Commissioner for Modern Treaty Implementation Bill

Moved second reading of Bill C-10, An Act respecting the Commissioner for Modern Treaty Implementation.

He said: Honourable senators, I rise as the Senate sponsor of Bill C-10, the commissioner for modern treaty implementation act. I support this bill because Canada needs a sustained, independent assessment of whether its federal institutions are honouring the obligations they have undertaken in modern treaties.

The House of Commons passed this bill on September 21, and it was received for first reading in this chamber on September 28. Bill C-10 would create an independent agent of Parliament, supported by a dedicated office, to review and audit federal implementation of modern treaties and report findings and recommendations to Parliament. Its immediate purpose is institutional accountability. To understand the importance of that purpose, however, we need to understand the place of treaties that have been made in Canada.

I come to this discussion as a senator, a former judge, a former treaty commissioner and a student of our constitutional and human rights traditions. Much of my professional life has been spent trying to understand what treaties mean and what it means to honour them. Treaties are complex, but when I spoke to Canadians about treaties during my tenure as a treaty commissioner, despite the complexity of treaties, there was a simple question that always came up. The question was, “Is there hope?” People wanted to know whether there was hope for a better relationship and a better partnership between Canada and Indigenous Peoples. They wanted to know whether communities could achieve greater self-sufficiency and share in this country’s prosperity, peace and opportunities.

My answer was that there is hope and that an important source of that hope lies in the treaty relationship itself.

Today, I want to draw an arrow from historical treaty making to modern treaties and from those treaties to the responsibility before this chamber. That arrow connects the promises that helped shape Canada with the institutions we need to honour those promises today. It also reminds us that treaty making remains part of our national life.

Treaty making did not begin with Confederation. Indigenous Nations had their own laws, systems of governance, diplomatic practices and traditions of alliance building long before Europeans arrived in Canada. They knew how to establish relationships with other peoples, negotiate reciprocal commitments and maintain those relationships over time.

Europeans brought their own diplomatic traditions. The treaties that followed arose from the meeting of peoples with different languages, interests and understandings.

At its simplest, a treaty is an agreement between peoples to undertake commitments to one another. In the Canadian context, treaties between Indigenous Peoples and the Crown helped establish how peoples would live together, how lands and resources would be used, and what each party could expect from the other. Their legal significance reaches beyond that of an ordinary contract. They create solemn obligations and enduring relationships.

The Royal Proclamation of 1763 is an important part of that history. It was issued by King George III and recognized that Indigenous lands within its framework could not simply be occupied or acquired by private purchasers. This was causing a lot of trouble in the New England states. The king didn’t want to have a free-standing army at his beck and call in British North America. So, this document established a process under which the Crown, through a public meeting with the Indigenous Peoples concerned, could acquire lands they were willing to make available. It’s a Magna Carta for Indigenous Peoples because it recognized Indigenous Peoples as nations.

Indigenous rights and Indigenous diplomacy already existed; the proclamation acknowledged interests that the Crown was bound to respect.

As Canada developed, treaty making became central to its expansion. After Confederation and the transfer of Rupert’s Land to Canada in 1870, which Canada bought for £300,000, the new Dominion sought to, first, secure its position across an immense territory; second, establish sovereignty against the threat of American expansionism; and, third, enable settlement and development, primarily to avoid conflict.

Between 1871 and 1921, the Crown negotiated the 11 numbered treaties in Canada. Those agreements helped provide the foundations for settlement, transportation and economic development across much of the West and the North. Treaties were a condition precedent to implementing Sir John A. Macdonald’s national policy in 1873. The country’s development depended on relationships with peoples who already occupied and governed these lands. The commitments made to them were part of the arrangements through which Canada took shape. They remain part of the country we have inherited.

First Nations leaders sought means to sustain their communities. That was the purpose of treaty making from a First Nations perspective: to protect access to livelihoods and to secure opportunities for their children. First Nations wanted education for their children and the tools to integrate into the new economy.

The treaties brought benefits to the newcomers as well as obligations to the Crown. Communities, farms, businesses and public institutions grew in treaty territories, and later generations inherited those benefits.

Treaties are a bridge to the future. In 1998, the Government of Canada and the Federation of Sovereign Indigenous Nations agreed to 16 common principles that underlie the treaty relationship. They include mutual respect, mutual benefit and sovereignty of treaty. The treaty-making process contains within it the treaty principle of maintaining the honour of the Crown and the honour of treaty First Nations in maintaining the treaty relationship. Equally important was the conduct and behaviour of the parties to honour and respect the commitments made in treaties.

The relationship between the treaty First Nations and the Crown is one in which the parties have both benefits and responsibilities with respect to one another. The treaties created mutual obligations that were to be respected by the parties. To put this another way, treaties establish the requirement for political and economic certainty. These principles clarified then, as they state now, that we are all treaty people in this country.

When I said that we are all treaty people, I meant that the treaty relationship concerns the wider society as well as the Indigenous signatories. The rights held by particular treaty peoples are distinct. The responsibility to understand why the Crown must honour its commitments is shared by all Canadians. We should, therefore, be careful when treaty obligations are described as special favours, discretionary assistance or matters at the margins of public policy. The Crown made commitments in the course of building this country, and the numbered treaties were, in fact, the building blocks of Western and Northern Canada.

The fact that the benefits of an agreement have become familiar to one party does not make its obligations to the other party less important. Consider Alberta and Saskatchewan. When these provinces were created in 1905, major treaty relationships were already in place. Provincial boundaries did not create those relationships, and the establishment of provincial governments did not erase the Crown’s commitments. Every square metre of Manitoba, Saskatchewan and Alberta is covered by treaty.

That history has a direct bearing on any discussion about rights and the foundation of our country and on issues that are being discussed today, including modern treaties. The treaties and the rights of Indigenous Peoples cannot simply be set aside. Treaty rights are part of the constitutional reality that must be addressed. Their significance does not depend on their popularity in a referendum.

The promise of the enduring relationship is expressed in language now familiar to many Canadians. The numbered treaties were meant to last “. . . as long as the sun shines, the grass grows and the rivers flow.” When treaty commissioner Alexander Morris chose those words, he did so very much on purpose. He was acknowledging the cultures and understandings of the Indigenous Peoples with whom he was negotiating. He signified that those treaties and the relationships would last, in effect, in perpetuity. They weren’t quick land sale transactions. Such words conveyed a relationship intended to extend well beyond the negotiators and their own lifetimes. Children born and unborn were part of the promise. The Crown’s commitments were meant to survive the changes of office-holders and governments.

The honour of the Crown has long guided my thinking about the treaty relationship. It is a constitutional principle with legal consequences, and it speaks to fairness, integrity and good faith in the Crown’s dealings with Indigenous Peoples. The duties it gives rise to depend on the circumstances, but its demand in treaty implementation is real: The Crown must attend diligently to the promises it has made.

Let me talk about the distance between the promise and the practice. Honourable senators, we must also acknowledge, honestly and without defensiveness, that the treaty relationship too often failed to find its rightful place in the Canadian state. Paternalistic and assimilationist policies must not be allowed to displace the relationship to which Indigenous leaders had agreed.

With respect to understanding and a shared future, treaties can be blueprints for harmony and frameworks for answering how peoples live together, share opportunities and sustain relationships. The commitments have to be understood in their own historical and legal contexts, but the need for a respectful partnership remains a pressing concern.

The treaty relationship is one in which the parties expect to resolve differences through mutual discussion and decision. That is a part of the agreement that was made in 1998 by Canada and the Federation of Sovereign Indigenous Nations.

A country that benefits from treaty relationships must also accept responsibility for sustaining them and find ways of measuring their successes and weaknesses. Why? Because the treaty relationship is part of the bedrock of the Constitution.

With respect to constitutional recognition and modern treaties, treaties cannot be treated as ordinary policy commitments that a government may disregard when other priorities arise. Section 35 of the Constitution also expressly includes rights that exist through land claims agreements or may be acquired through such other agreements. Our Constitution, therefore, recognizes treaty making as an ongoing means of establishing rights and relationships. It protects the rights arising from modern treaties as well as those from historical treaties.

The modern treaty era developed in the early 1970s. In 1973, the Supreme Court’s decision in the Calder case recognized that Aboriginal title could exist as a legal right independent of a Crown grant. That decision helped prompt a federal policy for negotiating outstanding comprehensive land claims. The James Bay and Northern Quebec Agreement, signed in 1975, is recognized as Canada’s first modern treaty.

Modern treaties have since established detailed arrangements with Indigenous Peoples across the country. They can address land ownership, harvesting rights, resource management, financial arrangements, governance and self-government agreements. Their negotiated institutions can give practical form both to self-determination and to relationships within Canada’s constitutional framework.

Modern agreements are generally more detailed, negotiated with legal and technical assistance and supported by specific implementation and dispute-resolution arrangements. Their carefully negotiated texts carry particular weight in interpretation. They are agreements in their own right, with their own partners and objectives.

With respect to moving from treaty promises to implementation, this brings us to Bill C-10. The bill is directed at the federal implementation of modern treaties. It does not create a commissioner for historical treaties, and we should be clear about the scope of this new commission.

The history I have outlined explains why purpose matters. It shows why a promise that helped establish an enduring relationship must be carried into the machinery of government.

Modern treaties are living instruments of governance and self-determination. Their value is tested when a community exercises a right, when a negotiated institution makes a decision and when federal institutions must work together in concert to fulfill their commitments. A treaty partner must live with the government’s overall performance, even when responsibility is divided among departments and agencies.

There is, in my view, a compelling case for improving that performance. As a Treaty Commissioner, I worked to help parties understand one another and develop common understandings.

The commissioner proposed in Bill C-10 would have a different mandate: principally, to make independent reviews, undertake performance auditing and perform parliamentary reporting on federal implementation. That work can help us see whether Canada is living up to its modern treaty promises.

With respect to the implementation gap, Indigenous modern treaty partners have sought independent oversight of federal implementation for more than two decades.

The 2023 Collaborative Modern Treaty Implementation Policy, developed by the Government of Canada in concert with modern treaty partners, recognized the need for an independent, credible, effective and sustainable mechanism to hold the federal government accountable to Parliament. Bill C-10 is a legislative response to that commitment. Modern treaty nations have made clear that this is a practical, day-to-day matter of governance, economic opportunity and community well-being. This work is long overdue.

The bill was shaped through co-development with Indigenous modern treaty partners and the federal government. Their first-hand knowledge of implementation informed the design that we see in this bill. That history matters. It also does not relieve this chamber of its duty to scrutinize the text.

It means that we should listen closely to the people whose agreements are at issue and take care before altering a design the federal government and the modern treaty partners have co-developed.

As senators, we must approach the bill with both openness and rigour. We should ask whether it will improve outcomes or chiefly improve visibility; whether its mechanisms are sufficient; how they will work in practice; and how they will be experienced by the nations whose treaties Canada is bound to honour.

The evidence in the House of Commons revealed substantial agreement that implementation problems are very real and need a practical solution.

Bill C-10 would establish a commissioner for modern treaty implementation and an office to support the commissioner. The commissioner would be an independent agent of Parliament, similar to the institutional role of the Auditor General or the Privacy Commissioner. That independence is essential to ensure that oversight is free from political direction and findings are impartial, credible and transparent. Each of those offices has its own statutory mandate and powers.

Under this bill, the commissioner would assess the activities of the federal government institutions relating to modern treaties. The statutory definition covers section 35 treaties entered into by the federal Crown and Indigenous Peoples that came into force after 1974 and are, therefore, modern treaties.

The bill also includes related implementation agreements, including associated self-government agreements, within its implementation mandate.

The commissioner’s mandate has three linked objectives: first, to assess whether federal activities strengthen relationships with Indigenous modern treaty partners; second, to fulfill Canada’s treaty obligations and objectives, interpreted broadly and purposively; and third, to uphold the honour of the Crown through timely and effective implementation.

These are the bill’s stated standards for assessment, not a new tribunal’s power to decide treaty disputes among treaty parties.

The commissioner could initiate reviews and performance audits of federal activities, including matters referred by a minister or an Indigenous modern treaty partner. The commissioner would set priorities and methods independently. For a review, the commissioner must engage relevant treaty partners when determining its terms, procedures and methodology. Performance audits must follow generally accepted auditing standards.

The information power is substantial. Data gathering is essential to measurement. The commissioner would be entitled to relevant information from federal institutions and could require information, reports and explanations considered necessary for the mandate. Security and confidentiality rules govern its use.

That power can help reveal why an obligation has stalled across several departments. It has a power to obtain and examine information; it is not a power to order a department to implement a recommendation.

Why does the status of an independent agent of Parliament matter?