Evaluations of INAC over the years also show us there is a problem here. A 2005 internal evaluation and a 2008 study by the Institute on Governance found that INAC really has no clear objective driving it with respect to administering services to First Nation and that INAC staff are unclear on whether their overall objective is to promote Indigenous well-being and help communities transition to self-government, versus monitoring First Nations and ensuring they are compliant with minimum program standards under funding agreements and file all necessary reports and audits. Because of this confusion, we see the department fluctuate dramatically in its approach between different government administrations. Evaluations of INAC at the end of the Harper era found that INAC staff clearly saw their main objective as monitoring and compliance and not the priorities of First Nations.

My point here is that having laws that set out expectations and roles or obligations of government departments can be used by those on the receiving end of those services to hold government accountable.

2. What’s in the Department of Indigenous Services Act (“DISA”) that is helpful?

Unlike its predecessor, the DIAND Act, which provided no guidance or limits whatsoever on the department, DISA actually includes some content about ISC’s objectives and responsibilities and introduces some things that can be used to place limits on the department’s conduct. The law isn’t perfect (for example, I would have liked to see a dispute resolution mechanism and some language around the requirement to adequately fund programs), but there is definitely more to work with here than before, and this is helpful for Indigenous peoples.

a) Sets out important commitments by Canada

First, DISA contains three important commitments by the Government of Canada within its preamble. They are as follows:

Whereas the Government of Canada is committed to

[1] achieving reconciliation with First Nations, the Métis and the Inuit through renewed nation-to-nation, government-to-government and Inuit-Crown relationships based on affirmation and implementation of rights, respect, cooperation and partnership,

[2] promoting respect for the rights of Indigenous peoples recognized and affirmed by section 35 of the Constitution Act, 1982, and

[3] implementing the United Nations Declaration on the Rights of Indigenous Peoples

Preambles are legally significant because of the law on the interpretation of statutes. According to the Supreme Court of Canada, a law has to be interpreted in ways that consider not just the particular section of the law in question, but the rest of the text of the law (including the preamble), the context and the purpose the government had in enacting the law. So when considering what the obligations of the department are, the courts can look to the preamble of DISA to supply principles and values that ISC should be bound by.