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

[Tina Keeper, Liberal, Churchill, MB]

No, we're talking about the removal—

[The Chair, Conservative, Barry Devolin]

Order.

Ms. Keeper, you can continue. Go ahead, Ms. Keeper.

[Tina Keeper, Liberal, Churchill, MB]

Thank you.

The repeal legislation should include provisions to enable the development and enactment, in full consultation with first nations, of an interpretative provision that will take into consideration the rights and interests of first nations.

I would like to add that, as we've heard repeatedly, without consideration of the rights and freedoms recognized under the customary laws or traditions of first nations peoples of Canada, it would be seen as a violation of human rights for our first nations, absolutely.

Thank you.

[The Chair, Conservative, Barry Devolin]

Thank you, Ms. Keeper.

Mr. Bruinooge.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Thank you, Mr. Chair.

I would like to speak to the subamendment put forward by Mr. Warkentin, and I take some exception to the points made by both Monsieur Lemay and Madam Keeper.

Perhaps I will start specifically in relation to how this paragraph (c), which we are talking about removing, goes above and beyond any non-derogation clause we've seen. We are attempting to provide the Canadian Human Rights Commission with the opportunity to adjudicate on human rights violations that individuals put forward. Non-derogation, which has been suggested by a number of witnesses who have come before this committee, and there's no denying that fact.... Mr. Lemay suggests that all of them demand non-derogation; I wouldn't say that all of them did. But the point he didn't make was that they did not refer to this particular non-derogation clause, which is calling for something very specific and very new within paragraph (c). I have to take exception with your point there.

As I've said already, I feel this will put an undue encumbrance on the individuals who will be tasked with an incredible responsibility to rule on human rights matters that have never been ruled on within first nations communities. This is going to be a substantial step forward for individuals in first nations communities, to be able to bring forward human rights cases.

I am an individual who has access to the full benefits of the Canadian Human Rights Act. I am not restricted by something such as this, where customary laws or traditions of a first nations community would be able to stop the adjudication process in its tracks.

Mr. Chair, again, this comes back to my original suggestion that inclusion of this point brings this particular amendment into the realm of inadmissibility.

There are a number of non-derogation clauses in other legislations that have passed in previous Parliaments; none go this far. We've heard testimony from our expert witnesses, and they have also said that this would go above and beyond what we've seen in our Constitution and other laws that have been passed.

Mr. Chair, we need to proceed with a bill that accomplishes the repeal of section 67. It is my opinion that by including this one point we will undo all the work we've done. The government is not going to support non-derogation. I have to ask the members to consider that paragraph (c) will put an anchor on the Canadian Human Rights Commission that they shouldn't have to deal with.

I would also like to deal with Madam Keeper's points. I know she's having some discussions, perhaps on this bill, with others in the room. She has referred to her support for the bill, and she brought in testimony of the MKO organization. The leader of MKO, who came before our committee, is a man I have a lot of respect for, but in this particular area I have to disagree with him. He does not support the repeal of section 67. He said that before this committee. He does not support any part of this bill.

And so by bringing in his testimony, I think it's important to note that fact. There are individuals within first nations committees that do not support the repeal of section 67. So should she be bringing in testimony, I think it's important that she also places that on the record; and should she not, as she hasn't, I feel obliged to do so.

As we go beyond the adjournment of the House of Commons, we're all demonstrating our commitment here to trying to deal with this important piece of legislation. I would just hate to see all of our work being undone by a point that will continue to be challenged by the members of this party, the government here. But also should the bill return to the House, it will be challenged. I feel it will be challenged beyond that as well.

So for the sake of making this bill work in an appropriate way, similar to other pieces of legislation, I have to speak in favour of this important amendment so that we could proceed in a way that will allow for the bill to actually deliver on getting rid of the exemption of section 67.

I'll leave it there, Mr. Chair.

[The Chair, Conservative, Barry Devolin]

Thank you, Mr. Bruinooge.

At this point I have Mr. Warkentin and then Ms. Karetak-Lindell on the list, so hopefully we can come to a vote on the subamendment.

Mr. Warkentin.

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

I raised my hand.

[Chris Warkentin, Conservative, Peace River, AB]

Thank you, Mr. Chair.

I'm wondering if I can continue with our witnesses for just a few minutes.

We've heard a number of comments with regards to removing paragraph (c) from this point. I'm wondering if you could comment in terms of some of the comments we've heard. We've heard that by removing paragraph (c) from this piece of legislation, we somehow would strip customary laws or traditions or somehow jeopardize traditions of customary laws of native or aboriginal people. I'm wondering if it would be your opinion that this would be the case by not including it. And if in fact that would be the case, I'm wondering if you could explain how we might be able to protect customary laws and traditions without accidentally undoing the work that we're hoping to do by removing section 67.

[Jim Hendry]

That's a very tall order. I'll address the point about the last point, and that is customary laws or traditions.

In the balancing that the act currently creates, it creates an access to our right to non-discrimination under employment or services, and on the other hand, it creates certain defences by which what you might call collective interests--the interest of the employer, the interest of the service provider--are balanced. And in that sense, although this is an unusual clause, one would expect that the various factors that are relevant to the provision of the service and relevant to justifying the way it has been delivered would be balanced within the current structure of the act. It is made to achieve a balancing purpose, as the Supreme Court has interpreted it.

So those matters that would be relevant to the justification of providing a service in a certain way would be relevant, then, to the issue of the modified justification for providing a service in that way. So if those were based in customary law or tradition, I would assume that evidence of those would be provided to the tribunal for their consideration in achieving the particular balance that Parliament has established in the act itself, as it stands now.

[Chris Warkentin, Conservative, Peace River, AB]

So you're saying they would consider those already? Are you stating that this would be necessary so that they would even consider customary laws and traditions?

[Jim Hendry]

Well, they're bound to consider those factors that are relevant to the justification provisions that have been established in the act in order to deal with employment justifications and service justifications. And so to the extent that a party before a tribunal has good reasons for doing it in a certain way, they would provide that to the tribunal according to the structure that the Supreme Court has established for interpreting these provisions. These justification provisions tend to be similar across the country in every jurisdiction, and every jurisdiction has a human rights act and they're really quite similar. The Supreme Court tends to interpret the provisions, because they're so similar, in a very similar sort of way.

[Chris Warkentin, Conservative, Peace River, AB]

I'm a little bit concerned, specifically, when I read the testimony from the Canadian Human Rights Commission to this committee, and I'll just quote here:

The statutory statement of principle should have as its objective a clear articulation of the desired balance, while not indirectly reinstituting the very effects that the repeal is intended to relieve. This is completely consistent with the recommendations of the Canadian Human Rights Act...

I'm just concerned that somehow, by including this, we may inadvertently reinstate the effects that we're trying to in fact repeal. I still am not satisfied that by including this we're not in fact opening up the possibility that we're going to reinstate some discriminations that we're hoping to prevent from happening.

[Jim Hendry]

If that's a question, I think there is a danger, by referring to other rights in even the opening provision and rights in customary law and tradition, that those may be.... If a tribunal were to interpret “abrogate” or “derogate” to mean a complete bar to applying the Human Rights Act, in contradiction to those particular provisions, it's possible.

Now, as I say, the litigation is very thin on this, and I can't provide you with a great number of examples, but the danger is there that if some laws and traditions and so on become an absolute bar to an adjudication by a tribunal, then it's possible that some of those might be discriminatory and beyond the scope of the tribunal. But once again, that's speculation.

[Chris Warkentin, Conservative, Peace River, AB]

My concern is that if in fact this is going to bring us outside of what the intended outcome of the original bill is, we're going to get ourselves into a situation of possible inadmissibility because of the unintended consequences of some of the amendments that we're making.

But I do appreciate your points on this matter. I guess I'm still very concerned that we might reinstate something that we're intending to relieve, as the Canadian Human Rights Commission specifically asked us not to do.

Thank you very much.

[The Chair, Conservative, Barry Devolin]

Thank you, Mr. Warkentin.

I have Ms. Karetak-Lindell and then Mr. Lemay.

Ms. Karetak-Lindell.

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

I want to make a few points directly to the subamendment taking out new paragraph 1.1(c).

We already have affirmative action in this country. We allow certain cases to be looked at in a different way because we want more women to be hired, visible minorities to get jobs, and disabled people to be part of our workforce as much as they can. So I don't see any difference between what we're asking for in new paragraph 1.1(c) and what we already have in this country, which is called affirmative action.

We already follow customary laws in this country. We know in most custody cases it is customary to give custody to the mother, unless there are very difficult circumstances that someone has presented. Up to now, in most cases custody goes to the mother based on customary laws. There are certain cases throughout the law books where case laws are used because they have set precedents. Many of the case laws in this country come from Britain, because it was customary for things to be done a certain way. So I don't see this as being very different.

I am a little disturbed by the fact that as soon as you throw the word “aboriginal” in there, you start to look at things through a very different lens. All common sense goes out the window, and we automatically assume that the conclusion of any of this will be negative, according to the Conservatives; there might not be a positive solution if customary law is used in this case.

I'm disturbed by that fact and by the comments Mr. Warkentin made that we are asking people to go where they've never gone before. I thought the whole case for human advancement was to always go where we have never gone before in order to improve lives for people.

That's why we gave women the vote in the early 1900s. We tried to go beyond what was customary and take people where they'd never gone before. We've heard many comments that Canada is a better place because women can now vote and be recognized as persons. So we asked judges of the day to go beyond and above what no man had ever ruled on before.

I'm a little disturbed that just because the word “aboriginal” is there, we are looking at this through a different lens than how we would look at every other case in this country.

I will leave it at that. I will not vote for the deletion of new paragraph 1.1(c) in the subamendment.

[The Chair, Conservative, Barry Devolin]

Thank you, Ms. Karetak-Lindell.

I thought I head echos of Star Trek through your logic there.

I have Monsieur Lemay and Mr. Bruinooge on the list. I will go to Mr. Lemay. It's 5:27 p.m., and when he is finished I will adjourn our first meeting. Then we'll immediately start the second meeting.

Monsieur Lemay.

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

I will be very brief, Mr. Chairman.

I simply want to reply to Mr. Bruinooge. The burden of proof rests with the one who states that the Canadian Human Rights Act was not complied with, and not the reverse—no one has to prove that the act has been respected. That is why we must keep paragraph (c) which will cover that possibility, should customary law or tradition be invoked.

[The Chair, Conservative, Barry Devolin]

It is now 5:28 and I think the food is here. We will adjourn our first meeting and reconvene for our second meeting in about 10 or 15 minutes.

I'm sorry, was there a point of order?

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

Isn't the discussion over on the subamendment? Couldn't we just vote on the subamendment and get it over with at the end of this first meeting?

[The Chair, Conservative, Barry Devolin]

I still have a speaker on the list.

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

Okay, sorry.

[The Chair, Conservative, Barry Devolin]

When we restart in 10 minutes, Mr. Bruinooge will be the last speaker on the subamendment. We'll vote on that and then go back to our other list.

Bon appétit.