The Honourable Marc Miller
Minister, Crown-Indigenous Relations and Northern Affairs Canada
Sent via email only: [email protected]
November 26, 2021
Open Letter: Canada Must Uphold Legal Obligations Under Article 19 of UN Declaration in Developing New Research Funding Policies
Dear Minister Miller,
The National Claims Research Directors (NCRD) writes in response to Canada’s intention to publish new policy guidelines related to the administration of specific claims research and development funding (“Funding Application Guidelines – Contributions for the Research, Development and Submission of Specific Claims”) and distribute redesigned templates meant to be used by First Nations applying for research funding and reporting on annual research activities. The guidelines and templates are highly problematic and were developed unilaterally by the Negotiation Support Directorate (NSD) and overseen by the Specific Claims Branch (SCB). They were created without having worked in full partnership with First Nations from the outset of the policy development process to obtain their free, prior, and informed consent before implementation as required under Article 19 of the United Nations Declaration on the Rights of Indigenous Peoples (UN Declaration). We insist that you withdraw the guidelines and templates until substantive engagement with First Nations and their representative organizations has taken place to ensure First Nations’ rights under the UN Declaration are upheld.
The NCRD is a national body of specialized technicians who manage over thirty centralized Claims Research Units mandated to research and develop evidence related to the historical claims, grievances, and disputes between First Nations and the Crown. Much of the NCRD’s work is focused on the development of specific claims against the federal government related to its breach of lawful obligations against First Nations, pursuant to the Specific Claims Policy and the Specific Claims Tribunal Act.
The NCRD wrote to NSD Director Shelie Laforest on July 21, 2021 regarding CIRNAC’s intention to proceed with a final approval process for implementing new research funding guidelines without first resolving a number of significant, outstanding issues that undermine the principles of open communication, transparency, flexibility, autonomy over budgets and work plans, and less onerous reporting, all of which underlie a truly collaborative, consent-based approach to specific claims research funding policy. Our letter expressed considerable frustration with the process undertaken by NSD and SCB in the development of the funding guidelines, which opted not to work in full partnership with First Nations through their representative organizations from the outset of policy development. Rather, First Nations were invited to comment on fully realized drafts of policy and procedure in which colonial assumptions remained firmly embedded. Revised drafts of the guidelines were largely unresponsive to First Nations’ overarching concerns and contained new, unilaterally introduced provisions rationalized by NSD, in paternalistic fashion, as intended to assist First Nations, who were provided with unrealistic timeframes in which to respond.
Our letter pointed out that NSD’s conduct undercut any pretense to a collaborative process. Rather than acknowledge the compromised nature of the review process itself, Canada’s response was to assert inflexible bottom-line positions by insisting that internal federal government directives and deadlines from within and outside CIRNAC supersede obtaining First Nations’ free, prior, and informed consent in matters of research funding policy. We made it clear in our letter that this decision constituted a failure by Canada to uphold its legal obligations under Article 19 of the UN Declaration, and fulfill its duty to uphold the honour of the Crown and its public commitments to work in full partnership with First Nations. We emphasized that Canada’s conduct and the content of the guidelines themselves warranted the guidelines’ withdrawal. We insisted that NSD not finalize the guidelines but initiate a substantive collaborative process with First Nations so that research funding policies and administrative mechanisms were developed in true partnership from the outset in accordance with Article 19. As an interim measure, the NCRD proposed utilizing existing administrative parameters and procedures until new guidelines could be properly developed.
Aside from a perfunctory acknowledgement of receipt, neither NSD nor SCB has responded in any way to our July letter. Instead, NSD has repeated the exercise by sending First Nations unilaterally developed administrative templates for review within an extremely narrow and insufficient timeframe since they are intended for use by First Nations and Claims Research Units applying for specific claims research funding in the upcoming fiscal year. We are told they will be implemented within a few weeks. The NCRD alerted NSD to significant problems with templates developed for use in the 2021-22 funding cycle in a comprehensive report issued on April 27, 2021. However, instead of accepting our recommendations, NSD has created new templates that are by all accounts more onerous and convoluted than last year’s to the point of being ineffective and unusable. Most egregiously, they contain an automated mechanism that deducts from budget proposals any monies carried over as a result of CIRNAC’s lengthy delays in releasing research funds to First Nations or Claims Research Units. Under-resourced First Nations are essentially punished for the administrative shortcomings of Canada’s bureaucracy with the result being that they will be denied the resources they require to pursue their historical claims against Canada.
Once again, Canada’s conduct has failed to uphold the minimum standard articulated in Article 19 of the UN Declaration, which requires that partnership, transparency, due process, and equality be built into all processes for policy development and administrative decision-making affecting First Nations, and that Canada obtain their free, prior, and informed consent prior to policy implementation. Access to information requests have revealed that officials at CIRNAC’s Funding Services have adopted a “consultation after implementation approach” in lieu of substantive, standalone engagement with First Nations. While this may be expedient for NSD, it violates Canada’s legal obligation to take all measures to ensure the UN Declaration’s objectives are met. This obligation is now set out in the United Nations Declaration on the Rights of Indigenous Peoples Act which received Royal Assent in June.
Specific claims arise due to Canada’s unlawful and dishonourable conduct. Canada has publicly acknowledged on multiple occasions that the fair and just resolution of specific claims – addressing its lawful obligations to First Nations - is integral to achieving reconciliation between the Crown and Indigenous peoples. As such, the honour of the Crown must substantively inform how Canada proceeds with addressing its obligations, a principle affirmed strenuously by the courts. To fully address its dishonourable historical failures which gave rise to specific claims, Canada must conduct itself with honour throughout all processes for resolving them, including administrative and technical processes that determine access to justice and shape outcomes for First Nations. The right to redress for historical wrongs is articulated in Article 28 of the UN Declaration and it is the responsibility of the federal government to ensure First Nations have full, fair, and equal access to the resources they require for this purpose. This is the role of NSD and the duty to perform this role honourably is incumbent upon its representatives and employees.
The specific claims research funding guidelines and associated templates are administrative measures that directly impact First Nations and therefore must be developed in full compliance with Article 19 of the UN Declaration. To this end, CIRNAC must undertake the following actions:
- Immediately postpone implementing the new funding guidelines and associated templates.
- Renew discussions with specific claims Research Directors to ensure the needs of First Nations claimants are fully met.
- Take steps to ensure that Research Directors and First Nations are aware of and able to access previous years’ funding templates until the new ones are properly developed and agreed upon by First Nations.
We insist that you make substantive engagement with First Nations and their representative organizations a priority to ensure First Nations’ rights under the UN Declaration are upheld.
National Claims Research Directors
ENCL: Letter from National Claims Research Directors to Shelie Laforest, July 21, 2021
Martin Reiher, Assistant Deputy Minister, Resolution and Partnerships, CIRNAC
Stefan Matiation, Director General, Specific Claims Branch, CIRNAC
Shelie Laforest, Director, Negotiation Support Directorate
AFN National Chief RoseAnne Archibald
AFN Chiefs Committee on Lands Territories and Resources
BC Specific Claims Working Group