Bill C-77: An Act respecting the Commissioner for Modern Treaty Implementation

Short Title Short title 1 This Act may be cited as the Commissioner for Modern Treaty Implementation Act . Interpretation Definitions 2 The following definitions apply in this Act. Commissioner  means the Commissioner for Modern Treaty Implementation appointed under section 6 . ( commissaire ) government institution  means any entity named in Schedule I, I.1, II or III to the Financial Administration Act . ( institution fédérale ) Indigenous modern treaty partner  means an Indigenous entity who is named in the schedule. ( partenaire autochtone à un traité moderne ) Indigenous peoples  has the meaning assigned by the definition aboriginal peoples of Canada in subsection 35(2) of the Constitution Act, 1982 .  ( peuples autochtones ) Minister  means the Minister of Crown-Indigenous Relations or any other member of the King’s Privy Council for Canada who may be designated under section 4 . ( ministre ) modern treaty  means a treaty, as referred to in section 35 of the Constitution Act, 1982 , entered into by His Majesty in Right of Canada and an Indigenous people and that comes into force after 1974, as amended from time to time in accordance with its provisions. ( traité moderne ) Office  means the Office of the Commissioner for Modern Treaty Implementation established under section 18 . ( Commissariat ) Interpretation — related agreements 3 For the purposes of this Act, a reference to the implementation of a modern treaty is to be interpreted as also referring to the implementation of any agreement related to the implementation of the modern treaty, including any associated self-government agreement. Designation Designation of Minister 4 The Governor in Council may, by order, designate a member of the King’s Privy Council for Canada as the Minister for the purposes of this Act. Consultations — Legislative Proposals of the Government Amendments to this Act 5 (1) Except as provided in subsection (2), the Minister must consult with Indigenous modern treaty partners with respect to any legislative proposal of the Government of Canada to amend this Act. Amendments to schedule (2) In the case of an amendment to the schedule, other than an amendment made by order under section 34 , the Minister must consult with (a) in the case of replacing or deleting the name of an Indigenous modern treaty partner, that Indigenous modern treaty partner; or (b) in the case of adding the name of an Indigenous entity who has entered into a modern treaty or who has been designated by an Indigenous entity who has entered into a modern treaty, the Indigenous entity to be named in the schedule. Commissioner for Modern Treaty Implementation Appointment 6 (1) The Governor in Council must, on the recommendation of the Minister made after the Minister has consulted with Indigenous modern treaty partners, appoint a Commissioner for Modern Treaty Implementation, by commission under the Great Seal, after (a) consultation with the Leader of the Government in the Senate or Government Representative in the Senate, the Leader of the Opposition in the Senate, the leader or facilitator of every other recognized party or parliamentary group in the Senate and the leader of every recognized party in the House of Commons; and (b) approval of the appointment by resolution of the Senate and House of Commons. Tenure and removal (2) Subject to the other provisions of this section, the Commissioner holds office during good behaviour for a term not exceeding seven years but may be removed by the Governor in Council for cause at any time on address of the Senate and House of Commons. Reappointment (3) The Commissioner is eligible to be reappointed to that office for one additional term. Interim appointment (4) In the event of the absence or incapacity of the Commissioner, or if that office is vacant, the Governor in Council may appoint any qualified person to hold that office in the interim for a term not exceeding six months, and that person, while holding office, is to be paid the salary or other remuneration and expenses that are fixed by the Governor in Council. Knowledge and experience (5) The Governor in Council must take into consideration, in appointing any person as the Commissioner or the interim Commissioner, the person’s knowledge and experience in relation to modern treaties or agreements referred to in section 3 . Rank, powers and duties generally 7 (1) The Commissioner ranks as, and has all the powers of, a deputy head of a department. They must engage exclusively in the duties of the office of the Commissioner under this Act or any other Act of Parliament and must not hold any other office under His Majesty in Right of Canada for reward or engage in any other employment for reward. Salary and expenses (2) The Commissioner is to be paid the salary or other remuneration that is fixed by the Governor in Council and is entitled to be paid reasonable travel and living expenses incurred while absent from their ordinary place of work in the course of performing their duties under this Act or any other Act of Parliament. Other benefits (3) The Commissioner is deemed to be an employee for the purposes of the Government Employees Compensation Act and to be employed in the federal public administration for the purposes of any regulations made under section 9 of the Aeronautics Act . Conflict of interest (4) The Commissioner must not take part in any matter that involves the Office and that would place them in a conflict of interest, but they are not in a conflict of interest merely because they are a citizen, member, participant or beneficiary referred to in a modern treaty or agreement referred to in section 3 or a person enrolled under such a treaty or agreement. Mandate and Powers, Duties and Functions of the Commissioner Mandate 8 The Commissioner must independently exercise their powers and perform their duties and functions set out in this Act or any other Act of Parliament for the purpose of assessing whether the activities of any government institution related to the implementation of modern treaties are consistent with the objectives of (a) strengthening the relationships between the Government of Canada and Indigenous modern treaty partners; (b) fulfilling the Government of Canada’s obligations under, and achieving the objectives of, modern treaties, these obligations and objectives being interpreted in a broad and purposive manner; and (c) upholding the honour of the Crown in respect of the timely and effective implementation of modern treaties. Reviews and performance audits 9 (1) The Commissioner may conduct, in respect of any activity of any government institution relating to the implementation of modern treaties, any review or performance audit that the Commissioner considers appropriate. The Commissioner may also conduct a review or performance audit in respect of such an activity when the matter is referred to the Commissioner by the Minister, any other minister or an Indigenous modern treaty partner. Reviews and performance audits provided for in a modern treaty (2) In the case of a modern treaty, an agreement referred to in section 3 or an Act that implements a modern treaty providing for the conduct of any review or performance audit with respect to the implementation of the modern treaty, the Commissioner is not responsible for conducting that review or performance audit. For greater certainty, the Commissioner may nonetheless exercise their discretion under subsection (1) in the case of such a modern treaty, agreement or Act. Clarification (3) For greater certainty, a review or performance audit provided for in this Act is not a substitute for a dispute resolution process provided for in a modern treaty, an agreement referred to in section 3 or an Act that implements a modern treaty. Procedures and manner 10 (1) Subject to the other provisions of this Act, the Commissioner has discretion to determine the procedures to be followed and the manner in which their powers are to be exercised or their duties or functions are to be performed, including in the course of reviews and performance audits. Priorities (2) The Commissioner has discretion to set their own priorities and determine the number and frequency of reviews, performance audits and briefings that they conduct annually. Review guidelines (3) The Commissioner must develop and publish guidelines regarding the conduct of reviews. Duties of Commissioner — reviews (4) For each review, the Commissioner must, after engaging with relevant Indigenous modern treaty partners, determine the terms of the review and the procedures and methodology to be followed. Auditing standards (5) The Commissioner must conduct performance audits in accordance with the generally accepted auditing standards for performance audits, the primary source of which is the Handbook of the Chartered Professional Accountants of Canada, as amended from time to time. Report 11 (1) On completion of each review or performance audit, the Commissioner must prepare a report setting out (a) the methodology that was followed in the course of the review or performance audit; (b) their findings on whether the government institution’s activities, or any Act of Parliament or regulations made under an Act of Parliament, related to the implementation of any modern treaty are consistent with the objectives set out in paragraphs 8 (a) to (c); and (c) the recommendations that they consider appropriate with a view to achieving those objectives. Other findings and recommendations (2) The Commissioner may include in the report any finding or recommendation that they consider appropriate in respect of (a) the implementation of modern treaties by government institutions; (b) any policy of the Government of Canada relating to the implementation of modern treaties; or (c) the Commissioner’s mandate, powers, duties or functions. Draft — government institutions 12 (1) The Commissioner must provide every government institution that is the subject of a review or performance audit with a draft of the preliminary findings and recommendations relevant to the government institution and inform the government institution that it must respond in writing, within the time limit specified by the Commissioner, to those findings and recommendations. Draft — Indigenous modern treaty partners (2) The Commissioner must provide every Indigenous modern treaty partner with a draft of the preliminary findings and recommendations relevant to the Indigenous modern treaty partner and inform the Indigenous modern treaty partner that it may respond in writing, within the time limit specified by the Commissioner, to those findings and recommendations. Response of institution (3) The government institution must provide the Commissioner with a written response to the relevant preliminary findings and recommendations within the specified time limit. Inclusion in final report (4) The Commissioner must set out, in the final report referred to in section 13 , all responses that they received within the specified time limit from government institutions and Indigenous modern treaty partners. Final report 13 (1) The Commissioner must submit a final report of each review or performance audit to the Speakers of the Senate and the House of Commons. Tabling of report (2) The Speakers must table the final report in their respective Houses on any of the next 15 days on which that House is sitting after the day on which the Speaker receives the report. Copy of report (3) Once the final report is tabled, the Commissioner must provide a copy of the report to the relevant Indigenous modern treaty partners. Referral to committee (4) After it is tabled, the report stands referred to the committee of the Senate, of the House of Commons or of both Houses of Parliament that may be designated or established for the purpose of reviewing it. Briefings 14 The Commissioner may meet with any Minister or Indigenous modern treaty partner, as the Commissioner considers appropriate, or with any committee designated or established by Parliament at the committee’s request, in order to brief the Minister, Indigenous modern treaty partner or committee on any matter related to the Commissioner’s mandate or powers, duties and functions. Coordination of activities 15 To avoid unnecessary overlap or duplication of work in relation to the fulfillment of their respective mandates, the Commissioner must take all reasonable steps to coordinate their activities with those of the Office of the Auditor General of Canada and any body prescribed by regulation. Information sharing 16 The Commissioner may provide the Auditor General of Canada or any body prescribed by regulation with any information that has been received or obtained under this Act from a government institution and that is related to the fulfillment of the mandate of the Auditor General or body, subject to the provisions of any other Act of Parliament that restrict the information to which the Auditor General of Canada or body may have access. Delegation 17 The Commissioner may authorize, subject to the restrictions that the Commissioner may specify, any competent person to exercise any of the powers, or perform any of the duties or functions, of the Commissioner under this Act or any other Act of Parliament, except the power to delegate under this section and the powers, duties or functions referred to in subsections 13 (1), 28 (1) and 29 (1). Office of the Commissioner for Modern Treaty Implementation Establishment 18 The Office of the Commissioner for Modern Treaty Implementation is established for the purpose of assisting the Commissioner in the fulfillment of their mandate, the exercise of their powers and the performance of their duties and functions. Head office 19 The head office of the Office is to be at the place in Canada that is designated by the Governor in Council, on the recommendation of the Minister. Staff 20 (1) Any officers and employees that are necessary to enable the Commissioner to fulfill the mandate and exercise the powers and perform the duties and functions of the Commissioner under this Act or any other Act of Parliament are to be appointed in accordance with the Public Service Employment Act and the provisions of the Public Service Employment Act apply to those officers and employees. Technical or specialized assistance (2) The Commissioner may engage on a temporary basis the services of persons having technical or specialized knowledge of any matter relating to the work of the Commissioner in order to advise and assist the Commissioner in the fulfillment of the mandate of, or the exercise of the powers or the performance of the duties or functions of, the Commissioner under this Act or any other Act of Parliament and, with the approval of the Treasury Board, may fix and pay the salary, other remuneration and expenses of those persons. Conflict of interest (3) The officers, employees and persons having technical or specialized knowledge must not accept or hold an office or employment that is inconsistent with their duties or take part in any matter that involves the Office that would place them in a conflict of interest, but they are not in a conflict of interest merely because they are a citizen, member, participant or beneficiary referred to in a modern treaty or agreement referred to in section 3 or a person enrolled under such a treaty or agreement. Immunity No summons 21 The Commissioner, or any person acting on behalf or under the direction of the Commissioner, is not a competent or compellable witness in respect of any matter that comes to the knowledge of the Commissioner or that person in the exercise or purported exercise of their powers, or in the performance or purported performance of their duties or functions, under this Act or any other Act of Parliament. Protection from prosecution 22 No criminal or civil proceedings lie against the Commissioner, or against any person acting on behalf or under the direction of the Commissioner, for anything done, reported or said in good faith in the exercise or purported exercise of their powers, or the performance or purported performance of their duties or functions, under this Act or any other Act of Parliament. Defamation 23 No action lies in defamation with respect to (a) anything said, any information provided or any document or thing produced in good faith by or on behalf or under the direction of the Commissioner, in the exercise or purported exercise of any power, or the performance or purported performance of any duty or function, under this Act or any other Act of Parliament; or (b) any report prepared in good faith by the Commissioner in the exercise or purported exercise of any power, or the performance or purported performance of any duty or function, under this Act or any other Act of Parliament, or any fair and accurate account of the report made in good faith. Information Access to information 24 Except as provided by any other Act of Parliament that expressly refers to this section, the Commissioner is entitled, at all convenient times, to free access to information, from a government institution, that relates to the fulfillment of the mandate, the exercise of the powers or the performance of the duties or functions of the Commissioner and is also entitled to require and receive from a government institution any information, reports and explanations that the Commissioner considers necessary for that purpose. Provision of information 25 (1) The Minister and the Commissioner may enter into discussions with respect to the provision to the Commissioner, by government institutions, of information, reports and explanations that are relevant to the fulfillment of the mandate, the exercise of the powers or the performance of the duties or functions of the Commissioner. The discussions may lead to the development of a joint protocol to improve, to the extent possible, that provision of information, reports or explanations. Necessary steps — joint protocol (2) If the Commissioner is of the opinion that they have not received from a government institution the information necessary to fulfill their mandate, exercise their powers or perform their duties or functions, the Minister and the Commissioner must (a) enter into discussions with respect to the provision of that information to the Commissioner; and (b) take the necessary steps to develop a joint protocol for the provision, to the extent possible, of that information to the Commissioner. Security requirements 26 The Commissioner and every person acting on behalf or under the direction of the Commissioner who receives or obtains information under this Act or any other Act of Parliament must, with respect to access to and use of that information, satisfy any security requirements applicable to, and take any oath of secrecy required to be taken by, persons who normally have access to and use that information. Non-disclosure 27 Subject to section 16 , the Commissioner and every person acting on behalf or under the direction of the Commissioner must not disclose any personal, privileged or confidential information that comes to their knowledge in the exercise or purported exercise of their powers, or the performance or purported performance of their duties or functions, under this Act or any other Act of Parliament. Reports Annual report 28 (1) The Commissioner must, as soon as feasible after the end of each calendar year, prepare and submit to the Minister an annual report setting out (a) the activities of the Office during that year; and (b) the findings and recommendations that were set out in the reports submitted under subsection 13 (1) during that year. Tabling of report (2) The Minister must cause a copy of the annual report to be tabled before each House of Parliament on any of the next 15 days on which that House is sitting after the day on which the Minister receives it. Referral to committee (3) After it is tabled, the report stands referred to the committee of the Senate, of the House of Commons or of both Houses of Parliament that may be designated or established for the purpose of reviewing it. Special reports 29 (1) The Commissioner may, at any time, prepare and submit to the Minister a special report on any matter relating to the Commissioner’s mandate or powers, duties and functions under this Act or any other Act of Parliament that is, in the opinion of the Commissioner, of such pressing urgency or importance that it should not be deferred until the submission of the next annual report under section 28 . Tabling of report (2) The Minister must cause a copy of the special report to be tabled before each House of Parliament on any of the next 15 days on which that House is sitting after the day on which the Minister receives it. Referral to committee (3) After it is tabled, the report stands referred to the committee of the Senate, of the House of Commons or of both Houses of Parliament that may be designated or established for the purpose of reviewing it. Reviews Parliamentary review 30 (1) Within 10 years after the day on which this section comes into force and before each subsequent 10th anniversary of that day, the committee of the Senate, of the House of Commons or of both Houses of Parliament that may be designated or established for that purpose must conduct a review of this Act and of its administration and operation. Consultations (2) The committee must consult with Indigenous modern treaty partners in the course of the review. Report (3) The committee must prepare a report, and table it in the Senate, the House of Commons or both Houses of Parliament, setting out the results of the review and the committee’s findings and recommendations. Independent review 31 (1) Within five years after the day on which this section comes into force and every seven years after that, the Minister must cause to be conducted an independent review of this Act, of its administration and operation and of the activities of the Office. The review must be conducted by a competent person appointed by the Minister, or a body designated by the Minister, after consultation with Indigenous modern treaty partners. Report (2) The person or body that conducts the review must prepare and submit to the Minister a report setting out the results of the review and their findings and recommendations regarding, among other things, (a) any measures that would contribute to the fulfillment of the objectives of this Act; and (b) any changes to be made to this Act in relation to, among other things, the mandate or the powers, duties or functions of the Commissioner or the activities of the Office. Consultations (3) The person or body that conducts the review must consult with Indigenous modern treaty partners in the course of the review, including on the findings and recommendations that should be included in the report. Tabling of report (4) The Minister must cause a copy of the report to be tabled before each House of Parliament on any of the first 15 days on which that House is sitting after the day on which the Minister receives it. Referral to committee (5) After it is tabled, the report stands referred to the committee of the Senate, of the House of Commons or of both Houses of Parliament that may be designated or established for the purpose of reviewing it. Regulations Regulation-making powers 32 The Governor in Council may make regulations (a) prescribing any body for the purposes of sections 15 and 16 ; and (b) generally for carrying out the purposes and provisions of this Act. Collaboration 33 The Governor in Council must ensure that the Commissioner and Indigenous modern treaty partners are afforded a meaningful opportunity to collaborate in policy development leading to the making of regulations under section 32 . General Amendment to schedule — replacement or deletion 34 (1) The Governor in Council may, by order, amend the schedule by replacing or deleting the name of an Indigenous modern treaty partner, on the recommendation of the Minister after consultation by the Minister with the Indigenous modern treaty partner to whom the amendment relates. Addition to schedule (2) The Governor in Council may, by order, amend the schedule by adding the name of any Indigenous entity who has entered into a modern treaty or who has been designated by an Indigenous entity who has entered into a modern treaty, on the recommendation of the Minister after consultation by the Minister with the Indigenous entity to be named in the schedule. Transitional Provisions First annual report — six or more months 35 (1) If a period of six or more months has elapsed between the day on which this section comes into force and the end of the calendar year in which this section comes into force, the Commissioner must prepare and submit to the Minister, as soon as feasible after the end of that calendar year, a first report setting out the information referred to in paragraphs 28 (1)(a) and (b) for that period. First annual report — fewer than six months (2) If the elapsed period is fewer than six months, the Commissioner must prepare and submit to the Minister, as soon as feasible after the end of the calendar year following that period, a first report setting out the information referred to in paragraphs 28 (1)(a) and (b) for that period and that calendar year. Consequential Amendments R.S., c. A- 1 Access to Information Act 36 Schedule I to the Access to Information Act is amended by adding the following in alphabetical order under the heading “Other Government Institutions”: Office of the Commissioner for Modern Treaty Implementation Commissariat à la mise en oeuvre des traités modernes R.S., c. F- 11 Financial Administration Act 37 Schedule I.1 to the Financial Administration Act is amended by adding, in alphabetical order in column I, a reference to Office of the Commissioner for Modern Treaty Implementation Commissariat à la mise en oeuvre des traités modernes and the corresponding reference in column II to “Minister of Crown-Indigenous Relations”. 38 Schedule IV to the Act is amended by adding the following in alphabetical order: Office of the Commissioner for Modern Treaty Implementation Commissariat à la mise en oeuvre des traités modernes  R.S., c. P- 21 Privacy Act 39 The schedule to the Privacy Act is amended by adding the following in alphabetical order under the heading “Other Government Institutions”: Office of the Commissioner for Modern Treaty Implementation Commissariat à la mise en oeuvre des traités modernes R.S., c. P- 36 Public Service Superannuation Act 40 Part II of Schedule I to the Public Service Superannuation Act is amended by adding the following in alphabetical order: Commissioner for Modern Treaty Implementation and Office of the Commissioner for Modern Treaty Implementation Commissaire à la mise en oeuvre des traités modernes et Commissariat à la mise en oeuvre des traités modernes R.S., c. 31 (4th Supp.) Official Languages Act 41 Subsection 24(3) of the Official Languages Act is amended by striking out “and” at the end of paragraph (e) and by adding the following after that paragraph: (e.1) the Office of the Commissioner for Modern Treaty Implementation; and Official Languages Act Clause 41 : Relevant portion of subsection 24(3): (3) Without restricting the generality of subsection (2), the duty set out in that subsection applies in respect of