Evidence of meeting #5 for Indigenous and Northern Affairs in the 39th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was aboriginal.
A recording is available from Parliament.
5:15 p.m.
Conservative
The Chair Conservative Barry Devolin
I have been informed that, given we're already dealing with an amendment, we cannot deal with that motion.
5:15 p.m.
Liberal
Todd Russell Liberal Labrador, NL
Thank you, Mr. Chair.
Good afternoon. My apologies for being late, but when the great snows come, I tell you, snowshoes and shovels are about the greatest inventions we have. I'm happy to be back.
I want to speak to this particular amendment, but first of all, I would say that I was very disappointed...and he may want to clarify with this particular committee. That's my colleague Mr. Warkentin. When he was speaking before the committee a short time ago, he was using references to corruption, almost characterizing first nations as hotbeds of corruption.
At some point, he may want to clarify that. This is not an anti-corruption act, this is the repeal of section 67 of the Canadian Human Rights Act.
5:15 p.m.
Conservative
5:15 p.m.
Conservative
5:15 p.m.
Conservative
Chris Warkentin Conservative Peace River, AB
I'll keep the clarification very simple.
I will clarify: alleged corruption, and there have been cases where corruption has in fact been found to have happened on some of the reserves in my communities.
5:15 p.m.
Liberal
Todd Russell Liberal Labrador, NL
I would only clarify that it is not an anti-corruption bill we're talking about; we're talking about the repeal of section 67 of the Canadian Human Rights Act. So I would just like to say that.
As well, I would say, Mr. Chair, that we have been before the committee and we've heard numerous witnesses. It is very disappointing that the government missed a great opportunity to bring before the committee certain changes from the previous bill that would have reflected the testimony that had been given by aboriginal leadership, aboriginal individuals, non-aboriginal people, legal experts, and the Canadian Human Rights Commission within itself.
I would just like to ask the witnesses, though, a couple of questions, just for clarification, because this amendment seems to arise out of the fact that there is no interpretive clause.
5:15 p.m.
Conservative
The Chair Conservative Barry Devolin
Actually, I would just like to intervene, because I know you were a few minutes late arriving today. I would just like to clarify how we got where we are.
At the beginning of the meeting, I had ruled that this amendment inadmissible, not on the basis of merit but on the basis of legislative procedures. It goes beyond the scope of the bill.
At that time, my ruling was challenged and was overturned by a majority of the committee members, so we are proceeding to discuss NDP-1, the amendment that is before us. That is where we are.
The argument has been, in my view, a little disjointed this afternoon because sometimes the discussion is on the merits of some of the notions and concepts in this, and sometimes the discussion has to do with the technical admissibility of it. As you know, if it's not admissible that argument is primary. It would only follow that we would discuss the merits of it afterwards.
That may give you a flavour of the discussion we've had today.
5:20 p.m.
Liberal
Todd Russell Liberal Labrador, NL
I thank you for that. I was aware that the committee had overruled the chair's particular ruling.
I just want to ask this. Does the Canadian Human Rights Commission, within the act itself, have an interpretive clause, as such, when it comes to aboriginal rights, communal rights, aboriginal interests, or is it a general clause which they interpret?
5:20 p.m.
General Counsel, Human Rights Law Section, Justice Canada
Well, there are a number of prohibitions against discrimination in employment services, accommodations, and so on. That's what they enforce.
5:20 p.m.
Liberal
Todd Russell Liberal Labrador, NL
You said that there was flexibility, that the commission exercises certain flexibility when it makes a ruling or when it makes a judgment.
5:20 p.m.
General Counsel, Human Rights Law Section, Justice Canada
The commission just decides what it's going to do with a complaint; the tribunal is the one that actually makes the decision. They're distinct organizations. The commission does have some flexibility in making policy and can make quasi-legislative guidelines to help interpret the act, but not general interpretations. They'll say, “This is what we think it means, but this is what you need”.
5:20 p.m.
Liberal
Todd Russell Liberal Labrador, NL
What I'm getting at is that if that's already sort of an operating principle of the tribunal--this flexibility, this sense of maybe being able to incorporate various customs and laws and maybe being able to incorporate individual versus communal rights--why could that not also have a parallel within this particular act? Is there anything prohibiting having an interpretive clause within this act?
5:20 p.m.
General Counsel, Human Rights Law Section, Justice Canada
The Human Rights Tribunal simply applies the law. They find out whether there's discrimination, based on the evidence, and then they apply the defence as is required by, say, a shipping company or a band council. So the evidence will depend on the kind of case.
5:20 p.m.
Senior Counsel, Operations and Programs Section, Justice Canada
Just to complement that, I think what you're getting at is that currently, in making a decision, the tribunal has the ability to take into consideration first nation traditions in interpreting the provisions of the Canadian Human Rights Act, which is something that I think Mr. Hendry mentioned before. The difference if there is an interpretive clause is that there will be an obligation to take the collective interest into account. The concern we have raised today is that by so doing, there is a risk. It's not automatic.
We're not assuming that bad decisions will be made. We're just pointing to a possible risk that when collective interests are balanced or weighed against individual interests, the individual interests may not win. Maybe the protection of individual interests will be diminished by this. It's automatic if the collective rights are given more importance. That is what we have alluded to.
5:20 p.m.
Liberal
Todd Russell Liberal Labrador, NL
So the tribunal can now do this, but it's subjective. They can choose to weigh these factors or to not weigh them. If we put it in the bill, then they have an obligation to weigh all these particular factors. That is the difference.
5:20 p.m.
General Counsel, Human Rights Law Section, Justice Canada
No. I think each sort of defence has a structure by which each element is proved by evidence. I think what we're trying to say is that in a case that involves, say, a band council and its actions, that evidence will probably take into account the collective concerns this band council was attempting to apply in what it did.
5:20 p.m.
Liberal
Todd Russell Liberal Labrador, NL
In essence, there was nothing prohibiting the government from drafting this bill in such a way as to include an interpretive clause. Is that right?
5:20 p.m.
General Counsel, Human Rights Law Section, Justice Canada
I think that's a matter of policy.
5:20 p.m.
Liberal
Todd Russell Liberal Labrador, NL
Was the Department of Justice involved in the drafting at all? Did the Department of Justice provide any advice to the government on this particular bill?
5:20 p.m.
Senior Counsel, Operations and Programs Section, Justice Canada
The answer is yes. The Department of Justice obviously has participated in the drafting of this bill. Whether there can be an interpretive clause or not is not for the Department of Justice to say. It's a decision of Parliament, obviously, and there's no....
The answer is yes; technically, yes.
5:25 p.m.
Liberal
Todd Russell Liberal Labrador, NL
So when you were involved in the drafting of this bill, did the discussion of an interpretive clause get any serious consideration within the department at all? Was there an opinion passed by the department one way or the other that can be shared with the committee?
5:25 p.m.
General Counsel, Human Rights Law Section, Justice Canada
I think we're not allowed to provide the advice that was given by the Department of Justice. It is protected by solicitor-client privilege. But as Mr. Reiher said, what we can say is that the Department of Justice was involved in the development of the bill.
