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

[Charles Pryce]

When there's a crown action dealing with decisions respecting lands and resources and economic development, there may well be a duty to consult. Whether that translates into a duty to consult when passing legislation--any legislation, but legislation of this kind--has not been determined by the Supreme Court.

[Tina Keeper, Liberal, Churchill, MB]

I'm not a lawyer, and I don't have a law background, so that's why I'm asking. Is there a possibility that if we say there's a possible infringement of an aboriginal treaty right here--say that's the argument--then the argument on the other side could be that, no, there isn't, and that's sort of what puts everything up in the air?

[Charles Pryce]

Yes, but it would then have to be resolved. If there is not adequate consultation, but the proposed legislation becomes law, then subsequently it can be challenged as an infringement of an aboriginal or treaty right. If the aboriginal treaty right is established, if the infringement is established, then the burden is on government to justify an infringement, and it may not be able to do so. One of the reasons it may not be able to do so is a lack of consultation. It's determined after the passage of the legislation.

[Tina Keeper, Liberal, Churchill, MB]

As I understand it, these Supreme Court rulings are also calling for a shift in terms of how government moves forward in that sort of relationship with first nations so we don't have to end up in the courts afterwards, right?

[Charles Pryce]

Certainly, they constantly call for negotiation over litigation, reconciliation, and so on. Those are clear signals.

Ms. Crowder has mentioned Roger William. That case, too, although not a Supreme Court of Canada decision, talks of reconciliation and negotiation over litigation, and how law is only part of the bigger picture of how aboriginal and non-aboriginal Canadians are going to live together.

[The Chair, Conservative, Barry Devolin]

Mr. Storseth.

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

Thank you very much, Mr. Chair.

I would like to start by clarifying for the record that, contrary to Ms. Neville's comments, each one of the parties had the opportunity to have their say on this in the House of Commons. Everybody voted unanimously in favour of sending this to committee, and we should not forget that.

The second thing is, Mr. Chair, this is fundamentally arrogant--ignoring the rules and precedents of Parliament. It's very clear that this is looking at amending a parent act. It is not dealing with anything that is within Bill C-21. In Marleau and Montpetit, under relevance:

An amendment to a bill must be relevant; that is, it must always relate to the subject matter of the bill or the clause under consideration. For a bill referred to a committee after second reading, an amendment is inadmissible if it amends a statute that is not before the committee or a section of the parent Act unless it is being specifically amended by a clause of the bill.

Very clearly, in my opinion, in the opinion of the chair, and I think in the opinion of any legal counsel, this is outside the scope of this legislation.

Mr. Reiher, I understand you're the representative from Justice Canada on this issue. In your opinion, would this amendment be within the scope of Bill C-21?

[Martin Reiher, Senior Counsel, Operations and Programs Section, Justice Canada]

There are certain paragraphs of this proposed amendment that are clearly broader than the scope of the Canadian Human Rights Act, I can say that.

For example, new paragraph 67(1)(e) refers to “matters of concern and priority to the community”. As Mr. Hendry mentioned earlier, the Canadian Human Rights Act deals essentially with employment and service provision. This would seem to be broader.

I won't say I'm an expert in procedures in front of this committee, so I won't make comments that relate to parliamentary procedure, but in terms of the scope of the Canadian Human Rights Act, I can definitely tell you that it seems to us that the amendment would be broader than the Canadian Human Rights Act.

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

Mr. Hendry or Mr. Pryce, would you like to comment on that as well, if you see otherwise?

[Jim Hendry]

I might just add another point, and that relates to paragraph (f) of the motion. Once again, the Canadian Human Rights Act deals with fairly simple things: employment and services. Although hearings can get long, as is usually the case in legal matters, the act does provide within itself the prohibitions of discrimination, and it also provides defences for employers and for service providers to bring a broader perspective, a community perspective, or just simply the employer's perspective, in defence.

One of the concerns that appears here seems to be paragraph (f), which says to ask a human right tribunalto consider and apply indigenous legal traditions and customary laws in a manner consistent with principles of equality and justice.

To the extent that these matters are relevant to one of the defences that is currently in the act, then that's taken care of by the current act. I suppose there is a concern that the incorporation of indigenous legal traditions and customary laws into the act may have the effect of broadening the scope of the act's coverage, or it may even contract it. We don't really know.

Professor John Borrows wrote a brilliant book on indigenous law and how it applies, and he develops a very interesting theory about the scope of it within a common law tradition. At the same time, if this becomes part of the act, then a tribunal might be called upon to apply one of many different sets of customary and legal traditions. That could end up having the effect of expanding or contracting parts of the act and actually affecting, in a way, the universality of the principles of non-discrimination that are currently represented in the act as it stands now.

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

Thank you very much, Mr. Hendry. I have to concur. For us to be as arrogant as to try to amend the Canadian Human Rights Act here—the twelve of us over a two-hour meeting—is absolutely irresponsible. That's the absolute reason why there are these consistencies within parliamentary procedure, which the opposition has very clearly ignored with this. Quite frankly, they need to vote against this.

Ms. Crowder is very well read when it comes to aboriginal issues. Quite frankly, Mr. Chair, this is another example of the tail wagging the dog over there just because they simply put a little bit more work into it at that end.

So I would call for some sense and sensibility to come back into this committee, with a vote against this at this point in time.

Thank you.

[The Chair, Conservative, Barry Devolin]

Mr. Warkentin.

[Chris Warkentin, Conservative, Peace River, AB]

Thank you, Mr. Chair.

I am new to this committee, so I do apologize if I ask questions that people have had addressed over the past months of hearings on this issue. However, one of the reasons why I asked to be part of this committee, why I joined this committee, was simply the number of calls that I've had to my office specifically regarding minorities within aboriginal communities.

I represent an area that has a significant aboriginal population. I have a significant number of aboriginal communities scattered throughout my constituency. What I'm very concerned about, specifically when it comes to an interpretive clause, is the issue that minorities within first nations...because there are minorities within first nations communities as well.

If anybody would like to meet some of these minorities within first nations communities, I'd be happy to bring you to my constituency and show you some of these horrific examples of where people are being kicked out of their houses because they aren't the right family or didn't support the right person in the past elections. There are all kinds of horrific stories about mothers and children being tossed out because they have done something or spoken out against something.

It's really horrifying for me, so when we discuss an interpretive clause, I get very concerned that individual minorities...and I'll put a face to these people. These people are elderly, these people are mothers, they're children, they're people who have come against what they see as corrupt, systems of corruption. They are being tossed out.

Quite effectively, what I'm seeing with an interpretive clause is the ability for the leadership in that community to say, “We don't care about what you think your rights are, we're just going to just interpret this as being our given right.”

That's my concern. If somebody can say there are ways we can address this to ensure that this won't happen....

I know that there are people who are sitting there in disbelief that these situations are in fact happening.

Ms. Keeper, I'd be very happy to have you come to my constituency—

[Tina Keeper, Liberal, Churchill, MB]

I'm surprised at some of the ways in which you're—

[Chris Warkentin, Conservative, Peace River, AB]

When I'm speaking—

[The Chair, Conservative, Barry Devolin]

Order, Mr. Bruinooge, Ms. Keeper.

Mr. Warkentin has the floor.

[Chris Warkentin, Conservative, Peace River, AB]

When I think about the Human Rights Act--and it's even been discussed at this meeting--the fact is that the Human Rights Act is responsible for employment and service provisions. I don't think anybody around this table would have any problem ensuring there would be no discrimination in terms of employment on-reserve or within aboriginal communities. I don't think any of us would support any interpretation that would allow discrimination in terms of employment. I also don't think that should be accepted on service provisions.

Now, I know there are issues with regard to aboriginal customs and practices, but I don't think the Human Rights Act speaks specifically to those issues. I think it addresses the issue of employment.

We've been spoken to about the employment and service provision. I'm just wondering if our legal counsel might be able to talk about the possibility that if there's an interpretive clause, some of my concerns would not...that we wouldn't be able to ensure aboriginal people couldn't be discriminated against in terms of employment and service.

[Jim Hendry]

I'm not quite sure; are you suggesting that the interpretive provision might be used to create discrimination?

[Chris Warkentin, Conservative, Peace River, AB]

That's right. I'm thinking specifically if an aboriginal community makes a determination based on any number of things, they should have an interpretation that would allow some type of discrimination.

[Jim Hendry]

I suppose, first of all, it depends on the nature of the interpretive clause. It is possible, if you get into something like the adoption of other laws or other rules from other sources, you can have something that is retrograde to the kinds of protections provided in the Human Rights Act.

You may have a custom, a tradition, a long-forgotten law or what have you, that might have the effect of reinstating some of the problems that have given rise to traditional difficulties within a group, if it were given full force. So I suppose the hope of the Human Rights Act is to ensure that employment and services are given on a non-discriminatory basis.

In terms of the possibility of bringing in something that might be, as I say, retrograde, it's possible through an interpretive clause.

[Chris Warkentin, Conservative, Peace River, AB]

Now that we've solidified that, I'm wondering if you see anything within the Human Rights Act that would discriminate against aboriginal people. If people are given equality in terms of employment and equality within a service provision, is there anything you know of that would be within aboriginal tradition and would be counter to equality of employment and equality of service provision?

[Jim Hendry]

I certainly can't speak from a general knowledge of aboriginal tradition. I know a bit more about the Human Rights Act. As it stands, its essence is to ensure substantive equality to people on all the eleven grounds, including race or national/ethnic origin.

[Chris Warkentin, Conservative, Peace River, AB]

Right, so there wouldn't be anything you can see—that you know of—that would be within aboriginal tradition or culture and run counter to the Human Rights Act.

[Jim Hendry]

I suppose I can't name you anything off the top.

[Chris Warkentin, Conservative, Peace River, AB]

Okay, I appreciate that. Thank you.