Photo caption: Ottawa River with Victoria Island in background. Photo credit: : iStock.com/BalkansCat
Towards a Modern Treaties Implementation Review Commission
Kirk Cameron and Alastair Campbell
Today, Canada has 26 comprehensive land claims agreements in place with Indigenous Peoples; some of these agreements include self-government provisions or link to discrete self-government agreements. All are recognized and affirmed in the Constitution Act, 1982. In this article they are referred to as “modern treaties.”
In 2003 the Indigenous signatories of these agreements agreed to work together to change government policy and approaches to the implementation of modern treaties. They did not establish a legal entity for this purpose, but an informal body, with no executive or secretariat, and two co-chairs. The body was termed the Land Claims Agreements Coalition (LCAC), and it continues to operate today.
Of particular importance to advancing their members’ collective interests is the LCAC’s desire for the Government of Canada (Canada) to create an independent implementation review body to review and advise Parliament on improvements that could be made to the government’s implementation efforts. The authors provide background on the LCAC’s positions and the work undertaken to define the proposed Modern Treaties Implementation Review Commission (MTIRC).
Background: Formation of the Land Claims Agreements Coalition
In 2003, Indigenous modern treaty organizations met in Ottawa to discuss the challenges they faced relating to the effective implementation of their agreements by Canada. The challenges ranged from differing interpretations of the terms of modern treaties, to appropriate time frames for the implementation of particular provisions, to the adequacy of resources required to fully meet the obligations set out in these agreements. All faced problems stemming from a failure on Canada’s part to fully meet the terms of the constitutionally recognized agreements they had spent years negotiating. As one meeting participant put it, Indigenous people see modern treaties as marriage documents, but the government sees them as divorce arrangements.
By the end of the meeting, the participating organizations agreed that four basic changes in government policy and organization were needed to ensure that their agreements were fully implemented. The first was for Canada to recognize that agreements are with the Crown, not one government department. Secondly, Canada needed to recognize that modern treaties are living agreements, not technical contracts with narrow objectives. This means, among other things, that there must be sufficient resources provided to support the new relationships they create. Thirdly, modern treaty implementation must become the responsibility of senior federal officials. Finally, Indigenous organizations called on Canada to establish an independent implementation audit and review body, separate from the Department of Indian Affairs and Northern Development. This could be the Auditor General’s department, or a similar office reporting directly to Parliament. Annual reports will be prepared by this office, in consultation with groups with land claims agreements.1
The meeting concluded with the Indigenous organizations calling on the federal government to develop a land claims agreement implementation policy in close consultation with Indigenous modern treaty signatories. They also formed the LCAC as a working alliance, to lobby for the policy changes they had elaborated.
The response from the federal government to the LCAC was mixed. Initially, some of the four points were positively received and meetings took place over several months between LCAC representatives and officials from the federal government’s Privy Council Office (PCO), in an attempt to draft an implementation policy as advocated. But these exploratory discussions came to an end with the 2006 federal election. The PCO was reorganized by the incoming Conservative government and its Aboriginal Affairs Secretariat responsibilities were moved to the Department of Indian Affairs and Northern Development (DIAND)2. Joint work on a proposed implementation policy came to an end and LCAC made numerous attempts to restart discussions with Jim Prentice, then Minister of Indian and Northern Affairs, and Prime Minister Harper, but all were rebuffed. In December of the same year, the LCAC leadership adopted the 4-10 Declaration, reiterating and elaborating on the four points put forward in 2003, including the call for an independent review body.3
Senate Committee on Aboriginal Peoples
In the absence of LCAC dialogue with DIAND ministers and senior officials, some LCAC members approached members of Parliament and senators to raise the issue of the government’s failure to meet its modern treaty obligations. As a result of these approaches, in 2007 the Senate Committee on Aboriginal Peoples was mandated to review modern treaty implementation on the initiative of its chair, Senator Gerry St. Germain.
Among those who made presentations to the Committee were numerous LCAC members, federal officials, and the Office of the Auditor General.
The Assistant Auditor General, Ronald Campbell, testified on the challenges faced by modern treaty signatories in appropriate implementation of their agreements by Canada as follows:
First . . . Indian and Northern Affairs Canada still has not developed a strategy for implementing the Inuvialuit Final Agreement. This is similar to what we found in our 2003 audit of land claims with the Gwich’in and the Inuit: We found that Indian and Northern Affairs Canada was not effective in coordinating federal responsibilities.
Second, we found that Indian and Northern Affairs Canada does not monitor how Canada fulfills its obligations. Although the department publishes an annual implementation report, this report only lists the activities of federal participants, not the extent to which Canada’s obligations are being met. We made similar observations in our audits of 1998 and 2003, in which we noted that the department did not have a system for tracking whether obligations were met by other federal departments.
Finally, we found that the department has taken no action to monitor progress toward achieving the principles of the agreement. This mirrors what we found in our 2003 audit, where we noted that Indian and Northern Affairs Canada had focused on the letter of its obligations but that it had not taken into account the spirit and intent of the agreements.4
Testifying before the same senate committee, DIAND Deputy Minister Michael Wernick expressed support for the 4-10 Declaration, but stated that the necessary authority to establish an oversight body such as the MTIRC lay outside his department:
The machinery of government is for the Prime Minister to decide, but the idea of having somebody on the outside hold[ing] up the mirror is a good one. That can be either in the legislative branch of government, which means it has to be somewhere around the Auditor General, or it has to be in the executive part of government, which means it must be around Treasury Board. Those are the only two options I can see.5
On the basis of extensive testimony, considered within the terms of its broad mandate, the Senate Committee’s 2008 report recommended, in part:
That the Government of Canada, in collaboration with the Land Claims Agreements Coalition and its present and future members, take immediate steps to establish an independent body, through legislation, such as a Modern Treaty Commission, to oversee the implementation of comprehensive land claims agreements, including financial matters.
That the mandate of the Commission be developed jointly with the Land Claims Agreements Coalition and its members.6
No action was taken on this recommendation, and relations between the Coalition and the federal government did not significantly improve until Bernard Valcourt was appointed Minister of DIAND in February 2013. In contrast to previous ministers, Valcourt immediately engaged with the LCAC leadership, and, in 2015, announced that he had secured a Cabinet Directive on The Federal Approach to Modern Treaty Implementation, which established a Deputy Ministers’ Oversight Committee and a Modern Treaties Implementation Office.7
The LCAC leaders welcomed these as substantial measures addressing, in part, the first three of the LCAC’s four policy priorities from 2003. However, the LCAC’s fourth priority – the creation of an independent audit and review body – remained unaddressed. This proposal, as a machinery of government matter, obviously went beyond Valcourt’s authority.
In the absence of further movement in this direction, LCAC members decided that they needed to develop the idea of an independent review body in more detail.
In 2016 external research was commissioned to review and assess how various elements of eight existing Canadian institutions might be useful in the design of such an independent review body, including: The National Defence and Canadian Forces Ombudsman; the Yukon Ombudsman; the Office of the Correctional Investigator; the Parliamentary Budget Officer; the Cree-Naskapi Commission; Canada’s Commissioner of Official Languages; the Office of the Auditor General of Canada; and the Commissioner of the Environment and Sustainable Development.
For each institution, the researchers examined five features LCAC had identified as priorities: (1) a reporting relationship to ensure independence; (2) the extent of authority of the commission in relation to Canada and to the Indigenous organizations; (3) the capacity to initiate reviews of implementation issues; (4) the capacity to direct where its findings and recommendations would be received; and (5) the ability to acquire requisite information from government departments and agencies necessary for the thorough examination of implementation matters. Those aspects of each model that appeared best suited to what the LCAC wished to achieve were highlighted. There were strengths and drawbacks in each model.
Ultimately, LCAC adopted a design based on aspects of the different models it assessed, one that was closest overall to the Commissioner of the Environment and Sustainable Development. A Modern Treaties Implementation Review Commission: A Proposal to the Government of Canada by the Land Claims Agreements Coalition was forwarded to the Prime Minister, and released publicly, in November 2017.8
The proposal to Canada
The proposed Modern Treaties Implementation Review Commission would be a legislatively established independent review body, reporting to Parliament on the effectiveness of government in meeting the terms of modern treaties in Canada.
Key elements of the MTIRC proposal to Canada are outlined here.
Three fundamental objectives are identified to frame the model: credibility, effectiveness, and independence. MTIRC’s purpose is then defined as being to monitor and report to Parliament on the progress of modern treaty implementation matters, and to examine government actions required by, relating to, or in any way affecting, the implementation of modern treaties.
Structurally, the MTIRC would be an adjunct office within the Office of the Auditor General of Canada. This is important to give the commission both structure and credibility within the federal system of government, and in this regard a parallel is drawn with the Commissioner of the Environment and Sustainable Development.
The MTIRC office would be headed by a commissioner appointed by the Auditor General in consultation with modern treaty governments or organizations, following the same appointment process used in selecting the Commissioner of the Environment and Sustainable Development. This appointment process would help establish an independent, non-partisan body that is fair, credible and independent. Ensuring the timely appointment of commissioners would also be critical, and the proposal therefore calls for deadlines to be set out in legislation.
Ultimately, budgetary and administrative support would be provided by the Office of the Auditor General. This would help to reduce costs and create efficiencies that would not be realized if the commission were to be set up as a stand-alone agency.
The mandate and authority of the proposed MTIRC are outlined in the following way: the commission would initiate and conduct reviews on topics relating to the implementation of modern treaties, and self-government agreements negotiated pursuant to or in conjunction with modern treaties. The proposal also makes it clear that where a matter has no connection with a modern treaty, it would not fall within the commission’s purview. The commission would report to Parliament without government interference. The legislation creating the commission would require federal departments and agencies to provide all information requested by the commission (this is consistent with powers of the Office of the Auditor General and the Commissioner of the Environment and Sustainable Development). In addition, the legislation would enable the commission to enter into agreements with the provinces and territories to assist with the transfer of information. This is important, given that provincial and territorial governments have considerable responsibilities, along with the federal government, for meeting implementation requirements. Finally, the proposal calls for the commission to have a mechanism giving citizens covered by modern treaties the right to petition the commission, a similar instrument to that of the Commissioner of the Environment and Sustainable Development.
As noted earlier, the commission’s mandate would be supported through an Act of Parliament. The proposal asks Canada to collaborate closely with LCAC (as directed by its member organizations) in the development and subsequent review of the mandating legislation. It is common practice for consultation to occur on the development of legislation that legitimates modern treaties, and a similar approach is recommended here. This is a critical step in giving the legislation legitimacy in the eyes of the modern treaties rights-holders. It is also contemplated that the mandating legislation would require Canada to engage with modern treaty governments and organizations on future occasions if changes to the mandating legislation are contemplated.
The proposal to Canada is also clear on the limits of the commission’s mandate. Specifically, it would have no mandate to review or comment on modern treaty negotiation policies, nor would it have the authority to substitute for dispute resolution instruments set out in the treaties relating to consultation, mediation or arbitration. However, where there are concerns on the part of modern treaty signatories relating to these kinds of instruments, the commission may review and report on ways to address such concerns. As well, the commission would neither replace nor affect the mandates of other bodies such as the Office of the Auditor General itself, the Canadian Human Rights Commission, or the Cree-Naskapi Commission. Reiterating a key point in its proposed mandate, the MTIRC would have no authority in any area not involving a modern treaty. In other words, issues that relate to a specific claim by an Indigenous citizen or group or issues between Canada and a self-governing First Nation without a Modern Treaty, would not fall under the purview of the MTIRC.
It is unlikely that the MTIRC concept will advance further until after the fall 2019 federal election and the post-election government settles in to the role of governing the nation for another four years.
Despite earlier promising signs in the Senate Committee on Aboriginal Peoples and its 2008 Report to Parliament, to date there has been little if any progress on moving the concept forward. First Nations members of the LCAC advanced the case for the establishment of the MTIRC during a meeting of Modern Treaty and Self-Governing First Nations with the Prime Minister of Canada on November 1, 2017 and again on January 8, 2019. Inuit leaders also advanced the proposal through the Inuit-Crown Partnership Committee (the federal government having established different forums to deal with Inuit and First Nations on modern treaty issues). Staff from LCAC members also raised the proposal in “engagement sessions” devoted to the Recognition and Implementation of Indigenous Rights Framework (RIIRF).
Generally, there has been little or no enthusiasm for the LCAC’s proposal within the federal government. While there has been frequent cursory reference to the option of creating an independent oversight body during meetings at the leadership and officials’ levels, this has typically been phrased in broad and undefined terms. For example, an “engagement document” prepared for the RIIRF process by the Department of Crown-Indigenous Relations and Northern Affairs reads:
The independent oversight body could report directly to Parliament and be mandated to monitor and report on the Government of Canada’s progress on implementing Indigenous rights and the United Nations Declaration on the Rights of Indigenous Peoples. This body could also undertake public education activities on Indigenous rights.9
LCAC never proposed a body with such generic responsibilities, but instead an office directly charged with the review of modern treaty implementation. This is acknowledged in a subsequent RIIRF document, perhaps influenced by the fact that LCAC members attended some RIIRF engagement sessions:
Alternatively, some have recommended bodies with more narrow mandates. For instance, it has been proposed that an oversight body be established as an adjunct office within the Office of the Auditor General to monitor and report to Parliament on the progress of modern treaty implementation throughout Canada and to examine Canada’s actions affecting the implementation of modern treaties. Under this approach, additional institutions would be required to fulfill a similar oversight function for other treaties and to serve any other proposed functions.10
Here the Department of Crown-Indigenous Relations acknowledges the MTIRC to some extent. However, the LCAC proposal is to establish a review body, not an “oversight body” (a term that can be variously interpreted). Further, the issue is raised that the MTIRC proposal will require the creation of additional institutions to perform similar functions, for example in relation to the historic treaties and for other functions. LCAC developed the MTIRC proposal to deal with the particular concerns arising from the implementation of modern treaties. Other bodies for other purposes are the responsibility of the proponents, and Canada.
There has been little government support for the concept of an independent review body reporting to Parliament. Federal documents and discussions with officials suggest that Canada’s preference is to create an office within the executive, ultimately eroding the independence that would give the body the ability to speak to Canadians through Parliament. No doubt the severe criticisms of government practice and culture voiced by the late Michael Ferguson, the previous Auditor General, have made the proposal of placing the MTIRC within the Auditor General’s Office unpalatable, as it would be inside the offices of power in Ottawa.
At the time of writing, Canada is within a few month of the next federal election. It is highly unlikely that the present government will take steps to establish a modern treaty implementation review commission in the short time frame now available. Nonetheless, the LCAC members will continue to advance their proposal, and seek political support for it, with a view to ensuring its eventual establishment.◉
Kirk Cameron has worked most of his 35-year career in northern Canada, both in government and as a governance consultant. He worked extensively with the Land Claims Agreements Coalition in preparing the submission to Canada on the creation of the Modern Treaties Implementation Review Commission.
Alastair Campbell is a Senior Policy Advisor with Nunavut Tunngavik Incorporated (NTI), and he has worked for NTI since 2002, in Iqaluit and Ottawa. His NTI work has included extensive involvement with the Land Claims Agreements Coalition.
1. Redefining Relationships: Statement from the Participants, Ottawa, 14 November, 2003.
2. P.C. 2006-119, March 3, 2006.
4. Proceedings of the Standing Senate Committee on Aboriginal Peoples; Issue 1 – Evidence – Meeting of December 11, 2007.
5. Proceedings of the Standing Senate Committee on Aboriginal Peoples; Issue 3 – Evidence – Meeting of February 12, 2008.
6. Honouring the Spirit of Modern Treaties: Closing the Loopholes. Interim Report, Special Study on the implementation of comprehensive land claims agreements in Canada, Standing Senate Committee on Aboriginal Peoples, May 8, 2008, P. x.
9. Engagement Document: Working Together to Create the Foundation for the Federal Recognition and Implementation of the Inherent and Treaty Rights of Indigenous Peoples in Canada, Crown-Indigenous Relations and Northern Affairs Canada, [July 2018], P. 8. See also https://www.rcaanc-cirnac.gc.ca/eng/1536350959665/1539959903708#chp2d Overview of a Recognition and Implementation of Indigenous Rights Framework 10 October, 2018).