These guidelines provide corporate direction for the negotiation, implementation and management of Corrections and Conditional Release Act (CCRA) section 81 agreements. This objective is supported by the following:
provision of information addressing the purpose and objectives for negotiating a section 81 agreement;
identification of the roles and responsibilities of the Correctional Service of Canada (CSC) in the negotiation, implementation and management of a section 81 agreement;
provision of clear steps addressing section 81 application approval process; and
provision of a succinct process at each stage from application to management of a section 81 agreement.
The purpose and objectives of negotiating a section 81 agreement are to:
provide Aboriginal-specific interventions that enhance Aboriginal offenders' potential for rehabilitation and wellness, through cultural and spiritual expertise found within the Aboriginal community;
facilitate the administration of culturally-relevant correctional services, in a manner that ensures public safety, and provides support for effective case management;
facilitate and support the reintegration of Aboriginal offenders as law-abiding citizens in accordance with the law, in a cost-effective and culturally-sensitive manner;
facilitate access to the broader Aboriginal social services network;
maintain Aboriginal offenders closer to their home communities, recognizing the value of family and community relationships;
enhance the potential for cooperative development of Aboriginal community correctional support programs;
establish section 81 agreements that support the spirit of the federal government's relationship with Aboriginal peoples, which promote greater control and decision making with respect to Aboriginal peoples; and
support the Government of Canada's priorities, Public Safety's mandate, as well as CSC's Mission, Corporate Priorities, and strategy for Aboriginal corrections.
National coordination is required to link the planning and development of section 81 agreements with CSC's corporate planning and management systems. Agreements should be negotiated or amended based on requirements identified in the CSC's long range accommodation planning process, ensuring a balance between program needs and accommodation planning needs.
Accommodation and operations planning at the regional and national levels should include plans and forecasts for section 81 transfers. These should take into consideration the objectives established for section 81 agreements, the target population and selection criteria.
Legislation allows for the developmental framework for new care and custody arrangements to be defined by Aboriginal communities who express an interest in participating in the delivery of correctional services.
Aboriginal communities are required to come forward with section 81 proposals.
Aboriginal community involvement under section 81 of the CCRA includes but is not limited to the following:
the transfer of an individual offender to his or her community;
multiple offender transfer to communities or community facility or facilities;
operation of a Healing Lodge;
operation of an urban-based program or facility for Aboriginal offenders (e.g. electronic monitoring, group home or halfway house);
delivery of a full range of correctional or healing programs in an Aboriginal community, rural or urban centre; and
community supervision (in some cases, CSC will provide assistance in this area depending on the section 81 agreement).
The initial statement of interest from the Aboriginal community will normally contain basic information addressing community interest. The following information is illustrative of the scope of information to be submitted:
the name of the community organization and corporate or legal structure;
identification of the vision (mission), goals and objectives of the proposal, including an indication of the type of offenders the Aboriginal organization is willing to accept within its community and provide services;
if any physical infrastructure is proposed, clarification on size (number of offenders to receive services) and intended physical location;
a brief description of the proposed agreement;
an indication of any previous experience in the field of criminal justice;
financial requirements of the organization to further develop the proposal;
intended number of offenders to be serviced and plan for physical infrastructure;
support from the local Aboriginal community, including letters of recommendation;
capacity to deliver Aboriginal programs and services;
partnerships that the organization has or could establish to meet the needs of Aboriginal offenders; and
time constraints related to the community's participation, or any of it partner's participation, in the proposed agreement.
Upon receipt of the Aboriginal community's statement of interest, the Regional Deputy Commissioner will assess the proposal, provide a rationale supporting acceptance or rejection of the proposal, and submit all relevant material to the National Management Committee (NMC) that addresses section 81 applications.
The NMC is chaired by the Senior Deputy Commissioner, or delegate. The Aboriginal Initiatives Directorate provides support to the NMC. Members of the Committee will include the Regional Deputy Commissioner or representative from the originating community's region, the Assistant Commissioner, Correctional Operations and Programs, the Director General, Aboriginal Initiatives, Legal Services representation and any other representative deemed necessary by the Senior Deputy Commissioner.
The mandate of the NMC is to review section 81 proposals and determine whether further negotiations are warranted.
The NMC will review and assess all section 81 proposals and will formally decide on community submissions bi-annually or as needed.
The NMC Chair will inform the Commissioner of its decision to approve or reject a proposal.
The NMC for section 81 oversees the initial development process by reviewing community statements of interest, submitted by the relevant Regional Deputy Commissioner. The Committee determines whether community interest should be pursued further by way of a jointly coordinated development of a proposal between the Aboriginal community and CSC. A section 81 statement of interest that is initially approved by the NMC will be further investigated by CSC and the Aboriginal community via formal proposal development.
If required and under the direction of the Chair of the NMC, the Aboriginal Initiatives Directorate is responsible for the initial assessment/review of the statement of community interest.
Prior to the formal proposal development, it is incumbent on the Chair of the NMC to inform the Commissioner of the intended action to proceed with a formal proposal and further analysis of the community's statement of interest.
The lead for the formal proposal development rests with the Aboriginal community with CSC providing a supporting role. The regional representative of the NMC will function as a link to the NMC.
A formal proposal is required to address, but not limited to, the following key elements:
analysis of all costs related to the submitted section 81 proposal, including initial start-up costs and ongoing financial requirements;
clarification on the management framework of the facility and staffing levels required;
description of the proposed interventions; and
assessment of community capacity and services.
The surrounding community support may impact the implementation of a section 81 agreement if opposed at a later date.
CSC will assess the following to be included in the submitted proposal:
an analysis and determination of how the section 81 proposal will address a corporate need and priority;
a completed Cost Benefit Analysis of the section 81 agreement proposal compared to the estimated costs and benefits of providing such services directly through CSC;
an assessment of options for effective and appropriate payment structures for the ongoing operations of the section 81 agreement, and review of current section 81 payment structures and application to the agreement;
an analysis of specific national and regional operational need;
a population analysis addressing potential for transfer; and
custodial arrangements such as health care, food, lodging, and security; and
an assessment of legal requirements such as First Nations land usage, municipal government approvals and any existing Aboriginal-specific agreements.
Proposal development does not infer negotiations. Any discussions related to the development of the proposal relate only to the analysis of the details of the submission.
Prior to submission to the NMC, the final proposal will be completed with all consultations conducted with relevant departments/stakeholders.
The final proposal will be submitted to the NMC for approval. Recommendations on the desirability of entering into negotiations of a section 81 agreement will be forwarded by CSC's Commissioner.
The Commissioner will advise the Minister of the proposal and the determined recommendations.
CSC will recommend an approval-in-principle to proceed with negotiations to the Minister of Public Safety. Relevant documentation and a needs analysis will be provided to the Minister.
If approved, CSC will draft a letter for signature by the Minister, addressed to the Aboriginal community, proposing that negotiation of a mutually satisfactory agreement be initiated, subject to a comparative analysis, and suggested timeframes.
The Commissioner will then inform his or her counterpart at the Treasury Board Secretariat of the impending negotiations. This process allows for an advance warning that will eventually require ministerial and Treasury Board approval for a section 81 agreement, allowing for appropriate consultation and involvement. The Treasury Board Analyst is kept informed on a regular basis.
If the proposal is refused, the Aboriginal Initiatives Directorate will draft a letter to the community for signature by the Chair of the NMC.
Funding for a section 81 agreement will require an approved Treasury Board submission (TBS).
The Treasury Board Secretariat will be informed and consulted during the course of negotiation to ensure that the content and format of the submission meet TBS criteria and requirements.
The on-going revision of funding for a section 81 agreement is exercised through inclusion in the National Capital, Accommodation and Operations Plan (NCAOP), submitted yearly to Treasury Board as part of CSC's overall resource planning process. In unusual situations, funding approval may be obtained through Supplementary Estimates.
The Financial Strategies and Analysis Division of the Corporate Services Sector will serve as the portal to the Treasury Board Secretariat for the negotiation and submission of the initial Treasury Board submission and all updates through the NCAOP.
Section 81 agreements shall comply with the requirements of federal government policies on security and official languages which are
determined by CSC to the same extent as if the agreements were directly administered by CSC.
Under the direction of the Chair, the NMC will form a working group to function as a negotiating team chaired by the relevant Regional Deputy Commissioner, or a representative deemed appropriate by the Chair. The negotiating team will be composed of national and regional officials, and will include representatives from Finance, Planning, Legal Services and other areas deemed necessary.
The NMC will act as the steering committee to oversee and direct the work of the negotiating team.
The negotiating team will:
conduct detailed analysis and develop terms of reference to be included in the agreement;
liaise with the related Aboriginal community organization contact to obtain a preliminary idea of their vision and wishes. Ongoing negotiations will identify areas of acceptable conditions to both parties and areas with no consensus. The Aboriginal community will have the substance of their interests contained within the formal proposal; and
review the formal proposal and assess the program, policy, and legal requirements of CSC, federal government and Treasury Board policy.
The results of the negotiations will be submitted to the NMC for approval of areas of mutual agreement and to identify areas that have not achieved consensus. The NMC will conclude the negotiation where the negotiating team could not reach agreement.
Throughout the negotiation phase, as well as following the negotiation of an agreement, the NMC shall receive a complete review by Planning, Finance and Legal Services.
The Chair of the negotiating team is responsible for ensuring that the NMC is fully briefed at all times.
The NMC will be involved as required, during the term of the agreement, for decisions on amendments, terminations, and renegotiations.
The Aboriginal Initiatives Directorate at National Headquarters is involved in coordinating and monitoring the implementation phase to ensure that the necessary action is taken as specified in the agreement.
The implementation phase is the transition between negotiations and the management of agreements which has the following three purposes:
reinforce the intent of the agreement to ensure the objectives and philosophy as well as legal and financial considerations of an agreement are implemented in the spirit in which they were negotiated;
transfer the lead role from National to Regional Headquarters; and
integrate the agreement into ongoing corporate planning and management processes.
Once the agreement is executed, a number of tasks must be carried out before full operation is realized. The majority of these tasks are developmental (e.g., establish committees set out in the agreement).
The Regional Deputy Commissioner is responsible for ensuring that a record of minutes and action plans of all committee meetings are maintained at the regional office.
Agreements may include the reference to tripartite or joint committee meetings with representatives from CSC, the Aboriginal organization, provincial counterparts, and any other party the Regional Deputy Commissioner deems necessary for an efficient review of the ongoing management, operations, monitoring, and evaluation of section 81 agreements.
Joint reviews are structured to monitor the operations and management of section 81 agreements for the purposes of maximizing benefits to offenders and efficient administration.
During the term of the agreement, the NMC will be involved as required for decisions on amendments, terminations, and renegotiations.
National Headquarters maintains monitoring systems to track bed utilization and associated financial expenditure data as determined by corporate priorities. Regional Headquarters maintains corresponding regional monitoring systems.
In addition to the financial monitoring system, Regional Headquarters shall report on an annual basis (by January 15th) to the Director General of Aboriginal Initiatives on issues pertaining to the management of section 81 agreements within the respective region.
The termination of agreements will be in accordance with the terms within each agreement.
Substantial amendments to agreements must be approved by the Minister. Amendments that have cost implications may require Treasury Board approval.
The Commissioner may make amendments in accordance with the terms of the agreement that do not impact the basic intent of the agreement. This ensures allowances for operational flexibility. The main body of the agreement should delegate authority for amending operational details. This means that detailed operational provisions of the agreement can be amended without a formal ministerial and Treasury Board approval process, thus providing operational flexibility in agreements approved by the Minister.
Senior Deputy Commissioner,
Original signed by:
Chris Price for:
Aboriginal means Indian (status or non-status), Inuit or Métis. (Corrections and Conditional Release Act - CCRA - section 79).
Aboriginal community means a First Nation, tribal council, band, community, organization or other group with a predominantly Aboriginal leadership. (CCRA - section 79)
Section 81 agreement means an agreement entered into by the Minister, or a person authorized by the Minister, with an Aboriginal community for the provision of correctional services to Aboriginal offenders. [CCRA subsection 81(1)]