Two Federal Departments For Indigenous Issues Could Bring Headaches, Scholar Says

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The Lawyer's Daily


Interested lawyers will need to have “the best peripheral vision they’ve ever had” after the federal Liberal government divided the Department of Indigenous and Northern Affairs in two, says one legal scholar.

Signa Daum Shanks, a professor at Osgoode Hall Law School who specializes in Indigenous issues, made the comment following a decision, announced Aug. 28 by Prime Minister Justin Trudeau, to create two separate departments, appointing a pair of ministers to oversee different responsibilities.

Carolyn Bennett, who was appointed the government's first Indigenous affairs minister almost two years ago, will head the Department of Crown-Indigenous Relations and Northern Affairs, while Jane Philpott will oversee the Department of Indigenous Services after her time in the health portfolio.

The watershed manoeuvre comes more than two decades after the Royal Commission on Aboriginal Peoples recommended such a change.

Daum Shanks said while the move creates something “better than what existed before,” it could lead to administrative and bureaucratic tangles and other forms of "red tape" that might negatively affect how long-standing issues are addressed, such as creating better access to clean water, fixing problems with reserve schools and improving support for families in crisis.

The new system, she said, will demand that lawyers — particularly those specializing in constitutional and Indigenous rights law — widen their scope.

“I think that constitutional lawyers interested in Indigenous people will have to have the best peripheral vision they’ve ever had because they’ll have two ministries to watch," Daum Shanks said, warning that dividing the department in two could exacerbate the long-standing problem of the federal and provincial governments arguing over which level of government handles certain Indigenous issues.

“I think [lawyers] also will have to be concerned about how two cabinet ministers communicate with provinces, because one of the problems that has happened repeatedly is that ... a provincial government and federal government will be fighting over who is responsible, and neither one wants to be responsible,” she said. “And so now you have two ministries and each one of those could debate with every single province about who does what, and [now] that debate can happen twice as much, and then, I dare say, it could happen within the federal cabinet as well.”

To the latter point, Daum Shanks said there could be “egg on Canada’s face” if the two departments are not able to see eye-to-eye or suffer communication breakdowns.

“I would certainly hope these two cabinet ministers get along. ... But also, it would be very important for them to be in tandem with each other before discussions even start, because something could go off the rails so easily, particularly on the issue of primary care." It would be embarrassing, she said, "if the two departments were not presenting both the same philosophies and the same practical policies or programs.”

Daum Shanks is not alone in having these concerns. Other scholars have reportedly said the department's division could thicken bureaucracy, complicate decision making and result in more competition, with two ministers responsible for Indigenous issues now competing for resources.