Engagement through policy and legislative processes

For modern treaty holders, engagements can inform the co-development and/or renewal of Federal Government legislation, programs, and policies to ensure that modern treaties are recognized, observed, and implemented. Such engagements can range in form: from various types of submissions, to sharing knowledge and discussion through meetings and gatherings.

Engagement, through co-development, has led to a policy and legislative landscape that aims to inform modern treaty implementation and reflect the parties’ unique relationship. Let’s look at some recent examples.

• Canada’s Collaborative Modern Treaty Implementation Policy was established in 2023.
  • The policy was co-developed with Indigenous modern treaty holders to “add new implementation tools to complement existing mechanisms and ensure oversight and accountability in carrying out Canada’s modern treaty obligations.”
  • The policy states that the Federal Government must engage with “relevant Indigenous Modern Treaty Partners in the early stages of legislative, policy and program renewal or design to ensure that the unique circumstances and authorities of Indigenous Modern Treaty Partners are considered and respected.”
  • Mechanisms and processes are currently being co-developed between Indigenous modern treaty holders and the Federal Government to ensure that early engagement is embedded in whole-of-government processes that have modern treaty implications. Some examples include:
    • Updating the Cabinet Directive on the Federal Approach to Modern Treaty Implementation. This includes the Assessment of Modern Treaty Implications (AMTI)
      • The AMTI process was adopted by the Deputy Ministers’ Oversight Committee in 2016 as part of the 2015 Cabinet Directive on the Federal Approach to Modern Treaty Implementation.
      • It requires that all legislative and policy initiatives be assessed for their implications on modern treaties before they proceed to Cabinet.
      • A recommended part of the assessment relates to direct contact with affected Indigenous modern treaty holders. To date, no AMTI contact has been made with Indigenous modern treaty holders.
      • Indigenous modern treaty holders and the Federal Government are currently working together to ensure that AMTIs are done early on and that there are operational guidelines for mandatory engagement with Indigenous modern treaty holders.
  • • Intergovernmental Policy Circle
      • Indigenous modern treaty holders and the Federal Government are currently collaborating on determining the Policy Circle’s specific purpose and approach.
      • The Implementation Policy states that it is “a senior level forum that provides a venue to work collaboratively on cross-cutting implementation issues and to discuss federal legislative, policy and program initiatives.”
      • Note: The Intergovernmental Policy Circle does not replace or impede existing bilateral mechanisms and relationships as provided for in modern treaties.

• Canada’s Collaborative Self-Government Fiscal Policy was co-developed in 2019 between the Federal Government and Indigenous modern treaty holders with self-government arrangements as well as with Indigenous organizations and governments with self-government agreements.
  • It establishes a renewed and transparent funding model to better support the implementation of self-government agreements and treaties with self-government arrangements.
  • This is being done through the co-development of funding methodologies to ensure that self-governing Indigenous governments have sufficient fiscal resources to fulfill their responsibilities under their agreements.

• The United Nations Declaration Act Action Plan was released in 2023. Indigenous modern treaty holders in particular initiated the co-development of “Chapter 5: Indigenous Modern Treaty Partner priorities,” which states that the Federal Government must:
  • “Develop 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.”
  • The chapter sets out specific actions to be taken in cooperation with Indigenous modern treaty holders in relation to the implementation of the United Nations Declaration Act stating that:
    • “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.”