Indigenous and Northern Affairs Committee on Dec. 4th, 2007

[The Chair, Conservative, Barry Devolin]

Thanks, Mr. Warkentin.

Just before I go to Mr. Albrecht, I have Ms. Crowder, Ms. Keeper, and Mr. Russell after that. You're all experienced parliamentarians. You know that we'll keep working our way down this list until everyone has exhausted themselves, either verbally or physically. At that point, we will move on to the second of our long list of proposed amendments.

Mr. Albrecht.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Thank you, Mr. Chair.

This idea of the interpretive clause has certainly come up at a number of our previous committee meetings. One of the key arguments against having an interpretive clause is the real possibility that in crafting that interpretive clause, we're going to leave out some key element.

In this amendment, Ms. Crowder has included under new paragraph 67(1)(a) programs and services, under (b) training and labour, under (c) land and resources, under (d) culture and spiritual practices and traditional practices, under (e) community issues, and finally legal traditions in (f).

The question I have is, are we sure that in this list of suggestions from Ms. Crowder we have covered all eventualities? I think the answer is clearly no. We cannot be sure we have covered every possible scenario that could arise.

I think it's impossible in one clause, or even in a five-page document, to cover all the possibilities that may arise as they relate to any specific first nations group.

We discussed earlier that we've heard from up to 20 groups at this committee as they've given presentations regarding repealing section 67. But we know, Mr. Chairman, there are at least 600 first nations groups across Canada.

To suggest the commission or the tribunal could become experts in all these traditions and laws and all these varied groups across Canada is totally unrealistic.

That is not to say the interests and traditions and customs of first nations people would be irrelevant in the adjudications of the complaints because they will be considered in the specifics surrounding a complaint. But as it relates to the specifics this interpretive clause attempts to speculate about--and I think that's clear--we're trying to look ahead and think of what kind of issues might arise, so we're dealing in speculation. But in reality these can only be dealt with by the commission and the tribunal in the overall context of the complaint, taking into account first nations traditions, customs, and laws.

Mr. Chair, I think it's very unfortunate that this committee has chosen to overrule your very wise earlier ruling. It's important that we do not support this amendment. I am very much opposed to it.

[The Chair, Conservative, Barry Devolin]

Thank you for all of that, Mr. Albrecht.

Ms. Crowder.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Thank you, Mr. Chair.

I have to say that I appreciate the generally respectful tone of the debate today, because I think it's a very important issue. There's just one issue around respect, and Mr. Storseth raised the issue that he felt that this committee wasn't being respectful.

I would argue that if we truly to talk about respect around process, this committee has passed two motions in the past calling for consultation, which the government has chosen to ignore. So in terms of respect for process, when you have a majority of members of the committee laying out a careful framework around consultation, I think that's important to note.

Just to come back to the interpretive clause, I think the big challenge we have before us is the fact that, on a number of occasions, either the Human Rights Commission, in a report that it's put forward, or individual commissioners have talked about the importance of an interpretive clause.

When Jennifer Lynch, the Chief Commissioner of the Canadian Human Rights Commission, appeared before the committee, her submission on April 19, 2007, talked about the need for an interpretive provision:

The need for an interpretive provision is one important area where differences of view have been voiced and Bill C-44--the now Bill C-21--is silent on this matter. With respect, we submit that it should not be. First nations communities and people have a unique history and a special status in the Canadian constitutional and legal system. Their existing aboriginal and treaty rights are affirmed in the Constitution, and have been progressively confirmed by the courts, and are recognized by governments at all levels.

An interpretive provision is, in our submission, imperative to give application to the inherent right to self-government and is fundamental to developing an appropriate system for first nations human rights redress. An interpretive provision would help to ensure that individual claims are considered in light of legitimate collective rights and interests.

While many agree on the need for an interpretive provision, there are differences on how this should be achieved.

So you have the Chief Commissioner of the Canadian Human Rights Commission calling for an interpretive clause. The very people who are going to be responsible for hearing complaints are saying that they need this particular piece.

I guess this is a question for the department. There were a couple of comments earlier that left me feeling really uncomfortable. It almost seems like there's an underlying presumption that first nations couldn't possibly have egalitarian human rights. I hear these concerns voiced around all kinds of decisions that first nations make that are potentially discriminatory. Inherent in that is a presumption that first nations somehow or other don't recognize human rights as valid in their own context.

I'll frame this in the context of the question that I want to ask. In “A Matter of Rights“, the Canadian Human Rights Commission, as I pointed out earlier, raises interpretive provision but they also point out that there are provisions where there's a bona fide occupational requirement, a bona fide justification--you lawyers know all about this stuff--for why it treated an individual in a way that would otherwise be contrary to human rights law.

They go on in their documentation to outline some cases where there is this bona fide requirement. In footnote 28, they're citing the Ontario Human Rights Commission, but I think it's a legitimate comment. It says, for example, under subsection 24(1) of the Ontario Human Rights Code, that the right under section 5 to equal treatment with respect to employment is not infringed where

a religious, philanthropic, educational, fraternal or social institution or organization that is primarily engaged in serving the interests of persons identified by their race, ancestry, place of origin, colour, ethnic origin, creed, sex, age, marital status, same-sex partnership status or disability employs only, or gives preference in employment to, persons similarly identified if the qualification is a reasonable and bona fide qualification because of the nature of the employment.

And so on.

So there are human rights codes, and in this context about giving people a bona fide requirement of employment--and arguably a bona fide requirement of employment for first nations might be that you speak the language and have some knowledge of the culture and tradition--I wonder why we wouldn't consider an interpretive clause that looked at some legitimate restrictions around things like employment.

I wonder if you could comment on that.

[Jim Hendry]

I think I've mentioned that subsection 16(1) does provide for special programs to develop the concerns of those who have been generally disadvantaged in the past, in this case perhaps because of their race, and it allows for a certain development of economic opportunity.

I mentioned also the aboriginal employment preferences policy, which attempts to develop that. In fact, this is the second iteration the commission has given of its employment preferences policy. It had one approved in 1990; this one was approved 13 years later. So they're busy trying to update this kind of thing.

Those types of policies and programs are possible in the act as it stands now, or many of them, anyway, the ones we've adverted to. Thus, there is a basis for saying there's no need to add greatly to what the commission already has, and it already has a policy on aboriginal employment specifically.

It can do a fair amount itself, and as I say, it has the guideline-making power, which binds itself and the tribunal, under section 29, whereby it can offer interpretations of the act. It can do a fair amount with the materials it has at hand to assist in the adaptation or understanding and application of rules to particular situations.

Now, the particular types of interpretation clauses that you're referring to, the ones that deal with fraternal, sorority educational institutions and so on, are found in provincial acts. There isn't one in the federal act, and that's largely because, as a matter of property and civil rights, the provinces have jurisdiction over the civil or human rights of, say, religious groups, national ethnic origin groups, associations of that nature, the difference being, at the federal level, the main bodies we have jurisdiction over are large organizations: railways, government, airlines, interprovincial and international transport, shipping, the various matters of federal power.

There is a different sort of composition between the types of populations and demographics that the provincial human rights deal with as opposed to the federal act, which tends to have a somewhat more rarefied yet still quite populous group within its jurisdiction. It's a different sort of group and there isn't a similar provision like that. That is, I agree, fairly common within the provinces. They are concerned about the legion, the Ukrainian club, various churches, and so on, so they can hire and provide services to the people who are affiliated with those groups. But those groups generally aren't within federal jurisdiction.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

I think part of what you just said highlights the difficulty we're in. You're indicating a difference between the federal act and the provincial human rights acts. Again, we come back to the fact that it's the commission itself that's been calling for an interpretive clause. This isn't something we dreamed up; it's something that clearly came forward in one of their other reports, too, which I haven't quoted from yet.

I think it's a challenge for us when you have the very people who are going to be responsible for hearing complaints saying that they need an interpretive provision, and then we completely disregard the very body that asked for it. They're going to have to be adjudicating these matters.

I don't understand why the people who are expert in this particular area, the people who have been hearing complaints for I don't know how many years it is now, request this be included, and we disregard the experts. It just doesn't make any sense to me that we would do that.

[Jim Hendry]

I can't go too much farther than that.

I can mention, though, a case from the Canadian Human Rights Tribunal involving Peter and Trudy Jacobs. Peter was adopted into the Mohawk band. He affiliated very closely with the Mohawk people. He learned the language, longhouse traditions, and so on. He married a full-blooded Mohawk woman, and they lived on the reserve. But according to the code, which was being developed at the time, he was deprived of his membership, as was she.

They filed a complaint that they didn't get certain services under the Canadian Human Rights Act. The tribunal examined the kind of evidence, the traditions, and so on that we're thinking about here. At the end of it all they decided there was no basis in the evidence that they heard from experts about the traditions that an adopted person could be excluded. It does show that within the current act, the current structure, there is room for these kinds of considerations.

After this case, the particular provision that was an issue was amended to provide more accommodation. As it was then, there was still a sensitivity to the concerns and traditions of the people. As I say, the question of the effect of that accommodation issue, which is an important human rights concept, has not been tried in quite the same way. This is a somewhat older case, but nevertheless it does show the sensitivity of the current system to the concerns expressed here.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

The Jacobs case is an interesting one in that it also raises the larger issue about who gets to determine band membership and status. That's a much larger discussion, which is certainly outside the scope of what we're talking about here today.

I know the Human Rights Tribunal has typically looked at section 67 in the narrowest of interpretations. There has been a notion bandied about that the repeal of section 67 will grant human rights to first nations, which is simply not true. What it will do is to grant Human Rights the ability to file human rights complaints against the Indian Act. First nations already have human rights outside of the Indian Act, so there has been this massaging of the language around this.

The last comment I have is with respect to the International Convention on the Elimination of All Forms of Racial Discrimination report covering the period February-March 2007. I think this is one of the other problems we're facing; it says this in their recommendation: The Committee, while welcoming the recent decision of the State party to repeal Section 67 of the Canadian Human Rights Act (CHRA) which effectively shielded the provisions of the Indian Act and decisions made pursuant to it from the protection provided by the Act, notes that the repeal in itself does not guarantee enjoyment of the right to access to effective remedies by on-reserve Aboriginal individuals (art. 6). The Committee urges the State party to engage in effective consultations with aboriginal communities so that mechanisms to ensure adequate application of the Canadian Human Rights Act (CHRA) with regard to complaints under the Indian Act are put in place following the repeal.

When you're talking about whether there is or is not an interpretive clause, simple repeal of section 67 will not provide resources in communities to provide redress. I don't know if you've had experience with other human rights complaints with redress mechanisms, but housing and employment comes up. Appealing a decision on a decision that a band has made about allocation of scarce resources simply means that somebody else will be displaced on that list. That's what it means.

I don't know whether you have any comments on that.

[Jim Hendry]

Certainly that's a broader question, but there have been complaints filed about employment, and those redress mechanisms are available. There are complaints that have proceeded through--the Jacobs case and others--in which some relief has been obtained.

In other cases, though, section 67 has been the barrier to any relief. I cite the Gordon council, which was a case about the distribution of housing, where the Federal Court of Appeal said section 67 was a bar to relief that the person otherwise would have been able to get from the tribunal they appeared before.

The act does have quite a code of mechanisms for investigating, mediating, conciliating, and ultimately referring cases that merit it to tribunal with a structure that allows a person to take an order from a tribunal and enforce it as an order of the Federal Court.

So it is a system that does have teeth, but there are in some cases--

[The Chair, Conservative, Barry Devolin]

Excuse me.

On a point of order, Mr. Storseth.

[Brian Storseth, Conservative, Westlock—St. Paul, AB]

Mr. Chair, this is outside the scope of even Ms. Crowder's amendment. I'm wondering if she's making a subamendment to her amendment, or maybe she'd just like to move her motion so we can vote on this.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Sorry, Mr. Chair, I think this is directly related. We're talking about the application of section 67 and whether or not it's actually going to significantly improve people's living conditions.

[The Chair, Conservative, Barry Devolin]

I'll let Mr. Hendry continue, but I believe, Ms. Crowder, you mentioned several minutes ago that you were making your last point, so I may hold you to that.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Well, it went on.

[The Chair, Conservative, Barry Devolin]

Mr. Hendry, could you just wrap it up.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

It was new information, Mr. Chair.

[Jim Hendry]

I'll just finalize by saying that in the Gordon case the barrier was not in the inability of access to the tribunal, but it was the barrier of section 67 because a band has the power to distribute property on its reserve.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

This truly is my final comment.

There's no response to this, because this is outside of your jurisdiction. The problem, and the reality, is that if a band is deemed to not to have provided housing to somebody, I know very few communities where there isn't a substantial waiting list for housing. The tribunal may rule that somebody has been discriminated against, but the reality is that if one person has housing, it will simply displace somebody else on the list.

That's the reality of it. I don't know if any committee members here have communities where there's no wait list for housing. It's just not happening.

So that was my point. If there aren't additional resources, which again is outside the scope of what you can do--unless you can wave a magic wand and provide additional resources to provide housing--the simple repeal will not alleviate the conditions that may lead to a discriminatory complaint.

That is my final comment.

[The Chair, Conservative, Barry Devolin]

Thank you, Ms. Crowder.

I know I have figured out what we're going to be doing on Thursday afternoon and also next Thursday afternoon. If anyone has booked early flights next Thursday, I think you might want to reconsider.

I have Ms. Keeper, Mr. Russell, Mr. Albrecht, and Mr. Warkentin.

Ms. Keeper.

[Tina Keeper, Liberal, Churchill, MB]

I'd like to pick up on this comment that Mr. Hendry made in regard to the amendment. I'm paraphrasing, but you talked about the impact and that it could expand or contract the act. This type of amendment going forward could have that impact on this act.

[Jim Hendry]

What I was specifically referring to, I think, was the reference to indigenous legal traditions and customary laws--which we really don't have at our fingertips--that could have the effect of actually changing some of the protections that are currently offered in the act.

[Tina Keeper, Liberal, Churchill, MB]

Great.

I would like to ask you a question, then, Mr. Justice Men, about that very point, because I represent a riding, a very large riding here in Canada, that has 33 first nations. There is a political organization that represents our first nations in northern Manitoba. Out of the 33 that are in my riding, 27 are represented by the Manitoba Keewatinowi Ininew Okimakanak.

They made a presentation to this committee in which they stated that they saw this bill as an infringement on their rights, and that they have, within the Constitution of Canada, by section 35 and by virtue of their treaty, the right to move forward in terms of developing the codes for their communities, developing laws with Canada, in that process. We also heard from the Canadian Bar Association—now, talk about impact on other legislation—that the possibility is there that if we made this change, repealed section 67, the Indian Act itself could be brought forward to the Canadian Human Rights Commission, under the Canadian Human Rights Act.

Could we talk about that impact? We're just talking about the interrelatedness of what first nations are saying at this table and what the federal government is saying, or what the Conservatives are saying. So I'd like to know from Justice Canada's perspective whether you see that as a possibility, in terms of the Canadian Human Rights Act.

Even Justice Muldoon, I believe, said that if it were not for section 67 of the Canadian Human Rights Act, the Canadian Human Rights Tribunal would be obliged to tear apart the Indian Act in the name and spirit of equality of human rights in Canada.

The point is....

Oh, so that's your point, that you want to do that?

[Chris Warkentin, Conservative, Peace River, AB]

No, we're saying that we—

[Tina Keeper, Liberal, Churchill, MB]

You want to tear apart.... So that's your agenda. But what the people are suggesting here is that the Indian Act is the only statute—

[Rod Bruinooge, Conservative, Winnipeg South, MB]

The argument is that--