Indigenous and Northern Affairs Committee on March 12th, 2026

[Billy Morin, Conservative, Edmonton Northwest, AB]

Could the commissioner guarantee that you'll stay out of court? Do you anticipate that you'll be staying out of court, given the complexity of government, with 300,000-plus employees, multiple departments and this commissioner, who will have to oversee, sea to sea to sea, 20% or maybe more of Canada's land mass? Do you think you'll still be staying out of court with this position?

[Duane Gastant' Aucoin]

Teslin Tlingit Council, along with the other modern treaties, retains the right to always have litigation as an option. Maybe Teslin Tlingit Council, with how many times we've had to take Canada to court, is the canary in the mine shaft. If the commissioner office is implemented and works, and the Teslin Tlingit Council doesn't have to take Canada to court, this would be a pretty good sign that it's working.

[Billy Morin, Conservative, Edmonton Northwest, AB]

Over in B.C., there's some trouble in terms of Musqueam and Cowichan, and it's really unfortunate to see, in my opinion. I hope cooler heads prevail in that regard, because Canada and indigenous and first nations people are going to live here, and we have to find a way through it.

There is overlapping territory, and there's even overlapping territory, as I understand, when it comes to modern treaties. How would the commissioner help in terms of disputes internally amongst modern treaty and self-government agreements?

[Duane Gastant' Aucoin]

In the Yukon first nation agreement, we have clauses on processes for how to deal with overlap. The modern treaty commissioner is part of it. If there's something to do with a Yukon first nation with a treaty, then the modern treaty commissioner would help remind Canada, the Yukon and all the parties involved that this is the process we agreed to within our agreements.

[Billy Morin, Conservative, Edmonton Northwest, AB]

How come Canada hasn't taken up as many of the dispute resolution mechanisms in the treaty agreements themselves, as much as they have...? If they did, then we wouldn't need a commissioner, as you hinted at before.

[Duane Gastant' Aucoin]

If I could get into the mind of Canada, it would be terrifying. That's a question you'd have to ask them.

[Billy Morin, Conservative, Edmonton Northwest, AB]

That's all. I like the brevity. Thank you.

Thank you, Chair.

[The Chair, Liberal, Terry Sheehan]

Thank you.

Thank you to all of our witnesses for your testimony today. Chi-meegwetch. Marsi.

We're going to finish this up, so we're ending with some really good comments. Thank you to all of you.

We're going to suspend for a little bit so we can make the changeover.

[The Chair, Liberal, Terry Sheehan]

We're going to reconvene, please.

For our next segment, from the Department of Crown-Indigenous Relations and Northern Affairs, we have Sean Daley, manager, modern treaty and self-government policy; Justine Gilbert, director, modern treaty management, British Columbia, by video conference; and Bruce Hamilton, general counsel, Department of Justice.

We're doing clause-by-clause.

Pursuant to Standing Order 75(1), consideration of clause 1, short title and preamble, will be postponed. I would like to ask our committee members how they would like to proceed. We have clauses 1 through 41. We can, with consent, group them all together. If you wish to make a comment or you have a question on any of those numbers, you can identify that to me, and we can do that.

Do I have consent to group them all together and to proceed that way, or would you like to do it in bunches?

[Jamie Schmale, Conservative, Haliburton—Kawartha Lakes, ON]

Let's do it in bunches.

I have a few questions.

[The Chair, Liberal, Terry Sheehan]

Okay, could we have groups of 10?

[Jamie Schmale, Conservative, Haliburton—Kawartha Lakes, ON]

Yes, something like that.

[The Chair, Liberal, Terry Sheehan]

We'll do it that way. There will be about four groupings. Very good.

As the name indicates, this is an examination of all the clauses in the order in which they appear in the bill. I will call out, in groups of 10, each clause, and then we can proceed that way.

(On clauses 2 to 10)

MP Schmale, you had your hand up first.

[Jamie Schmale, Conservative, Haliburton—Kawartha Lakes, ON]

I have a quick question for the officials.

What we're talking about and what we heard in testimony.... We want to know how the mechanics are going to work based on this legislation, to the best of your knowledge. The panel just before.... If this passes, the office of the commissioner for modern treaty implementation, this individual and that office, is going to have to get up to speed on everything going on.

There's a lot going on in the north and all of that stuff. Under the current allotted projected budget, how is the office going to focus on the pending issues requiring priority and all the other stuff happening at the same time? How is this going to be separate from an Auditor General report? If you're focusing over here, and you still have things moving over there, you'll finish up here and move over there. It's the same way with the Auditor General reports.

How would this be different?

[Justine Gilbert, Director, Modern Treaty Management, British Columbia, Department of Crown-Indigenous Relations and Northern Affairs]

I'll start with some opening remarks, and then I can turn to my colleague, Sean Daley.

In regard to the difference between the Auditor General and the proposed concept of the commissioner that you have before you, a really important point is that, first, the commissioner is empowered not just to do performance audits—which are a very important review mechanism—but also to do more deep dive reviews in order to really examine the thinking behind policy, legislation or program intentions of the Government of Canada, as well as to shine a light on what may be working or not working in that case.

The Auditor General has a very broad mandate and covers the entirety of the Government of Canada. This commissioner will be focused on looking at modern treaties. The Auditor General has been quite good. There have been three very intensive studies on three of our modern treaties by the Auditor General.

The independence of the commissioner relates to how many reviews will be done, but we will have a commissioner focused, each year, on looking at the landscape of implementation, whether it's deep diving on an individual treaty or looking at broader, more systemic issues that may cut across various modern treaties.

For these various components, the modern treaty commissioner can really add to the landscape of accountability for the Government of Canada.

Thank you.

[Jamie Schmale, Conservative, Haliburton—Kawartha Lakes, ON]

My question still stands, though. You talked about deep dives, and I get that. That's cool. However, there are only so many resources, so many dollars spent and so much time for deep dives into that. If we're deep diving over here, we still have these problems over there. Once you've done a deep dive there, you're going to move over here, and something else is going to pop up over there. We've had many decades of this going on.

That's kind of what the Auditor General does. They're going with defence over there, they're doing housing, and then they're doing first nations. They're bouncing around too. I agree that this commissioner could probably have a bit more time focusing in, but at the same time, I'm failing to see a difference. To me, it's going to turn into the Auditor General...where we're just bouncing around.

Help me piece this together.

[Justine Gilbert]

Yes, for sure.

It's important to understand that the commissioner is going to be part of an ecosystem of oversight and accountability within the Government of Canada. There are many other components and important tools, and the commissioner is one of many.

For example, in “Canada's Collaborative Modern Treaty Implementation Policy”, section 5 speaks to the responsibilities of deputy heads to consult with modern treaty partners in the development of policy, programs or legislation; to embrace a whole-of-government approach to the implementation of modern treaties; to live up to “the honour of the Crown”; and not to do the bare legal minimum when it comes to implementation.

There is also section 8, which lists a number of different forward-looking tools that Canada is currently codeveloping with modern treaty partners, such as reinvigorating the “Cabinet Directive” for the implementation of modern treaty policy.

We also have tools such as the deputy minister's committee for the implementation of modern treaties, which is a forum for modern treaty partners to come and speak to deputy ministers.

Related to that, in annex A of the policy, there is the “Intergovernmental Leaders' Forum”, which is a really important forum for the Prime Minister to come and speak to modern treaty leaders in order to have a conversation about the priorities.

To me, the commissioner office is a very important tool feeding into this broader landscape. When the Prime Minister is going to speak to the leaders of modern treaty partners, there are reports in the public domain, which the modern treaty partners have been part of the development of, and these inform the conversation with the minister; or when the modern treaty partners come and speak to the deputy minister's committee for modern treaty implementation, there are reports shining light on a specific problem.

For me, it's important to look at the broader ecosystem of what oversight and accountability are. This is a really important tool that adds to this, providing public accountability and, most importantly, bringing Parliament into the conversation. It is a key piece that we're currently missing.

[Jamie Schmale, Conservative, Haliburton—Kawartha Lakes, ON]

Okay. I think we're part of the conversation with the Auditor General. It's whether or not the government wants to act or do anything about it. I guess reports are okay, but they often get shelved. I was just on the Auditor General's website, and there are tons of reports that everyone's probably forgotten about, which is unfortunate.

We talk about a whole-of-government approach; this commissioner would get to look at that approach. Wouldn't it be fair to say that when the government signs on the dotted line, it would be a whole-of-government approach to implement and stand true to the word of the treaty?

[Justine Gilbert]

Yes, completely.

[Jamie Schmale, Conservative, Haliburton—Kawartha Lakes, ON]

Okay. We've had lots of Auditor General's reports. We know there's been failure. Why hasn't this been addressed right away? In year one, you could probably.... Maybe there's some leeway as things get worked out, but as you get further on, you can probably identify yourselves where the issues are within your department, or in conversations with the nations themselves. Why haven't those issues been addressed over the years, and why has it gotten to a point at which we need a treaty commissioner to produce another report?

[Justine Gilbert]

It's a great question. I think it respects the complexity that is in our modern treaties. When you look at our modern treaty documents, these are 200-page to 400-page documents articulating a very intricate relationship that modern treaty partners have signed on to with the Government of Canada. Those obligations then reach across every department in Canada.

Yes, it's complex. I think part of what this commissioner can add to is shining a light on where there may be a failure. It allows us then—going back to the ecosystem—to work with the existing tools we have in the Government of Canada, in order to start to address some of those more systemic failures that the commissioner can helpfully shine a light on and provide some recommendations for.

[Jamie Schmale, Conservative, Haliburton—Kawartha Lakes, ON]

It goes back to our original argument on this side of the House. We agree with the diagnosis, but the prescription is wrong. It will not have any meaningful effect in terms of living up to the word, other than naming and shaming—which we know may or may not work, based on the Auditor General's reports. How many reports have we had on the failings of Indigenous Services Canada? There have been many, and then follow-up reports on those. We did many studies that show little to no improvement in education, such as graduation rates among indigenous students. The list goes on and on.

The failures must be known by now. The failures are out there. I'm sure the departments managing these programs know, themselves, where the failures are. You have to talk to some of the leaders. I'm sure they do. I know you can't put this in legislation, but consequences to failure will not make any change, other than a little naming and shaming. A week or two later, it's out of the headlines and people have moved on. There is an opportunity to do more and to have some real teeth to this.

I understand why the treaty partners want this. I absolutely do. I know they've been hit with decades' worth of failure. I understand why they want this fixed. At least this is a step forward in this, but I do not think this has the right mechanisms in place to make some meaningful change.

The structure of government is the main issue. Otherwise, as governments change and political parties come in and out, the politicians overseeing departments would have some say and tell them, “Hey, start lining up with the word of the treaty, and start living up to your signature.” They probably have. Maybe they have. The structure of the government and the mechanisms.... It keeps chugging along and nothing changes. In this equation, other than people going in and out of various departments, the structure is still the same.

The departments still function. Many have gotten bigger and more bloated. I don't think the structure has any desire to change, or we would have seen some changes. One Auditor General's report talks about many ways to fix the on-reserve housing issue. It talks about education. The leaders themselves have talked about it. The treaty partners have said, “You know, we have lots of ideas, but you won't listen.”

The prescription has to do more with the structure itself. Government is too big, and it's gotten set in its ways over decades and decades of functioning so that there will not be meaningful change.

I don't think this is a question for you. It's more of a rant from me, but thank you for listening.

[The Chair, Liberal, Terry Sheehan]

Thank you very much.

I see that Lori has her hand up online.

Lori, go ahead, please. We're doing clause 2 through clause 10.

[Lori Idlout, Liberal, Nunavut, NU]

Okay. Thank you so much.

I want to use the same analogy Jamie shared about what the problems are in our current system and ask Justine whether this is the analogy we need to help show why the commissioner's role is so important.

Jamie is saying, for example, that the prescription is wrong for trying to make sure reconciliation is being honoured. I wonder if, based on his analysis of decades and decades of things not being corrected, this was because the prescriptions used have been alternative methods and not the correct one. I wonder if, using that analogy, we are moving in a direction in which the commissioner is the more accurate prescription—one who can make sure the modern treaties are being upheld, as an independent commissioner does not have affiliations to parties and doesn't have affiliations, necessarily, that are not only public in nature but....

I appreciate the Attorney General. I have absolutely nothing against the Attorney General, but they have a much broader role in monitoring. Given that this commissioner will have to be a specialist, maybe this is indeed the more correct prescription to help make sure reconciliation is being monitored, given the independence and the objectives of the commissioner's role.

[Justine Gilbert]

You highlight the importance exactly, and I would add to your comments. There is a level of optimism felt with this commissioner because of the fact that it was codeveloped with modern treaty partners. That's a key point to emphasize. This is not a concept that the federal bureaucracy itself thinks is important. This is a tool that, for over two decades, modern treaty partners have been advocating for. It is a tool for which the federal government sat down and codeveloped every clause of the bill before you today. It is a law that the modern treaty partners themselves feel will substantively change their relationship and address the frustrations they see, feel and live with regard to the implementation of their treaties.

To me, the codeveloped nature—the fact that modern treaty partners are supportive and have developed this bill with Canada—is a key component to focus on in trying to understand how this commissioner will change the landscape of the implementation of treaties.

Thank you.