Order Amending the Schedule to the Anishinabek Nation Governance Agreement Act: SOR/2024-268

Canada Gazette, Part II, Volume 159, Number 1

Registration
SOR/2024-268 December 16, 2024

ANISHINABEK NATION GOVERNANCE AGREEMENT ACT

P.C. 2024-1324 December 16, 2024

Whereas, under subsection 14(1) of the Anishinabek Nation Governance Agreement Act footnote a, the Governor in Council is satisfied that the First Nations listed in the annexed Order have, in a manner consistent with the Anishinabek Nation Governance Agreement, ratified the Agreement and have a constitution;

Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Crown-Indigenous Relations, makes the annexed Order Amending the Schedule to the Anishinabek Nation Governance Agreement Act under subsection 14(1) of the Anishinabek Nation Governance Agreement Actfootnote a

Order Amending the Schedule to the Anishinabek Nation Governance Agreement Act

Amendment

1 The schedule to the Anishinabek Nation Governance Agreement Act footnote a is amended by adding the following in alphabetical order:

Aundeck Omni Kaning First Nation
Première Nation Aundeck Omni Kaning

Sheshegwaning First Nation
Première Nation Sheshegwaning

Coming into Force

2 This Order comes into force on April 1, 2025.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Order.)

Issues

The Aundeck Omni Kaning First Nation and Sheshegwaning First Nation have requested to be added as parties to the Anishinabek Nation Governance Agreement. Both First Nations have met the conditions required to be added as parties.

The Schedule to the Anishinabek Nation Governance Agreement Act needs to be updated to reflect the addition of two First Nations to the Anishinabek Nation Governance Agreement to ensure consistency between the agreement and the legislation.

Background

Anishinabek Nation Governance Agreement

The Anishinabek Nation is comprised of 39 First Nation communities in Ontario.

The Anishinabek Nation Governance Agreement (the Governance Agreement) provides signatory First Nations with self-government and law-making powers. It came into effect on October 1, 2022, as the result of over 20 years of negotiations between the Anishinabek Nation (representing the 39 Anishinabek First Nations) and the Government of Canada. It establishes and empowers an Anishinabek Nation Government (B’Maakonigan) to represent signatory First Nations, while preserving the distinct institutions and structures of the individual First Nation Governments who are signatories to the Agreement.

Anishinabek Nation First Nations who are parties to the Governance Agreement become accountable to their citizenship on matters of governance and lawmaking and can make their own decisions in a culturally relevant manner. In contrast, First Nations who are not in self-government agreements must adhere to the governance constraints of the Indian Act. For example, for parties to the Governance Agreement, provisions of the Indian Act that set out the framework for band membership and council elections no longer apply to these First Nations, their citizens and reserve. Parties to the Governance Agreement benefit from a new government-to-government relationship, practical mechanisms for intergovernmental cooperation and continue ongoing management of that relationship alongside capacity development while reducing the application of the Indian Act. As well, the Governance Agreement further enables investments in stable, democratic Indigenous governance structures that are transparent and accountable to their citizens.

Additionally, signatories to the Governance Agreement can make their own decisions about how their elections will be held, who their citizens are and how their governments will operate, as well as how best to protect and promote Anishinaabe language and culture. Once in effect, the parts of the Indian Act that deal with governance no longer apply to the signatory First Nations.

Anishinabek Nation Governance Agreement Act

On June 23, 2022, the Anishinabek Nation Governance Agreement Act received royal assent. Only Section 6 of the Act came into force on that date, with the remainder of the Act taking effect on October 1, 2022, in alignment with the effective date of the Governance Agreement. Section 6 allowed the first five signatory Anishinabek First Nations and the Anishinabek Nation to make laws to prepare for full implementation of the Governance Agreement and the Act.

The Act gave effect to the Governance Agreement, recognizing the Anishinabek Nation Government (B’Maakonigan) as a self-governing entity. Five of the 39 Anishinabek First Nations were signatories to the Governance Agreement and have been parties to the Governance Agreement since the effective date. These First Nations are listed in Schedule A of the Governance Agreement and in the schedule of the Act.

The Governance Agreement provides that additional First Nations who did not become parties to the Governance Agreement on the effective date (October 1, 2022) may join as parties to the Governance Agreement at a later date, pursuant to ratification and amendment processes set out in the Governance Agreement.

Community approval process

At the request of B’Maakonigan and the First Nations, the Governance Agreement was amended on December 1, 2023, to allow First Nations seeking to be added as a party to the Governance Agreement to follow their own community approval processes. This amendment included the addition of Schedule C — Protocol for the Addition of a First Nation as a Party to the Agreement, which outlines how Anishinabek First Nations who have not yet joined the Governance Agreement have the authority to use their own community-based approval processes for ratification.

Addition of new joiners — Aundeck Omni Kaning First Nation and Sheshegwaning First Nation

As required by the Governance Agreement, Aundeck Omni Kaning First Nation and Sheshegwaning First Nation successfully completed their respective community-based approval processes and provided their consent by signing a First Nation Declaration of Approval Process form on March 27, 2024, and April 22, 2024, respectively. B’Maakonigan provided its recommendation that both First Nations be added as parties to the Governance Agreement on April 30, 2024, to the Anishinabek Nation Implementation and Operations Committee. This committee, established pursuant to the Governance Agreement, consists of representatives from the Anishinabek Nation (representing participating First Nations), B’Maakonigan and Canada and maintains responsibility for overseeing implementation of the Governance Agreement and the Anishinabek Nation Fiscal Agreement.

As outlined in the Governance Agreement, amendments to the Agreement require the written consent of the Anishinabek Nation (represented by the Grand Council Ogiimah), B’Maakonigan, and the Government of Canada. The Anishinabek Nation and B’Maakonigan provided their consent by signing the amendment to the Governance Agreement. The Government of Canada has also signed the amendment to the Governance Agreement. Its consent to amend the Agreement is provided through the Order in Council approving the amendments to the Governance Agreement.

Objective

The objectives of the Order are

Description

The Order amends the Schedule of the Anishinabek Nation Governance Agreement Act to include Aundeck Omni Kaning First Nation and Sheshegwaning First Nation.

Regulatory development

Consultation

Consultations took place with:

Consultations between the Anishinabek Nation, B’Maakonigan, and representatives from the Aundeck Omni Kaning First Nation and Sheshegwaning First Nation have been ongoing since the effective date of the Governance Agreement. These consultations focused on the process for amending the Governance Agreement to include the two First Nations.

Feedback on the respective community approval processes for Aundeck Omni Kaning First Nation and Sheshegwaning First Nation was gathered from B’Maakoingan in July 2024 to ensure that the community-based approval processes were respected and followed. The Implementation and Operations Committee agreed that the principles outlined in Schedule C to the Governance Agreement were respected and followed and were supportive of both First Nations being added to the Governance Agreement.

The Grand Council Ogiimah of the Anishinabek Nation and B’Maakonigan expressed their support by signing the amended Governance Agreement.

This is “opt-in” legislation, in that amendments to add First Nations to the Governance Agreement and to add them to the Schedule of the Act are done at the request of interested First Nations.

Given consultations with impacted partners have been carried out, this Order was not prepublished in the Canada Gazette, Part I.

Modern treaty obligations and Indigenous engagement and consultation

There are no modern treaties in the geographic area of the Anishinabek Nation Governance Agreement. However, there is one education sectoral self-government agreement (the Anishinabek Nation Education Agreement) [the Education Agreement] that operates within the same landscape.

Potential impacts on the Education Agreement resulting from amending the Act were considered, as the Governance Agreement and Education Agreement are interconnected within the same geographic area and/or First Nations.

Amending the Governance Agreement to add additional First Nations as parties is a decision that was made at the request of the interested Anishinabek First Nations and B’Maakonigan (the Anishinabek Nation Government). Consultations with impacted First Nations were led by First Nations partners pursuant to the Community Approval Protocol outlined in the Governance Agreement. Upon receiving confirmation of support from the First Nations communities and from B’Maakonigan, a decision was made by the parties to proceed with amending the Governance Agreement to add the additional First Nations. The Order to amend the Act will ensure consistency with the amendment being made to the Governance Agreement, and the recommendations of First Nations partners are reflected in this Order.

Following consultation and consent from the involved First Nations, it was determined that there are no modern treaty or self-government implications resulting from this Order.

Instrument choice

The Anishinabek Nation Governance Agreement Act provides that to schedule signatory First Nations to the Act, an Order made by the Governor in Council is needed. For this reason, no other instruments were considered.

Regulatory analysis

Benefits and costs

There are no costs associated with amending the schedule to the Anishinabek Nation Governance Agreement Act in order to add the name of a First Nation.

Either after First Nations are added to Schedule A of the Governance Agreement or simultaneously, they are added to the schedule of the Anishinabek Nation Governance Agreement Act. This ensures the Act is consistent with Schedule A of the Governance Agreement. However, should there be a discrepancy between the Act and the Agreement, the Agreement prevails.

While the amendment to the Governance Agreement is all that is required to add the First Nations as parties to the Agreement for practical purposes, it is necessary to amend both the Governance Agreement and the Act for consistency between the two.

Small business lens

The small business lens does not apply, as there are no associated costs for small businesses.

One-for-one rule

The one-for-one rule does not apply, as there is no change in administrative costs or burden to business.

Regulatory cooperation and alignment

Chapter 11 of the Governance Agreement outlines the relationship of laws between the Agreement and federal laws, including Canada’s international legal obligations.

The laws of each First Nation and the Anishinabek Nation enacted under the Governance Agreement operate concurrently with federal and provincial laws and do not extend to matters not specifically addressed in the Agreement, including criminal law or criminal procedure, labour relations and working conditions, intellectual property, aeronautics, navigation and shipping, or the official languages of Canada.

If Canada were to consider agreeing to an International Treaty that could affect the rights granted through the Governance Agreement, Canada will consult with the signatories to the Anishinabek Nation Governance Agreement.

The Order complies with the United Nations Declaration on the Rights of Indigenous Peoples. Articles 3 to 5 are particularly relevant to this Order as they pertain to the right to self-government for Indigenous peoples.

The Order complies with Section 5 of the United Nations Declaration on the Rights of Indigenous Peoples Act, which states that the Government of Canada must, in consultation and cooperation with Indigenous peoples, take all measures necessary to ensure that the laws of Canada are consistent with the Declaration.

Effects on the environment

In accordance with the Cabinet Directive on Strategic Environmental and Economic Assessment (SEEA Directive), a preliminary scan concluded that an SEEA is not required. The Order results solely in the aforementioned First Nations being added to the schedule of the Act.

Gender-based analysis plus

Colonization and the introduction of the Indian Act stripped First Nations women of important decision-making roles and influence within their communities.

In 2018, prior to the finalization of the Governance Agreement, it was estimated that on a national level, only 30% of Indigenous band governance elected councillors or legislative members were women and that only 20% of elected Chiefs were women. In the case of the Anishinabek Nation, approximately 48% of elected councillors were women and 30% of the elected Chiefs were women. While there was a higher representation of Anishinaabe women in positions where they hold decision-making influence within their communities, the representation of Anishinaabe women in political leadership position had not yet reached gender parity.

It is anticipated that with the move toward self-government and nation rebuilding, including the two First Nations that are the subject of this Order and have joined the Governance Agreement, First Nation communities will work toward reclaiming their culture, language and governance practices, thereby restoring women’s empowerment to resume their rightful roles of leadership and influence within their communities.

Implementation, compliance and enforcement, and service standards

The Order comes into force on April 1, 2025, the same day on which the amendments to the Governance Agreement adding the names of the two First Nations come into force through Order in Council.

The Implementation and Operations Committee created pursuant to the Governance Agreement will maintain responsibility for overseeing implementation of the Governance Agreement as laid out in the Governance Agreement, for example, monitoring and assessing the implementation of the Governance Agreement, identifying and attempting to resolve issues, holding regular meetings, establishing procedures, preparing annual updates and more.

Contact

Elizabeth Pigeon
Director
Modern Treaty Management East Directorate
Crown-Indigenous Relations and Northern Affairs Canada
219 Laurier Avenue West
Ottawa, Ontario
K1A 0H4
Email: elizabeth.pigeon@rcaanc-cirnac.gc.ca