New independent watchdog would assess & report how Ottawa carries out its modern treaty obligations

Law360 Canada (May 2, 2024, 4:07 PM EDT) -- Ottawa says it will create an independent oversight body, led by a new “Commissioner for Modern Treaty Implementation” who reports to Parliament and whose role will be “to work to hold the Government of Canada accountable for its modern treaty obligations and advance key priorities.”

The minority Liberal government describes its planned creation of the new post as “a major milestone and transformative shift in the Crown-Indigenous Modern Treaty relationship.”

(According to the federal Department of Justice, modern treaties are constitutionally protected agreements that form part of the constitutional framework of Canada “and represent a distinct expression of reconciliation. To date, twenty-six Modern Treaties have been concluded between the Crown and Indigenous peoples, covering over 40 per cent of Canada's land mass.”)

The proposed commissioner will be an independent “agent” of Parliament (there are nine agents or officers of Parliament currently, such as the auditor general and the privacy commissioner).

The commissioner’s role will be to “help ensure the federal government is held accountable for living up to the commitments in modern treaties and, more importantly, the nation-to-nation, Inuit-Crown, and government relationships they embody,” a media release from the Prime Minister’s Office (PMO) said.

The news was announced on May 2, 2024, in Ottawa at the second meeting of the Intergovernmental Leaders’ Forum, a body that includes the prime minister, the justice minister and half a dozen other Cabinet ministers, along with leaders from 30 modern treaty holders and self-governing Indigenous governments.

“To honour our agreements with Indigenous peoples, we need to ensure that trust, transparency, and accountability remain at the heart of our efforts to build renewed nation-to-nation, Inuit-Crown, and government-to-government relationships,” Prime Minister Justin Trudeau said in a statement. “By implementing our commitments, we’re taking an important step on the path of reconciliation with Indigenous peoples in Canada.”

Added the federal minister of Crown-Indigenous Relations, Toronto lawyer Gary Anandasangaree, “Modern treaties and self-government agreements are delivering real results for communities — I have seen that power firsthand. But Canada still has work to do to live up to our promises. The creation of a new Commissioner for Modern Treaty Implementation as an agent of Parliament will hopefully be a transformational shift toward a future where partners can be assured Canada will fulfill all of our treaty obligations, in the spirit of reconciliation.”

The government said, when passed, the federal budget that was unveiled on April 16, 2024, will provide $10.6 million over four years to support the commissioner’s functions and create the new office.

According to the PMO, the proposed Commissioner for Modern Treaty Implementation would:

• “conduct independent and expert oversight of any activity carried out by the Government of Canada that relates to the implementation of modern treaties;
• “seek to ensure the timely and effective implementation of modern treaties;
• “report to Parliament to hold the Government of Canada accountable for its modern treaty obligations;
• “be independent, objective, and impartial in the discharge of their mandate, and have expert knowledge of modern treaties;
• “have the authority to require departments to provide the information necessary to carry out its mandate; and
• “commit to uphold the spirit and intent of the agreements.”

The PMO said the commissioner’s role was “co-developed with modern treaty partners to ensure independent, credible, effective, and sustainable oversight of modern treaty implementation, and hold the federal government accountable to Parliament for modern treaty objectives, obligations, and relationships.”

Consultation with Indigenous modern treaty partners will be “an integral part of the legislative and appointment process,” to create the new post, the government said, since the commissioner must hold their confidence.

The PMO said that Indigenous modern treaty partners have been calling for more than two decades for improved independent oversight to hold the federal government accountable for its obligations under modern treaties.

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