Notices of Meeting include information about the subject matter to be examined by the committee and date, time and place of the meeting, as well as a list of any witnesses scheduled to appear. The Evidence is the edited and revised transcript of what is said before a committee. The Minutes of Proceedings are the official record of the business conducted by the committee at a sitting.
I call this meeting to order. Welcome to meeting number 25 of the House of Commons Standing Committee on Indigenous and Northern Affairs.
First of all, we recognize that we meet on the unceded territory of the Algonquin Anishinabe people. Chi-meegwetch.
Pursuant to the order of the House, the committee is continuing its study of Bill C-10, an act respecting the commissioner for modern treaty implementation.
I would like to welcome everyone.
As an individual, we have David Wright, associate professor, faculty of law, University of Calgary. Welcome.
From the Cree Nation Government, we have Grand Chief Paul Murdoch by video conference. Hello, Chief.
We have Duane Gastant' Aucoin, executive councillor, Teslin Tlingit Council. He is also on video conference. Welcome to you, Duane.
We have Lori on video conference. She's been joining us frequently throughout this study. We welcome her as well.
Let's proceed with the presentations.
You will have five minutes each. I will remind you when you have 30 seconds to wrap up. If you haven't finished your thoughts, you can add information during questions and answers.
Let's start with David Wright from the faculty of law, University of Calgary.
Good morning, members of the committee, fellow witnesses and officials. Thank you for the invitation to appear before you today regarding Bill C-10.
My name is David Wright. I'm a law professor with the University of Calgary's faculty of law. I appear before you as an individual, although I understand my name was put forward by the Land Claims Agreements Coalition as someone who has worked, researched and written in this area extensively.
Prior to my academic appointment, I held several roles, including legal counsel for the Gwich'in Tribal Council—for whom I still act from time to time—and lawyer and auditor for the federal commissioner of the environment and sustainable development, housed in the Office of the Auditor General, for five years. This latter role, in particular, informs my perspectives today.
My opening comments complement those of the esteemed witnesses you have heard from already, including indigenous leaders in modern treaty contexts across Canada. In these opening comments, I offer three interrelated perspectives to assist this committee in situating Bill C-10 in the broader law policy and institutional landscape for modern treaty implementation.
The first of these is follow-through. Bill C-10 can be seen as the federal government's simply following through on an existing commitment to create such an institution. Indigenous modern treaty partners have called for the creation of this institution since 2003, including tabling the formal proposal by the Land Claims Agreements Coalition in 2017. In recent years, the federal government has been a constructive partner in pursuing this agenda, articulating this in several documents, including the 2023 modern treaty implementation policy and the 2023-28 UNDRIP action plan, chapter 5. The commitment has also been reiterated by a prime minister and several ministers in the years since 2023. In light of these clearly articulated commitments and intentions of the federal government, Bill C-10 represents a rare and important opportunity to simply follow through on this important shared Crown-indigenous objective.
The second perspective is a whole-of-government approach. The commissioner is a key missing piece in the federal government's stated intention to take a whole-of-government approach to modern treaty implementation. For more than a decade, beginning with the 2015 cabinet directive put in place by the Harper administration, led by former minister Valcourt, the federal government has committed to taking a whole-of-government approach to modern treaty implementation. The commitment has been repeated, of course, many times—for example, in the 2015 statement of principles on modern treaty implementation, numerous departmental reports and the aforementioned collaborative modern treaty implementation policy.
The whole-of-government approach—as you've heard—is required because treaties cumulatively include thousands of obligations the Crown must fulfill. Those Crown modern treaty obligations reside not with any single government department but with the Crown as a whole. Because no single department can meaningfully ensure that this whole-of-government approach is fulfilled, implementation challenges are systemic and stubborn. As such, this commissioner would fill an important institutional gap by ensuring that sustained independent oversight focuses on implementation and getting better information, in order to guide the Crown-indigenous modern treaty relationships. The powers and authorities set out in Bill C-10 offer a very important bird's-eye view with sightlines that don't exist elsewhere in the government.
The third and final perspective is deference to the existing text version of Bill C-10. Bill C-10 really does represent an exemplary approach to collaborative Crown-indigenous codevelopment of legislation, leading to—as you've heard from numerous witnesses—broad support across indigenous modern treaty parties, meaning that the text of the present version deserves strong deference. I think most would agree that the process was one of the very finest examples of legislative codevelopment with the federal government. I commend all the officials involved in the exercise. Bill C-10 is the outcome of this collaborative process. Modern treaty parties put their trust in the process, engaged in good faith and endorsed the tabled version without amendment.
It is important to acknowledge that amendments at this stage would essentially amount to unilateral change by the Crown. Such unilateral acts are precisely part of the problem in this historically fraught Crown-indigenous relationship. To amend at this late stage would be contrary to nation-to-nation dealings, the shared objective of reconciliation, and the spirit and intent of the aforementioned policies and modern treaties themselves.
As a final closing comment, let me step back for a second and say that, from my perspective, the commissioner would help everybody do their jobs better. In my experience with the federal environment commissioner, most audits are quite collaborative with departments and officials, including very senior officials. They quickly realize that there's a shared interest in continual improvement. The mere existence of the commissioner's office would likely help all departments and officials up their game. From there, the reports and recommendations would provide a robust, substantiated body of information and findings to guide and inform forward progress in pursuit of fulfilling treaty objectives and the shared goal of reconciliation.
I'll keep my comments relatively short. They're pretty much in line with Mr. Wright's presentation, although I doubt I'll sound as eloquent.
I'm a recently elected grand chief. This is my first time in office. I was elected in July. I am grand chief of nine communities and two emergent communities.
I want to share something that happened at the very beginning of my term. Being relatively new to the office and having worked mostly as an attorney, I had a pretty narrow view of the challenges our communities faced. Quickly, on seeing the social problems we were dealing with—problems with overcrowding and housing, employment problems with our exploding population and the challenges of holding on to our culture and language—I called a meeting quite early on with all of my chiefs. I was feeling a little overwhelmed. This wasn't at all what I was expecting.
Even though we spent all day talking about heartbreaking issues, I was really surprised at the optimism of my chiefs and my staff. I wondered what was going on. It took me a little while to realize.... One of my fellow chiefs pulled me aside and took me under their wing. This is when I saw that this year, we celebrate the 50th anniversary of the James Bay and Northern Quebec Agreement, which has been amended 30 times. We have the Cree-Canada new relationship agreement and the Cree-Canada governance agreement. These have tools that allow my chiefs and my staff to look at challenges we're facing with optimism and a sense of empowerment.
When I saw that this hearing was coming up, and in reading the brief that was tabled before and looking at all the exchanges that were happening, I thought it was important to point out...I love that the word “relationship” is being used so much. In the Cree nation, we're proud of all the relationships we've had in the past. We're proud of our current relationship with the Government of Canada.
This commissioner and the way this bill was developed would allow us to stand shoulder to shoulder with Canada, instead of face to face, where we're each alone on either side.
The Cree Nation Government made a submission in June 2024. I didn't agree with every recommendation made. I guess it's good that I wasn't a grand chief then, because attorneys who represent themselves have an idiot for a client, apparently. The ones I did agree with, you accepted, so that was great news.
In closing, I want to say that in looking at the documentation and speaking to my staff, I was very proud of how this law has come about. In a world defined by division and negativity, it's important to take this opportunity to express gratitude for the collaboration in how we got here—specifically to Mat Sargent, senior director of the modern treaty and self-government policy directorate, and his team at the policy and partnerships branch at CIRNAC.
Hello, everybody. My name is Duane Gastant' Aucoin. I am of the inland Tlingit nation. My moiety is Wolf and my clan is Yanyeidi. I am a white man's child. My dad's family, Acadian people, immigrated from France in 1640 and settled in what is now Port Royal. I am from Teslin, Yukon, and I am a guest of the Algonquins in the Ottawa Valley.
I am not a newbie. I've been on the council since 2009. This is my 17th year on the executive council.
The Teslin Tlingit Council is a modern treaty nation. We signed our agreement in 1993. It came into full effect in 1995. It's an amazing agreement. It's a sign of reconciliation with the Crown and indigenous peoples. Unfortunately, we have issues with implementation. It's great on paper, but when it comes to being implemented, that's when the falling down happens. Unfortunately, the Teslin Tlingit Council has had to take the Crown to court a few times. Back in 2015, we took the Harper Conservatives to court because they unilaterally changed the Yukon Environmental and Socio-economic Assessment Act. Three years later, we took the Trudeau Liberals to court because they weren't honouring the financial transfer agreement.
The only ones we haven't taken the court yet—we're equal opportunity—are the NDP, because they've never been in federal power, but we might be taking the B.C. NDP to court. There we go; they're not off the hook.
I was once talking to Andrew Scheer, then the Conservative leader, back when it looked as though he might win the election in 2019. In my quick conversation with him, I explained who I was and what nation I was from. I told him that the message I had for him and for whoever sits in the seat of government was this: We don't care who sits in that seat—Liberal, Conservative or NDP—because we have a treaty with the Crown. Whoever sits in the seat has the duty to live up to the treaty we signed with the Crown and to implement it. It's pretty simple.
One thing we see with this modern treaty commissioner is the ability not to go to court—the ability to try to work things out without having to go to litigation. Litigation is always there. We have no pipe dreams that the modern treaty commissioner will be solving all problems, walking on water and raising the dead, but we do have high hopes that this will improve the relationship we have with the Crown—again, no matter who sits in that seat—without having to go to the courts. Let's work together as equal partners. Let's hold each other up.
As was said before, our treaty is not with Indigenous Services. Our treaty is with the Crown and with all of government. Hopefully, this modern treaty commissioner will help improve the situation and help improve the lives of our people with the Teslin Tlingit Council and within the Yukon as well, because these treaties will benefit everyone.
Thank you to our witnesses, who are here for this very important study.
For those who have been following this study, we've been saying quite often that we agree with the diagnosis, but we have a few issues with the prescription. That, in particular, as was pointed out by our previous witness, is the implementation and the consequences of non-action.
Unfortunately, we have seen this with governments, Liberal and Conservative, for way too many years, so I understand the frustration on the side of the partners who helped codraft this legislation, as well as the excitement to see it to the finish line.
Our concern is that we're not sure, based on actions of many previous governments, whether there will be any actual follow-up or any changes within the various government departments that are pointed out in a report by a modern treaty commissioner.
The example we've been given is the Auditor General, who is an agent of Parliament. He or she will table a report in Parliament and talk about it for a week, maybe. The media will talk about it, and then it will disappear and nothing will be followed up on. Then the Auditor General will come out with another report on a follow-up of the previous report, and we'll still be dealing with the same issues they pointed out in previous reports.
The part we're looking at is the consequences piece. What can we put in this legislation, if anything, to ensure that the government is living up to its signature?
I'll start with you, Professor, and then we'll move on to Executive Councillor Aucoin.
Thank you for the question. It's a very important one.
The act is structured on parliamentary accountability, which is as you described, sir.
I would suggest that the reports do carry a lot of weight, some more than others. Of course, some reports, for example, those by the Auditor General and the federal environment commissioner—speak by analog for now—have moderately critical findings. Others have extremely important and consequential findings.
The former are kind of good news, because they mean that things are going reasonably well. The latter can be quite problematic, and they tend to get a lot more oxygen over time and lead to results and changes in the departments.
I'm going to share only things in the public domain. For example, years ago I was involved in an audit on the offshore petroleum and energy boards on the east coast, soon after the Deepwater Horizon catastrophe in the Gulf of Mexico. We made some very pointed, consequential findings, and, sure enough, changes happened, and it was a measurable result. I would expect to see the same in this context with the commissioner in place.
You point out that follow-up audits are possible, so that's a way to keep the issues on the front burner. There's really no limit to how those take place.
The last point I would make, in the interest of time, is that this falls into a different context from that of the Auditor General, who's a generalist. This commissioner would be a specialist and be in a better position to keep the pressure on. You'll see woven into the act a number of different ongoing ways to keep engaged with modern treaty holders and indigenous modern treaty partners. In this context, indigenous modern treaty partners will be able to help keep things on the front burner and keep pressure applied so that there are changes across departments in the interest of the whole-of-government approach that I mentioned in my second point.
The Tlingit nation used to build totem poles for people who didn't live up to their word. We called them “shame totems” so everybody could see. It helped inspire the person whom the totem pole was made for to do the right thing and fix it. Once this was done, the pole was cut down.
The modern treaty commissioner would be similar. It would be a shame totem, in a way, if there were a fault and the Crown was not living up to the treaties we signed. All of you are politicians. None of you like bad press. This would be bad press for the government.
Also, Teslin Tlingit Council retains the right to go to litigation if things still don't work. If the modern treaty commissioner pointed something out and we tried to resolve it and it still didn't get to resolution, there would always be litigation, but it would help strengthen our case against the Crown if the Crown were not living up to our agreements and the modern treaty commissioner supported us as well.
Okay, so we agree on the name and shame part, and I enjoy your example. At the same time, we're still potentially going back to court again, are we not? I think everyone is sick of court cases and ongoing litigation. Is there another idea that you may have—and I'm putting you on the spot, so you can follow up in writing if you come to it at two in the morning—that points to holding departments accountable? We get tons of reports. The defence department is doing this, and the housing department is doing this. It goes on and on.
Other than the naming and shaming, there really aren't consequences. We try to avoid the court. Is there anything else you have that we could put on the table?
Great. Thank you, Mr. Chair, for allowing me to sub in to replace my colleague MP Brendan Hanley, who couldn't be with us today.
Grand Chief John Paul Murdoch, first, I offer a very belated congratulations on your successful appointment as grand chief of the Eeyou Istchee last summer. It's been a big transition for you from law, I imagine. I'm also a recovering lawyer and new to politics, so I know the feeling. I'm quite confident, Mr. Murdoch, that the Wemindji Eeyou spirit and your commitment to community and nation will serve the Cree of Eeyou Istchee very well.
Mr. Murdoch, you might remember me. I was a student of yours back in 2008. I was studying at McGill law, and I spent two weeks in Mistissini and took a summer course with Professor Sébastien Grammond, who is now a Federal Court judge. I have very fond memories of the time in Mistissini, of learning about the James Bay agreement, the Paix des Braves and your experience working at a certain firm in Montreal with certain lawyers. I'm not going to recall the past, but—
Name and shame, maybe not; it's being recorded. We'll leave it there.
I used to call you Maître Murdoch, but if I may, I'll call you John Paul or JP.
I have a few more grey hairs. I can assure you I dye my hair grey to appear a little wiser.
It's very nice to meet you again, and congratulations on the new role.
Maybe I'll ask you a straight question about Bill C-10. Bill C-10 is meant to provide oversight and ensure that the federal government fulfills its obligations under modern treaties. How do you feel, Maître Murdoch, or Grand Chief Murdoch, Bill C-10 fares in terms of meeting obligations under modern treaties and especially with regard to the Eeyou Istchee?
I was wondering when this was going to happen, when I was going to run into a former student. Yes, there are great memories from that experience. It was the very first cohort we did. I was quite proud of what we achieved and what all the students went on to do.
It might not have come across in my introduction, as I was trying to keep it within the five minutes, but getting to where we are now in the new relationship agreement we have, the Cree self-governance agreement with Canada, wasn't an easy path. When I first started working, we had 25 lawsuits going. Every single chapter of the James Bay and Northern Quebec Agreement was subject to litigation.
When things really changed was when there was an honest conversation. Oddly enough, related to the previous question, we had started our discussions under—I think Paul Martin was prime minister back then—the Liberal government. We made significant headway in coming up with an agreement. Then there was an election. There was a change, and we ended up signing the agreement with the Conservatives. I'm especially proud of the fact that it transcended two different governments. I think this was because everybody agreed: the leadership on the indigenous side, the leadership on the Canadian side and, more importantly, the civil servants on both sides. It's something we tend to forget. I have civil servants as well. I have an executive director who just retired, and he was executive director for 35 years. We do have professional civil servants.
It's about holding both of us accountable. That's what I meant by shoulder to shoulder. It was when Canada recognized, “Okay, we can't do this on our own; we're actually no good at implementing treaties on our own.” When you think of the concept of a treaty as a document that enshrines a relationship, if you assume that you're going to take responsibility for the whole thing and you're going to do the whole thing on your own, you're going to be accountable on your own, of course it's not going to work. It's a relationship. It's not a transaction.
This is why I was more complimentary about the process of arriving at Bill C-10. It's very important that the mechanism put in place operates in parallel to the existing treaty relationship. If the relationship is poor, well, the parallel vehicle will be that much more important. If the relationship is working well, then the parallel path can be complementary.
This is how I see Bill C-10 working in our modern context.
That's great. Thanks for the comprehensive response.
I have about a minute and 15 seconds, so I'll move on to Mr. Aucoin. Can you comment quickly, in about a minute, on how you see Bill C-10 building trust with indigenous communities?
The development of Bill C-10 is an example of reconciliation. We worked together with the government to come up with this act. It wasn't the government saying, “This is what we think is best for you.” We worked together with the Crown, and we said, “This is the solution we think would work for both sides.”
The very fact that we have Bill C-10 is an example of that reconciliation.
Professor Wright, you mentioned that the commissioner would up their game to fulfill treaty obligations near the end of your testimony. Can you elaborate quickly on that, as well as who benefits from Bill C-10?
Executive Councillor Aucoin mentioned the trust building and the process of building the act. I would build on the comments about how this operates in parallel. You could think of the departments as upping their game in the shadow of the existence of the commissioner. The mere existence of the commissioner casts a shadow—a positive shadow, that is—across the bureaucracy. This helps everyone do better, knowing that a heavier hand lurks, if warranted.
I also want to thank Grand Chief Murdoch, Councillor Aucoin and Professor Wright for being with us. This is the final hour of our study of Bill C‑10 before we go to clause-by-clause.
At the last meeting, someone said something that I found very interesting, and I'd like to hear each of you respond to it. Someone said that each department would have its own interpretation of the treaties. Obviously, that would cause problems and delays.
Mr. Chair, I see that some witnesses have not yet put on their earpieces for interpretation. Can I start over? They weren't prepared, unfortunately.
Mr. Chair, if Councillor Aucoin is hearing both languages at the same time, I would like someone to help him so he can hear only the one he wants to hear.
Grand Chief Murdoch, Councillor Aucoin and Professor Wright, thank you very much for being here. This is the final hour of our discussion on Bill C‑10.
Professor Wright summed it up very well: We are ready. All of the parties have been heard, and if the government were to introduce amendments, it would be dismantling what has already been built.
During our previous meeting, we talked about how different departments are going to interpret the treaties differently, which will cause problems and delays. I'd like to hear from each of you on this: How can the commissioner help ensure that each treaty is interpreted consistently?
You've touched on the biggest challenge we face, which is the fact that every department and every new government will have a different interpretation. In my work, I've always found that education is the most important aspect, even for my own people. Too often, treaties are signed, shelved and forgotten. People get caught up in the urgency of the moment.
An independent commissioner will help us address that challenge with respect to education. We commented on the new commissioner's qualifications, and that's reflected here. The person chosen must be someone who is aware of the general context, not just isolated issues or what's going on in one department. That is what will really help us meet the challenge of the educational obligation that's incumbent on all the parties concerned.
Thank you. I'm sorry, but I only know a little bit of French. I speak very bon Frenglish.
[English]
My dad never spoke it around the house.
When it comes to the different interpretations by different departments, this is a fundamental flaw that currently exists within the Government of Canada. Our treaty is with the Crown, and we constantly remind them of that. Our treaty is not with Indian affairs. Our treaty is not with Indigenous Services. Our treaty is with the Crown, with all the departments, with all of the government.
A modern treaty commissioner would help bridge the gap and help get the departments thinking with that mindset. It would get the Prime Minister and the cabinet on board as well. They need to work with us as equal partners—and it's not just the letter of the law but the spirit and intent of the treaties as well.
I won't add a whole lot to what's been said, because those are excellent points, but I have three very quick points.
First, the beauty of institutions is that they can withstand shifting political winds. One of the key roles of this commissioner would be to provide consistency: consistent attention to the matters and consistent interpretation of the matters.
The second bit I would add is that the access to information powers under clause 24 of Bill C-10 are almost identical to those of the Office of the Auditor General. This means that you're going to generate a body of information that then crystallizes in the form of recommendations and reports that are unparalleled and, essentially, bulletproof.
There's a process at the end of any of these performance audits called “substantiation”. It's what keeps auditors up at night. This is because every sentence in any of these reports is substantiated to the nth degree. You can imagine how, deep within the system, there are four, five, six or 10 different pieces of information that substantiate what's being said in a sentence. This can help everybody understand the truth and the facts. It can help departments have a common view on the subject matter and foil any kinds of different interpretations or inconsistencies.
The last thing I would say is that you can't manage what you don't measure. The ability to generate this kind of information means that information and measurement will be that much better so that the government can better manage modern treaty implementation.
Professor Wright, you were saying that there's inconsistency when it comes to politics, so this body might help with that. That was what you mentioned. Is that right?
I'm going to take it into a bit of a forward-thinking context. In Alberta, we're facing a separation movement. The treaty chiefs are fighting back, but we have no commissioner.
My question is for Grand Chief Murdoch.
What is your position on Quebec separatism, and how would this commissioner position assist in having the voices of the nations heard there?
Well, who's speaking for whom? That's our biggest problem. We don't allow Canada to unilaterally speak for us, which is why we're being complimentary today because that was not the approach taken. We would not allow the Government of Quebec to unilaterally speak for us, either.
We had an issue recently with the Quebec constitution that's being adopted, and this is the message that we were trying to send. They're not independent of one another.
You had premiers like René Lévesque, Lucien Bouchard and Bernard Landry. They were staunch separatists during their time, but they did exemplary things in highlighting and protecting indigenous rights. There's a difference between being a separatist or a sovereignist and being an isolationist. This seems to be the distinction we're seeing today.
I hope a commissioner would help underline the fact that there is an indigenous-federal relationship that the provincial governments cannot ignore, and vice versa. The provincial relationships are being built up.
It's going to be one more example to help provincial governments understand that they cannot embark on these things in a unilateral way.
You mentioned that you didn't agree with everything in this process, when this legislation was being drafted. However, you said that you did agree with some things, and they were implemented.
We had some suggestions in our submission back in June, and they were related to wording. It was quite technical. As an attorney—and I guess I'm not supposed to be practising now; you're not supposed to be representing yourself.... Technical wording wasn't retained. To be honest, I prefer much simpler language than adding words unnecessarily. That was the recommendation.
I believe you had other first nations recommending exactly that, which was to keep the legislation simple. I'm glad you followed their advice and not ours at the time.
For Professor Wright, I'm going to do myself a bit of a disservice, because I support modern treaties. I might come off as against them with this question, and it might be a bit more of a philosophical one.
The federal government has 30 departments, give or take, whatever the number is there. There are over 300,000 employees. How would a commissioner make meaningful changes on one or two audits a year? You mentioned it too. The system is slow.
How can this commissioner make a dent in having the first nations being heard in a system like that? Should one ministry or one actual position be considered?
What do you think? Can you give me some context on that?
It's no small task. The first thing is that the commissioner is the missing piece in this whole-of-government approach. The federal government has come a long way, particularly in the last 12 to 15 years, in creating an ecosystem of mechanisms, tools, forums and so on for modern treaty implementation. This includes explicitly, for example, in the modern treaty implementation policy, education across departments for employees.
An example of the role the commissioner might play is following up to make sure that kind of culture change in education across departments is actually happening. It exists on paper in the modern treaty implementation policy. It's going to be hard for Teslin Tlingit, for example, to bring litigation under the policy. It's just a policy. However, the commissioner would be able to shine a light on areas that litigation can't. One example would be education and the shift across departments.
If I may, I will build on this with another example, and this may take us in a slightly different direction for other questions. There is going to be an unprecedented amount of activity north of 60 degrees latitude in Canada, which, of course, is almost entirely modern treaty territory. It's not entirely, but almost entirely.
This is going to involve a number of government departments that have not typically been deeply involved in modern treaty implementation. Not to point fingers too sharply, but the Department of National Defence is going to have to learn really quickly about modern treaties, how implementation is going, how poorly it's going and how to do things right from the outset. The body of information that the commissioner will generate will help with this.
Will it happen as quickly as everybody wants? No. It's not possible, but bit by bit, report by report, a body of information will build up. It'll build up faster than people think, and before you know it, there will be a significant improvement that hasn't been seen to date.
I'm going to be sharing my time with MP Lori Idlout.
I want to direct my question to Executive Councillor Aucoin.
Thank you for your testimony to the committee this morning.
I observed that you had court interaction with previous administrations. You highlighted that Bill C-10 and the modern treaty commissioner, for you, are about helping to improve people's lives. I believe that's exactly why, as members of Parliament, we are here. It's to improve people's lives.
In light of the testimony you provided this morning, do you see Bill C-10, and the eventual appointment of a commissioner, interpreting the modern treaties, or will that role avoid lengthy disputes and court action by indigenous partners?
In the Yukon Umbrella Final Agreement, we have a dispute resolution mechanism. Unfortunately, all parties have to agree to initiate it. This is why it has never been used. A modern treaty commissioner would help bridge any differences between the Crown and Yukon first nations so that we can work out those differences.
We took Canada to court in 2018, when the judge came down and ruled. It can't be one-sided. It can't just be the Crown and Canada saying take it or leave it. It has to be true negotiations in good faith. I think the modern treaty commissioner would help be a bridge so that both sides can meet and come to a common ground that we can agree upon. Then we can avoid going to court and work this out nation to nation.
First of all, I want to thank MP Earle for sharing his time with me. This is such an important study.
We've been hearing about gaps in ensuring that the honour of the Crown is being upheld. Other than the courts, what mechanisms are there to make sure that the honour of the Crown is upheld?
We've used courts and economic pressures. We've used international campaigns and international forums. Court was one of many tools we used when we were at the lowest of our relationship. There's a wide variety. The most effective, unfortunately, were usually economic pressures.
Contrary to popular belief, Teslin Tlingit Council prefers not to go to court. Unfortunately, we've been forced to by different administrations and by different governments.
What other tools do we have? We have legislative authority within Teslin Tlingit Council with all Yukon self-governing first nations. If Canada won't work with us or if the Yukon won't work with us, we have the ability to pass our own legislation, to take over the fields and to occupy that power.
However, we try to work together. We try to work with Canada and with the Yukon. I think the modern treaty commissioner would help facilitate that working together, that collaboration.
I would take the opportunity to make the point that it's been a long wait for the commissioner's office. The timing is quite good, because you now have several decades of Supreme Court of Canada cases providing contour to the legal landscape, including with respect to the honour of the Crown. You also have academic commentary and policy in place, which will allow everyone to understand what the honour of the Crown means in this context, including the commissioner, so that they can provide more detail on how implementation is going in the legal context.
To begin with, members will understand why Bill C‑10 is of interest to the Bloc Québécois. Someone pointed out that I'm a sovereignist, of course. I can only speak for myself, but what sovereignists want is to break free from the shackles of colonialism. Quebec didn't experience colonialism in the same way as first nations, Métis and Inuit people, who are still experiencing it. Nevertheless, I firmly believe that, for a nation to exist—that is, for its language, culture and identity to be preserved—it cannot recognize any government other than its own. It must aspire to self-government because the existence of one nation or people cannot be left in the hands of another.
On that note, I would like to give the floor to Grand Chief Murdoch and, if we have time, Councillor Aucoin and Professor Wright. I want to give them the last word in this study. I thank them in advance and give them the floor.
I agree that it never works when one nation speaks for another. I think that's why we welcomed the creation of a commissioner position. I've often heard people compare this role to a bridge. Having a bridge helps, because sometimes it's too great a burden to put on one nation to have to adapt its language, its position and its perspective in order to be understood by another nation. The commissioner will be a tremendous help in reducing that burden and being more faithful to our own vision of governance.
Teslin Tlingit Council, as I mentioned before, is a legislative authority. Language and culture are essential to who we are as inland Tlingit. We passed our language and culture act, and then we developed our implementation plan and came up with our budget and work plan. We presented this to Canada, and unfortunately Canada just used some formula that they use for Indian Act bands and for everyone else. It's like we didn't even sign a treaty, and they just offered us pocket change after all the Crown had done to destroy our language and culture. That's not negotiation; that's take it or leave it.
A modern treaty commissioner would help point out to Canada that they're not living up to the spirit, intent or text of our agreements, or to protecting essentially the core of who we are as Tlingit—our language and culture. I also hold my hands up to my Acadian people, because I walk with two legs through this world, both of which I love. Thank you.
It's been said by a number of folks previously, including former Gwich'in Tribal Council grand chief Bobbie Joe Greenland-Morgan, that modern treaties ought to be viewed more as a marriage than a divorce arrangement. I would answer very succinctly by saying that the commissioner stands to help the marriage go better and to help the Crown understand that this is more of a marriage than a divorce.
This is my first time on this committee. I'm very pleased to hear from first nations that they were involved in developing this bill and that they are satisfied with their participation.
Mr. Wright, in addition to our government's obligation to consult first nations, we also had obligations under the United Nations Declaration on the Rights of Indigenous Peoples. To what extent do you believe that Bill C‑10 reflects the declaration that Canada signed on to?
It's an excellent question. I'd answer it in a couple of ways.
First, starting in 2016 with then minister Carolyn Bennett, Canada provided its full support for implementation of the United Nations Declaration on the Rights of Indigenous Peoples. That then became a legislated commitment through the federal UNDRIP implementation act. Of course, there's a provincial one in British Columbia, which has been the subject matter of some discussion recently. The Northwest Territories also has a statute in place committing to the implementation of UNDRIP.
Under this, you have a requirement for an action plan. That's the one I cited earlier. In place right now is the 2023-28 action plan. Within that action plan, there's a chapter dedicated to modern treaties, which was done collaboratively. Again, I give credit to Canada's officials on that. Within it, you have commitments. For example, there's a commitment to pursue the creation of this very office, and that's a road map for the implementation of UNDRIP.
In one way, to answer your question, the commissioner is simply follow-through on a commitment to implement UNDRIP, but perhaps this is a more important point: There's ongoing discussion and consideration by courts across Canada of the legal status of the United Nations Declaration on the Rights of Indigenous Peoples in Canada. Some view it as merely aspirational; some view provisions within UNDRIP as customary international law that therefore have application within Canada, and some throw their hands up and don't know what the truth is or where the law lies. There's going to be a lot of work for legal scholars in courts for years and decades to come.
What's helpful about the commissioner, and this goes to my earlier point about how the commissioner can shine a light in places where litigation can't always go, is that they will be able to use the provisions of the United Nations Declaration on the Rights of Indigenous Peoples as footholds for their analysis. Regardless of any fogginess around the law, the commissioner could go in and say, “Here we have these several key provisions of UNDRIP. Here we have the provisions of the modern treaty. Here we have what the government has been doing or not doing. Here's what we observe in terms of meeting the standards laid out in UNDRIP, regardless of a lack of clarity in the law to date, and here are recommendations on how to improve.”
Because accountability lies with Parliament and with the public, and it's all premised on democratic accountability—because this information goes out into the public domain—it provides healthy, fresh perspectives and evidence for everyone to do better going forward.
We've heard a lot today about the burden of constant litigation. I see that Bill C‑10 contains a provision for a review of the act in 10 years.
Grand Chief and Councillor, as someone pointed out, there's no improvement unless that improvement is measured, so I was wondering if we can reasonably expect that the number of lawsuits against the Canadian government could be used as a measure of the act's effectiveness?
We want to avoid litigation too. Despite my profession, I've never seen it benefit the community. Litigation is not how we make progress, no matter which side we're on. It just delays progress. There are good examples of how to avoid that. For my part, I assume that the creation of a commissioner position will add another stage before litigation. That will help us avoid this unfortunate situation.
If they were living up to all we had agreed to in letter, spirit and intent, there wouldn't be a need for a commissioner. Unfortunately, that's not the reality we live in today, and successive governments have shown this. It's a flaw in the colonial system. It's why I said that, in a lot of ways, we get treated like Indian Act 2.0. The modern treaty commissioner would help change that sense within the government itself.
Could the commissioner guarantee that you'll stay out of court? Do you anticipate that you'll be staying out of court, given the complexity of government, with 300,000-plus employees, multiple departments and this commissioner, who will have to oversee, sea to sea to sea, 20% or maybe more of Canada's land mass? Do you think you'll still be staying out of court with this position?
Teslin Tlingit Council, along with the other modern treaties, retains the right to always have litigation as an option. Maybe Teslin Tlingit Council, with how many times we've had to take Canada to court, is the canary in the mine shaft. If the commissioner office is implemented and works, and the Teslin Tlingit Council doesn't have to take Canada to court, this would be a pretty good sign that it's working.
Over in B.C., there's some trouble in terms of Musqueam and Cowichan, and it's really unfortunate to see, in my opinion. I hope cooler heads prevail in that regard, because Canada and indigenous and first nations people are going to live here, and we have to find a way through it.
There is overlapping territory, and there's even overlapping territory, as I understand, when it comes to modern treaties. How would the commissioner help in terms of disputes internally amongst modern treaty and self-government agreements?
In the Yukon first nation agreement, we have clauses on processes for how to deal with overlap. The modern treaty commissioner is part of it. If there's something to do with a Yukon first nation with a treaty, then the modern treaty commissioner would help remind Canada, the Yukon and all the parties involved that this is the process we agreed to within our agreements.
How come Canada hasn't taken up as many of the dispute resolution mechanisms in the treaty agreements themselves, as much as they have...? If they did, then we wouldn't need a commissioner, as you hinted at before.
For our next segment, from the Department of Crown-Indigenous Relations and Northern Affairs, we have Sean Daley, manager, modern treaty and self-government policy; Justine Gilbert, director, modern treaty management, British Columbia, by video conference; and Bruce Hamilton, general counsel, Department of Justice.
We're doing clause-by-clause.
Pursuant to Standing Order 75(1), consideration of clause 1, short title and preamble, will be postponed. I would like to ask our committee members how they would like to proceed. We have clauses 1 through 41. We can, with consent, group them all together. If you wish to make a comment or you have a question on any of those numbers, you can identify that to me, and we can do that.
Do I have consent to group them all together and to proceed that way, or would you like to do it in bunches?
We'll do it that way. There will be about four groupings. Very good.
As the name indicates, this is an examination of all the clauses in the order in which they appear in the bill. I will call out, in groups of 10, each clause, and then we can proceed that way.
(On clauses 2 to 10)
The Chair: MP Schmale, you had your hand up first.
What we're talking about and what we heard in testimony.... We want to know how the mechanics are going to work based on this legislation, to the best of your knowledge. The panel just before.... If this passes, the office of the commissioner for modern treaty implementation, this individual and that office, is going to have to get up to speed on everything going on.
There's a lot going on in the north and all of that stuff. Under the current allotted projected budget, how is the office going to focus on the pending issues requiring priority and all the other stuff happening at the same time? How is this going to be separate from an Auditor General report? If you're focusing over here, and you still have things moving over there, you'll finish up here and move over there. It's the same way with the Auditor General reports.
I'll start with some opening remarks, and then I can turn to my colleague, Sean Daley.
In regard to the difference between the Auditor General and the proposed concept of the commissioner that you have before you, a really important point is that, first, the commissioner is empowered not just to do performance audits—which are a very important review mechanism—but also to do more deep dive reviews in order to really examine the thinking behind policy, legislation or program intentions of the Government of Canada, as well as to shine a light on what may be working or not working in that case.
The Auditor General has a very broad mandate and covers the entirety of the Government of Canada. This commissioner will be focused on looking at modern treaties. The Auditor General has been quite good. There have been three very intensive studies on three of our modern treaties by the Auditor General.
The independence of the commissioner relates to how many reviews will be done, but we will have a commissioner focused, each year, on looking at the landscape of implementation, whether it's deep diving on an individual treaty or looking at broader, more systemic issues that may cut across various modern treaties.
For these various components, the modern treaty commissioner can really add to the landscape of accountability for the Government of Canada.
My question still stands, though. You talked about deep dives, and I get that. That's cool. However, there are only so many resources, so many dollars spent and so much time for deep dives into that. If we're deep diving over here, we still have these problems over there. Once you've done a deep dive there, you're going to move over here, and something else is going to pop up over there. We've had many decades of this going on.
That's kind of what the Auditor General does. They're going with defence over there, they're doing housing, and then they're doing first nations. They're bouncing around too. I agree that this commissioner could probably have a bit more time focusing in, but at the same time, I'm failing to see a difference. To me, it's going to turn into the Auditor General...where we're just bouncing around.
It's important to understand that the commissioner is going to be part of an ecosystem of oversight and accountability within the Government of Canada. There are many other components and important tools, and the commissioner is one of many.
For example, in “Canada's Collaborative Modern Treaty Implementation Policy”, section 5 speaks to the responsibilities of deputy heads to consult with modern treaty partners in the development of policy, programs or legislation; to embrace a whole-of-government approach to the implementation of modern treaties; to live up to “the honour of the Crown”; and not to do the bare legal minimum when it comes to implementation.
There is also section 8, which lists a number of different forward-looking tools that Canada is currently codeveloping with modern treaty partners, such as reinvigorating the “Cabinet Directive” for the implementation of modern treaty policy.
We also have tools such as the deputy minister's committee for the implementation of modern treaties, which is a forum for modern treaty partners to come and speak to deputy ministers.
Related to that, in annex A of the policy, there is the “Intergovernmental Leaders' Forum”, which is a really important forum for the Prime Minister to come and speak to modern treaty leaders in order to have a conversation about the priorities.
To me, the commissioner office is a very important tool feeding into this broader landscape. When the Prime Minister is going to speak to the leaders of modern treaty partners, there are reports in the public domain, which the modern treaty partners have been part of the development of, and these inform the conversation with the minister; or when the modern treaty partners come and speak to the deputy minister's committee for modern treaty implementation, there are reports shining light on a specific problem.
For me, it's important to look at the broader ecosystem of what oversight and accountability are. This is a really important tool that adds to this, providing public accountability and, most importantly, bringing Parliament into the conversation. It is a key piece that we're currently missing.
Okay. I think we're part of the conversation with the Auditor General. It's whether or not the government wants to act or do anything about it. I guess reports are okay, but they often get shelved. I was just on the Auditor General's website, and there are tons of reports that everyone's probably forgotten about, which is unfortunate.
We talk about a whole-of-government approach; this commissioner would get to look at that approach. Wouldn't it be fair to say that when the government signs on the dotted line, it would be a whole-of-government approach to implement and stand true to the word of the treaty?
Okay. We've had lots of Auditor General's reports. We know there's been failure. Why hasn't this been addressed right away? In year one, you could probably.... Maybe there's some leeway as things get worked out, but as you get further on, you can probably identify yourselves where the issues are within your department, or in conversations with the nations themselves. Why haven't those issues been addressed over the years, and why has it gotten to a point at which we need a treaty commissioner to produce another report?
It's a great question. I think it respects the complexity that is in our modern treaties. When you look at our modern treaty documents, these are 200-page to 400-page documents articulating a very intricate relationship that modern treaty partners have signed on to with the Government of Canada. Those obligations then reach across every department in Canada.
Yes, it's complex. I think part of what this commissioner can add to is shining a light on where there may be a failure. It allows us then—going back to the ecosystem—to work with the existing tools we have in the Government of Canada, in order to start to address some of those more systemic failures that the commissioner can helpfully shine a light on and provide some recommendations for.
It goes back to our original argument on this side of the House. We agree with the diagnosis, but the prescription is wrong. It will not have any meaningful effect in terms of living up to the word, other than naming and shaming—which we know may or may not work, based on the Auditor General's reports. How many reports have we had on the failings of Indigenous Services Canada? There have been many, and then follow-up reports on those. We did many studies that show little to no improvement in education, such as graduation rates among indigenous students. The list goes on and on.
The failures must be known by now. The failures are out there. I'm sure the departments managing these programs know, themselves, where the failures are. You have to talk to some of the leaders. I'm sure they do. I know you can't put this in legislation, but consequences to failure will not make any change, other than a little naming and shaming. A week or two later, it's out of the headlines and people have moved on. There is an opportunity to do more and to have some real teeth to this.
I understand why the treaty partners want this. I absolutely do. I know they've been hit with decades' worth of failure. I understand why they want this fixed. At least this is a step forward in this, but I do not think this has the right mechanisms in place to make some meaningful change.
The structure of government is the main issue. Otherwise, as governments change and political parties come in and out, the politicians overseeing departments would have some say and tell them, “Hey, start lining up with the word of the treaty, and start living up to your signature.” They probably have. Maybe they have. The structure of the government and the mechanisms.... It keeps chugging along and nothing changes. In this equation, other than people going in and out of various departments, the structure is still the same.
The departments still function. Many have gotten bigger and more bloated. I don't think the structure has any desire to change, or we would have seen some changes. One Auditor General's report talks about many ways to fix the on-reserve housing issue. It talks about education. The leaders themselves have talked about it. The treaty partners have said, “You know, we have lots of ideas, but you won't listen.”
The prescription has to do more with the structure itself. Government is too big, and it's gotten set in its ways over decades and decades of functioning so that there will not be meaningful change.
I don't think this is a question for you. It's more of a rant from me, but thank you for listening.
I want to use the same analogy Jamie shared about what the problems are in our current system and ask Justine whether this is the analogy we need to help show why the commissioner's role is so important.
Jamie is saying, for example, that the prescription is wrong for trying to make sure reconciliation is being honoured. I wonder if, based on his analysis of decades and decades of things not being corrected, this was because the prescriptions used have been alternative methods and not the correct one. I wonder if, using that analogy, we are moving in a direction in which the commissioner is the more accurate prescription—one who can make sure the modern treaties are being upheld, as an independent commissioner does not have affiliations to parties and doesn't have affiliations, necessarily, that are not only public in nature but....
I appreciate the Attorney General. I have absolutely nothing against the Attorney General, but they have a much broader role in monitoring. Given that this commissioner will have to be a specialist, maybe this is indeed the more correct prescription to help make sure reconciliation is being monitored, given the independence and the objectives of the commissioner's role.
You highlight the importance exactly, and I would add to your comments. There is a level of optimism felt with this commissioner because of the fact that it was codeveloped with modern treaty partners. That's a key point to emphasize. This is not a concept that the federal bureaucracy itself thinks is important. This is a tool that, for over two decades, modern treaty partners have been advocating for. It is a tool for which the federal government sat down and codeveloped every clause of the bill before you today. It is a law that the modern treaty partners themselves feel will substantively change their relationship and address the frustrations they see, feel and live with regard to the implementation of their treaties.
To me, the codeveloped nature—the fact that modern treaty partners are supportive and have developed this bill with Canada—is a key component to focus on in trying to understand how this commissioner will change the landscape of the implementation of treaties.
Because we're in public, I need to correct the record a bit on education rates.
When the Mi'kmaq took over education in Nova Scotia with Mi'kmaw Kina'matnewey, our graduation rates went from around 60% to about 90% with the Mi'kmaq schools. We are seeing progress across Canada and in a lot of different areas.
When education is highlighted, I always have to talk about the good work of Mi'kmaw Kina'matnewey and our teachers within the Mi'kmaq schools, who are doing amazing work, ensuring that graduation rates remain some of the highest in the country. I think that was one of the recommendations made at one of our education studies. We always have a way of finding progress. This is progress that we're seeing.
This is not necessarily a question, but as you can imagine, the government is in favour of clauses 2 to 10, and we will be voting that way.
I'll quickly clarify that my point was about when it's better managed by the leaders on the ground rather than by the Ottawa-knows-best program. That's my point.
Is there any other discussion on clauses 2 to 10? No.
Shall they pass?
(Clauses 2 to 10 agreed to on division)
(Clauses 11 to 41 agreed to on division)
The Chair: Shall the schedule carry?
(Schedule agreed to on division)
The Chair: Shall the short title carry?
Some hon. members: Agreed.
An hon. member: On division.
The Chair: Shall the preamble carry?
Some hon. members: Agreed.
An hon. member: On division.
The Chair: Shall the title carry?
Some hon. members: Agreed.
An hon. member: On division.
The Chair: Shall the bill carry?
Some hon. members: Agreed.
An hon. member: On division.
(0945)
The Chair: Shall the chair report the bill to the House?
Some hon. members: Agreed.
An hon. member: On division.
[Translation]
The Chair: The meeting is over. Thank you very much.
[English]
Before I conclude, there are a couple of things.
As reminder, we're doing BillS-228 when we return. Please get your witness lists in by Friday at noon so that our fabulous clerk can get them scheduled and get things going.
As another question for the committee, could we establish a 10-page limit on briefs submitted to the committee? We have been getting a fairly substantial amount of paper, and we want people to condense it to 10 pages.
Some hon. members: Agreed.
The Chair: Is it the will of the committee to adopt a routine motion establishing that up to three associate members per party be granted access to the committee's digital binder?
(Motion agreed to [See Minutes of Proceedings])
The Chair: Is it the will of the committee to adjourn?
Some hon. members: Agreed.
The Chair: Have a good constituency week. Your Irish Canadian chair wishes you a happy St. Patrick's Day. All the best to you. Top o' the morning.
Thank you very much to all our people from the ministries. I'll point out that, for Justine, it is three hours earlier. We have an early morning schedule. Thank you for waking up so early, for being with us and for being so spry.