Indigenous and Northern Affairs Committee on June 5th, 2007

[The Chair, Conservative, Colin Mayes]

I open the Standing Committee on Aboriginal Affairs and Northern Development of Tuesday, June 5, 2007.

Committee members, you have the orders of the day before you. We're continuing our study of Bill C-44, An Act to amend the Canadian Human Rights Act.

As witnesses today, we have Jerome Slavik, a lawyer from Ackroyd, Piasta, Roth & Day; Louise Mandell from Mandell Pinder, barristers and solicitors; and Professor William Black from the University of British Columbia's law faculty.

Welcome to our witnesses.

We'll hopefully proceed with a 10-minute presentation from the witnesses, and then we'll move into a question period from the members of the committee.

I'd like to begin with Mr. William Black, please.

[Professor William Black, Faculty of Law, University of British Columbia]

Thank you very much.

I'd like to thank the members of the committee for inviting me to appear today.

I know that some of my colleagues are going to talk about the consultation issue. While I believe that's very important, I will focus on other matters, because I know that at least there's going to be some discussion of that by others.

I was a member of the La Forest committee, the Canadian Human Rights Act review panel. My main purpose today will be to talk to you about the thinking of the panel and how we reached the recommendations we did.

I'd like to start by talking about the goals that we thought should be achieved. In other words, what are we trying to accomplish here before we move on to “how do we accomplish it”? I think in the view of the panel there were five goals.

The most obvious one is to provide a remedy to those who experience discrimination related to the Indian Act, which of course is now precluded by section 67.

The second one, however, which is equally important, is to do so in a way that balances the individual rights in the Canadian Human Rights Act with the collective rights of aboriginal peoples.

The third, in our view, was to ensure that the Canadian Human Rights Act doesn't become a tool for non-aboriginal people to challenge programs and activities designed to benefit aboriginal people and to deal with historical inequalities.

The fourth, which is related to the third, is to ensure that the Canadian Human Rights Act doesn't become a way of piecemeal dismantling the Indian Act. While the Indian Act certainly is far from perfect, we think if it's going to be changed it should be done so in a more cohesive way.

The fifth is to ensure that the Canadian Human Rights Act applies in an even-handed way to bands and other aboriginal governments and doesn't create arbitrary results. In the view of the panel, section 67 does sometimes lead to arbitrary results.

Let me give you two examples. Sometimes two different bands could make exactly the same decision, and one could do so by using its powers under bylaws under the Indian Act, and another might do so by a more informal internal process. But let's assume they are passing exactly the same regulations. The first one would be exempted from any challenge under section 67, because of section 67, so that you couldn't bring a human rights complaint against that. The second would not come within the exemption of section 67, even though it did exactly the same thing.

A second example is that some aboriginal governments get their powers and use their powers under the Indian Act, and others, for example, do so under self-government agreements. Since section 67 only applies to things done under the Indian Act, the first group is covered by the exemption and the second is not. We thought a more integrated way of looking at things would be appropriate.

So just to remind the committee—I know you know this—about what we did recommend, our longer-run recommendation was to create a human rights system controlled by aboriginal governments, locally, regionally, or nationally.

Our more immediate goal, however, was to repeal section 67 but to add an interpretive clause that said in essence that the Human Rights Act should be interpreted in a way that takes account of aboriginal community needs and aspirations.

I'd like to discuss for a moment or two why we thought an interpretive clause was needed. First, we thought it was needed to achieve that goal of balancing individual and collective rights. If section 67 was repealed and there was no such provision, there is a danger that the largely individual rights in the Canadian Human Rights Act would predominate over the collective rights of aboriginal people.

The second is to ensure that the Canadian Human Rights Act doesn't become a tool for non-aboriginal people to attack the provisions and benefits granted to aboriginal people and perhaps dismantle the Indian Act piecemeal. For example, non-aboriginal people might challenge health and education benefits provided to aboriginal people alone.

Third is to try to ensure that the procedures and remedies used by the Canadian Human Rights Commission and the Canadian Human Rights Tribunal are appropriate to aboriginal communities. That is, require the tribunal to consider what's appropriate, for example, in terms of remedy, which might be different from an appropriate remedy against, say, Bell Canada or Canada Post.

Now there are some general provisions in the Canadian Human Rights Act, as you know, particularly the bona fide justification provisions, that sometimes work to achieve some balancing. But they are not tailored to the needs and interests that arise in this context, and therefore the panel was of the opinion that they aren't enough alone.

I know there's been some discussion of other possible measures that might be used for balancing, and I thought I might explain for a moment why the panel was of the view that an interpretive provision was necessary and why other provisions weren't appropriate or adequate by themselves.

One, of course, which I know you've talked about, is section 35 of the Constitution Act, 1982. The difficulty there is that while section 35 protects certain historical rights and treaty rights of aboriginal people, it doesn't protect all the matters that are of crucial interest to aboriginal people. For example, it doesn't protect fishing and trading traditions that aren't part of a treaty and that developed after European contact. Also, it doesn't protect government entitlements, such as the programs designed for the benefit of aboriginal people under the Indian Act. So it goes partway there, but in our view, it isn't sufficient in itself.

Section 25 of the charter says the charter shall be interpreted in a way that does not affect the rights of aboriginal people, but it doesn't say that the Canadian Human Rights Act shall be. It doesn't apply to the Canadian Human Rights Act. So, in my view, it doesn't have a great deal of effect in this context.

Section 15 of the charter, the equality provisions, really require the same consideration as the Canadian Human Rights Act. They are primarily individual rights provisions, and therefore, in our view, they don't allow for the kind of balancing we thought was appropriate.

I'd like to talk for just a moment about the form we thought the interpretive provisions should take. I certainly don't have statutory language to propose to the committee, but I did want to talk about a couple of things the panel thought were crucial and then present one option for your consideration, without necessarily saying whether I'm recommending it.

The two characteristics we thought were crucial were, number one, that it should be in some binding form. It should require that the act be interpreted in a manner consistent with the needs and aspirations of aboriginal people; it shouldn't just be a statement of principle or purpose. Second, we thought it should be included in the statute, though perhaps supplemented by other provisions in regulations or bylaws.

The option I'd like to present to you is that there could be a fairly general provision in the act itself, talking in relatively general terms, leaving them the possibility or the hope that more specific bylaws or regulations could be enacted to deal more specifically with particular situations after consultation with aboriginal people. If those consultations weren't as productive as we would hope they would be, at least there would be this general provision in the act.

There is some precedent for an interpretive provision in the charter itself. Section 27 of the charter says, “This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians”.

It protects multicultural rights. I think our panel felt that something along the lines of what was in the Canadian Human Rights Act was necessary to equally protect the rights of aboriginal people.

Thank you very much.

[The Chair, Conservative, Colin Mayes]

Thank you, Mr. Black.

We'll move on to Madam Mandell, please.

[Louise Mandell, Mandell Pinder, Barristers and Solicitors]

Thank you very much.

I'd like to begin by thanking the panel for inviting me here, and also by stating what I believe to be obvious: that aboriginal organizations unequivocally support in principle the repeal of section 67.

The topic I'd like to address briefly is the process engaged in Bill C-44, which basically makes a unilateral amendment to the act and then engages consultation later.

I'd like to address you briefly on the legal point—that is, the point as to whether this is contrary to the principles of reconciliation and the honour of the Crown that have been articulated by the Supreme Court of Canada. It will be my submission that the whole process of amendment and then later consultation is contrary to the basic principles that have been articulated since 1977, when Parliament enacted the Canadian Human Rights Act unilaterally and then deferred this discussion to now, this date, as to how to incorporate the problems associated with the Indian Act and how we're to deal with it.

What has happened in the jurisprudence since 1977 and with the entrenchment of section 35 is that there has been a wholly changed legal landscape, and the movement in the jurisprudence is away from governance under the Indian Act and towards the general principle of reconciliation, which the Supreme Court of Canada has said is at the heart of aboriginal-Crown relations.

In terms of reconciliation, what is being reconciled is the pre-existence of aboriginal societies, including their legal systems and their laws, with the assertion of crown sovereignty. There's been a general recognition in the courts at both the lower and the higher levels that the assertion of crown sovereignty didn't extinguish the sovereignty of aboriginal people, so the reconciliation involves both the recognition of the aboriginal rights of governance and subsequently, with the recognition, the reconciliation of them. Corresponding duties have arisen on the Crown; they have been articulated by the Supreme Court of Canada, most notably in the Haida case, in order to achieve reconciliation. The duty of germane interest to your panel is the duty of consultation about accommodation.

I'd like to briefly address some of the major elements of the duty, because it does impact greatly on the issues of consultation engaged in this case.

The leading case is the Haida case, and I want to make it clear that this case didn't arise in the context of amending legislation; it arose in the context of crown conduct, in a situation in which the Crown granted a tree farm licence to a large forestry company up in Haida Gwaii—the Queen Charlotte Islands—to basically engage in a multi-year large-scale logging project on the island, and there had been no consultation with the Haida. The issue was whether, in the absence of proof of title or in the absence of concluding a treaty, the Crown was obligated to consult. In the landmark case in the Supreme Court of Canada, the court held that yes, there was a duty on the Crown. This is the duty that is engaged now; it's a government duty. I'll just go through some of its basic parameters.

The court considered where the duty to consult arises. Well, the duty to consult with aboriginal people, they say, is grounded in the honour of the Crown. It arises from the assertion of crown sovereignty, says the court. It continues into the process of treaty-making in all actions between the Crown and aboriginal people. They say the honour of the Crown is always at stake in its dealings with aboriginal people, but in particular the duty engages—and I'm going to read you what the court said:

But, when precisely does the duty to consult arise? The foundation of the duty in the Crown's honour and the goal of reconciliation suggest that the duty arises when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it—

In this case we have an act that is definitely going to affect the governance rights of aboriginal people—not just the band council governance, but also the aboriginal governance rights, which are broader than band council rights. Many band councils, in light of the Indian Act, do exercise both rights that are considered to be more traditional in nature—not arising from delegated authority under the Indian Act—and also rights arising from the delegated authority.

The content of the duty—and it is to this point we say this committee must pay attention--is in proportion to the assessment of the strength of the case and the seriousness of the potentially adverse effect on the right or title claimed.

In all cases, the honour of the Crown requires the Crown to act in good faith to provide meaningful consultation appropriate to the circumstances. So we have in this instance the courts signalling a movement now away from the Indian Act and a movement toward reconciliation being the goal, with the duty to consult being part and parcel of how that reconciliation will occur. The court describes elements of the duty as including an obligation to consult as early as possible in the process of decision-making, providing all relevant information to the aboriginal people, flexibility and willingness to consider alternatives or make changes to its proposed action based on information obtained through consultation, and not promoting but listening with an open mind.

So applied to this legislative amendment you have Parliament being very aware of the potential existence of governance rights and that the constitutional recognition and affirmation of aboriginal rights is meant to reconcile indigenous and Canadian legal systems. Parliament is considering amending legislation in such a way that there is a potential to interfere with these governance rights. Prior to actually passing Bill C-44 and amending the act, the honour of the Crown suggests that Parliament should engage with first nations to determine what the potential effects are and to discuss options for avoiding or mitigating infringements and for reconciliation. Consultation should consider whether the process in the Canadian Human Rights Act is the right one for human rights complaints against a band council or whether a different indigenous institution, perhaps different legislation, might be more appropriate.

Before finishing on this, I'd like to also stress the fact that in 1977 there was a political commitment made by the federal Crown to first nations leaders that there would be consultation that would precede the application of the act, and that commitment directly engages the honour of the Crown.

We turn to the question, then, of who should be consulted. I know there's been some consultation about this, but because first nations across the country are organized according to different levels and types of power and authority, many have their own means of dealing with human rights issues, and all are affected by the operational framework of the Indian Act. So because of the very strong interference and the great impact, which I'm sure this committee has heard about, expressed by aboriginal people across the country as to what could happen and will happen, once human rights complaints are able to be adjudicated in respect of band councils in particular, there will be a great impact on aboriginal communities. So it suggests, because of the test, that merely canvassing the views of aboriginal organizations is not going to meet the test of consultation for all the aboriginal governments and governance issues that will be affected by this bill.

I wanted to briefly touch upon the Corbiere case, which was an analogous kind of situation in the sense that subsection 77(1) of the Indian Act, which excluded off-reserve members of Indian bands from the right to vote in band decisions, was held by the court to be inconsistent with subsection 15(1) of the charter. So it raised the question of how we are going to amend subsection 77(1), which was unconstitutional, in light of the fact that band members who lived off-reserve would be affected, or could be affected, by the regulations that needed to now get brought into being in order to repair the constitutional problem caused by the Corbiere case.

What happened in that case was that having concluded that there was a violation of the Constitution, the court suspended the implementation of the decision for 18 months in order to allow consultation with on-reserve and off-reserve band members before amending the legislation. Canada then engaged in a two-stage consultation process, first with aboriginal organizations, and during that time Canada funded the four national aboriginal groups to consult with their membership. So there was a mandate given by the membership to the organizations to represent their views, and INAC regional offices were funded as well, so there could be meetings and workshops.

Then there were reports. After about nine months of consultation in the first stage, draft amendments to the regulations were released. These were the subject of consultation. Then there was further communication with the chiefs and councils who were invited to comment on the draft regulations. And after input was received, the regulations were revised. Then after the regulations came into force, a second stage of consultation took place. It involved broader discussions on the Indian Act, governance, and accountability.

We think the issues involved in repealing or amending section 67 of the Canadian Human Rights Act are similar to those in Corbiere. In Corbiere, there were important difficulties and costs associated with trying to set up a system that balanced on- and off-reserve membership. Similarly, the cost of setting up systems and changing current systems to bring them into compliance with the Canadian Human Rights Act could be large, and defending challenges would be expensive.

I'd like to spend the last few minutes of my discussion to suggest that the real initiative, right now, in light of the jurisprudence, needs to include, in our view, not just a discussion focusing on the narrow issue of whether and how the Canadian Human Rights Act should apply to band councils making decisions under the Indian Act. To keep current with the jurisprudence and also current with the issues that are actually fully engaged by the negotiation of land claims agreements, self-government agreements, and the evolving jurisprudence that is forcing the recognition of pre-existing legal systems by the legal system of the Crown, what is required is a broader discussion on how to move away from the Indian Act towards aboriginal governance within the Canadian federation based on the recognition of the inherent right of aboriginal people to govern themselves.

If we simply focus on the Indian Act and on making the changes that are engaged there, there are innumerable problems with the Indian Act and innumerable problems in trying to sort out the problems of the Indian Act. But more importantly, the Royal Commission on Aboriginal Peoples, and others that have been looking at the law and looking at the evolution of how to create reconciliation, have strongly recommended that the impetus for any move to self-government must include a movement away from the Indian Act towards the full potential and realization of aboriginal laws and legal systems and aboriginal institutions that co-exist with those of the Crown in a federation. It would be based on a reconciliation. It would not be based on the unilateral imposition of legislation, especially legislation, as the Indian Act is, that is almost 100 years old and that carries the colonial baggage of requiring, in the legislation, a particular kind of government, and in addition, a particular kind of federal imposition as to how that government, over time, is to become civilized. These are problems that we now know to be problems created by the past but that we are really trying to move away from at this point.

Thank you very much.

[The Chair, Conservative, Colin Mayes]

We'll have Mr. Slavik, please.

[Jerome Slavik, Lawyer, Ackroyd, Piasta, Roth and Day, LLP]

I'd like to commend the prior two presenters for their very excellent and thorough review of those areas of the law. To save this hearing from becoming an echo chamber, I would like to add just to the fringes of their very substantive and well-considered views.

There is a need and a consensus out there that section 67 should be repealed, but it must be done in a manner that is sensitive to the complex cultural, legislative, regulatory, and evolving constitutional context in which first nations operate. This is a very fluid, evolving area of the law and social policy in Canada.

As Ms. Mandell pointed out, with the introduction of the concept of reconciliation and its emergence to the forefront of a framework for addressing Crown-first nations issues, it's important that Bill C-44 be addressed within the principles and context of reconciliation. I think the current draft of the bill, while well-intentioned, doesn't quite meet the mark. A better reconciliation and balance could be achieved.

I'd like to say a broad comment about the act. It really applies to areas of federal jurisdiction, particularly federal governments and federally regulated entities, and for the most part, these tend to be large entities: large corporations and governments, etc. We are now having that act applied to hundreds of first nations governments in very small communities that make decisions on a wide range of matters about rights, entitlements, and membership—who belongs and who is entitled to receive very scarce resources.

First nations governments are challenged, not only with the huge breadth of decision-making, but they're doing so with very limited resources in very challenging circumstances. To apply human rights in this context is absolutely appropriate and necessary, but it must be done in a way that's sensitive to these circumstances.

In my paper, I outline a wide variety of decisions made by first nations governments that may trigger rights issues, whether they're operating under the Indian Act or self-government regimes.

While we believe that the repeal of section 67 is necessary, we believe it must be done in a process sensitive to the principles of reconciliation and the circumstances of first nations. In that regard, we support the recommendations of the Canadian Human Rights Commission and the Canadian Bar Association to the effect that there must be an appropriate consultation process, designed and initiated, that will lead to the development of an appropriate interpretative clause to provide guidance on the application of the act in the context of section 35 rights and the circumstances and governance of first nations.

In that regard, it may be possible to have the repeal enacted but not take effect until an appropriation transition period has enabled the drafting and adoption of an interpretative provision. I would support Mr. Black's view on the nature of what that interpretative provision should look like, so that it provides guidance not only to the commission and tribunal but to first nations and other parties about how this act is to be applied, particularly in first nations communities.

An extensive transition time is important and relevant here for a couple of other reasons. One is that frankly for most first nations this is not on their political radar screen. We act for 20 or 30 first nations. I checked around, and very few knew about this and what its potential implications would be.

Understanding what its implications may be for them, including perhaps a very significant legal review of their current laws, policies, and decision-making practices—and perhaps needing to amend or change those—would be a challenge for many already underresourced communities. They would be vulnerable to all kinds of complaints, given the very scarce resources and numerous decisions they have to make and the relatively poor understanding of how this act would presently play out in relation to their authority in decision-making.

I would really plead for some time and resources to enable first nations to adequately review and ensure that they can address these issues in a proactive way, and to avoid complaints and other matters that may arise. I suggest that this extend over at least two fiscal periods, because it will require that these first nations be provided the resources to address these matters.

The second area is a practical one. Given the number of complaints that will arise in this matter, many first nations simply do not have the resources to deal with complaints—to hire counsel or participate effectively in tribunals. They live in remote areas, and their few resources are being stretched to the limit.

There's a need for a federal fund to enable first nations to get the resources to deal with complaints, particularly complaints that may have large ramifications for a number of first nations or that may raise questions regarding the scope of section 35 rights. In other words, there needs to be a fund that will allow first nations to be resourced to handle test cases and other complaints with broad implications.

Finally, it's been noted that this may lead to challenges to not only the operations of first nations governments but to certain key provisions of the Indian Act, including the status and membership provisions and other provisions. This amendment should not be a back-door way of dismantling the Indian Act.

The government, particularly the Department of Indian Affairs, has known for years that there are fundamental problems with the status and membership provisions of the Indian Act. It has avoided these for.... The temporary band-aid was Bill C-31. They said, “This will last a generation.” That generation is up.

Status and membership issues are increasingly moving into focus in aboriginal communities, with the potential—I'm just talking about potential implications of this act—of leading to challenges to the status, membership, and other key provisions of the act. It is very important that the Crown be proactive in initiating a consultation process with first nations on how the status and membership provisions of the Indian Act should be developed on a go-forward basis, taking into consideration human rights and other issues, in particular the authority and jurisdiction of first nations to be self-defining and determine their membership.

I urge you to not underestimate the potential complexity and difficulty that this legislation may raise for first nations. No one is arguing against this in principle. But to push forward at a pace that doesn't attempt to recognize, accommodate, and reconcile not only the rights but the interests involved here would be reckless and unfortunate, particularly when there is a better and more cautious option to achieve the same results. I urge you to be respectful of first nations and their rights and circumstances in the manner in which you go about amending this act.

Thank you.

[The Chair, Conservative, Colin Mayes]

Thank you.

We'll move to questions now and start with Madam Neville.

[Anita Neville, Liberal, Winnipeg South Centre, MB]

I'll start. Thank you.

[The Chair, Conservative, Colin Mayes]

It's a 10-minute round.

[Anita Neville, Liberal, Winnipeg South Centre, MB]

Let me begin by thanking the three of you very much for coming here today. As my colleague beside me said, your testimony has been stunning. We very much appreciate your being here, and the insight.

As you were speaking, and before we go out to Mr. Slavik, my question was, how do we move forward? Where do we go? We know that we're under considerable pressure right now to pass the act as is and do it quickly, and if we don't, we're not supportive of human rights, which is not the case at all. You've articulated for us in a very fine manner the complexities of it.

Professor Slavik, you said proceed with caution.

Ms. Mandell, you talked about the importance of reconciliation.

Mr. Black, you talked about the interpretive clause and how important it is. What I'm wrestling with is, do we pass the legislation with the amendments and then begin a consultative process and outline the issues? Can we be sure that the resources will be there for a meaningful consultative process? My question is, how would you advise this committee to proceed today? We are under considerable pressure.

[Prof. William Black]

I'll take a first stab at it, and I'm going to stick pretty closely to what our panel talked about. We didn't talk in detail about the timing of things. What we did talk about is the need for consultation. What we talked about was that section 67 shouldn't be repealed without steps to balance individual and aboriginal rights. In other words, don't do the one without the other.

In terms of consultation, I'd like to add one other aspect for the committee's consideration. We've talked about the fact that it's consistent with the cases regarding aboriginal rights and so forth, but I also think one should take account of the fact that the Canadian Human Rights Act is only effective if it's accepted by the groups that have obligations under it. If they resent, no matter how strong the enforcement, it's not going to be very effective. So from purely a human rights perspective, it makes sense to me to do this in a way that promotes buy-in by the organizations.

[Louise Mandell]

I'd jump in and say that I think you've probably heard a lot about the actual impact of repealing section 67, but I think the two issues that are preliminary, in my view, to getting this amendment through are, first of all, building in the first instance the capacity for first nations peoples and governments to ensure effective implementation of it.

I say capacity on two levels. One is to actually handle human rights complaints and so forth, but the other is—I've practised aboriginal law for 30 years and I've been on reserves across Canada all the time. I've never once seen one public building, for example, with any wheelchair accessibility. So there needs to be something by way of capacity at the front end, because it certainly isn't going to get solved at the back end once everyone's under the gun and there's now a complex process of adjudication, and penalties and so forth, that kick into place. I'd say that's a preliminary issue.

The second preliminary issue is to create a process, as was done in Corbiere, that actually engages the first nations communities, a specifically designed process. In my view, the question that could be put to them if that process were designed is, what is a coherent human rights regime for first nations people and governments that properly and appropriately balances the human rights needs of first nations people and the requirement to safeguard first nations rights and interests? I think the question is important as well as the process.

[Anita Neville, Liberal, Winnipeg South Centre, MB]

Can I just ask you, at what point should that consultation, the Corbiere model consultation, take place? Is it prior to passing the bill, after the bill is passed? How do we—

[Louise Mandell]

What the Haida case said, which I think provides good guidance, is that consultation is upstream of the breach. It's early; it's not late; it's strategic level.

So, for example, if we're looking at, which we should be, a parallel human rights process through the establishment of aboriginal institutions, if that's part of the consideration that is engaged by the amendment, then the consultation should take place before the bill is passed so that all of our foundational ducks are in order, so to speak. And if we've looked at alternatives, decided collectively how this can be done in the aboriginal community and what's the best way to achieve it, and have the funding understood, then I think the amendment would fly like water.

[Anita Neville, Liberal, Winnipeg South Centre, MB]

Thank you.

Mr. Slavik.

[Jerome Slavik]

I don't disagree with Louise that it would be preferable to have the consultation in place and completed, as well as the capacity-building. By the way, the capacity-building not only needs to happen in first nations communities. I suspect the Human Rights Commission and Tribunal themselves are going to need some capacity-building and resourcing to prepare for this, as well as some time to think about how they may be properly interpreting this in a first nations environment, and perhaps as well a little more thought to its potential implications for the Indian Act. That would be preferable.

I can understand, though, that there is significant pressure to have this act and amendment adopted quickly, so a second option would be to proceed with the amendment but hold off its effective date for 15 to 30 months, something like the Supreme Court did. They made a decision but gave the parties 18 months to carry on a consultation process, a capacity-building and an information process, to prepare for the impact of the decision.

In this case I would suggest a longer period of time, given the fiscal implications, the extent of the educational requirements, and the complexity of the issues that need to be worked out, so something like a passage with a subsequent effective date, but in the meantime work on an appropriate amendment to this that's going to address the concerns you've heard, I'm sure, from this panel and many others.

[The Chair, Conservative, Colin Mayes]

Thank you.

Mr. Lemay, please.

[Anita Neville, Liberal, Winnipeg South Centre, MB]

Mr. Chair, may I ask a question?

Mr. Slavik came with a prepared document. Could the committee receive that, please?

[The Chair, Conservative, Colin Mayes]

We have to get it translated, but we will supply that.

[Anita Neville, Liberal, Winnipeg South Centre, MB]

Okay, that's fine. Thank you.

[The Chair, Conservative, Colin Mayes]

Thank you.

Mr. Slavik.

[Jerome Slavik]

I could barely get it done in English.

[The Chair, Conservative, Colin Mayes]

Thank you.

Mr. Lemay, please.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Good morning. Thank you very much. You all work in this field. You are all experienced lawyers in the field of aboriginal law and I have listened closely to what you had to say because I wanted to see how good is our translation system. What galls me is that I agree with everything you have said.

The problem is that, for the government, consultation does not necessarily mean the same meaning as for the three of you. For the government, meeting a First Nations chief at the airport is part of the consultation. I am not sure that you share this interpretation. I would like some explanation because it is very important.

Mr. Slavik, you said something that is very interesting. Before passing this legislation, should we wait for a consultation process in the form of the Corbiere decision or could we pass the legislation with some amendments establishing specific guidelines about precisely how consultation should be done, perhaps even by extending the transition period to 36 months as was done with section 15 of the Canadian Charter of Rights and Freedoms?

So, those are my two questions. What would be an appropriate consultation, in the meaning of the Supreme Court? I believe that you are all able to tell us precisely. In our work as lawmakers, could we include in the Bill some amendments relating to a transition period, an interpretation clause and, possibly, a no-exemption clause?

You can use the rest of my time for your answers.

[Jerome Slavik]

Let me just begin by making a broad statement.

It's been my experience, and I don't know if it's the experience of other counsel, that the federal government as a whole really has not come to grips with the principles of reconciliation or the process of consultation from either a structural or a process point of view. In a number of files we're working on, we are trying to develop consultation frameworks with Canada on much simpler, smaller issues than this, with great difficulty.

The Crown's coming to grips with what the courts are telling them about reconciliation is an area that requires some substantial work. But having said that, in this particular case, consultation with the goal of reconciliation I think is very necessary. If this matter is handled poorly, it could significantly inflame aboriginal/non-aboriginal relations.

Your comment at the airport made me smile. As I was in the airport coming here, I ran into a very prominent aboriginal leader in Alberta. I told him what I was going down to speak to, and he said, “Another nail in the coffin”. That's the perception out there, rightly or wrongly. If you ask him—and his wife was standing right there—if there should be gender equality in the community, there would be no doubt of what would be the politically correct answer for him in that circumstance. That's not the issue, but this is perceived as being political and cultural interference in the affairs of first nations, rightly or wrongly.

Now, that that needs to be reconciled and accommodated and understood is important. My suggestion to you is that there is a need to signal that it is the wish of Canadians and first nations leadership that section 67 be appealed. But do it in a way that allows time for accommodation, for reconciliation, for information to understand, for ways to avoid conflicts within this context, and for ways to anticipate, and perhaps planning for unanticipated, consequences of this.

In that sense, Monsieur Lemay, holding off for a period of 24 to 36 months the effective date of this legislation, in my mind, would be a minimum good faith initiative on the part of the Crown to reconcile and accommodate first nations' apprehensions and concerns around this.