Question Period Note: JTBA and Indigenous Border Mobility

Indigenous Border Mobility Issues

• The Government of Canada recognizes the complex border crossing and migration challenges faced by Indigenous Peoples divided by Canada's international borders.

• My department, in partnership with other departments and agencies, is committed to this work.

• We have clear direction that this is a priority and to that end, will be pursuing legislative, regulatory and policy reforms that will involve expanding Canada’s right-of-entry provision in the Immigration and Refugee Protection Act (IRPA) and amending work and study permit requirements for Indigenous Peoples.

• To accomplish this goal, we will be actively engaging with First Nations, Inuit and Métis groups such as the Jay Treaty Border Alliance, the Haudenosaunee External Relations Committee and Inuit Tapiriit Kanatami, to discuss and advance plans to reform cross-border mobility and immigration, and we are continuing discussions with international partners on Indigenous border-crossing issues.

Indigenous Border Mobility Issues

Indigenous peoples and their representative organizations have long flagged the adverse impacts of Canada’s international borders and immigration legislation on families and culture, particularly for those in communities near, or intersected by, Canada’s international borders.

Many Indigenous peoples maintain border mobility is an inherent right and/or a right conferred in treaties, such as the 1794 Jay Treaty between Great Britain and the United States. However, Canada’s judicial system has not recognized an established Aboriginal or Treaty right to enter Canada.

Currently, the right to enter and remain in Canada is set out under the Immigration, Refugees and Protection Act (IRPA) and covers Canadian citizens, permanent residents and persons registered as Indians under the Indian Act.

Foreign nationals who are registered under the Indian Act are exempted from IRPA’s work and study permit requirements. Notably, IRPA does not explicitly refer to First Nations, Métis, or Inuit nor to Indigenous people located outside Canada (other than those who are registered under the Indian Act).

The Government of Canada’s current work to address border mobility issues builds on a number of previous commitments including:
2016: Standing Senate Committee on Aboriginal Peoples Report: Border Crossing Issues and the Jay Treaty;
2017: Minister’s Special Representative Report on First Nation Border Crossing Issues;
2018: Canada implements measures to address Canada-United-States border-crossing issues for First Nations;
2021: Establishment of Haudenosaunee External Relations Committee Working Group;
2022: Establishment of Jay Treaty Border Alliance – Collaborative Initiative;
2023: Commitment to improve Indigenous border mobility in PM Backgrounder and White House Factsheet

United Nations Declaration on the Rights of Indigenous Peoples
On June 21, 2021, the United Nations Declaration on the Rights of Indigenous Peoples Act (UN Declaration Act) received Royal Assent in Canada. The UN Declaration Act provides a roadmap for the Government of Canada and First Nations, Inuit and Metis peoples to work together to implement the Declaration based on lasting reconciliation, healing, and cooperative relations. This includes requiring federal laws, including IRPA, to align with the UN Declaration in consultation and cooperation with Indigenous Peoples (defined as Aboriginal Peoples of Canada).
The UN Declaration Act also required that an Action Plan be developed by June 2023. The Department of Justice (DoJ) led the development of the Action Plan, beginning the consultation and cooperation process in December 2021; releasing the “What We Learned to Date” Report and Draft Action Plan in March 2023; and continuing engagement with Indigenous Partners until the Final Action Plan was released to the public on June 21, 2023.
Notably, Article 36 of the United Nations Declaration on the Rights of Indigenous Peoples focuses on mobility rights:
1. Indigenous peoples, in particular those divided by international borders, have the right to maintain and develop contacts, relations and cooperation, including activities for spiritual, cultural, political, economic and social purposes, with their own members as well as other peoples across borders.
2. States, in consultation and cooperation with indigenous peoples, shall take effective mea¬sures to facilitate the exercise and ensure the implementation of this right.
IRCC and CBSA worked closely with DoJ and Indigenous partners on a border mobility-related Action Plan Measure that was included in the Final Action Plan released in June 2023 (#52 under Shared Priorities):
“The Government of Canada will take the following actions in consultation and cooperation with Indigenous peoples:
Pursue legislative amendments to the Immigration and Refugee Protection Act, amendments to relevant Regulations and revisions to policies in order to address complex border crossing and migration challenges faced by Indigenous Peoples divided by Canada's international borders, including options to amend Canada’s right of entry provision, and work and study permit requirements.
Engagement with Indigenous Peoples and their representative organizations to implement the action plan measure is being initiated in 2023, with a view to advancing amendments and policy reforms in 2024. In parallel, the Government of Canada will continue discussions with international partners on Indigenous border crossing issues. (Canada Border Services Agency; Immigration, Refugees and Citizenship Canada)”
Consultation and Cooperation Plan for 2023
IRCC and CBSA are currently working together with OGD partners including CIRNA, on a phased Consultation and Cooperation Plan, as follows:
Phase 1: Getting the Word Out (Spring/Summer 2023)
o Release of Prime Minister’s Office/White House’s Parallel Statements
o Release of UNDA Joint Action Plan Measure

Phase 2: Deeper Discussions (Summer/Fall/Winter 2023)
o Regional Roundtables with Indigenous Partners (in-person and virtual)
o Permanent Bilateral Mechanisms with Indigenous partners
o Existing Working Groups & Initiatives with Indigenous partners
o Continued Discussions with Indigenous partners; provinces; territories; and, international partners
o Online submissions

Phase 3: Reflecting Back (Winter 2024)
o Publish What We Heard Report
o Receive feedback on the What We Heard Report

IRCC and CBSA have an agreement with Naut’sa mawt Event Management, to support the Regional Roundtables under Phase 2 of the Consultation and Cooperation Plan. The first Regional Roundtable is to take place in New Brunswick in October 2023.
Existing Working Groups on Indigenous Border Mobility Issues
Jay Treaty Border Alliance and the Jay Treaty Border Alliance-Collaboration Initiative
Established in 2017 by tribal governments and First Nations, the JTBA seeks full implementation of Indigenous border crossing rights by the U.S. and Canadian Governments as well as full respect of inherent sovereignty, political status and cultural and economic rights of Indigenous Peoples living along the international border.
[REDACTED]
In April 2022, Ministers of CIRNA, Public Safety and IRC met with JTBA representatives to discuss a way forward on border crossing issues. During the session, there was a commitment to convening a working group to explore and address the issues in a meaningful way. Officials at the Assistant Deputy Minister level convened an interdepartmental working group in May 2022, to discuss next steps in supporting a Ministerial-level committee. Minister Mendicino attended the JTBA Summit in June 2022.
On October 19, 2022, the Ministers of IRC, CIRNA and Public Safety met with senior JTBA leadership for the inaugural meeting of the JTBA-CI High Table. [REDACTED].
Under the Governance Framework, the High Table provides oversight, guidance and an approval function (Ministers/senior JTBA leadership) while the Governance Table serves a governance and administrative function (ADMs/selected JTBA leaders). Four Technical Tables discuss priority areas (Director level/JTBA leads), including the right of Entry Technical Table (IRCC is the co-convenor).
IRCC and CBSA will be presenting at the next JTBA Summit, to be held in Calgary, Alberta in October 2023. IRCC and CBSA will also be attending a number of JTBA-CI Technical Table meetings at the Summit.
Haudenosaunee External Relations Committee
In 2021, the Cross-Border Working Group was established between the Haudenosaunee ERC and GoC departments. [REDACTED] to further explore long-standing border crossing issues. The Working Group is co-chaired CIRNA. [REDACTED].

International Partners – U.S. & Greenland/Kingdom of Denmark
The GoC and the JTBA are both aware the U.S. is exploring amending its own “right of entry” provision (which authorizes Canadian-born Indigenous Peoples to enter the U.S. based on a 50% blood quantum) and have been holding Director-level discussions on a regular basis. The U.S. would like to see Canada implement “reciprocal Indigenous mobility” by aligning any Canadian amendments with the direction the U.S.
On November 30, 2002 the Biden-Harris Administration announced new actions to “Support Indian Country and Native Communities”. It notes the Department of Homeland Security is working to identify and remove barriers that impede access of Tribal Nations and Alaska Native Villages to border-crossing and immigration rights and benefits. During President Biden’s visit to Ottawa on March 24-25 2023, the Prime Minister and the President made commitments to improving Indigenous border mobility.
GAC officials are also regularly meeting with Greenland representatives to discuss the Inuit mobility. [REDACTED].

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