Indigenous and Northern Affairs Committee on Dec. 13th, 2007

[The Chair, Conservative, Barry Devolin]

Before I go to Mr. Lemay, I want to try to express where I think the discussion is right now regarding derogation clauses.

The first point is that there was some discussion about the admissibility of a derogation clause. The chair has ruled that both of these amendments--particularly the one we're talking about--are admissible. At least one member has questioned that issue of whether or not it is admissible, but has not gone to the point of actually challenging the ruling.

Beyond the issue of admissibility, there's another discussion about whether it is necessary or not. I'm hearing some difference of opinion in terms of whether or not, in a generic sense, a non-derogation clause is necessary or desirable.

Then the third level of the discussion really gets down into the weeds on NDP-3 and LIB-1 to look at, once committee members have decided that (a) it's admissible and (b) it's desirable, how they would actually like it to be worded. Sooner or later we will get to that more specific discussion about whether we're cutting and pasting the two together.

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

That's fine, thank you.

[The Chair, Conservative, Barry Devolin]

Also, just to remind the committee, the legislative clerk has reminded me that in this context there's really no such thing as a friendly amendment. If the amendment is on the floor, a subamendment is just put forward through the normal process, whether it is through the mover or someone else. We can do that, but it's just in the normal process that we would amend something.

Monsieur Lemay.

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

Thank you, Mr. Chairman.

My colleagues may have noticed that I have not spoken frequently, and I do not intend to speak out more frequently.

However, on this specific issue, we cannot pass an amendment that would remove a significant component of the amendment that Ms. Crowder has tabled with respect to the non-derogation clause. Ms. Crowder's amendment is complete in and of itself, and if any one of its constituent paragraphs were to be removed, we would be removing a significant part of the amendment's substance.

The Grand Chief of the Assembly of First Nations, as well as many other people, have testified before this committee. I listened to them as they repeatedly explained to us what stems from a non-derogation clause.

They told us that we must take into consideration the rights and freedoms recognized by the Royal Proclamation. If this didn't happen, they told us that we should take into consideration the rights and freedoms that now exist by way of land claim agreements or may be so acquired. Lastly, and this is just as important, they told us that we should take into consideration the rights and freedoms recognized under the customary laws or traditions of the first nations peoples of Canada.

All these make up a whole. I will not dare say, as it would be misleading, that the amendment is like a house of cards that would collapse were we to remove a card. No, it constitutes a whole. To take away one paragraph... I'm referring simply to the possibility, because up until now, I have not heard that the amendment will not be supported. Nonetheless, if an amendment were to be proposed, it is certain that we would argue to vote down that amendment because it would remove a significant, if not essential component of the bill.

In fact, if we do not take into consideration what happened following the Royal Proclamation of October 7, 1763, and if we do not take into consideration the rights or freedoms that now exist by way of treaties or land claim agreements, we must absolutely take into consideration the rights and freedoms recognized under the customary laws, the fundamental laws of the first nations and the traditions of these peoples.

As a result, Mr. Chairman, we must vote on NDP-3 in its entirety. After that, we can deal with LIB-1. Like you, I realize that if we vote in favour of NDP-3, we must set aside LIB-1. However, for now, everything is grouped under this one proposed amendment. This is exactly what the Assembly of First Nations asked of us, and it is exactly what we are getting ready to do. We therefore cannot split the proposed amendment.

[The Chair, Conservative, Barry Devolin]

Thank you, Monsieur Lemay.

On the list I have Mr. Storseth, Mr. Bruinooge, and Mr. Warkentin.

Before I go to Mr. Storseth, I want to explain the process we're dealing with. At this time, NDP-3 is being considered. We are not yet considering LIB-1. With NDP-3, if any member of the committee wants to propose an amendment to NDP-3, they can do that. There have been a couple of suggestions of possible changes. If someone wants to propose an amendment to NDP-3, we'll consider that. Subsequently we would go to a vote on NDP-3, either as it currently stands or as amended.

If NDP-3 carries, we will not consider LIB-1. We will immediately carry on. If, however, NDP-3 is defeated, we will consider LIB-1 afterwards. So we are still talking about NDP-3.

Mr. Storseth.

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

Thank you very much, Mr. Chair. I'd just like to get back to Mr. Pryce's comments for a minute and just get some clarification.

You stated, if I remember correctly, that in proposed new clause 1.1 in this amendment, paragraphs (a) and (b) are almost identical to the charter?

[Charles Pryce]

They're almost identical to section 25 of the charter, which is not section 35 of the Constitution Act.

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

Now though, paragraph (c) significantly alters that. Would that affect the charter itself?

[Charles Pryce]

I don't think so, in the sense that this is a statutory provision, it's not amending section 25 of the charter. Section 25 of the charter will sit there, and there's a whole process for amending Constitution provisions. So even though the wording tracks a lot of section 25, it's quite separate.

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

It will have no impact, then, on section 25 of the charter?

[Charles Pryce]

I think that's correct.

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

Thank you for the clarification.

[The Chair, Conservative, Barry Devolin]

Mr. Bruinooge.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Thank you, Mr. Chair.

Similarly, some of my questions pertained to text we've seen here within this non-derogation clause. Of course, I've already raised our concerns about the entire non-derogation clause, though again, I'd like to highlight how my colleague has called for a friendly amendment in relation to paragraph (c) of the clause.

Just to speak to it again, I feel that really this would set new precedents and constrict the ability of the Canadian Human Rights Commission to adjudicate in the very important and essential responsibility of adjudicating between the collective rights of first nations peoples and individual rights that also exist.

So again, I would just hope that what has been suggested by my colleague would be considered by Madam Crowder.

[The Chair, Conservative, Barry Devolin]

Thank you, Mr. Bruinooge.

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

[Chris Warkentin, Conservative, Peace River, AB]

In terms of paragraph (c), I think we've made it clear that we have some concerns with regard to a non-derogation clause, but in the efforts of working constructively...because I think what I've heard is that we will undoubtedly end up with one.

I'm wondering if there could be some explanation as to how the courts or anybody looking at this may interpret it the way it's written. I'm speaking of paragraph (c), which states, “any rights or freedoms recognized under the customary laws or traditions of the First Nations peoples of Canada”. And I do recognize that so much of aboriginal culture is oral, and so much of the culture and the customary law may be different from one end of this vast country of ours to the other.

I'm wondering if our experts might be able to walk us through how something like this might be interpreted and how that would work into the framework that the Human Rights Commission works with.

[The Chair, Conservative, Barry Devolin]

Mr. Hendry.

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

I might start off by saying that the reference to other rights in proposed new clause 1.1 and paragraph (c) and perhaps even (b) raises issues that really have not been resolved by the courts. Other rights may include a number of things that have not yet been defined, and I suppose the--

[Chris Warkentin, Conservative, Peace River, AB]

I'm sorry to interrupt. Is there any possibility of giving examples? I'm hearing that an exhaustive list isn't in existence, but for my benefit, I'm wondering if you might speak of some specific examples that might fall into that definition.

[Jim Hendry]

At this point, as far as I know, the courts have not defined an “other right” for the purposes of section 25 of the charter. There has been some discussion in some of the lower courts, for example, on some fishing rights, but they would presumably be separate and apart from the aboriginal or treaty rights that are recognized as constitutional by section 35 of the Constitution Act, 1982 and would not take precedence over the Human Rights Act, unless some very stringent tests for infringement, established by the court, have been met.

I can't really give you an example of an other right, because even after all these years, the courts really have not been very clear as to what those other rights might contain. They have not really specified what they are, and the Supreme Court has not yet said what an other right is for the purposes of section 25 of the charter.

I suppose what I'm suggesting is that there may be rights--perhaps in the distribution of land or something of this nature; I'm just offering a hypothetical—that might be regulated by customary laws or traditions. A non-derogation clause might then be put forward to make an argument, for example, that section 67 was repealed, but that did not repeal our right to distribute land in a certain way, which may or may not be discriminatory. At this point, I can't offer anything more than that, because the courts just have not had a chance to fill in what exactly those things mean.

But the possibility is that those terms “other rights” and “customary laws or traditions” may, in a sense, reinstate some of the problems that are now protected by section 67. As I say, at this point, it's still somewhat unclear. We're waiting for guidance, even from some of the lower courts, as to how other rights or the customary laws or traditions will play into the analysis.

What I might say, though, as I mentioned the last time, is that the Jacobs case was one in which a membership practice that resulted in the refusal of some services was based on certain beliefs or on a law established by the Mohawks. The tribunal found, in that particular case, after considering issues involving traditional matters, including laws and so on, that the particular exclusion was discriminatory.

[Chris Warkentin, Conservative, Peace River, AB]

I'd like to continue with this for a bit, if that's all right.

[The Chair, Conservative, Barry Devolin]

Yes, you can. Can I just interrupt to clarify something for those who are following along at home?

In Liberal amendment LIB-1, the reference is “from any aboriginal or treaty rights”, and in amendment NDP-3, in a very similar paragraph, the reference is “from any aboriginal, treaty or other rights”. For those who are following along, that is the distinction that is being explored here, is it not?

[Chris Warkentin, Conservative, Peace River, AB]

It is specifically referencing proposed paragraph 1.1(c) with regard to “any rights or freedoms recognized under the customary laws or traditions of the First Nations peoples of Canada”.

My concern is one you've identified, and that is the possibility that by including paragraph 1.1(c), we would then see the possibility of a discriminatory act based on familial lines or on some other type of tradition or customary laws based on a community's long-standing tradition.

The Human Rights Act, most importantly, deals with the issues of employment and service provision within our country, if my understanding is correct. I'm just not so sure, and maybe I'm just looking for some clarification as to where we might see the benefits. I know it wasn't the intent of the person to write this, but my fear is that we might be providing an avenue for discrimination, through customary laws or traditions, in employment or service provision within a community. I'm not certain. I can see where maybe customary laws or traditions would be very important in terms of being able to ensure that there was the advancement of some religious leader within the community or that type of thing. But I'm not certain that in a situation of employment or service provision it would be necessary to reference customary laws or traditions to discriminate.

Are there any that you're aware of?

[Jim Hendry]

Once again, I did mention the Jacobs case, where a membership law was accepted by the Mohawk band, and it was used as a means of saying the two complainants could not get certain services. The case was examined within the means created by Parliament for the balancing of rights and obligations of the collective and individual, as it were, in that the right to those services by those individuals was essentially balanced against the particular restrictions placed upon it, which took into account the particular membership law in the case. The result was that the particular restriction that excluded the complainants was found to be discriminatory.

As I've said before, the law has changed a little bit since then as to accommodation of other people, but I believe the commission itself said that there was room within the bona fide justifications, that is the defences, or the bona fide occupational requirement for employment purposes, to take into account relevant considerations, and those should include customary laws, traditions, and so on, and they would go into that balance that seems to be an issue here.

[Chris Warkentin, Conservative, Peace River, AB]

So in the Jacobs case, you're saying that the suggestion was made that the complainants were being disallowed from membership because of some customary law or tradition?