THE STANDING SENATE COMMITTEE ON INDIGENOUS PEOPLES
EVIDENCE
OTTAWA, Wednesday, June 3, 2026
The Standing Senate Committee on Indigenous Peoples met with videoconference this day at 6:49 p.m. [ET] to examine and report on matters relating to the duty to consult and accommodate Indigenous peoples, which flows from the honour of the Crown derived from section 35 of the Constitution Act, 1982.
Senator Michèle Audette (Chair) in the chair.
[Translation]
The Chair: Kuei. [Innu-aimun spoken] a huge thank you to the Anishinaabe people for welcoming us. For millennia, this beautiful nation has occupied this territory, which they share with a number of other nations and people from afar.
Of course, it is important to respect the ears of those who allow us to speak French and English, thanks to their interpretation. Please make sure to keep your earpiece away from all microphones.
[English]
My name is Michèle Audette. I am the chair of the Committee on Indigenous Peoples. I am pleased to say that I am surrounded by amazing senators. I would like to ask them to introduce themselves.
Senator Pate: My name is Kim Pate. I live here in the unceded, unsurrendered and unreturned territory of the Algonquin Anishinaabe.
Senator Clement: I’m Bernadette Clement. I’m from Cornwall, Ontario, the traditional Mohawk territory of Akwesasne.
Senator Karetak-Lindell: Nancy Karetak-Lindell, Nunavut.
Senator Tannas: Scott Tannas, Alberta.
Senator Osler: Flordeliz (Gigi) Osler, Winnipeg, Manitoba, Treaty 1 territory, the original lands of the Anishinaabeg, Cree, Oji Cree, Dakota and Dene Peoples, and the homeland of the Red River Métis Nations.
[Translation]
The Chair: Thank you very much. Colleagues, we are gathered here today for an important study: to examine any matters relating to the duty to consult and accommodate Indigenous peoples, which flows from the honour of the Crown derived from section 35 of the Constitution Act, 1982.
For this first panel of witnesses, we are pleased to welcome via video conference Chief Billy-Joe Tuccaro, representing the Mikisew Cree First Nation. At the table, we welcome Justin Roy, Councillor of the Kebaowek First Nation, representing the Kebaowek First Nation, as well as Mark Cliffe-Philipps, Executive Director of the Mackenzie Valley Environmental Impact Review Board.
Thank you all for joining us today.
We are now ready to hear your opening remarks—five minutes maximum—which will be followed by questions from senators.
[English]
Billy-Joe Tuccaro, Chief, Mikisew Cree First Nation: Good evening. Thank you for taking the time to have me present here from northeastern Alberta. It is nice to see Senator Tannas. The invitation is still open to come and see our community like you mentioned.
My name is Billy-Joe Tuccaro. I’m the Chief of the Mikisew Cree First Nation in Treaty 8 territory.
We live downstream from one of the largest industrial developments on Earth. Our people have faced the combined impacts of oil sands development, tailings risks, low water levels, contamination concerns, climate change and changes to the Peace-Athabasca Delta.
In 1899, our people entered into the solemn covenant Treaty 8, where we agreed to share the land with the Crown to the depth of the plow. The Crown promised that we could continue our way of life forever.
The treaty represents a relationship that is to last forever, and that treaty relationship and our treaty rights impose obligations on the Crown, including the duty to consult and accommodate, as well as maintain the standard of free, prior and informed consent.
The duty to consult exists because treaty promises must mean something before decisions are made, not after the land is destroyed, not after the water is contaminated and not after our people are left carrying the consequences.
Contrary to our treaty, so much has been taken from us without any prior consultation and always without accommodation. For example, in 1905, without consultation, the Crown created the Province of Alberta, and in 1930, without consultation, the Crown transferred everything below the depth of a plow to Alberta through the Natural Resources Transfer Acts, or NRTA.
But we started to turn the tide in 2005. Mikisew won a case at the Supreme Court of Canada that confirmed the Crown’s duty to consult and accommodate our nation before any potential infringement on our treaties. This duty has not been realized.
Today, our people are dying of cancer and rare diseases, which we know are caused by the toxic oil sands tailings in our water. We have been forced back to court. In 2020, we challenged Alberta’s defunct consultation regime as unconstitutional and incapable of discharging the duty to consult and accommodate. In 2026, we sued Alberta and Canada over the cumulative impacts of provincially and federally authorized developments that have rendered our treaty rights almost meaningless.
Three issues show the Crown’s failures to uphold this duty.
First, federally, the One Canadian Economy Act expedites approvals. This puts pressure on meaningful consultation, which we are already seeing through the memorandum of understanding, or MOU, with Alberta. Provincially, Alberta recently passed the Expedited 120-Day Approvals Act. Under this law, the minister can designate projects as having 120-day guaranteed approvals. No consultation or accommodation can happen with a rigged process like this.
Second, on May 19, Alberta announced the implementation of the treating and releasing toxic tailings in our water. In other words, Alberta is, again, failing to consult us before a possible existential infringement, the so-called treat and then release of toxic tailings into our water. Canada is doing nothing to stop them. Canada entered into the cooperative agreement to prioritize Alberta’s defunct consultation regime. We are in federal court on the cooperative agreement, too.
Third, on May 1, because we knew Premier Smith would call a referendum on her own if the separatist petition failed in court, we submitted a 600-page request for the provincial cabinet to consult with us before calling a referendum. On May 13, the Court of King’s Bench of Alberta told the province they had to consult with First Nations before calling a referendum.
As of today, Alberta did not even respond to our request for consultation. The premier said the province only has to consult us where it relates to hunting and fishing rights on major projects. This is incorrect. A treaty is a relationship. Then, she called for amendments to the Constitution because she doesn’t like the way Canada’s independent courts are interpreting this duty in our favour. Meanwhile, Canada is silent.
The question for this study can be answered very simply. How can consultation be improved? Just listen to us prior to any possible infringement and then accommodate. Don’t just check the box.
How can this be done? Here are some ideas: first, require mandatory consultation by the federal Crown on all projects that impact First Nations and treaties under section 91.24 of the Constitution Act of 1867 or any other federal jurisdiction; second, issue a moratorium on delegating any consultation to the proponents and corporations looking to advance resource extraction; third, impose mandatory capacity funding for First Nations from the Crown and the proponents commensurate with the cost of the project; fourth, withhold federal support for projects that are done without documented prior consultation and meaningful accommodation.
Thank you. I look forward to your questions. Hiy hiy.
The Chair: Thank you. Now we will proceed with Mr. Roy.
Justin Roy, Councillor, Kebaowek First Nation: [Indigenous language spoken]
Hello. My name is Justin Roy. I am a member of Kebaowek First Nation. I live and work in my community as a director of economic development. I share a life with my partner, who is Anishnabe Kwe and from our neighbouring sister Algonquin community of Wolf Lake First Nation. We share two beautiful children together, who are both members of Kebaowek.
It is also my pleasure to be an elected member of the council for Kebaowk First Nation, where, for more than a decade, I have worked on and led consultation, lands, environmental stewardship, economic development and nation‑building priorities.
Before I begin, I want to sincerely thank the committee for this invitation and for taking on this important study and work. I appreciate the opportunity to be here and to share Kebaowek’s experiences and perspectives in the spirit of helping strengthen how consultation works in Canada. I can also share that, upon preparing to come here last evening, I’m really honoured to sit in front of this team of senators. Reading your backgrounds and what you have accomplished, it truly is an honour to be here. I was trying to explain that to my daughter last night, and she said, “You are going to be speaking in front of some really big-time people tomorrow, dad.” So the pressure is on.
I am speaking today from the perspective of a First Nation that has spent years navigating consultation systems in practice — not in theory — particularly on large and complex federal and provincial matters that affect our lands, waters, rights and future generations.
If I can leave you with one central thought today, it is this: Too often, consultation has become more about process than relationship.
Section 35 of the Constitution Act was meant to recognize and affirm Indigenous rights, and the duty to consult flows from the honour of the Crown. But in practice, consultation can often feel more procedural than relational, focused on timelines, technical reports, meetings and checking boxes rather than building trust and shared understanding, and working towards legitimate decision making.
From Kebaowek’s perspective, one of the biggest challenges is that Indigenous nations are too often expected to fit into Crown systems, rather than Crown systems adapting to include the systems of Indigenous nations.
Our nations have our own governance systems, responsibilities to land and water, knowledge systems, decision-making practices and legal traditions.
Consultation becomes far more meaningful when governments recognize that Indigenous nations are governments and partners in decision making, not simply stakeholders being informed after key decisions are already taking shape.
This applies whether consultation happens federally or provincially. While systems may differ, the underlying responsibility should not. The honour of the Crown, section 35 and meaningful engagement should remain the standard across all levels of government.
At the same time, I want to emphasize that our experience has also shown us what better practices can look like.
In recent years, courts, Indigenous nations and governments have increasingly recognized that consultation must evolve because when they don’t, unfortunately, we end up in the courts. Nations like Kebaowek do not want consultation to ever take us there, but we will when we need to, which Kebaowek has done over the years, three different times. We were successful three different times because of the principle and responsibility we put into proper consultation.
It must become more collaborative, more adaptive and more grounded in Indigenous participation and decision making.
This includes taking seriously the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP, and the United Nations Declaration on the Rights of Indigenous Peoples Act, particularly the principle of free, prior and informed consent, or FPIC.
I know FPIC often raises questions, so let me briefly speak to that. FPIC is often misunderstood as meaning a veto. From Kebaowek’s perspective, that is not the most helpful way to understand it. For me personally, I strongly believe that the “C” in FPIC gets way too much attention, and instead, our attention should focus more on the “F,” “P” and “I” — the free, prior and informed pieces and less on the consent piece. If we were to just give them a chance, I am certain that our fears or misunderstandings of “C” — consent — would be greatly mitigated.
Kebaowek sees FPIC as a process of legitimate decision making. Free means free from coercion or pressure. Prior means engagement happens before outcomes are effectively predetermined. Informed means communities have full, accessible and transparent information, and the means and the capacity to do so. Consent means Indigenous nations have meaningful agency, through their own institutions and processes, to determine whether and under what conditions an agreement can be reached. In the end, consent is our right to say yes or no.
But consent is not simply a one-time yes or no. It is a relationship-based process grounded in trust, accountability, good faith and legitimacy. Importantly, consultation should be aimed toward agreement, consensus making and even better co‑decision making, not simply toward completing a process.
This brings me to what I believe are promising practices and standards for improving federal policy. From Kebaowek’s perspective, consultation works best when it starts early, before positions harden and decisions are effectively made. It works better when Indigenous nations are adequately resourced to participate meaningfully. It works better when governments are transparent, flexible and willing to adapt timelines and processes to Indigenous realities. It works best when Indigenous legal orders, governance systems and nation-specific processes are recognized and respected.
At Kebaowek, rather than remaining stuck only criticizing consultation systems, we decided to build a better model: our own model. In light of our experiences, and informed by section 35, UNDRIP and our own Anishinaabe Chi-Naaknigewin laws and responsibilities, Kebaowek developed what we call the Rights and Responsibilities Assessment Law, which, in essence, is our own FPIC process.
At its core, it is a nation-led process for how consultation, accommodation and trying to reach free, prior and informed consent can take place in a way that reflects our responsibilities to land, water, culture, communication and future generations.
It is our attempt to move the consultation needle forward in a positive way. It is our commitment to holding up our end of consultation. While Indigenous nations may not always agree with one another — just as governments do not always agree with one another — disagreement should never become a reason to lower consultation standards or diminish rights. Respectful nation-to-nation processes matter even more in those moments.
I will close with this thought: Reconciliation cannot simply mean Indigenous nations being invited into decision-making systems built entirely by others and on someone else’s terms. Real reconciliation asks something more of all of us. It asks governments and institutions to build relationships rooted in trust, respect for Indigenous laws and governance and create space for shared and legitimate decision making.
If consultation is truly meant to honour section 35 and the honour of the Crown, then consultation must stop being something done to Indigenous nations and instead become something built with Indigenous nations.
I look forward to continuing this discussion and look forward to answering questions. Thank you, meegwetch.
[Translation]
The Chair: Thank you very much.
I will now give the floor to Mr. Cliffe-Philipps.
[English]
Mark Cliffe-Phillips, Executive Director, Mackenzie Valley Environmental Impact Review Board: I am glad I am following the two previous presenters because I think a lot of what I have to say flows directly from what Mr. Roy and Chief Tuccaro just mentioned. I work for the Mackenzie Valley Environmental Impact Review Board. It is a great honour to be able to speak to the committee and to share some of the experiences that we have had in the Mackenzie Valley. I am non‑Indigenous. I do live in Yellowknife, Chief Drygeese territory, Akaitcho Treaty 8, a more recent home of the North Slave Métis Alliance. I have had the pleasure of working for resource co‑management boards in the North for 25 years, inspired by Nancy. The last time she saw me, I was a little boy, and I was playing with all of her northern paraphernalia she brought down. I always wondered why I ended up in the North. It is probably because I slept in her room and was playing with Arctic Fox puppets when I was little.
I wanted to talk a little today about how the Mackenzie Valley Resource Management Act supports meaningful participation, informed decision making and the consideration of Indigenous rights under section 35 of the Constitution within northern Environmental Impact Assessment processes. The review board is an independent co-management institution established through the Mackenzie Valley Resource Management Act, or MVRMA.
We are responsible for the environmental impact assessment process in the Mackenzie Valley region of the Northwest Territories.
The MVRMA is similar to other North resource management regimes in that it came out of modern land claim agreements that recognized Indigenous Peoples as partners in the management of land and resources. As a result, environmental impact assessment in the Mackenzie Valley is more than a regulatory process or hoop that you need to jump through. It’s a forum where Indigenous and other governments, communities, regulators, proponents and the public come together to understand the potential consequences of developments before decisions are made.
Importantly, those decisions are made by board members who come from the regions and communities where the impacts of their decisions will be felt.
Today, I’d like to speak about consultation not simply as a legal requirement but as a foundation for informed decision making, reconciliation and the meaningful consideration of Indigenous rights before decisions are made.
Those principles are embedded within the act, which requires the MVRMA to be interpreted in a manner that upholds the Aboriginal treaty rights recognized and affirmed by section 35 of the Constitution Act as well as the modern treaties we have to be beholden to. It’s a principle that guides the review board’s approach to consultation, Indigenous participation and the environmental impact assessment process as a whole.
In the Mackenzie Valley, consultation is not something that happens alongside a process; it’s built into the process itself in its entirety. The MVRMA recognizes that development decisions are about more than environmental effects. Section 115 of the act requires us to consider environmental, social, cultural and economic well-being, as well as the importance of conservation to Indigenous Peoples and their way of life. Those are the only guiding principles we have when conducting an environmental assessment.
In practice, consultation helps us understand how people experience the impacts of development and not just how ecosystems are affected. That’s why it’s such a fundamental part of the impact assessment process. The Crown, of course, holds that constitutional duty to consult and, where appropriate, accommodate Indigenous Peoples when rights may be affected. But the review board is not the Crown.
However, in practice, governments often rely on the environmental impact assessment of our board as the primary mechanism for understanding those potential impacts on Indigenous treaty rights, and informs Crown consultation decisions. It also provides recommendations that could help governments understand when additional accommodations may be necessary.
As a result, the environmental impact assessment process often becomes the primary forum through which those impacts are identified, discussed and understood. Regulatory processes tend to be narrowly focused on singular issues and impacts, and cannot deal with the more holistic approach to understanding impacts that align with how Indigenous Peoples see the world.
What has the review board done to promote more meaningful consultation? The commitments made by the board and as reflected in our guidance for major projects, which encourages early collaboration among proponents, Indigenous governments, regulators and communities, before a project formally enters an impact assessment process. That guidance is built around the core concept of decision readiness: being ready to come into the process. That means identifying the issues early, understanding Indigenous priorities before project designs are fixed and ensuring communities have the information they need to participate meaningfully in our process that may affect their future.
This is also where environmental assessment intersects with the principles underlying free, prior and informed consent. While the review board doesn’t determine consent, the assessment process helps create the conditions necessary for its meaningful consideration. Communities need clear information, early and often engagement, and respectful processes that allow them to understand those potential impacts, benefits, uncertainties and trade-offs that come with all major developments.
Meaningful consultation is not measured by the number of meetings held or letters exchanged. It occurs when communities have enough information to understand what is being proposed, how they may be affected, what choices exist and the consequences of those choices.
Ultimately, communities must be able to assess not only what they may gain from development but also what they may lose, what can be mitigated and what cannot. That is the value of a strong environmental assessment process.
We see this every day in the Mackenzie Valley. We’re seeing these questions today in the environmental impact assessment, such as the Norman Wells Imperial Oil enclosure project, where Indigenous governments and communities will help define what successful restoration, healing and future land use looks like after nearly a century of industrial oil and gas activity.
Whether it’s the closure of the Norman Wells facility or new transportation corridors, critical mineral development or trans‑boundary projects affecting caribou and harvesting, Indigenous governments and communities constantly tell us that they want to be involved more and understand the implications of the decisions before those decisions are made. The system we work under is designed to support that objective.
Just to leave a message to the committee, the best consultation is not consultation conducted after decisions have effectively already been made, when projects are largely designed, mitigation measures are already selected, and the opportunity for Indigenous governments and communities to influence outcomes has become increasingly limited. The best consultation occurs early enough to shape decisions, not simply react to them. It is consultation supported by credible information. It’s consultation grounded in respect for Indigenous knowledge and Indigenous and treaty rights, and it’s consultation that allows governments, Indigenous Peoples, proponents and regulators to fully understand the impacts, risks, benefits and trade-offs associated with the development. That’s what the co‑management system in the Mackenzie Valley strives to achieve.
Thank you. I look forward to your questions.
[Translation]
The Chair: That was very enlightening.
[English]
I’m very impressed by the three people who spoke: the Chief, Mr. Roy and Mr. Cliffe-Phillips. We have senators who have questions for you.
Senator Osler: Thank you to all the witnesses for being here.
My question is for each of you, and it stems from a comment Mr. Roy made in outlining the principles that your First Nation developed. I’ll paraphrase it: One of the principles was that nations are adequately resourced for meaningful participation.
Chief, perhaps we’ll start with you. My question is this: For your First Nation, what would adequate resources for meaningful participation look like?
Mr. Tuccaro: Thank you for that question. I’ll just go to the One Canadian Economy Act. The funding that was distributed for all the First Nations worked out to about $60,000 or $70,000 to do a consultation. All you are going to be able to do for that amount of money is just hire a consultant. You can’t really do any good consultation, especially in the case of a remote community. They have to fly here to the community because we don’t have the luxuries of a year-round road. In regard to the funding, consultation is totally inadequate. That’s the reason why people can’t fully immerse themselves in these projects. That’s the reason why many are getting left behind.
The funding can’t only come initially; it must happen while the process is happening, as well as at its conclusion. I can guarantee that the other gentlemen are going to say the same thing. Right now, the funding is totally inadequate. All it does is to put money in some consultant’s pockets, and really nothing happens in regards to good, meaningful consultation.
Thank you.
Mr. Roy: Thank you, senator, for the question. It goes back to having adequate time. Coming from a community that lives in a border region between Quebec and Ontario, we don’t receive core funding from the federal government for consultation, even though that responsibility for consultation rests with the Crown. The only source of consultation funds that we receive is going to be from the Province of Quebec, but that is mainly for Quebec-based consultations.
For Ontario, I won’t even start to go there with regard to what we do not get from Ontario.
When we talk about federal consultation files, those are usually the big ones that will have the most impact, whether it’s a tangible project or it’s the changing of an act or legislation that will, at some point in time, have big-time impacts on communities and nations, like Kebaowek.
We have a small team of five individuals. I’m a big part of that team, but I’m a member of the council. I receive a monthly honorarium that probably makes me the lowest-paid employee in my region. As a result of our small team — no core funding in place — we rely, like was just said, on lawyers, consultants and advisors who do amazing work; but with that amazing work comes a significant cost.
As a result of the time limits that we have, too, you almost need to outsource a lot to try to meet deadlines as best you can; whereas if we had more time and provided the capacity to build what is needed internally, we would be less reliant on consultants and lawyers at hundreds of dollars an hour in order to do proper consultation.
Some communities are fortunate when they have a lot of own-source revenues. I know communities that have teams of 30 or 40 people. Communities like Kebaowek don’t have own-source revenue and are reliant on the federal government, which doesn’t provide capacity and funds for consultation; it’s tough.
Right now, there’s a discussion paper on getting major projects built in Canada and the Strengthening One Canadian Economy. I think they made $15,000 available. Yes, it’s just comments on a piece of paper, but these are very important discussion papers that are looking to be quickly tabled into legislation in a matter of weeks, so if we don’t even have the capacity to try and meet these deadlines, I’m even more worried about the federal government’s capacity to be able to take the comments and consultation you do get back and properly take it into consideration before it actually gets tabled federally.
Mr. Cliffe-Phillips: I agree. The capacity funding during impact assessments or major projects is an issue. We hear the same concerns throughout our processes.
That is really the biggest issue. We are only talking about participant funding when a project actually happens. It goes back to what we’re saying: The capacity needs to happen before a project comes. It’s about readiness. It’s about building resiliency within communities so they are able to participate and to make decisions if these projects should even get off the ground to begin with before people start having to put their resources into these very complex processes that are challenging for communities.
Going back to those principles around collaborative design, having communities that are embedded with the groups who are designing projects and building that capacity on knowledge about how a project actually comes off the ground builds that capacity for people to be able to better participate in the processes and the future as well.
We’ve seen good examples of that in the North, where there’s collaboration on projects, where the next time those groups come through our process are really well tooled to meet those more rapid timelines we’re being faced with.
We are talking about impact assessment right now. I’m an impact assessor. I would say that maybe isn’t our best tool. There are a lot of other things that we can do, such as strategic assessments, regional assessments and other things that build up the regional understanding of where projects are going to go. That’s more important than trying to fix the impacts of a project one at a time. We use the example of a death by a thousand cuts. That’s really the lens that we apply through the way that we’ve designed our processes, and communities are just getting caught up in that whole web of lack of capacity, overburdened processes and timelines that are just not really working for anyone.
Senator Osler: Thank you.
Senator Pate: Thank you to all of our witnesses. Thank you for the very detailed ways you’ve provided really rich testimony already about what we should be considering. We’re doing this study. What are the most significant recommendations each of you think we could make in this report to assist First Nations and Indigenous Peoples going forward in this process?
Mr. Tuccaro: Thank you for the question, senator.
What all this boils down to is that we just need to be listened to, heard and accommodated. For far too long, we’ve been the “inconvenient Indian,” where it was just a matter of checking off the boxes in regards to getting approval for all these different projects. That’s what it boils down to: We really need to be accommodated.
I’m having an issue here in Alberta now regarding tailings potentially going into our watershed. I’ve been raising concerns here about what is going on with cancer. Since the Imperial incident of 2022, I’m starting to get more stats now. There’s a little break from 2022 to 2024, but I can confidently say that, from 2024 to 2026, half the year now, we’ve had 48 cases of cancer. Now they want to compound this with these tailings issues?
We sit at these tables with them, and we’re telling them all our concerns, but they will not hear us. They just say straight out, “We’re still going to do it.” That’s what we’re saying.
Consultation is not the issue here. It’s the accommodation. It’s pointless. Even today, we’re talking about this; we’re bringing our concerns forward. I’m sure hoping that something can be done, because, again, it’s just another checked box. That’s what we’re saying: We need to be taken seriously now. We’re not the “inconvenient Indian” anymore. We’re actually the answer here.
We’re not resistant, but at the same time, we need to be heard and recognized, and not just be treated as a checked box where we sit at the table, put our recommendations there and then that’s it; it’s done. Then we’re having to deal with the issues later.
I truly believe we need to hit hard on this accommodation. I truly believe that the Senate has the ability to make these changes for the betterment of all First Nations. Thank you.
[Translation]
The Chair: Thank you.
[English]
Mr. Roy: Thank you for the question, senator.
I’ll take my councillor hat off and put my economic development hat on. Developing projects for my community, whether a marina, a cultural centre or a sugar bush, I understand the work and how much time development takes. If I look through the lens of a tangible infrastructure project that the federal government or industry might be taking, again, as the Chief was just alluding to, all the detailed planning gets finished, a project gets tabled, is put on a registry, is up-listed somewhere and then it’s, “Tell me what you think about it,” knowing full well that weeks, months and probably years have gone into the planning of said project. Again, that is if we’re talking about a tangible project, that’s not relating to acts and legislation.
So if I take that hat back off and put my councillor’s hat back on, if I had to really narrow it down, I would say four things: First, start earlier. It’s really simple, but I think it’s the crux of most of the problems.
Second, as I alluded to earlier, resource nations properly, so when that comes up, we’re ready to start consultation, and not having to hit the brakes and stall the process, because we have to play catch up to apply for funds, bring people on board, and then start consultation, which I believe becomes a hindrance. We don’t want to become a hindrance.
Third, adapt systems to Indigenous governments rather than expecting Indigenous nations to adapt to government systems.
Fourth, focus consultation on building trust and agreement. We hear far too often, “We want to build a relationship with you.” Relationships take time and effort, and it needs to be meaningful. Far too often, I find myself being the nice guy trying to have that relationship when I don’t think the willingness is there with those on the other side of the table, like it is for myself.
Many conflicts today are symptoms of relationships that begin too late and are too narrowly procedural, just looking to check the box, like the Chief just alluded to.
Senator Pate: Thank you.
Mr. Cliffe-Phillips: I agree with both of those approaches. Relationship building is key to foundational, good consultation. You have to build the systems that meaningfully result in changes when people are putting forward different points of view than what is being proposed.
Generally, the best outcomes that we have seen in processes we have looked at all over the place are where people review what is in front of them. They have a good enough relationship with either the developer, government or a regulatory body that they could effect change, and those changes and outcomes are reflected in the voices of the people who were consulted. That’s where you build trust within the process. Even though process is a thing that has to happen, if people don’t see their voices in the decisions that are being made, at the end of the day, nobody will trust the process. You need meaningful outcomes that reflect those voices.
In the rush for timely project approvals, you have to realize when you have to pause. There are some points where that pause will give you a better outcome than rushing through. We have recent examples where, at the beginning of an environmental assessment, we had a First Nation that would not allow the proponent or government into their community. However, through the process — and they trust the process — we were able to convene that dialogue, and then the relationship was built. At the end of the day, they are now collaborating on the development. That could have happened well in advance of the project coming in.
It goes back to building a system where projects that are ready to come into an environmental impact assessment process have criteria that you measure success at the beginning and not at the end. Too many times, bad projects come into the process, and communities and regulators are picking up the pieces. It is hard to design something well that way. It is mitigating instead of designing for purpose. We need to change that focus to good design and have good projects come in. That’s where you get those timely project approvals.
The Chair: Thank you very much. Before we go to the next senator, may I have consent, senators, to have Senator Tannas take on the role of awesome chair for a few moments?
If I don’t see you again, tell your daughter that today is a special day because you are here. Many voices spoke seven years ago for the national inquiry. Many truths were shared, and you have allies and amazing people here. For the Chief, we are here to stay; we are not forced or obliged to vote. We can be the little rock under the moccasins or shoes to remind people of what you said today.
Senator Scott Tannas (Acting Chair) in the chair.
The Acting Chair: Thank you, colleagues and witnesses.
Senator Sorensen: First of all, I want to apologize for being late. I’m Karen Sorensen, senator for Alberta, Banff National Park, Treaty 7 territory. Chief Billy-Joe, nice to see you again. We met last fall.
I will diverge a little from the topic. I wanted to ask you for an update, and you started to give an update on the situation in Alberta and your opposition to treat and release of oil sand tailings. You may have answered this. There may not be another answer, other than what you’ve said. How has the Alberta government approached the consultation process in their efforts to develop tailings management standards? Has anyone you have been meeting with been proactive in addressing your very serious and valid concerns?
Mr. Tuccaro: Thank you, senator. It is nice to see you. No, there has not been any dialogue with the province at all. As a matter of fact, we met in November when we went to do the press conference in regard to the tailings. It is a sad situation because Alberta will not reply to us, but they replied to the reporters three hours after I did the press conference. In our cancer study, we know for a fact that children here in community have been diagnosed with cancer, and Alberta came back and told the reporter that there have been absolutely no cases of cancer in community. I hadn’t even left Ottawa and already family members of the children who had been diagnosed were contacting me, willing to tell their story. We told the story already. There has been absolutely nothing from them. Minister LaGrange went on record in the legislature saying there have been absolutely no cases of children’s cancer here in community.
This concern has been raised for the last 20 years or so, and it is falling on deaf ears. That’s why we had no choice but to put the cumulative impact case forward because it was falling on deaf ears with regard to the federal and provincial governments. It is a sad situation. We lobbied the federal government to put nicotinic acids on water quality standards. They accepted them, but Alberta will not accept them because they know it is a known carcinogen that contributes to cancer. This is what we are dealing with here. They come here to talk with us about whatever, the checked box gets done, but there is absolutely no accommodation. Thank you.
Senator Sorensen: That’s disappointing. I will have to get an update from you again. I don’t know what to say about that. It is hard to be an Albertan now.
I’ll direct this to the other witnesses here. We will do a report on matters related to duty to consult. That is a big topic. So we were having a conversation saying that this is great now. We are talking to a lot of people and having some very high-level general discussions, but at some point, we will have to narrow it down to ensure this report, in my mind, is effective and hopefully read and have the other place read it and take recommendations from it.
What are your ideas as we narrow this down in terms of what we are trying to say at the end? I wrote down “best practices.” Is it a template? A template across this country would be next to impossible. Should we be defining the outcomes? I really liked what you said, Mr. Cliffe-Phillips, about measure success at the beginning and not the end. Maybe some gems you can throw out as we try to narrow this down. It’s not what in terms of content do we want to say but what in terms of topic, because we cannot say everything.
Mr. Roy: Thank you for the question, senator. I’ll use Kebaowek’s own perspective and experience in developing our own FPIC process, not that it would be something that works across the board for all communities and nations across Turtle Island, but allowing Indigenous communities the opportunity to develop their own process. Unfortunately, at Kebaowek, we were court mandated to go back and do consultation, build an FPIC process, and here we go, which led us to this beautiful opportunity of having our own FPIC process now, which is a community-driven process that we are able to articulate and understand.
You mentioned a template, but I think a template isn’t a crazy thing to think about. We were very fortunate to be able to work with Dr. Sheryl Lightfoot. She is a professor at the University of Toronto, and she is also the co-chair for the United Nations Expert Mechanism on the Rights of Indigenous Peoples. By working with our team, she was able to provide us a legal template for an FPIC process that she has seen used not just in Canada but across the world. Taking that template and looking at best practices that other nations out West have done in developing their own FPIC processes and understanding flexibility within different acts and legislation that allows the government to adopt processes and then working with the community, we expedited the development of this FPIC process over a matter of six months. We also worked with the community to get their feedback and their understanding on how they want to be consulted.
Using this template of best practices internationally, looking at best practices nationally, and looking at the flexibility that governments have, we put it all together with a community-driven process to develop something that works for us. Again, it’s not something that is going to work across the board, but it started with a template. It started with an idea and left us to figure out the rest with a lot of help along the way.
Senator Sorensen: Thank you. Mr. Cliffe-Phillips?
Mr. Cliffe-Phillips: It’s a difficult question. I’m sure you’ve heard this: Consultation applies to many different things. You were talking about the consultation on changes to policy or legislation or consultation on development. There are many different ways that you can look at consultation.
One of the first things is figuring out those categories and then looking at the uniqueness of those areas to develop recommendations for each of those different types of consultation. Trying to find consensus on an approach for consultation writ large is probably a lost cause, in a sense.
One of the things that you need to really reflect on goes back to what we heard around accommodation, consent and FPIC. It really comes down to the objectives you are trying to achieve. The way we look at our consultation is that you have to figure out the real objective of why you are engaging, why you are consulting and why you are doing these things. Since much of the time it gets framed in the process, people are applying a process that might not be achieving the objective you are trying to achieve with that dialogue. If it’s relationship building, you use a different approach. If it’s decision making on a large resource development, you take a different approach. If it’s legislation, you might have a different approach there as well.
It’s trying to figure out how you could adapt those best practices and make them fit for purpose and really think about that.
Senator Sorensen: That is a Stephen Covey principle: Begin with the end in mind, which also measures success at the beginning. What does success look like when we start out?
Senator Clement: You three are amazing. As you are talking, I am thinking that quote has to go into the report, as well as that quote and so on. You are all just so eloquent.
Councillor Roy, when you described us as being “big time,” I had this visceral reaction. I’m not feeling very “big time” today, quite frankly, but at the same time, I want you to tell your daughter that this place was not designed by people like her, but it belongs to her. You tell her this place belongs to her.
Mr. Roy: Thank you for that.
Senator Clement: That’s important.
I’m sponsoring a bill. It’s harmonization between civil law and common law in French and English. I’m very proud to sponsor this bill. I’m going to talk about it tomorrow. It’s the binary: English and French; common law and civil law. When I spoke to the Department of Justice and asked about Indigenous law, their minds were spinning. It was well received. People have good intentions, but it was like, what?
These systems really are not designed by Indigenous people. It feels like we are trying to fit them — to your point, Councillor Roy — into boxes that weren’t designed by them. That really resonates for me.
I have two questions, one specifically for Mr. Cliffe-Phillips. How did you get to be so great? I know you had contact with Senator Nancy, so that explains some of it. But the way that you described the review board, other than Parks Canada, Senator Sorensen, I haven’t heard about many agencies or organizations that have that kind of maturity around all of this. I just want to know, how did that happen? Maybe you can speak to the culture of your organization.
The other question I have is for Chief Tuccaro. It’s unbelievable the advocacy that you are doing. You reached out to my office on Bill C-5 so that I could get your comments on the bill on the record, which I read into the record. You are everywhere doing all the things. Your members are not well. I want to acknowledge that it is amazing.
The question is about Bill C-5. Has that changed your relationship with the federal government? Or, for you, is it more of the same? Or has that fundamentally shifted things for you in terms of your advocacy or how you feel about the federal government? It felt like a moment to many of us, but I wonder how you are feeling about that.
Those are the questions, and then I’ll get out of the way. Do you want to start with how you got to be so great?
Mr. Cliffe-Phillips: I’ll be more humble about this, but the reality is that it’s the culture, as you mentioned, of the organization. It’s where it comes from and who sits on the board. All of us are educated by the people who wrote the land claims and negotiated the provisions that we have to uphold. The system is designed and reflected in the values within those land claims. In Nunavut, it’s the same with the Nunavut Agreement and the principles that outline resource management. It takes away the prescriptive nature of the process.
If you look at the systems that we have in the Mackenzie Valley, in Nunavut and maybe to a lesser degree in the Yukon, but very similar, it’s driven by those principles. Again, it goes back to the objectives. I mentioned that we are there to protect the environment and protect the social, economic and cultural well-being of our residents and consider the importance of conservation of the well-being and the way of the Indigenous Peoples who use the Mackenzie Valley. That’s it. You have federal legislation on approving projects that are pages and pages of prescriptive things. What that allows for is flexibility in the process, which allows you to adapt.
One of the benefits in the N.W.T. is that it’s consensus-driven decision making at the legislative assembly, at the local council level and at our boards. The reality is that it is something that gets built in. If you need to build consensus, you need to work hard. Working hard is tough, but you build those relationships to do that.
Senator Clement: Thank you.
Mr. Roy: Thank you for the question, senator.
If I could go back to the previous senator’s question, if I could give you one tangible thing, it would be no more 30-day clocks. That would be a simple one. I think we could all work towards that, but no more 30-day clocks.
Senator, to your question about Bill C-5 and whether there has been a shift or change, again, with a community that doesn’t have a territory where a major project has been announced from the list, I can speak to that. I haven’t necessarily seen the change, but I’m fearful of what these new discussion papers and the possible tabling of legislation to help speed those things along will do. For Kebaowek, where I have seen the change and where we are deeply involved in the nuclear industry and such projects, there has not necessarily been a change from the federal government but more from industry. When the federal government made announcements about Bill C-5 with “One Project, One Review” and, at the same time, made announcements of billions of dollars to the nuclear industry and other industries, I feel that shift has come more from the industry side because, unfortunately, money speaks.
The Acting Chair: Chief Billy-Joe, could you bring us home for this panel, please?
But first, I want to say that I am looking forward to coming up to see your community. As others have said here, we are all aware of this intractable issue you have. The question is this: How can we solve it and get some progress on it? It is horrifying to all of us, so you have got soldiers here. I’m looking forward to seeing you and your people this summer.
Please provide your last comments to Senator Clement.
Mr. Tuccaro: I’ll just add to what was mentioned. I’ll come out and say it: They just need to treat us like humans. That’s all we are asking. We just want the same services and accessibility that everyone around that table has. In this day and age, in 2026, we are a remote community, and we have to wait four to six months for people to be diagnosed with cancer. By that time, it’s stage 3 or 4. Then, it is just a matter of bringing them home and keeping them comfortable. We have a community member going through that now. These are real issues.
In regard to Bill C-5 and how our relationship to the federal government has changed, it hasn’t. It is still a dictatorship. The government is willing to sit back and let genocide happen. For far too long, the almighty dollar has controlled this part of Canada. I can guarantee if what is happening here were happening in Ottawa, where 6 out of 10 households were affected by cancer from 1993 to 2022, we’d have tabled it. Industry knows it. The province knows it. The federal government knows it. But it checks the box. There is absolutely no accommodation.
The thing is, too, that we are not anti-development, but what is currently in place has to do with the duty to consult because we have been doing our own work to consult with these other provincial and federal governments and even industry, telling them we have to come together and fix the problem together because it is not going to go away.
If they allow the tailings to go on, it is going to compound the issue. I’m saying this frankly and confidently. We are averaging 24 people diagnosed in the community and I only have 500 or 600 people. It’s simple math. In 20 years, we are all going to be gone. That’s why I’m begging, asking and consulting, as a Chief with you, senators, to please help us and accommodate with regard to what is going on in my community because blood is on Canada’s hands. Thank you.
The Acting Chair: Thank you very much, Chief, for those powerful words. Thank you to our other witnesses. It has been an important panel. We appreciate your time and your wise words.
We have two witnesses for the next panel, both by video conference: Sarah Morales, Associate Dean Indigenous and Associate Professor, Faculty of Law, University of Victoria; and Dwight Newman, Professor and Tier 1 Canada Research Chair in Rights Communities, and Constitutional Law, University of Saskatchewan.
Thank you for being with us. We are ready to hear your opening remarks of five minutes, which will be followed by questions from senators.
Professor Morales, the floor is yours.
Sarah Morales, Associate Dean Indigenous and Associate Professor, Faculty of Law, University of Victoria, as an individual: [Indigenous language spoken]
Good evening, everyone. I want to begin by thanking you all for the invitation to be here today. It’s very humbling. I feel the weight of its importance. As the acting chair stated, my name is Sarah Morales. I am Coast Salish and a member of Cowichan Tribes and an associate professor here at the faculty of law, where I currently have the privilege of being the Associate Dean Indigenous and the director of the joint degree program in Indigenous law and common law.
I want to focus my remarks today on the relationship between the duty to consult and the right of Indigenous Peoples to be self-determining.
My argument is that the current duty to consult framework is fundamentally limited because it recognizes Indigenous interests, but not Indigenous jurisdiction. At its core, consultation remains Crown-controlled and Crown-directed, and that is the major weakness of the current framework.
The modern duty to consult framework emerges from Haida Nation. The Supreme Court tells us that the duty is grounded in the honour of the Crown and is meant to promote reconciliation. Importantly, the court roots that obligation in the fact that Indigenous Peoples were here before Europeans arrived and were never conquered. In that sense, reconciliation is really about reconciling Crown assertions of sovereignty with the pre‑existence of Indigenous societies, legal orders and governance systems.
But while the framework speaks the language of reconciliation, in practice, it often operates as an administrative process for managing Indigenous objections to Crown decision making. The Crown determines whether there is any duty at all, sets the timelines, defines the process, determines what counts as adequate consultation, retains final decision-making authority and, ultimately, it is Crown courts that determine whether consultation was reasonable.
That structure does not require governments to do the hard work of recognizing Indigenous legal orders as law or Indigenous governance systems as legitimate decision-making institutions.
The problem is not simply that Indigenous Peoples are not being heard. The deeper problem is that Indigenous Peoples are rarely engaged as governing peoples with their own legal traditions, authorities, deliberative processes and jurisdiction.
As a result, communities are participating in consultation processes from positions that do not reflect their strengths. Indigenous scholars have repeatedly emphasized that Indigenous Peoples have long possessed sophisticated legal orders capable of governing relationships, resolving disputes, managing lands and resources and sustaining social order. Yet, current consultation frameworks rarely create the conditions necessary for those laws and processes to be meaningfully engaged. Instead, Indigenous communities are often forced to respond within externally imposed timelines and bureaucratic referral systems that leave little room for their own legal traditions and decision-making practices to guide outcomes. Many smaller communities are often inundated with referrals, permit applications and regulatory notices, while lacking the capacity and institutional infrastructure needed to respond effectively.
The duty to consult was supposed to create space for meaningful engagement capable of advancing reconciliation. Instead, many communities experience consultation as reactive, extractive, exhausting and structurally unequal. Importantly, the problem is not simply procedural; the problem is constitutional and relational.
The duty to consult is inextricably linked to the right of self‑determination. UNDRIP makes that connection explicit. Free, prior and informed consent should not be understood narrowly as a question of veto. FPIC flows from the broader right of Indigenous Peoples to self-determination and self-government. Indigenous Peoples must be recognized not simply as stakeholders to be consulted but as peoples with their own laws, legal traditions, governance systems and decision-making authority.
This is why Gitxaala matters. The BC Court of Appeal held that the Declaration on the Rights of Indigenous Peoples Act incorporates UNDRIP into the positive law of British Columbia and that the UNDRIP provides minimum standards against which provincial laws should be measured. That opens an important space to argue that consultation processes themselves must become more consistent with Indigenous self-determination and Indigenous legal orders.
But if we are serious about that transformation, governments must invest in rebuilding Indigenous governance structures, legal institutions, laws and decision-making processes. You cannot meaningfully engage Indigenous legal orders while simultaneously starving Indigenous communities of the capacity required to revitalize and operationalize those legal orders.
The developments we have seen in Indigenous child and family wellness demonstrate that transformative change is possible when Indigenous Peoples are recognized as governing authorities capable of rebuilding and exercising jurisdiction. Indigenous-led assessment processes represent another promising example of what this transformation could look like in practice.
One of the greatest flaws in current Crown-led assessment systems is that Indigenous Peoples are often invited into the process only after the structure, timelines and decision-making frameworks have already been established. If Indigenous Peoples were treated as actual governments, they would be engaged at the outset of planning, not after the key decisions have effectively been made.
In conclusion, real reconciliation requires the braiding together of Indigenous legal orders, Canadian constitutional law and international human rights law. That is really both the challenge and opportunity of the duty to consult.
Thank you.
The Acting Chair: Thank you very much.
Professor Newman, please.
Dwight Newman, Professor and Tier 1 Canada Research Chair in Rights, Communities, and Constitutional Law, University of Saskatchewan: Good evening, honourable senators. It’s good to see Professor Morales again and good to see a number of you again on the committee, whom I have met before.
For those of you whom I’ve not met, I’m Dwight Newman, Professor of Law and Tier 1 Canada Research Chair in Rights, Communities and Constitutional Law, University of Saskatchewan. I previously served the maximum two terms in a Tier 2 Canada research chair in Indigenous rights in constitutional and international law, also at the University of Saskatchewan. In that, I focused some of my work on the duty to consult, and I’ve written some books in the area that have — to my surprise in some ways — been helpful to the courts in developing the doctrine. So I’m happy to come and appear and talk about the duty to consult, even as I recognize that it’s something of an interim doctrine in the context of moves forward of the sort that Professor Morales has referenced.
I am going to try to make three quick points by way of introduction, all amid such a challenging topic of trying to talk about one duty to consult that is supposed to work for so many diverse Indigenous communities in the very large space of Canada that naturally has a lot of different Indigenous traditions in different parts of the country and different nations that have different aims and aspirations in their own circumstances.
So it’s a really challenging task to say things at this overarching level, but I’ll say three quick things. Having heard some of the questions to the last panel, I’ll try to adapt those in my third point.
My first point is that the duty to consult doctrine in case law comes from vital legal principles and relates to constitutionally entrenched rights. From a policy perspective, the government does need to think about it in terms of the investment of resources and what those resources are or are not achieving. Considering both the federal and provincial levels, various estimates suggest that the duty to consult is triggered hundreds of thousands of times per year in Canada. Putting any meaningful quantum financially on the consultation activities in each instance, there are a lot of public funds being invested here that could go not to consulting but to doing; but, of course, consulting is important.
So it’s important to consider whether this is or is not achieving its purposes and doing so well in response to the needs of communities.
I’ll quickly note that, in one sense, someone could say that the number of court cases is actually pretty minute compared to the number of times that the duty to consult is triggered. Some might take that to say that there actually aren’t as many concerns about it, but it’s also challenging to take things to court.
I’d also briefly note that I hope you’ll talk to as wide a range of people as possible, and it’s natural, of course, that the invitations to committees might end up reaching out to certain kinds of people in leadership and academic positions. I hope those in these positions are contributing well, but if you can reach out to grassroots members of Indigenous nations, you could hear some interesting things there in terms of aims and aspirations in that context.
I urge you to consider the impact of whatever you say on the duty to consult on the context of Indigenous industry agreements. Not every First Nation wants to enter into those, but many do, and many have found success in win-win agreements with industry that have been, in some ways, leveraged from the duty to consult.
It’s important to remember that not every problem is solved by the government. In fact, in the history of Indigenous communities in Canada, there has sometimes been too much government paternalism and too much governing saying it knows best. There are significant moves in terms of Indigenous nations entering into agreements with industry and achieving significant things.
The third thing I’ll note quickly is that, in the span of time you’re doing this study, there are going to be major legal developments that you need to take into account in the context of the study. In the last session, you had a member from the Kebaowek First Nation, and I thought he might talk about their case a bit more, but the case, Kebaowek First Nation v. Canadian Nuclear Laboratories, 2025, decided by the Federal Court in February 2025, saw the judge say that Canada’s moves on UNDRIP have the legal effect of saying the duty to consult must shift into UNDRIP-style free, prior and informed consent, or FPIC. An appeal was heard at the Federal Court of Appeal in October 2025, so the decision could come from that at any time. It has major implications for what you say in terms of what implementations the adoption of the federal statute on UNDRIP has or does not have, according to the courts.
The other set of cases I’ll highlight would be consultation issues involving nations located outside of Canada today. The Desautel case from 2021 set this in motion. In December 2025, there was the decision in the Lummi Nation case, concerning consultations with American-based Indigenous nations that have claims in Canada. This committee might want to think about the stance of the federal government in relation to that evolving and rapidly changing issue in a time of geopolitical complexity vis‑à‑vis the United States.
With that, I’ll stop and express my readiness to engage with questions in due course. Thank you for your attention.
The Acting Chair: Thank you very much to both witnesses. We will go to questions now. I remind all members that you’ll have five minutes to engage with the witnesses.
Senator Osler: Thank you to both witnesses for being here today.
I have a question for each of you, and my questions are tailored to each of you. Each of your closing statements touched upon the questions I’m going to ask, so I’ll read both questions out and invite you to answer.
My first question is for Dean Morales. You talked about the braiding together of Indigenous law, Canadian law and international human rights law. In your opinion, how can Indigenous laws, traditions and governance be more braided into or meaningfully incorporated into consultations processes rather than consultations being solely guided by Canadian legal frameworks?
Second, Professor Newman, you talked about legal developments to watch. Looking to the future, what do you see as significant legal or constitutional developments that could influence the future of the duty to consult?
Dean Morales, perhaps we’ll start with you.
Ms. Morales: Thank you.
I believe the three can work harmoniously together. By taking the international human-rights standards around free, prior and informed consent that we see within UNDRIP and thinking about how we interpret the duty to consult — taking those standards in mind. If you think about the UNDRIP, at its core, it’s really about self-determination and engaging with Indigenous Peoples according to their own decision-making processes, drawing on their laws and legal orders. Through both the B.C. — where I’m located — provincial act and the federal act that recognize the UNDRIP, that creates an avenue or tool for us to do that hard work of thinking about how Indigenous laws and legal orders inform the standards of FPIC, which should, then, be used to guide how we implement the duty to consult.
Mr. Newman: I would reference three significant legal developments, and they overlap a little bit with what I raised already. They raise questions on what the duty to consult looks like.
One of them is a little bit peripheral but still important, and it’s the question of what context there’s going to be consultation with groups located outside of Canada and what that’s going to look like — whether it’s the same as consultations with groups in Canada or whether it’s different. There could be further legal developments around that because the Lummi Nation case even has some ambiguities about that. It’s being appealed, so there may be a further pronouncement from the Federal Court of Appeal.
Looking forward in terms of the larger changes that are to come, we should look at the impacts of UNDRIP and free, prior and informed consent and how that may reshape aspects of the duty to consult. The duty to consult in Canada was developed in terms of the principles of the honour of the Crown for the interim context where there’s disagreement about where things are going, in a sense. In the longer term, the government needs to be thinking about how it adjusts some of these processes in the context of the emerging role of free, prior and informed consent. How does the law develop around that?
Overlapping with Dean Morales, I would say the third would be around the impacts of Indigenous laws on the duty to consult. Indigenous laws are going to look different in different Indigenous Nations across the country. There can be different forms of Indigenous laws, too. John Borrows, in Canada’s Indigenous Constitution, one of his important books, talks about different forms of Indigenous laws in terms of the sources of those. There’s a lot of variety.
Again, I come back to the point I made at the outset: Maybe there’s not one doctrine that will work in one homogenized way across the country, but something more flexible will be needed that somehow still achieves the aims of allowing consultation and consent seeking to proceed in an efficient manner that is responsive to the challenges that exist around Canada’s position in the world.
There are some complex questions ahead.
Senator Michèle Audette (Chair) in the chair.
Senator Pate: Welcome back, Madam Chair.
Thank you to both witnesses. It’s nice to see both of you again. Thank you for the work you each do on a daily basis and the many minds you will mould and help grow in such wonderful ways. Sarah Morales, in particular, you probably have an idea of whom I’m talking about, and I look forward to seeing you next week.
You may have heard my question to the previous panel, and I’d like to ask each of you much the same. As our chair has pointed out, today is the seventh anniversary of the tabling of the Missing and Murdered Indigenous Women and Girls inquiry. We’re now almost 11 years since the Truth and Reconciliation Commission. I would be very interested in what you think we could say in this report on this study that would be the most helpful at this moment.
I want to thank you both for already suggesting some things we should be considering, but if there’s anything else you think we should include, I would be most appreciative to hear it.
Ms. Morales: Thank you.
In the role that I’m in and the research that I do, I’ve been thinking about what the struggle is when it comes to implementation. We’ve had some great cases in terms of ways to advance Indigenous Peoples’ rights, and some big wins. Section 35 is very strong.
It comes down to is this need to really focus on supporting capacity development for Indigenous nations but not in a small way. In order for nations to be able to meaningfully engage the questions that come before them, not only do they have to have capacity in order to think about the impacts or what their laws would say in relation to the legal questions or the questions around use before them, but they need to do the hard work of restoring governance systems.
I’ve been thinking a lot about that. I saw that a lot when I was involved in some of the child and family work. You have to have an effective governance structure, and the structures that have been created through the Indian Act are not capable of doing that hard work of standing up Indigenous laws. There’s a big disconnect there.
If government actually built capacity for nations to think about who are their Indigenous governing bodies, how they relate to one another, who their citizens are and what the laws, legal processes and dispute resolution processes are that flow from them at a larger macro level, then these other questions that are coming before government would be more easily dealt with. I don’t want to say “easily dealt with,” but it’s doing that front-end investing in the actual problem that exists within nations that would actually enable them to come to these conversations and to think about reconciliation from a position of a strength-based nation. Thank you.
Mr. Newman: I agree. Professor Morales has spoken very aptly to that side of things. I’ll say two different things. Whatever the committee does, there needs to be really good communication with the public about this and about why the duty to consult matters and, frankly, today, why Indigenous rights matter in Canada.
There have been some pretty challenging discussions around this in the wake of the Cowichan decision last year and subsequent developments in British Columbia, so especially in British Columbia, but with the potential for some of that to spread in terms of the reaction of the non-Indigenous public around some of the discussion on these issues. Anything that can be done to communicate well with the public and to be more transparent on the Canadian government’s side or the provincial government’s side is really important.
The other thing that I’ll speak about briefly — and I think you’re more the experts in it, but it would be something that, if you could say something about it, it would be really useful. What can change in the civil service to make it do the kinds of things that everyone is talking about it needing to do? How can civil servants — in the kinds of roles that they’re in, wearing multiple hats and serving the complex public interest — also be more relational with Indigenous nations in the kinds of ways that people are talking about?
I go back to the Indigenous industry agreements and the kinds of roles that can be there in a company for someone to work on a long-term basis with a nation. Can there be similar kinds of roles in the civil service, and retain people in those in ways that work, or does it run into other problems within the rules of the civil service? What can change in the civil service to do the kinds of things that need to be done for the duty to consult and related matters? That would be the question that I would ask if the committee can put forward any kind of an answer on that.
Senator Pate: That’s very helpful.
Senator Clement: Thank you for bringing your brilliant brains into this. It’s just wonderful. I have different questions for each of you.
Dean Morales, you answered, really, my question. We talk about adequately resourcing communities to be able to participate in consultation, but you’re talking about rebuilding the legal systems that have existed forever.
You are a teacher. I’m sponsoring this bill on civil law and common law in English and in French, so I said in the chamber publicly — I have a common law and a civil law degree — that I want to get a third degree, an Indigenous law degree. Everybody has been saying, “Well, you have to go to UVic.”
How do you talk about hope with your students? Do they have hope? If you could talk about that. It feels tough most days; I can tell you.
Professor Newman, you said the duty to consult is triggered hundreds of thousands of times. Could you say more about that? You said that we spend a lot of money on consulting instead of doing. If you could say more about the impact of that, I’d appreciate that.
Ms. Morales: Yes. I do have hope. I have to have hope. I have children, so I do have hope for a different world.
I have the privilege of teaching in this university and this program that I would never have dreamed would have existed 20 years ago when I went to law school and had the privilege of learning from John Borrows. My grandma spent her entire childhood in residential school, and my in-laws, as well, went to residential school. As we built this new centre for Indigenous law that creates spaces for learning Indigenous legal pedagogies and standing those up, my kids run through these hallways now and see themselves reflected in these spaces.
That’s three generations, which is not too long, but there has been such change within the world. We have great students coming out of this program, and we have students who are not in the program but are in the space, thinking and transforming their idea of what law is, what laws we stand up and how we interact with laws. They are clerking, they are working for law firms, and they are working with nations. I have hope in the younger generations.
They exist in a world where they are seeing the dreams of our ancestors in reality. Thank you.
Mr. Newman: I have not personally counted all the instances, but there has been testimony by government officials in several instances that leads to this number, and, in fact, government officials have said that pretty directly that I’ve seen on several occasions in my research.
It sounds astounding in one way, but then you think about it, and it makes a lot of sense. In essence, the duty to consult is triggered any time there’s contemplated Crown conduct that could end up having a negative effect on an Aboriginal right or a treaty right. So this number might differ in different years, based on how much resource activity there is, for example, and whether there are permits being applied for, but the duty to consult doesn’t actually arise just in resource development contexts either. In fact, if anything, it’s probably being undercounted because I don’t think we’re always thinking about times that the duty to consult arises with other kinds of government decisions and contemplated Crown conduct outside of the resource context as much as we probably should be thinking about that.
In essence, I mention that just to highlight how pervasive the duty to consult is. Many of those will be so-called lower-level consultations. The vast majority of those are not instances of dealing with multi-billion-dollar pipelines. Those are the ones in the news. Many of these others are not in the news. But they’re happening on an ongoing basis, the duty to consult is being triggered and the Crown is doing something.
Depending on how much you were to estimate is spent in each instance, I mention that just to say, well, it’s proper that the government carefully consider how public money is being spent and whether it’s effectively achieving the purposes for which that money is being spent, just as a general matter. So it’s not that I think we shouldn’t be consulting. Obviously, it’s a legal obligation, and it needs to be done, but it just points to the importance of looking into this carefully, just as part of the public duty of oversight over how government operates.
Senator Clement: Thank you.
The Chair: Senator Tannas, I left you a note, which was to thank you for chairing this important panel. I played a part of some exchange and conversation or response.
[Translation]
I do not know what you called them, Madam Seantor, those “brains full of information”.
[English]
You are right. I want to say thank you. There is still time if senators want to ask questions.
Senator Karetak-Lindell: I agree with you, Associate Professor Sarah Morales, when you said that you must have hope. That’s exactly what I say. Otherwise, we defeat the purpose of trying to make change.
My community of Arviat in Nunavut is being chosen as the site for the future Inuit Nunangat University. What you are talking about gives me an idea of what our university could teach. I’m always saying that we did have our own ways of governing ourselves before someone decided we didn’t. I’m looking forward to exploring those kinds of areas where we could teach our own ways of governing, our own language and our own ways of resolving disputes. I could see this being one of those topics for how to do better in the duty to consult.
I really just wanted to comment on how much you have helped me with your last answer when you said that we can always hope for change.
My question is this: What would be your ideal way of consulting? What modes of consulting would you want to see as the basis? The previous panel that we listened to mentioned that we could do capacity building for all organizations so that they have some form of a base to start consultations from so that you are not reinventing the wheel each and every time you are being asked to consult. It is important to have those basic things in the communities so that people are learning how to go through the process.
I know that, with some of my communities in Nunavut, the technical part of it is always the most difficult area to get people to understand. So they always have to hire people who can deal with the technical part of, for example, an environmental assessment for someone wanting to start a new mine in our community because the technical portion is very difficult. I’m just looking at what your model would be from start to finish about what we could see in the communities with optimum consulting. Thank you.
Ms. Morales: Thank you. For me, as Professor Newman said, optimal consultation or free, prior and informed consent processes will differ according to what nation is involved and how they see decision-making processes occurring within their community. But for me, it is about having Indigenous nations involved in the development of the process and creating a process that is deemed to be legitimate, fair and respectful within their world view and their way of relating, thinking about those principles that guide decision making or dispute resolution within communities.
I come from British Columbia. There is not one inch of territory that doesn’t have an overlapping claim on it. We had shared territories, which means that we knew how to work across difference. There was legal pluralism there as well. We have long histories of creating and maintaining good relationships with one another. Those are the processes that need to be drawn on to develop a consultation model deemed to be legitimate by all parties involved in it. That is what we are hoping for.
Of course, it needs to be resourced, and work needs to be done so that nations are capable of engaging with the substantive question before them in a good way. But it would go a long way to actually have nations involved in this process. I also had the privilege to hear from those amazing individuals in the previous panel. That is amazing information that they have shared with you because you are hearing from the communities about what would be deemed to be legitimate, fair and respectful principles that are important within their legal traditions, communities and societies for making good decisions.
Thank you.
Senator Karetak-Lindell: Thank you. I’m not sure if Professor Newman wants to answer that too.
Mr. Newman: I can give a quick comment because there is always a challenge for academics to make our ideas as practical as possible. One comment I will give here in trying to think about a way to make this practical is this: When I was first writing on the duty to consult in 2009, one of the things that struck me was that some Indigenous nations had already by then created their own consultation policies that they enunciated about how they wanted to be consulted. As long as those worked for everyone, those had the potential to work as the law in those contexts. If government and industry could fit with those, that actually had a lot of potential to create something clear and that worked for everyone.
If it is vastly different from what government and industry thought the law required from them, it might not work out. I have not done a study on how many policies have grown like that, but that is one way in which there can be a practical way that Indigenous nations can shape some of how consultation takes place for those that have the capacity to do it, the size to do it, and so on, to create their own Indigenous consultation policies.
We could use the metaphor of braiding in terms of Canadian law and Indigenous law in those contexts. I hope that’s an appropriate use of the concept, which has a lot of other elements to it. It is a little bit of the idea of combining together Canadian law and Indigenous law on consultation. If there is something that can work for everyone, that’s one way this could play out. I just mention that as one thought.
Senator Karetak-Lindell: Thank you.
[Translation]
The Chair: Thank you very much. We have gone through the list of senators.
[English]
I would like to say thank you to all of you in this room because we have had a few busy weeks. Thank you so much. Of course, it seems early on your end, professor, so enjoy the rest of the day. For us, we will enjoy the beginning of the night.
I want to say thank you, and I hope you can send us information because this is an important study. What I love with this is that we are able to provide recommendations to the government, to their policy, and so on. If you have any beads or magic that you can give us so that we can put in the report, it would be a gift. Thank you so much.
[Translation]
The meeting is now officially over.
(The committee adjourned.)