ministers' Oversight Committee, the Modern Treaty Implementation Office, and Assessment of Modern Treaty Implications—need to be improved to ensure departments understand and coordinate their whole-of-government obligations. Canada will collaboratively work with Indigenous Modern Treaty Partners to implement and, where necessary, revise or replace the Cabinet Directive in accordance with Canada’s Collaborative Modern Treaty Implementation Policy, evaluations, lessons learned and the experience of all Modern Treaty Partners to date
   9. Providing meaningful training to federal government officials to ensure modern treaties are respected and their promises upheld. Deputy heads will undertake further measures to enhance and expand training for all of their federal public servants
   10. Improving information-sharing with Indigenous Modern Treaty Partners. Canada will collaboratively work with Indigenous Modern Treaty Partners to establish clear and efficient information-sharing mechanisms to improve transparency and minimize information asymmetry
   11. Developing effective and transparent mechanisms to engage with Indigenous Modern Treaty Partners early on in legislative, policy, and program development processes to ensure federal initiatives are consistent with Modern Treaty relationships, objectives, and obligations
   12. Ensuring adequate and dedicated funding is available to Modern Treaty partners to support meaningful participation in legislative, policy, and program development initiatives including intergovernmental forums
   13. Co-developing guidance that provides instructions to federal departments and agencies on the meaning and parameters of legislative and policy co-development, and the specific circumstances under which co-development should occur
   14. Fostering cultural competency and support education, knowledge and understanding of Modern Treaties throughout the whole-of-government. (Crown-Indigenous Relations and Northern Affairs Canada and various departments)
2. Direct federal public servants, including deputy heads, to implement the UN Declaration Act in a way that promotes, recognizes and respects that:
   • Modern Treaties are constitutionally protected agreements that form an integral part of the constitutional framework of Canada and represent a distinct expression of reconciliation
   • Indigenous Modern Treaty Partners have a unique relationship with Canada and provinces or territories as a result of their Modern Treaties
   • the particular obligations, interests, rights, jurisdictions and authorities of Modern Treaty Partners are recognized within their Modern Treaties
   • Indigenous Modern Treaty Partners are therefore a distinct element within the distinctions-based approach that includes First Nations, Inuit and Métis peoples. (Crown-Indigenous Relations and Northern Affairs Canada and various departments)
3. Ensure the full, effective, diligent and timely implementation of all Modern Treaties in Canada, including by taking any necessary effective legislative, policy and administrative measures to ensure federal laws and policies support rather than conflict with or impede implementation. (Crown-Indigenous Relations and Northern Affairs Canada and various departments)
4. Take a broad, purposive approach to implementing Modern Treaties in a way that fulfills the spirit and intent of Modern Treaties and upholds the honour of the Crown. (Crown-Indigenous Relations and Northern Affairs Canada)
5. Direct federal public servants, including deputy heads, to actively apply the principles and implement the commitments in Canada’s Collaborative Modern Treaty Implementation Policy to ensure the promises in Modern Treaties are being fulfilled in a way that reflects their spirit and intent. (Crown-Indigenous Relations and Northern Affairs Canada and various departments)
6. Explore establishing an Indigenous Modern Treaty, Federal and Provincial/Territorial Forum to ensure a cooperative approach to Modern Treaty implementation, including associated funding commitments. (Crown-Indigenous Relations and Northern Affairs Canada)
7. Explore opportunities to work cooperatively with provinces and territories towards achieving the objectives of the UN Declaration in relation to the advancement of the rights, interests, jurisdictions, obligations and authorities of Indigenous Modern Treaty Partners throughout Canada. (Crown-Indigenous Relations and Northern Affairs Canada)
8. Continue to co-develop funding methodologies under Canada’s Collaborative Self-Government Fiscal Policy to ensure that Self-Governing Indigenous Governments have sufficient fiscal resources to fulfill their responsibilities under their agreements, targeting completion of co-developed proposals ready to advance for federal policy and financial approvals in the following timelines:
   1. Infrastructure (Phase II) by March 2024
   2. Lands, resources and treaty management by March 2024
   3. Language revitalization by March 2024
   4. Addressing disparities in socio-economic outcomes by a date to be mutually agreed upon by federal and Indigenous participants in the Collaborative Fiscal Policy Development Process. (Crown-Indigenous Relations and Northern Affairs Canada and various departments)
9. Co-develop recommendations to establish a credible, effective, sustainable and independent Modern Treaty oversight mechanism to hold the federal government accountable to Parliament by September 2023. (Crown-Indigenous Relations and Northern Affairs Canada)
10. Direct federal public servants, including deputy heads, that the UN Declaration is to be used as an interpretive tool to inform and advance Indigenous Modern Treaty Partners’ interests, rights, jurisdictions, and authorities as set out in Modern Treaties and will in no way be implemented or understood so as to detract from those interests, rights, jurisdictions, and authorities, as recognized in article 37 of the UN Declaration. (Crown-Indigenous Relations and Northern Affairs Canada and various departments)
11. Engage in collaborative development of revitalization options for federal Indigenous tax policies with the aim of these policies being more fully reflective of the self-determination of Indigenous Modern Treaty Partners and supporting and incentivizing Indigenous Modern Treaty Partners to build towards self-sufficiency through their own tax systems. This could include: developing additional incentives for Indigenous Modern Treaty Partners to enter into or continue existing tax arrangements with other levels of government; and exploring additional tax arrangements for Indigenous Modern Treaty Partners to generate tax revenues from a wider range of sources. (Finance Canada)
12. Collaborate with Modern Treaty Partners to pursue possible changes to federal environmental legislation, regulations and policies to:
    1. align with Canada’s Modern Treaty relationships, objectives and obligations, including the spirit and intent of those agreements
    2. address issues and barriers to the effective exercise of Indigenous Modern Treaty Partner jurisdiction respecting the environment
    3. support successful free, prior and informed consent implementation regarding federal legislative or administrative measures that may affect the environment-related modern treaty rights and obligations. (Crown-Indigenous Relations and Northern Affairs Canada and various departments)
13. Collaborate with Modern Treaty Partners to pursue possible changes to federal fisheries legislation, regulations and policies to:
    1. align with Canada’s Modern Treaty relationships, objectives and obligations, including the spirit and intent of those agreements
    2. address issues and barriers to the effective exercise of Indigenous Modern Treaty Partner jurisdiction respecting fisheries
    3. support healthy fish and aquatic plant populations
    4. support successful free, prior and informed consent implementation regarding federal legislative or administrative measures that may affect the fisheries-related modern treaty rights and obligations. (Fisheries and Oceans Canada)
14. Ensure that federal legislation, policies and programs related to land and land use planning are reflective of Modern Treaties relationships, objectives and obligations and the spirit and intent of these agreements. (Crown-Indigenous Relations and Northern Affairs Canada)
15. Support the evolution of Modern Treaties by ensuring that they reflect developments in federal law and policy and that modern treaty rights keep pace with emerging Indigenous rights frameworks, including the UN Declaration. Such support must include ensuring that Indigenous Modern Treaty Partners have capacity to participate in negotiation and amendment processes. (Crown-Indigenous Relations and Northern Affairs Canada)
16. Engage directly with Indigenous Modern Treaty Partners whose traditional territories and nations span across international borders and with relevant international partners to develop mechanisms, legislative, policy, or otherwise, that reflect the self-determination of such Indigenous Modern Treaty Partners to facilitate the full implementation of article 36 of the UN Declaration. (Crown-Indigenous Relations and Northern Affairs Canada)

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