THE STANDING SENATE COMMITTEE ON INDIGENOUS PEOPLES
EVIDENCE
OTTAWA, Wednesday, June 10, 2026
The Standing Senate Committee on Indigenous Peoples met with videoconference this day at 6:45 p.m. [ET] to examine and report on any matters related 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; and, in camera, for the consideration of a draft agenda (future business).
Senator Michèle Audette (Chair) in the chair.
[Translation]
The Chair: [Innu-aimun spoken] Anishinaabe people.
Before we continue our discussions, I would like to remind you — out of consideration for those who are providing simultaneous interpretation — to ensure that our earpieces, the equipment we are using, are not too close to the microphones, and the same goes for cellphones. Thank you for your cooperation and thank you to those who are providing interpretation for us.
I was thanking, in the Innu-aimun language, the Anishinaabe people, who welcome us every day to this vast territory we call Ottawa, Ontario and Quebec — on Turtle Island, this vast territory. We also welcome all the other nations who have made this their home or who are passing through here.
[English]
My name is Michèle Audette. I am the chair of this committee. Let’s do a round table. I will ask senators to introduce themselves.
Senator Francis: Senator Francis, Epekwitk, Prince Edward Island.
Senator Tannas: Scott Tannas from Alberta.
Senator Clement: Bernadette Clement from Ontario, but more specifically, I’m from Cornwall, Ontario, which is located on the traditional Mohawk territory of Akwesasne.
Senator McCallum: Mary Jane McCallum, Treaty 10, Manitoba region. Welcome.
Senator Karetak-Lindell: Nancy Karetak-Lindell, Nunavut, but you know that.
Senator Greenwood: Welcome. Margo Greenwood from beautiful British Columbia, but you already know that.
The Chair: Maybe President Natan Obed knows, but we also have Regional Chief Abram Benedict. Senator Clement is very proud to have the Regional Chief with us today.
For this single panel of witnesses, we are pleased to welcome, representing Inuit Tapiriit Kanatami, Natan Obed, President; and by video conference, from the Assembly of First Nations, Ontario Regional Chief Abram Benedict.
Thank you to both of you for being with us today. You will have five minutes for your opening remarks, and then we will have an exchange with senators following that.
We will start with Mr. Obed.
[Translation]
Natan Obed, President, Inuit Tapiriit Kanatami: Thank you [Indigenous language spoken].
[English]
As always, it’s wonderful to be here with all of you. Thank you so much for the invitation to speak in relation to the duty to consult and accommodate.
I’d like to acknowledge the chair, Michèle Audette, and also the senator for Nunavut, Nancy Karetak-Lindell, and then all of you who I’ve had the pleasure of working with for some time now.
I represent 70,000 Inuit in Canada. Inuit Tapiriit Kanatami is a democratic institution that sits alongside the Canadian institutions of federal, provincial and municipal governments. We live in 51 communities. We encompass 40% of Canada’s land mass and 72% of its coastline. We are governed by the elected leaders of the Inuvialuit Regional Corporation, Nunavut Tunngavik Incorporated, Makivvik and the Nunatsiavut Government. These four Inuit treaty organizations and governments are Inuit rights holders under section 35 of the Constitution and have each negotiated comprehensive Inuit-Crown land claims agreements between 1975 and 2005.
I want to give high-level consideration of what we’re talking about. I suppose it starts with section 35 of the Constitution and the constitutional principle of the honour of the Crown.
The consideration that the federal government will act in good faith in any dealings with Indigenous Peoples is a core principle tested through Supreme Court rulings and intermingles at the highest level: the functionality of the relationship between Indigenous Peoples and the Government of Canada.
Recently, we’ve worked on amendments to the Interpretation Act that have entrenched the universal non-derogation clause, and that was in the last government.
The non-derogation clause seeks to further affirm that the Canadian government will not abrogate or derogate from any of its existing treaties with First Nations, Inuit and Métis or any of the constitutionally protected rights of Indigenous Peoples in this country.
Once you get down to the duty to consult within specific pieces of legislation or specific actions of the federal government, there is a spectrum of obligations that the government has in relation to its constructive arrangements with First Nations, Inuit and Métis.
We’re very fortunate in this country to have modern treaties that encompass the entirety of Inuit Nunangat, our Inuit homeland. They’re instructive in the way in which the Government of Canada works on implementing its obligations to Inuit, as per section 35 of the Constitution.
Our modern treaty provisions, including co-management structures and also provisions that trigger processes like impact and benefit agreements for specific mining projects on specific parts of our settlement areas, allow for the expression of our self‑determination to exist within a constitutionally protected landscape.
We also, as Inuit, have worked over the past 40 years through our democratic institutions to further entrench our relationship with the Crown. In the last 10 years, we have created the Inuit-Crown Partnership Committee, which is underpinned by an agreement signed in 2018 in Iqaluit that details how Inuit leadership and the federal government will work together on shared priorities and the implementation of those shared priorities through work plans.
We also have very constructive relationships through what is now the Inuit Nunangat Policy, a federal policy co-developed through the Inuit-Crown partnership table, which allows for the federal government and all of its departments to understand how it consults, whom it consults with and who the rights holders in the Inuit space are within this country.
We have tried very hard to make it as easy as possible for the federal government to understand its obligations to us. The complexity has not been ours. We did not create this complexity.
If you look at the Royal Proclamation of 1763, there is great simplicity around the self-determination and diplomacy that the British Crown used with Indigenous Peoples. They were sovereign nations, and the text acts as such. We’ve lost that as a country.
All of these mechanisms that we are coming back to are breathing life into section 35, but they must be done in a way that respects the ongoing grey areas that still exist and are, unfortunately, mostly clarified through Supreme Court cases.
In the meantime, Inuit leadership wants to have constructive relationships with this government. We have a shared agenda. Take Bill C-5 — we want to build Inuit Nunangat as well. We want to protect Inuit Nunangat and protect the Canadian Arctic. We want to ensure the territorial integrity of this country extends to the very far reaches of Inuit Nunangat in the North.
How we go about working together still seems to be a mystery to certain parts of the federal government in certain places and times. I don’t think we can ever lose, for a second, the foundational underpinnings of our relationship and the structures we have put in place at the behest of the federal government.
It is very strange to go through 40 to 50 years of negotiations with the Crown in order to satisfy the certainty the Crown needs, only for the Crown to then have amnesia about the agreements it has signed with us when it is convenient for them to do so. [Indigenous language spoken.]
The Chair: Thank you. We will have questions and more dialogue and a good discussion with you, President Obed.
Now I invite Ontario Regional Chief Abram Benedict, also representing the Assembly of First Nations, or AFN.
Abram Benedict, Ontario Regional Chief, Assembly of First Nations: Good evening and thank you, honourable senators. Chair Audette, it’s great to see you. And Senator Clement, it’s great to see you as well.
I am Abram Benedict, the Ontario Regional Chief supporting and advocating for 133 First Nations in Ontario, and I am a member of the Assembly of First Nations national executive.
I want to acknowledge the territory on which you are gathered, as well as the territory on which I’m gathered in the city of Toronto, which is the traditional territory of the Mississaugas of the Credit, the Anishinaabeg, the Haudenosaunee and the Wendat people.
Thank you to the committee for this important study and for making space to hear from First Nations.
I appear today on behalf of the Assembly of First Nations to speak briefly to the Crown’s duty to consult and accommodate First Nations.
It is important for me to acknowledge that First Nations voices are diverse. These remarks are a starting point. First Nations rights holders need to be heard from directly. First Nations have the right to define what is honourable and meaningful consultation to them and their nations through their processes.
Ultimately, this discussion must be grounded in the inherent rights that we, as First Nations peoples, have to our lands, territories and resources. These originate from our First Nations laws, our orders and our systems.
There are two distinct but mutually reinforcing frameworks that govern this discussion. First is the matter at hand: the duty to consult, which is grounded — as this committee has noted — under section 35 of the Constitution.
The second is international law: the United Nations Declaration on the Rights of Indigenous Peoples and the minimum standard for free, prior and informed consent. The Crown must fully recognize and adopt that seeking our free, prior and informed consent is an exercise in the right to self‑determination of our nations. This is particularly under the Constitution, treaty, title and international law.
The duty to consult and, where necessary, accommodate emerged from the common law before Canada legislated the United Nations Declaration on the Rights of Indigenous Peoples Act. Section 5 of the act now directs that Canada take all measures necessary to ensure the laws and policies of Canada are consistent with the UN declaration.
We recommend the committee examine how Articles 19, 28 and 32 of the UN declaration can be operationalized in Canada to fulfill not only its domestic obligations but also those international standards.
Article 19 affirms that First Nations must be consulted but, more forcefully, we must grant our free, prior and informed consent before Canada adopts legislation, policies and measures that will affect our nations and our people.
Article 28 affirms that past Crown conduct that damaged or took our lands without our free, prior and informed consent must be restituted and fairly compensated. This is fundamentally important to our ongoing relationship.
Article 32 affirms the Crown must seek our free, prior and informed consent before approving any projects that affect our lands, our waters and our resources. And it is within the context of the duty to consult, born out of domestic legal principles, where it fails to meet the international standards to which Canada no longer aspires but is obligated to meet in line with the United Nations Declaration on the Rights of Indigenous Peoples Act.
There is a need for these two frameworks to complement each other. Canada must see the practice of consultation as an aspect and not as an end goal toward the fulfillment of consent.
I’d like to wrap up by saying that it is when we address the limitations of the current duty to consult regime that movement toward stronger First Nations relations can occur. The duty to consult, as currently interpreted by the Crown, does not adequately engage with the substantive rights of First Nations nor its legal obligations under the United Nations Declaration on the Rights of Indigenous Peoples Act and international law.
I do think back to the King’s Speech from the Throne in which he reaffirms that the Crown will be guided by the principle of free, prior and informed consent. Prime Minister Carney has repeated the same aspirations many times.
This study is an important step to realizing this evolution, and First Nations continue to hold Canada to account for what it has already committed to: implementing the United Nations Declaration on the Rights of Indigenous Peoples, honouring section 35 obligations and moving beyond consultation to consent.
I want to reiterate that First Nations are here. We’re willing partners, and we’re ready to engage with Canada on matters as important and fundamental as the duty to consult. The door to meaningful action and consultation is wide open, and we hope that Canada takes the opportunity to collaborate.
I look forward to the questions and the rest of the committee. Meegwetch for the opportunity again to present to you and have this important conversation.
[Translation]
The Chair: [Innu-aimun spoken]. Thank you very much.
We will now proceed to questions.
[English]
Senator Francis: Welcome to you both this evening.
My question is: Given that the legal duty to consult on matters that fall under federal jurisdiction rests primarily with the federal Crown and cannot be fully off-loaded to provincial bodies, how can Indigenous governments ensure that relying on provincial processes does not breach Canada’s obligations under section 35?
Mr. Obed: Thanks for that question.
The modern treaties that we have signed are with the Crown. The processes within are shared responsibilities with the jurisdictions in which Inuit live as well.
The upholding of our constitutionally protected rights is a shared responsibility. I think one of the biggest challenges that faces this country now is this gap between the federal recognition of the duty to consult and also the solemn undertaking of realizing all those rights that are entrenched within the Constitution for Indigenous Peoples and then through the United Nations Declaration on the Rights of Indigenous Peoples Act, or UNDA, and the action plan measures that follow from it, including aligning Canada’s laws and policies from the federal and provincial and territorial levels.
The federal government has an obligation to ensure that it uses whatever mechanisms it has at its disposal to ensure that provinces and territories uphold the constitutional protection of Indigenous Peoples’ rights within the dealings that any province or territory has with First Nations, Inuit or Métis.
In our case, the duty to consult is not also just within, say, a regulatory framework. There might be co-management bodies that work on a particular issue, but there also must be deep consultation and engagement with rights holders within communities to ensure that structural bodies are not seen as bypassing the thorough considerations of the Government of Canada to fulfill this duty.
Senator Francis: Thank you.
Mr. Benedict: I had a hard time with the translation delay on the first part of the question, but I think I got quite a bit of it.
One of the approaches that we use in our region — as well as at the Assembly of First Nations — is collaboration. I’m not convinced that there are a whole lot of conversations around the duty to consult happening between the federal government and the provincial governments. I think that’s a failure.
We have seen how important this is. Every level of government can agree that when securing the Canadian economy and large project developments, the element of all of that is the consultation with First Nations and around that honour of the Crown conversation.
There need to be more frank conversations happening between the federal government and the provincial governments specifically around this. As the president mentioned in his opening remarks, clearly it’s more defined by the courts. We know that there is a role for the courts, but having the honour of the Crown and the duty to consult being defined by them is not the best place for it.
I’m a firm believer in collaboration. The obligations will be satisfied when First Nations are at the table from the beginning in all aspects of the consultation that occurs. For the development and the extraction and the infringement or the impact on rights, First Nations need to be included from the beginning.
Senator Tannas: Thank you both for being here.
I wanted to go a little bit further, frankly, for myself — and I’m almost embarrassed to admit it — but also for the public that may be watching and trying to understand how Inuit Tapiriit Kanatami, or ITK, works.
You talked about it briefly, and I heard you say there are four organizations underneath that are almost the shareholders of ITK. The question, then, is: How does that all interact with territorial governments that are charged through devolution with a whole host of things that they need to do?
You mentioned there’s a complexity there. I wonder if you could take us through how, maybe, a private proponent of some project or another needs to consult. They need to consult with you. They need to interact with a provincial government and with the other potential governments. How does that work, and why is it constructed that way?
I remember some time ago, we were here, and we learned of an agreement that ITK had that involved money and education. I would have normally thought that would have gone to a territorial government that should be delivering that, but it didn’t, so I never really understood.
Could you give us a little primer on how this works? It’s different than First Nations consultation and different than Métis consultation.
Mr. Obed: Thanks for that question, and I’ll try my best.
The modern treaty process was post-Calder case in the early 1970s, which started with the James Bay and Northern Quebec Agreement, or JBNQA, in 1975 that flowed through to the Inuvialuit Final Agreement in 1984, the Nunavut Agreement in 1993 and then the Nunatsiavut agreement in 2005.
The considerations for the Government of Canada to settle these modern treaties were largely due to certainty and largely due to major resource or extraction projects, such as the JBNQA in relation to hydroelectric projects in northern Quebec.
From the very beginning, these agreements have been constructed to provide certainty to governments and to industry about how to engage with Inuit rights holders to clarify Aboriginal title into fee simple title and then larger settlement areas where there are obligations for the negotiation of impact and benefit agreements for major projects and the calculation of revenues that stem from particular projects and whether or not they’re in a settlement area or on our Inuit-owned lands.
There is a framework across 40% of Canada’s land mass about how proponents interact with Inuit rights holders to get projects off the ground. They can build that into their costing with stakeholders. They can talk to the federal government and the provinces and territories about the obligations, the expectations and then the Inuit partnership.
Inuit have been, I would say, forward-thinking in how we build our self-determination and our governance models by creating scenarios where we will benefit from resource development and projects that will then fund our self‑government and the types of services that we want to provide to our people.
This is very different because in historic treaties, you have postage stamp reserves, and you don’t have defined geographic spaces of settlement areas where, then, there is another tranche of obligations by provinces, territories or the federal government to meet these really fundamental concerns for new scopes of work, whether they be legislation or policy.
For us, we have a democracy from the community level through our Inuit regional level to the national and international levels.
I am the president of our national organization. I don’t get elected based on political party status or my own platform. I got elected to serve the interests of the four treaty organizations. Each of those four leaders is elected democratically by their Inuit constituents. Therefore, we stand side by side with the Canadian democracy, and we interact with it.
Unfortunately, provinces and territories, especially, have pushed back against the inclusion of Indigenous democracies in the multilateral spaces that Canada has in the way it does its politics. We are not invited to first ministers’ meetings. We have ad hoc processes for federal, provincial, territorial and Indigenous sector conversations on things like the environment or health. Most of the time, we’re not invited at all.
This country has a long way to go in accepting that Indigenous Peoples have democracies and governance models and that this country is founded on and is not just composed of municipalities, provinces, territories and the federal government but is also a multilateral space that includes First Nations, Inuit and Métis democracies as well.
Senator Tannas: To clarify, if we had to do this all over again, you’d prefer that there be no territorial governments and that you are the territorial government for the entire space. Is that fair to say? Is it that these things got stood up at different times as your organizations were becoming clear about the model that people wanted and now you’re stuck with these legacy organizations alongside you that have taxing power and all of the powers of a government that you don’t have and here we are? Therefore, it’s complicated and clunky. Is that a fair description?
Mr. Obed: If I’m imagining a better Canada, I would think that Inuit self-determination would be embedded within the governance of this country in a much more fulsome way.
Take the Nunavut Agreement. Article 4 of the Nunavut Agreement creates the public government jurisdiction of Nunavut, so our treaty creates a jurisdiction within this country that is not an ethnic-based jurisdiction. It has an ethnic majority. Inuit make up 85% of the population. You can see that we want to have a fundamental relationship with all Canadians. We want to be embedded within Canadian democracy and governance.
It has been very difficult for us — as we have spent 40 to 50 years doing this — to then come to Ottawa and for Ottawa to have no idea about any of that history.
Senator Tannas: Thank you. Thank you for your indulgence, colleagues.
The Chair: You deserve it. It was an important question and an important response.
Senator Prosper: It’s good to see our witnesses here again, and I have a question for Regional Chief Benedict.
I’m curious about your experience and the experience of those communities that you represent in Ontario. Obviously, there’s been some movement federally with the Building Canada Act and provincially with Bill 5, Protect Ontario by Unleashing our Economy Act, 2025. I understand that you had concerns with respect to the amount of funding or the inadequate funding that was earmarked for consultation.
I’m curious to get your perspective on how it operates in your province as projects are considered and as consultation is engaged. What are the challenges that exist on the ground? What are the mechanisms or processes that you think are essential to advancing the interests of the First Nations that you represent?
Mr. Benedict: Shé:kon. Good evening. It’s good to see you, Senator Prosper. Thank you for the question.
I’m quite certain that, at this point, the committee knows that consultation, whether it’s with the federal or provincial government, is inconsistent. It is not the same. Our communities could be chatting with the province and certain ministries — same thing with the federal government — and it is not the same across the board. That’s problematic.
Although we acknowledge consultation as a whole, it is up to First Nations to determine what levels of consultation and accommodation, ultimately, are needed by the community. I hear lots in the work I do in the region, as well as at the national level, that governments are looking for national-regional approaches. There cannot be a national-regional approach to consultation because the implications for First Nations rights will be different depending on the project, the location and the activity.
Having said that, one of the biggest challenges our nations face in practicality and on the ground — and this is across the board, not only in my region — is capacity and the ability to participate.
Some proponents, like the mining industry in our region, have more resources available for those consultation activities, but not all. That is problematic. Many of our communities struggle with that. Some communities have better capacity and the ability to respond. Some don’t. The ones with that ability have developed those units and that capacity with their own resources. Sadly, a number of our communities are remote, particularly in the North. We have 39 First Nations in our region that are fly-in. These communities are not in a position to be able to develop capacity on their own.
That is one of the significant barriers that we see. Ultimately, it is about transparency. I said this in my opening comments or in response to the first question about that relationship. There is not enough transparency. In some places, there’s no transparency at all around consultation and who is talking to whom or, frankly, what the endgame is.
I spent a lot of time talking about large project development and how First Nations need to be included from the beginning because decisions are made without our communities, and that is unacceptable. I hope that covers some of the areas you were alluding to that have gaps.
Senator Prosper: Thank you. To expand on some of your earlier testimony and your reference to free, prior and informed consent, or FPIC, there are two tracks here: the common law with section 35 and through the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP, with FPIC — UNDRIP is a federal law now as well, where it seeks to align those principles with federal legislation.
I’m curious about how you would define FPIC. What are you hearing from leadership in terms of the requirements for FPIC to be achieved?
Mr. Benedict: Well, I think there’s a vast answer to that. Frankly, it’s quite loaded, as they would say. What a lot of our communities are feeling is that the free part of FPIC is not genuine. When these conversations happen, the first part of FPIC is not being respected. The endgame is consent. And a lot needs to happen to get from the free part to consent. There is a lot of pressure on nations to achieve that.
One of the things I have spent a lot of time talking with proponents and partners about is that people are scared that FPIC is a veto, but our nations don’t view it as a veto. Frankly, it is a path forward that communities need to determine on their own. Maybe consent is not how the proponent or the government believes that should happen, but First Nations have a different vision for that, which is fine. That is where we run into the clashes about how we should get to the consent piece when the free part is not always embraced from the beginning.
I’m hearing a lot of that from our nations. There is a lot of pressure around that. I can’t reiterate enough that there is not a playbook for how FPIC can be embraced by nations because that is determined by those nations through their own processes and sometimes ceremonies.
Senator Clement: Thank you, and welcome to both witnesses. I have questions for both of you, so I’ll ask them and then get out of the way.
I have to say shé:kon to Ontario Regional Chief Benedict. Chief Benedict was Grand Chief of Akwesasne when I was mayor of Cornwall, so we’ve been developing relationships since that time, and I am always happy to see you. I visited Akwesasne with Senator Francis a couple of summers ago, and he is here too, so we are in good company.
The question I have for President Obed — and it was good to see you at the Governor General’s installation on Monday — is you used words like “amnesia.” The government has amnesia around the agreements that they’ve signed. You said it’s certain parts at certain places and times, suggesting an ebb and flow depending on what is convenient. How do you hold the government to account when that amnesia occurs?
I’ll ask my questions as well to Regional Chief Benedict.
I know that you were part of and may still be part of the Jay Treaty Border Alliance. I know you have experience with the duty to consult or a lack thereof. Maybe you can use some specific examples there.
Are there best practices we can take from there, or is that not working? Is it different for you as a Grand Chief of a First Nation versus now as the Ontario Regional Chief in terms of your relationship with the government? Has Bill C-5 affected your relationship with the government?
I’ll add this. You don’t have to answer if you don’t want to, but I saw that you responded to the Senate’s decision to not accept the amendments to Bill C-9 around residential school denialism. You responded quite strongly to that. If you wanted to add a comment on that too, I would appreciate it.
Again, I think the question is: How do these things affect your relationship with the federal government and your trust in the duty to consult process? We’ll start with President Obed.
Mr. Obed: Thanks for the question.
“Amnesia” is a kind word for what usually happens. In political party systems, parties are rewarded for being fundamentally different than the last. Unfortunately, Indigenous Peoples’ rights are sometimes classified as partisan considerations or part of partisan platforms. For instance, the reconciliation-focused platform of the Justin Trudeau-era government was always at risk of being replaced by an anti‑reconciliation agenda of another party.
I think there is ignorance about the fundamental foundation of this country in law with regard to Indigenous Peoples’ rights. The United Nations Declaration on the Rights of Indigenous Peoples Act seeks to interrupt that ignorance and replace it with one of the most progressive federal-provincial-territorial systems within the world.
I’ll use that act as an example. Virtually none of the action plan measures that were agreed upon by the government — and it has now been over a year since there was broad agreement on implementing them — have been implemented. The Government of Canada has just stopped all of its forceful action on the implementation of its own legislation. Is that amnesia or a change in priorities? I would say it’s a misalignment with Canadian law.
We created a Canadian law to fix a problem, and then we treated the law itself as something that was linked to a personal agenda or a point-in-time agenda of a particular party at a particular time.
Indigenous Peoples’ rights get convoluted into whether or not you’re a certain type of political leaning person in this country when people usually don’t have the same conversations — with Alberta being an exception at this moment in time — about provinces, territories, municipal governments and the federal government and the legitimacy of those institutions and then all of the rules of law that underpin the way in which this country operates.
What we are asking for again and again is to be seen for what we are and to be essential features of this country, with specific laws, policies and Supreme Court rulings that must be implemented the way that just about all other structural arrangements of this country under the Constitution are.
Senator Clement: Thank you for that.
I liked your use of the term “multilateral spaces.” We forget or we don’t know our own history and the fact that systems and legal systems existed before other people arrived here. Thank you for that, President Obed.
Please go ahead, Ontario Regional Chief Benedict.
Mr. Benedict: Thank you, Senator Clement. It’s so great to see you and all of your colleagues there this evening. You’re working late when the government is planning to shut down for the summer soon. I know there’s a lot of pressure happening. I have always admired all of your commitment to the work that you do in the Senate.
There are a couple of things. There’s a lot there. My relationship with the Government of Canada and the provincial governments has changed quite a bit in a couple of different ways since becoming the Ontario Regional Chief. For me, relationship building and forming relationships with all levels of government and proponents as well as like-minded and non‑like‑minded persons and organizations is important.
Sometimes I think governments feel our regional organizations are the consultation hubs for all First Nations. I support and advocate for 133 First Nations. They are the rights holders; I am not the rights holder. I am not equivalent to any premier or decision maker for all First Nations across Ontario, unless explicitly authorized through resolution. Frankly, that doesn’t happen often. Our positions are authorized through resolution.
Given that, although those are my roles and responsibilities, governments sometimes want to take advantage of having a one-stop shop. They do this with the Assembly of First Nations all the time around consultation. I don’t hold the rights; the First Nations communities hold the rights. The Assembly of First Nations doesn’t hold the rights; the 638 communities across Canada hold the rights. That relationship piece is quite different.
I spend a lot of time talking about what that means, why that is important, the impacts to our nations and why relationship building is so fundamentally important around advancing our commonalities, including around consultation. Frankly, if there is a harmonized and respectful relationship where we understand one another and we build upon our shared principles, then consultation will come easily, and it will be satisfied and accommodated quite organically. We just haven’t gotten there yet as an obligation of a fiduciary relationship.
Around the border stuff you mentioned, we struggle with that a bit. Border security — which is very paramount and important to all of our nations, including my home community of Akwesasne — is very unique. The government takes a very narrow approach around consultation and collaboration with First Nations when it comes to border security, which is problematic.
We have seen legislation, including current legislation, being put forward with no consultation with First Nations, even though — two points — many of our First Nations exist on either side of the border, not only my community of Akwesasne but others as well. The design of the Jay Treaty Border Alliance is to bring together nations impacted by the border.
Also, all our First Nations play a pivotal role in border security and community safety, ensuring enforcement and community lookouts. For all of these programs that governments have and all of these initiatives and priorities, First Nations are a pivotal part in the success of that.
Unfortunately, when you couple that with consultation at the border, this doesn’t happen. This is how we end up in many situations where our nations continue to be impacted by legislation or they are an afterthought. Some communities in my region have to go through Minnesota to get to their communities. Those are border impacts, and legislation and regulations happen, sadly, all the time and impact them.
Those are some of the areas. On the Bill C-9 amendments, the position is there was no consultation on this and the legal work that was done is a bit of smoke and mirrors. The Criminal Code of Canada is there to protect people, and the opportunity to include provisions to protect First Nations was not taken. Very disappointed with that, but our advocacy work will not stop. Sadly, the threats and the denialism and the realities that our Survivors face every day will continue to happen without any sort of legal recourse or protections, frankly, for the Survivors, and that’s very unfortunate.
Did I cover most of the questions?
Senator Clement: You did. Nia:wen.
The Chair: You did cover them, and you even gave us the hope to continue the work on denialism, just so you know. Moccasin telegram — you will hear maybe later.
Thank you so much. Senator Tannas, I would ask you to ask your questions on the record and if the witnesses are able to respond in writing, please.
Senator McCallum: I will ask my question first and then say what I think happened with the modern treaties and what the committee did in 2008 and what they said were obstacles.
What is the best way that this committee can help you do what needs to be done? That is to both of you. If you have to answer in writing, that’s fine.
In the report, the modern treaties took a different view from Canada. For the modern treaty, it was the beginning of a new relationship. Canada wanted to take a very narrow approach in negotiation, but they didn’t really have an implementation plan.
They said there was a lack of sustained management attention resulting from the high turnover of senior officials. The constant rotation of senior officials and deputy ministers made it difficult to achieve policy continuity and coherence. That was an obstacle to implementation and follow-through. There was a greater focus on short-term initiatives and much less on longer-term initiatives.
When the government met, they ascribed lesser importance to implementation. They had structures in place — senior-level interdepartmental committees — to deal with negotiation. No similar structures were created to manage the implementation of the same agreements.
I’m the critic for the modern treaties; that’s why I’m looking at this. What can we do to best serve your interests? As we are coming to a close, a brief is probably better.
Mr. Obed: To that end, I’m very fortunate that I get to interact with incredibly smart people and people at the top of their fields across 30-plus federal departments and ministers of the Crown. It isn’t a lack of being intelligent enough to be able to understand the legal and fundamental principles and the constitutional and constructive arrangements that Inuit have with the Crown. It is just not a priority of government, and it doesn’t get people promoted. For generations, this country rewarded people who actually did the very least in regard to Indigenous Peoples, whether it be governance or policies. You were a good Indigenous and Northern Affairs Canada, or INAC, person if you saved money and if you didn’t spend money on First Nations, Inuit and Métis. That feeling still exists in many parts of the government, and I believe that we are seeing a return of the negativity surrounding the attention that is ever focused on Indigenous Peoples by the federal government and all the people who work for it.
We need co-developed guidance, including cabinet directives, on the implementation of the United Nations Declaration on the Rights of Indigenous Peoples Act and also continued guidance on the implementation of the Inuit Nunangat Policy. Those are very concrete, and they are ways in which we can get at the very structural problems by using the structure itself to be able to demand compliance with what already exists in law.
Mr. Benedict: We could definitely follow up with more of a comprehensive submission on this.
A couple of things come to mind. There are 27 modern land claims agreements in effect. There are 600-plus First Nations across Canada. The numbers tell a story. Fundamentally, the modern treaty process and the government’s interpretation and First Nations’ interpretations and desires are far apart. This is a real problem. The basis of that is governance, lands and resources and what that obligation and rearrangement look like.
In the modern context, the land question is a big question. The fiduciary obligations that are constitutional between our relationships are fundamentally important. It has been brought forward again, rightfully so, as a question.
Further examination needs to be done because we can’t continue to rely on courts to determine what that relationship looks like. There has to be collaboration. I’ll leave it at that, and the Assembly of First Nations can follow up.
The Chair: I have the position to say no. We are on Mother Earth to listen. But we are in a place where we have to combine our tradition and the tradition of the Senate but also the people who work, so time is a constraint.
Senators, you can ask your questions, and our amazing witnesses can listen, and if they wish, they can respond in writing because we have to conclude.
Senator McCallum: People keep saying we passed UNDRIP. We did not pass UNDRIP. We passed an action plan. It drives me crazy. It’s the same thing with B.C., and now they’re both walking back on it. How do we deal with that? People keep bringing it up and saying we passed the act. That’s why the government can ignore it. That’s what I would like a response to.
Senator Tannas: Again, please respond in writing if it’s worthwhile and applicable.
These are primarily for Regional Chief Benedict, but, President Obed, if you want to chip in as well, please do.
With respect to proponents of projects, I suspect there’s a disconnect between when you build a business plan and when you actually do consultation. You’re starting with an idea and then eventually you do some financial modelling, and then you have to go to the government for your permits, and that seems to be when everybody starts consulting.
Is there a process that needs to be done and formalized called a pre-consultation that businesses are expected to conduct before they ever show up in front of a government? Maybe it exists. But I just wonder if there is such a thing as a pre-consultation while they’re in the feasibility exploration stage. What would that look like if it exists? Do you have any examples? And if it doesn’t, what do you think?
Second, is it time to look seriously at an institution that can provide the capacity for consultation to communities, similar to the institution of the First Nations Financial Management Board? It is a wonderful institution with lots of resources. Is it time that we spend some time figuring out how to help stand up an institution governed by First Nations where they can access advice and resources in some way? Thank you.
Senator Greenwood: I have a question for each of you.
Mr. Obed, can you inform us about the Inuit-Crown Partnership Committee and whether this bilateral forum can serve as a positive example of how the government can engage with Indigenous Peoples? I know you talked about it, and I’m sure there are pieces in there about consultation and engagement. I’d like to hear more about those specifically.
While the government’s involvement in the committee does not qualify or fulfill the duty to consult — its very involvement doesn’t mean it has done its duty to consult — is there anything from the mechanism that can inform how the government should engage?
Mr. Benedict, I have a similar question for you. I’ve worked in this field for a very long time. I’m from Treaty 6 in what is now known as central Alberta. I worked at the national level. Consultation was something that we did a lot.
How can First Nations governance structures support consultation? There were traditional ways in our communities where, while we were independent, we came together as nations, groups of nations or even linguistic groups maybe once or twice a year, and we would do business and then disperse again. I think if we reached back to some of those governance structures, it might help us or inform consultation.
The follow-up question to that is: If there were somebody like me coming and asking, what is your advice to the government or to potential business partners on how they should consult with First Nations? You have said some things. They’re all individual rights holders, but how do people engage in conversations and meaningful, real consultation? If you could respond to that, it would be great. Thank you.
The Chair: Thank you. I propose that tomorrow we will send you the questions from the “blues.” You will have the exact questions from the senators, and you will have time to respond.
Thank you very much for your patience. I will repeat myself: We had amazing witnesses. Thank you. It’s probably late for us, but it was a gift to hear your truth, your expertise and message and, of course, your recommendations for this important study.
[Translation]
Thank you very much. That officially concludes this meeting.
(The committee continued in camera.)