Appearance before the Standing Senate Committee on Indigenous Peoples (APPA) - Bill C-29, National Council for Reconciliation Act (October 4, 2023)

1. Scenario Note

The Standing Senate Committee on Indigenous Peoples (APPA) will meet on October 4 2023, from 6:45 p.m. to 8:45 p.m, to continue its study of Bill C–29. The Minister and departmental officials, will be appearing in person for the second hour.

2. Opening Remarks

Honourable Gary Anandasangaree Minister of Crown-Indigenous Relations
For an appearance at the Standing Senate Committee on Indigenous Peoples (APPA) on
Bill C–29, National Council for Reconciliation Act
October 4, 2023
Ottawa, ON

664 words / 5 minutes
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Kwe kwe, Ullukkut [Ood-loo-koot], Tansi, hello, bonjour.

I would like to acknowledge that Canada's Parliament is located on the unceded traditional territory of the Anishinaabeg Algonquin people.

We're here today because, for many years, Indigenous Peoples have called for a way to hold the Government of Canada to account for the role it plays in reconciliation and the search for the truth.

We're here because, in 2015, the Truth and Reconciliation Commission called for Parliament of Canada to create a national council for reconciliation, because progress on reconciliation - at all levels of government and civil society - needs to be measured if we're to advance.

This is exactly what Bill C–29 will do. If passed, it will establish a national council for reconciliation as a permanent, Indigenous-led, civil society organization.

I want to go back to the original vision of former TRC Commissioner, Dr. Wilton Littlechild, and the Interim Board – a vision based on their extensive research and public engagement on the council's mandate, governance and operations.

This vision includes a national council that lifts up all of the good work that is happening to support reconciliation, that showcases wisdom and the good paths forward, and asks what governments are doing to support.

This vision includes a national council with maximum flexibility to grow and change over time. A council that connects with all Canadians, because reconciliation is something for every person in Canada to act upon. A council that thinks beyond the implementation of the TRC's Calls to Action because reconciliation must continue, long after the Calls to Action have been addressed.

From this initial vision, the Transitional Committee for the National Council for Reconciliation further engaged Indigenous and non-Indigenous technical experts, and provided us with recommendations that led to the bill before us today.

This bill is the culmination of substantial work and many years of advocacy by Indigenous leaders, experts and communities.

Let me be clear: the purpose of this bill is to get the council set up and ensure it can achieve its mandate. The council will be in charge of where it goes from there.

Their first task will be to draft an action plan based on extensive collaboration. They will begin by consulting, listening and building relationships.

I also want to be very clear that the council will not take the place of existing relationships. Nation-to-nation, Inuit-to-Crown, and government-to-government relationships will remain. The council will be entirely different than the permanent bilateral mechanisms already in place – it will be a civil society organization that is independent from government.

But the federal government will have responsibilities to help the council carry out its mission, and that's what this bill sets out. This includes sharing information, which of course will be essential to the council's monitoring role.

It will also ensure that the council will always include First Nations, Inuit and Métis representation, and that the board will include youth, women, men and gender-diverse people, and people from all regions of Canada. The vision of the Interim Board and the Transitional Committee is that directors sit as individuals acting in the Council's best interest, not as representatives of other organizations or interests.

The purpose of this bill is not to establish funding, since it is impossible to know how much funding the council will need until it has developed its action plan. To begin, Budget 2019 invested $126.5 million in an endowment fund.

Mr. Chair, time is of the essence. This bill is designed to be a flexible framework, and it is the product of years of advocacy by Indigenous leaders, experts and communities.

I am here to take your questions and I ask for your support so the council can begin the good work that is urgently needed to advance this country towards meaningful reconciliation.

Meegwetch. Qujannamiik [Koo-ya-na-meek]. Marsee. Thank you. Merci.

3. Bill C–29

An Act to provide for the establishment of a national council for reconciliation

4. Clause-by-Clause

Clause 1

This clause indicates that the Act may be cited as the National Council for Reconciliation Act (short title).

Clause 2(1)

This clause provides the definitions that apply in this Act.

Clause 2(2)

This clause ensures that, in the event of any inconsistency between this Act and the Canada Not-for-profit Corporations Act, this Act prevails to the extent of the inconsistency.

Clause 3

This clause states that the transitional committee must send articles of incorporation and other documents to Corporations Canada, in accordance with the Canada Not-for-profit Corporations Act, to effect incorporation.

Clause 4

This clause states that this Council is not an agent of Her Majesty in right of Canada nor is it governed by the Financial Administration Act.

Clause 5

This clause provides for the Council to be deemed to be a qualified donee within the meaning of the Income Tax Act.

Clause 6

This clause describes the purpose of the Council, which is to advance reconciliation with Indigenous peoples.

Clause 7

This clause describes the various functions of the Council to carry out its purpose.

Clause 8

This clause describes how the first board of directors is selected by the Minister jointly with the Transitional Committee.

Clause 9

This clause indicates that the Council's board of directors is to be composed of a minimum of nine and a maximum of 13 directors.

Clause 10 (1)

This clause requires that the board of directors include

1. one director who may only be elected after having been nominated by the Assembly of First Nations;
2. one director who may only be elected after having been nominated by Inuit Tapiriit Kanatami;
3. one director who may only be elected after having been nominated by the Métis National Council; and
4. one director who may only be elected after having been nominated by the Native Women's Association of Canada

Clause 10 (2)

This clause indicates that, if there is a vacancy among the directors, the remaining directors may exercise all the powers of the directors if they constitute a quorum (e.g., according to the corporation's bylaws).

Clause 10 (3)

This clause indicates that the other directors are to be elected following an application process to be established by the board of directors.

Clause 11

This clause requires that at least two thirds of the directors must be Indigenous persons and that at last two directors must be residents of Yukon, the Northwest Territories or Nunavut.

Clause 12

This clause describes the representativeness and gender diversity to be included on the Council, to the extent possible, by its incorporation.

Clause 13

This clause indicates that each director must have knowledge and experience with respect to matters related to Indigenous peoples and other matters related to the Council's purpose. The Council must consult with a variety of people with relevant knowledge, expertise and experience to ensure that Indigenous views are heard.

Clause 14

This clause indicates that directors are to hold office for any term of not more than four years with a maximum of two terms, and to ensure not more than one-third of the directors' terms expire within one year's time.

Clause 15

This clause indicates that each director of the Council is to be elected by a special resolution, as defined in the Canada Not-for-profit Corporations Act.

Clause 16

This clause requires that within six months of the Council's incorporation, the Minister must develop a protocol in collaboration with the Council respecting the disclosure by the Government of Canada to the Council of information that the Council judges as relevant to its purpose and fulfilling its mission. Within six months after the end of each fiscal year, the Minister must also share with the Council information identified in Calls to Action 55 and to conduct its work.

Clause 17

This clause requires that the Council, within three months after the end of each financial year, submit to the Minister an annual report. The Minister must then table a copy of the report in Parliament within 15 days of the House sitting after the report has been received. Finally, the Prime Minister must, within 60 days of the report being tabled, respond to the matters addressed by the report that are under the jurisdiction of Parliament by publishing an annual report on the state of Indigenous peoples that outlines the Government of Canada's plans for advancing reconciliation.

Clause 18 (1) and (2)

This clause describes the Council's required financial reporting.

Clause 19

This clause describes the distribution of property in the event of the dissolution of the Council.

Clause 20

This clause indicates that the Act comes into force on a day to be fixed by order of the Governor in Council.

5. Key messages

• The Truth and Reconciliation Commission final report called "upon the Parliament of Canada, in consultation and collaboration with Indigenous peoples, to enact legislation to establish a National Council for Reconciliation".
• This legislation, if passed, would address Calls to Action 53-56. The Council would take an active role in unifying Canadians and leading action on reconciliation.
• The National Council for Reconciliation would be an independent voice in monitoring and supporting reconciliation progress in Canada.
• The Interim Board of Directors for the National Council for Reconciliation and the Transitional Committee have done extensive work to help develop the legislative framework that is reflected in Bill C–29.
• The Truth and Reconciliation Commission's vision was for a National Council for Reconciliation to serve as an oversight body that would inspire dialogue on reconciliation and monitor progress on commitments towards reconciliation. That scope and mandate is captured in the proposed Bill, which largely aligns with the Interim Board of Directors and the Transitional Committee recommendations.
• If the Bill is passed, the Council would hold the Government of Canada to account for progress on reconciliation with Indigenous Peoples through monitoring, evaluating, and reporting on reconciliation work, including the implementation of the Truth and Reconciliation Commission Calls to Action.
• If the Bill is passed, the Council's first Board of Directors would take the steps needed to set up this Indigenous-led, non-political permanent organization as a national not-for-profit organization.

6. Engagement

Q. Who has been engaged on the Bill to establish the National Council for Reconciliation and how were these engagements conducted?

A. Engagements with Indigenous and non-Indigenous people and organizations on the vision and functions of a National Council for Reconciliation were conducted by the Indigenous-led Interim Board from December 2017 to June 2018. Between December 2021 and March 2022, targeted engagement with Indigenous and non-Indigenous technical experts were conducted by the Indigenous-led Transitional Committee and focused on elements such as governance, finances, legal issues, data, and other operational topics.

7. Not-for-profit Status

Q. Why is the Council going to be established using the Canada Not-for-profit Corporations Act?

A. Both the Interim Board and Transitional Committee for the National Council for Reconciliation recommended that the Council be established as an organization independent of government. As an independent organization, they believed the Council would be able to advance reconciliation and monitor progress in the ways it sees fit.

Incorporation under the Canada Not-for-profit Corporations Act would allow the Council to become an independent legal entity. It would have a separate legal personality and be completely outside the machinery of government (i.e. not an agency, board or commission), allowing for independent action.

Another advantage of incorporation is continuity and permanence. Provisions in the Canada Not-for-profit Corporations Act ensure the continuity and permanence of the organization even as directors change. The Council's lifespan would be able to continue for an indefinite period time, provided that it continues to comply with certain requirements of the Canada Not-for-profit Corporations Act. The National Council for Reconciliation is intended to be a long-term organization promoting and advancing reconciliation.

Bill C–29 provides that the National Council for Reconciliation is not an agent of His Majesty in right of Canada and a legal framework for the Council to efficiently and effectively conduct its work. It also ensures that the composition of the Board of Directors is followed as outlined in the Bill's obligations and that the Council reports on an annual basis to Parliament. The benefit of this overall legal approach is that it would establish the Council as a multi-generation institution completely independent of Government as envisioned in the Interim Board and Transitional Committee, and in alignment with the Truth and Reconciliation Call to Action 53.

8. Establishment of the Council

Q. How would the Council's first Board of Directors be selected?

A. If the Bill is passed, the Minister of Crown-Indigenous Relations, jointly with the Transitional Committee, would appoint the first Board of Directors. Future board directors would be nominated and elected through a process to be established by the Council in accordance with the legislation.

9. Board Representation

Q. What would be the composition of the Board of the Council?

A. The Bill indicates that the Council's Board of Directors would be comprised of nine to thirteen directors, at least two thirds of whom are Indigenous. Four directors must be nominated by the Assembly of First Nations, the Inuit Tapiriit Kanatami, the Métis National Council and the Native Women's Association of Canada respectively. Additionally, the Council's Board would include representation from First Nations, Inuit, Métis, Indigenous organizations, Elders, Survivors and/or their descendants, youth, women, men, gender diverse persons and various regions in Canada, including urban, rural, and remote regions, northern representation, and Indigenous persons whose first or second language learned is French.

Q. Why was the Congress of Aboriginal Peoples not given a guaranteed seat on the Council's Board of Directors?

A. The Interim Board and Transitional Committee recommended that legislation be drafted in a manner that would serve as a framework that empowers the Council to advance reconciliation. While respecting the independence of the Council, Bill C–29 creates limited obligations, for example regarding the composition of the Board of Directors, to ensure that the Council remains true over time to the inclusive vision of the Truth and Reconciliation Commission.

Bill C–29, which is currently in the Senate for consideration, requires the Board of Directors to include one director nominated by the Assembly of First Nations, the Inuit Tapiriit Kanatami, the Métis National Council and the Native Women's Association of Canada. The intention of this section was to ensure that the Council's Board of Directors always includes First Nations, Inuit and Métis. While the Canada Not-for-profit Corporations Act, which guides the incorporation of the Council, sets out the requirements for boards of directors, these would not be sufficient to ensure that the Council's Board of Directors always includes First Nation, Inuit and Métis.

Bill C–29 requires the Board of Directors to be representative of the diversity of Indigenous Peoples in Canada. For example, the Bill requires that the board include two directors who reside in a northern territory. The board must also include Elders and survivors of residential schools and other discriminatory government policies. It also requires that the board include other Indigenous organizations. As such, the Congress of Aboriginal Peoples will be able to nominate a representative to the Council's board. As an independent organization, it will be the responsibility of the Council to determine how it will respect these obligations in the election of its board members.

10. Information Sharing and Reporting

Q. How will including the provision to develop a protocol respecting the disclosure of information to the Council support it in fulfilling its mandate?

A. The Transitional Committee recommended that a legal obligation be included in the Bill to ensure that the Council would have access to relevant information to carry out its tasks and fulfill its mandate. Bill C–29 obligates the Minister of Crown-Indigenous Relations, in collaboration with the Council, to develop a protocol respecting the disclosure of information from the Government of Canada to the Council. The Bill indicates that the Council is to determine what information is relevant to its mandate. The intention is that the protocol would coordinate and streamline the provision of information from multiple federal departments without requiring the Council to make Access to Information requests. The protocol would comply with the Privacy Act.

Q. Will the protocol respecting the disclosure of information obligate the provinces and territories to share information with the Council?

A. Provinces and territories are governed by their own access to information and privacy legislation which will impact their abilities to disclose information to the Council. The Council, as an independent organization, would not be governed by the Access to Information Act or the Privacy Act on information that it holds, which has important implications.

The Council may have interest in information in the possession of the provincial and territorial governments. The Council's first board would be responsible for developing a national action plan and setting priorities. Part of this work is expected to include engaging with a broad spectrum of organizations to learn about the current reconciliation landscape and establish relationships and partnerships to advance reconciliation. Through these discussions, the Council could negotiate with provincial, territorial and Indigenous governments and other relevant organizations regarding the sharing of information.

Given that the Bill would establish the Council as an not-for-profit corporation independent of government, the protocol is intended as an innovative approach to ensuring that the Government of Canada provides the Council with the information that it needs in order to achieve its mandate, while respecting limits established in existing legislation.

Q. How would the progress towards reconciliation be reported?

A. If the Bill passes, the Council would submit annual reports on reconciliation progress that would be tabled in Parliament by the Minister of Crown-Indigenous Relations. The Prime Minister would respond by issuing a publicly available report outlining the Government of Canada's plans for advancing reconciliation.

Q. In what ways will the Government of Canada remain accountable to the Council?

A. The spirit of Bill C–29 is to provide an innovative approach to advancing reconciliation. The Council would have a federal-level platform to report its findings and recommendations as the legislation would obligate the Minister of Crown-Indigenous Relations to table the Council's annual report in both Houses of Parliament, and the Prime Minister to formally respond to the Council's report. Bill C–29 also requires the development of a protocol regarding the disclosure of information relevant to its mandate by the Government of Canada to the Council. Establishing this requirement for a protocol through legislation is an innovative tool to hold the Government of Canada accountable for supporting the Council's needs to efficiently and effectively implement its mandate and to preserve its independence from Government.

11. Role and Jurisdiction

Q. How will the Council work with different jurisdictions?

A. The Council would serve as an independent, Indigenous-led oversight body that monitors and evaluates progress on reconciliation actions, including the implementation of the Calls to Actions, at all levels of government and throughout Canadian society. The Council would make recommendations to promote, prioritize and coordinate efforts, and would support innovative dialogues and education on Indigenous peoples' realities and histories.

Bill C–29 places obligations on the Government of Canada to develop an information sharing protocol, to table the Council's annual report in Parliament, and to publish a report on the state of Indigenous peoples in response and that outlines the Government of Canada's plans for advancing reconciliation. The Bill does not include any obligations for provincial, territorial or municipal governments. The Council will be responsible for developing relationships with the these levels of government as well as other organizations across the country.

Q. How will provinces and territories interact with the Council?

A. As the Council will be an independent organization, the Transitional Committee recommended that engagements with the provinces and territories be led by the first Board of Directors. Crown-Indigenous Relations and Northern Affairs Canada will be reaching out to provinces and territories to provide an update on work to date and to demonstrate leadership for implementing the Truth and Reconciliation Commission's Calls to Action.

12. United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)

Q. Does Bill C–29 respect the United Nations Declaration on the Rights of Indigenous Peoples?

A. Bill C–29 was reviewed and found to be consistent with the United Nations Declaration on Rights of Indigenous Peoples Act. This proposed legislation is expected to create positive outcomes for Indigenous Peoples and is not expected to negatively impact any rights.

Further, through this legislation, the Government affirms its commitment to implementing the United Nations Declaration on the Right of Indigenous Peoples as part of the preamble for Bill C–29.

13. Funding and Financial Reporting

Q. Is the National Council for Reconciliation receiving funding from the Government of Canada?

A. Budget 2019 announced a total of $126.5 million to support the establishment of the Council. This includes an investment of $125 million and $1.5 million to support its initial operations.

Q. Would the funding the Council receives from the Government of Canada be enough to support its success?

A. The Government of Canada's financial investment reflects its expectation that the Council would start off small and grow into a larger organization over time. The Council may also seek additional funding from other sources, including the Government of Canada.

Q. Would the Council be able to accept donations and issue official receipts?

A. The Bill would establish that the Council is recognized as a Qualified Donee, which can accept donations and issue official donation receipts.

14. Standing Committee on Indigenous and Northern Affairs (INAN) changes

Q. How did the work of the Standing Committee on Indigenous and Northern Affairs impact the Bill?

A. The Committee's important work as well as vital witness testimony ultimately strengthened the Bill. During clause-by-clause consideration of Bill C–29 on November 14 and 17, 2022, 41 amendments were proposed and 26 were adopted to strengthen the Bill in the areas of composition, nomination and representativeness of the Council's board, the functions of the Council, the disclosure of information from the Government of Canada to the Council and the reporting timelines for both the Council and the Government of Canada. During the Committee's study, Committee members and witnesses, including representatives from the National Indigenous Organizations and Indigenous groups, recommended amendments to strengthen the Bill. The members of the Transition Committee were also invited as witnesses and spoke to the importance of the Bill.

15. Other Bill related questions

Q. Why is there not a definition of reconciliation in Bill C–29?

A. The concept of reconciliation is multi-faceted and can change over time. It also holds different meanings to different groups of people as their lived experiences can vary. As an independent, Indigenous-led organization, the Council may choose to develop a definition of reconciliation for its purposes and one that people and organizations across Canada may choose to adopt.

During the Standing Committee on Indigenous and Northern Affairs' review of Bill C–29, discussions were held regarding the inclusion of a definition of reconciliation in legislation and measurable outcomes. No definition was included, however, an amendment was made to the functions of the Council such that it will monitor and report on progress made on measurable outcomes, including in relation to the Truth and Reconciliation Commission of Canada's Call to Action number 55.

Q. Why does the bill come into force upon a date to be determined by GIC, rather than upon Royal Assent?

A. This approach provides flexibility as the Transitional Committee will need time to incorporate the Council after the Bill receives Royal Assent. This includes the time required to select the Council's first Board of Directors as identified in the Bill's requirements for the composition of the board.

16. Moving Forward

Q. What are the next steps in establishing the National Council for Reconciliation?

A. If the Bill passes with the requirement that the Council be a not-for-profit organization, the next step would be for the the Minister of Crown-Indigenous Relations and the Transitional Committee for the National Council for Reconciliation to jointly select the first Board of Directors that would support setting up the organization. The Transitional Committee would then lead the incorporation process to apply for not-for-profit status. Providing the names of members of the first board is part of the incorporation process.

Q. Where would the Council be located?

A. The Council's first Board of Directors would determine the location of its headquarters.

Q. How does the work to support the implementation of the Missing and Murdered Indigenous Women and Girls' Calls to Justice align or impact the Council's work to monitor and report on the advancement of reconciliation?

A. On June 3, 2021, the Missing and Murdered Indigenous Women, Girls, and 2SLGBTQQIA+ People National Action Plan was released following a National inquiry on Missing and Murdered Indigenous Women and Girls. Families and survivors, Indigenous women and 2SLGBTQQIA+ leaders, and government partners came together to create the National Action Plan to address the Calls for Justice. A progress report on the action plan identifying actions undertaken and next steps was released on May 23, 2022. Engagement with partners on how to track progress on the Calls to Justice is ongoing. In January 2023, an Indigenous firm was contracted to explore and make recommendations on Call for Justice 1.10 (creation of an independent mechanism to report to Parliament annually on the Calls for Justice).

Once established, part of the Council's immediate work would be to develop a national action plan to advance reconciliation, which would include its strategic priorities and operational planning. In addition, the National Council for Reconciliation would have the mandate to report on the Government's reconciliation efforts and table an annual report to Parliament. To complete this important work, the Council would engage with partners and organizations. The Council would determine how its mandate aligns with other initiatives, including MMIWG to ensure no duplication of efforts is made and consider how it could contribute to the advancement of other reconciliation work in progress. This may include engaging with the lead groups that support the Missing and Murdered Indigenous Women, Girls, and 2SLGBTQQIA+ People National Action Plan.

17. Overview

18. History

19. Engagement and Recommendations

Bill C–29 is the result of recommendations from the Truth and Reconciliation Commission, and engagement that started with the Interim Board and then the Transitional Committee for the establishment of a National Council for Reconciliation. There is a strong thread of continuity that is apparent in the content of the proposed legislation.