Question Period Note: JTBA

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.
• We are working to address these challenges and facilitate border crossing for Indigenous Peoples by pursuing legislative, regulatory and policy reforms. We made this commitment as part of the United Nations Declaration on the Rights of Indigenous Peoples Act (UNDA) Action Plan.
• From October 2023 to February 2024, we invited participants from Indigenous communities, governments and their representative organizations to take part in regional roundtables across Canada to discuss key issues and gather views on how to address longstanding Indigenous mobility issues.
• On March 22, 2024, we issued a public report that summarized what was heard during these discussions. The contents of the report, a joint initiative with CBSA, and feedback in response, will guide next steps for our actions in advancing this important priority.

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. Notably, IRPA does not explicitly refer to First Nations, Métis, or Inuit nor to Indigenous people located outside Canada.

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;
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 (UNDA) received Royal Assent in Canada, providing a roadmap for the Government of Canada and First Nations, Inuit and Métis 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.
The UNDA also required that an Action Plan be developed by June 2023. The Department of Justice (DoJ) led the development of the Action Plan including the release of a Draft UNDA Action Plan in March 2023 and the Final Action Plan on June 21, 2023. Included in the final Action Plan is an Action Plan Measure on border mobility, developed by IRCC and CBSA, working closely with DoJ and Indigenous partners (#52 under Shared Priorities (APM SP52):
“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 with Indigenous partners
In consultation and cooperation with First Nations, Inuit, and Métis partners, IRCC and CBSA have been following a phased plan to implement APM SP52:
Phase 1: Getting the Word Out (Spring/Summer 2023) - Release of Prime Minister’s Office/White House’s Parallel Statements and UNDA Joint Action Plan Measure, and heads up to international partners
Phase 2: Deeper Discussions (Summer/Fall 2023 – Winter 2024) - Regional Roundtables with Indigenous Partners (in-person and virtual) from October 2023 to February 2024; Permanent bilateral mechanisms, existing working groups and collaborative initiatives, and Nation to Nation meetings.; Discussions with provinces; territories; and, international partners; and, Public communications and online submissions (public consultations webpage: Consulting and cooperating with Indigenous Peoples on border mobility - Canada.ca )
Phase 3: Reflecting Back (Winter 2024) - Publish report of what we heard and receiving feedback from partners: Indigenous Mobility and Canada’s International Borders: Reflecting back and looking forward

IRCC and CBSA are meeting through two existing working groups on border mobility – the Jay Treaty Border Alliance-Collaboration Initiative (JTBA-CI – established in 2022 with the JTBA), and a working group of the Haudenosaunee External Relations Committee and Government of Canada (HERC – established in 2021) – and are meeting separately with the Inuit Tapiriit Kanatami through the Inuit-Crown Partnership Committee, the Métis National Council, and the Manitoba Métis Federation. IRCC has also been in direct discussions with the Assembly of First Nations.
International Partners – U.S. & Greenland/Kingdom of Denmark
The U.S. has made public commitments on Indigenous border mobility and 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.
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