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

[The Chair, Conservative, Barry Devolin]

Thank you, Ms. Crowder.

I am going to rule that amendment NDP-1 is inadmissible.

Bill C-21 amends the Canadian Human Rights Act by repealing section 67 of that act. The repeal of section 67 removes an exemption in its application with regard to the Indian Act.

This amendment proposes to not repeal section 67, but rather replace it with a new framework. This new framework would create many conditions and exemptions similar to those contained in the Indian Act.

As House of Commons Procedure and Practice states on page 654: “An amendment to a bill that is referred to committee after second reading is out of order if it is beyond the scope and principle of the bill.”

In the opinion of the chair, the introduction of this new framework is contrary to the principle of Bill C-21 and is therefore inadmissible.

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

Can I challenge the chair's ruling?

[The Chair, Conservative, Barry Devolin]

You can challenge the chair's ruling.

This is not debatable. Committee members have two choices. The chair has ruled that amendment NDP-1 is inadmissible. This has been challenged. The vote is whether to sustain the chair's ruling.

If you wish to vote to sustain the chair's ruling that it is inadmissible, please vote yes.

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

On a point of order, Mr. Chair, can we get a recorded vote, please?

[The Chair, Conservative, Barry Devolin]

Yes, we can.

(Ruling of the chair overturned: nays 6; yeas 4)

[The Chair, Conservative, Barry Devolin]

My ruling has been overturned, so we will proceed with this.

I had interrupted you, Ms. Crowder. Did you have anything further you wanted to say?

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

There were a couple of points. One of them is that if we're talking about our new relationship between government and first nations, and our recent court decision out of British Columbia on Chilcotin people that talked about reconciliation, this is an attempt to move towards a relationship built on reconciliation. This would include the recognition of first nations jurisdiction in the area of human rights, family law, and so on, as recognized by the Royal Commission on Aboriginal Peoples, with, at a minimum, the floor being the Canadian Human Rights Act.

So this is an attempt to start that conversation around a new relationship between first nations and government. That was the intention behind this proposed amendment.

[The Chair, Conservative, Barry Devolin]

Okay.

Mr. Bruinooge.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Thank you, Mr. Chair.

In relation to Ms. Crowder's opinion on this matter, she has raised the topic of the Chilcotin ruling and her opinions, of course, in relation to first nations communities being able to choose some of the elements within the amendment. These are opinions that she has.

We'll get into debating those points, but I think the first point that is essential to remember here is that all of these amendments go far beyond what this bill is intending to do. The amendment that you're making is in fact changing the Canadian Human Rights Act. It's amending it. And that goes far beyond the scope of what we're doing with this bill.

Should she want to bring forward a private member's bill amending the Canadian Human Rights Act, I believe that is within parliamentary procedure. This would be the right course of action. But in my opinion, to do it in this repeal goes completely against the procedures we've seen this House abide by in the past.

To go into the detail, I think, is really now what we are forced to do because the committee has chosen to overrule the chair. As a result, we have to debate the substance of this amendment that substantively changes the repeal that is before this committee.

The interpretation of the rights that are before first nations communities and the entitlements that are interpreted to be their entitlements, being suggested to the Canadian Human Rights Commission through this amendment, are ones that I feel go in the wrong direction.

I'll have to reference back to former testimony of a number of individuals who suggested that--

[An hon. member]

Can you name them?

[Rod Bruinooge, Conservative, Winnipeg South, MB]

I'd be glad to name them.

Professor Larry Chartrand in particular, a very highly respected aboriginal professor--of course, in my home city but I don't think that necessarily states a bias on my part--gave some very credible testimony on the interpretive provisions that were being suggested by a number of groups, including the Assembly of First Nations.

It was his argument that to put into text an interpretation of what should be considered within this act would be a limitation on the first nations communities themselves. By putting any text to an interpretive provision, we would be taking away the ability of the Canadian Human Rights Commission to be able to properly balance the collective rights and the individual rights that need to be contemplated by this repeal.

By putting text to these specific amendments, we are really limiting the hands of the Canadian Human Rights Commission to be able to find that proper balance. They will have only this text to look to. This will define what they can even begin to interpret. There has been no question that the Canadian Human Rights Commission has always had the ability to be able to interpret how they will bring their rulings in future cases on first nations reserves, where people feel their human rights are being abused.

When the transition period is over and human rights complaints are brought before the commission, they will have no choice but to respect the Constitution of Canada and, of course, section 35. But by bringing specific text to what we're suggesting to them is what they will need to follow, I feel we are greatly limiting their ability.

I feel this unfortunately suggests that we're the experts on the interpretation of these rights. It's the Canadian Human Rights Commission that I believe has done a magnificent job over the last 30 years at balancing the rights of Canadians, the minorities versus the majorities.

I think everyone in this room would agree that the Canadian Human Rights Commission has done an admirable job. This amendment by Ms. Crowder unfortunately will take away, in my opinion, much of their ability to interpret the provisions they will need as they apply their rulings subsequent to the transition period ceasing.

Perhaps I will leave it there. I'd like to speak to the points individually, but I'd also like to give some of my other colleagues and those having other opinions in the room an opportunity to talk about this.

[The Chair, Conservative, Barry Devolin]

Ms. Crowder.

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

Thanks, Mr. Chair.

It's interesting that in “A Matter of Rights“, in a special report of the Canadian Human Rights Commission on the repeal of section 67 of the Canadian Human Rights Act—written by the Canadian Human Rights Commission—they have recommendations about what an interpretive clause needs to look like. So contrary to the parliamentary secretary's suggestion that it should be left to the Canadian Human Rights Commission to look at an interpretive clause, the Human Rights Commission itself asked for this.

I'm going to quote from this. It says, under the rubric “Key features of an interpretative provision”: The Canadian Human Rights Act Review Panel made recommendations for what might be included in an interpretative clause. The Panel recommended that an interpretative provision: ensure that the Aboriginal community's needs and aspirations are taken into account in interpreting the rights and defences in the Act; ensure that an appropriate balance is established between individual rights and Aboriginal community interests; operate to aid in interpreting the existing justifications and not as a new justification that would undermine the achievement of equality; and not justify sex discrimination or be used to perpetuate the historic inequalities created by the Indian Act. The Commission believes, in general, these are sound principles to guide the interpretation of the CHRA in its application to the First Nation context.

As a footnote on this, it says:

It should be noted that the Commission and Tribunal have neither the capacity nor the expertise to interpret sections 25 and 35.

The Canadian Human Rights Commission itself indicated that there was a need for an interpretive clause in the legislation. Out of the number of witnesses who came before the committee, there was a significant call from any number of witnesses about the importance of an interpretive clause in the legislation.

When we hear from that many people from a broad cross-section, from legal experts to some of the commissioners, and from the Canadian Human Rights Commission's own report, I'm not sure how we can disregard that in terms of preparing legislation to come before the House.

[The Chair, Conservative, Barry Devolin]

Mr. Bruinooge.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

In response, Ms. Crowder, in relation to the statements you made on the Canadian Human Rights Commission's own recommendations to this committee, and of course to the multitude of other attempts that have been made at repealing section 67, nowhere in those recommendations has it been suggested that first nations communities or first nations governments should have the exclusive right or ability to provide, on a preferential basis, programs and services to specific members of the first nations community. Nowhere does it suggest that first nations governments should give preference to specific members of the first nations in the training and hiring of employees and contractors.

In relation to allocation of land and other resource benefits, these are things that are not at all contemplated in their recommendations and are the very things that I feel, unfortunately, will keep the status quo in operation, the status quo of being able to allocate lands and homes and jobs to certain individuals in certain communities who have the specific access that others don't have.

That's what the Canadian Human Rights Commission is all about. It's about providing those who are in the minority with equality and benefits that all others in our communities across Canada have.

This is the very fundamental text that I'm talking about—and that wasn't part of the recommendation you read and the recommendations I've seen—and if we were to include this in our bill, we would be keeping the status quo. It would be as if the repeal had never occurred.

I just don't see how we can bring forward these amendments and expect to see any change, once the transition period is in place. If you have these recommendations, if you bring this amendment forward, you might as well make the transition period one day, because it's not going to change anything.

[The Chair, Conservative, Barry Devolin]

Are there any other comments from anybody?

Ms. Keeper.

[Tina Keeper, Liberal, Churchill, MB]

I'm a little confused by the member's comments. He seems to have a set idea of how the implementation of Bill C-21 would work itself out and what benefits, as he sees fit for first nations, would be put in place. He started to elaborate on that somewhat in reference to the amendment, saying that the very nature of these pieces of the amendment is the very issue that he wants to deal with in terms of Bill C-21, if I understood him correctly.

It seems clear to me that the member does not respect the nation-to-nation relationship that we have heard about in terms of the inherent right to self-determination, in terms of the nation-to-nation relationship embodied in a treaty relationship. Certainly, section 35 of our Constitution states:

(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. (2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit, and Métis peoples of Canada. (3) For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired. (4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.

I mention this because the legal and constitutional framework being alluded to, in terms of it not being part of the consideration of how it seems the member wants to move forward in terms of Bill C-21, is very disturbing, very troubling. Certainly I know that we as a country, we as a nation, as Canada, would certainly not want other nations to be making all of our little laws. That 's what we're talking about here.

The member who moved the amendment made it clear that this is about moving forward in a conciliatory fashion with Canada and first nations. It seems that it's very difficult for us to break away from that within this process and to try to hear what has been presented by first nations.

Although you mentioned a distinguished scholar, why is it that we are not listening to the people whose very lives are affected by this? We have heard repeatedly from AFN, NWAC, and the Canadian Bar Association about the potential impacts and about operating within this constitutional and legal framework.

I find it very troubling.

[The Chair, Conservative, Barry Devolin]

Ms. Karatek-Lindell, do you want to say something?

[Nancy Karetak-Lindell, Liberal, Nunavut, NU]

I want to ask a question of the people from Justice Canada, while also making some comments along the lines of where Tina was coming from. I want to make sure my understanding is correct, that similar items like these already exist in other land claims agreements that have been signed.

[The Chair, Conservative, Barry Devolin]

Mr. Hendry.

[Jim Hendry, General Counsel, Human Rights Law Section, Justice Canada]

I'm not sure the land claims agreements and so on that have been signed so far actually contain their own human rights codes. They certainly create—

[Nancy Karetak-Lindell, Liberal, Nunavut, NU]

I didn't ask for the human rights codes, sorry.

Take the Nunavut Land Claims Agreement, for example. My understanding is that they can have an affirmative action program. Even though we're not under a self-government agreement, our land claims agreement does provide an Inuit preference—or affirmative action, as I guess you would call it in other understood language—one that does give preference to beneficiaries to provide programs and services in the training and hiring of employees and contractors, in allocation of land and resources, in that if it's on Inuit-owned land, they would have certain rights to the royalties.

Don't those already exist in some land claims that have been signed already?

[Jim Hendry]

If I may, the parliamentary secretary mentioned that he was concerned about the possibility that this might make changes to the act. In fact, the Canadian Human Rights Act as it exists right now does provide for certain of those kinds of powers. It may therefore be possible to do a number of these things without having to specify them, and to also enable the first nation—and I'll make another point on that—to develop these kinds of programs.

That's in subsection 16(1) of the Canadian Human Rights Act, which says:

It is not a discriminatory practice for a person to adopt or carry out a special program, plan or arrangement designed to prevent disadvantages that are likely to be suffered by, or to eliminate or reduce disadvantages that are suffered by, any group of individuals when those disadvantages would be based on or related to the prohibited grounds of discrimination

—and that would include race—

by improving opportunities respecting goods, services, facilities, accommodation or employment in relation to that group.

So in many ways, the act does not have to be fully disturbed in order to accomplish some of the things set out in this motion.

The second point is connected to your specific reference to the Inuit. The motion deals with first nations. That's quite understandable, in the sense that the amending act aims to remove a specific provision that deals with the Indian Act. But in the future, and with a view to reconciliation and so on, the Canadian Human Rights Act would apply to all aboriginal groups within class 24 of section 91, and that would include the Inuit. Limiting it to first nations might well create an equality concern for aboriginal groups that are left out.

I make this point with respect to not only this particular motion but perhaps most of the motions. The natural focus is on first nations because the first nations are the ones governed by the Indian Act, whereas there are other first nations, as Ms. Crowder mentioned, that have treaty governments. There are also Inuit, as well, who have land claims and other governmental organizations.

So there is a charter issue that lies in that specific focus on the first nation governments.

[The Chair, Conservative, Barry Devolin]

Thank you.

Mr. Bruinooge--

[Nancy Karetak-Lindell, Liberal, Nunavut, NU]

I was still speaking, I thought.