Indigenous and Northern Affairs Committee on April 22nd, 2010

[Jennifer Lynch]

There are three of us here, so Michael gets a pass. Michael is not a lawyer.

Valerie, would you like to comment on that?

[Valerie Phillips, Legal Counsel, Canadian Human Rights Commission]

May I clarify if you are asking whether Bill C-3 itself would be challenged for failing to remedy all of the residual discrimination?

[Larry Bagnell, Liberal, Yukon, YT]

Yes, or you could say for continuing to promote discrimination.

[Valerie Phillips]

I think that's unclear, but my instinct would be that it's unlikely, unless the bill itself is found to be discriminatory.

There have been people before you who have raised flags about family status discrimination, for example, as a possibility in the act, so there is a question whether Bill C-3 contains discriminatory provisions.

But as to whether it could be challenged for not correcting full discrimination, I don't think so. If it's not in compliance with the B.C. Court of Appeal ruling, there may be some legal remedy there.

[Larry Bagnell, Liberal, Yukon, YT]

Right. Okay. I just wanted to make a note for the record just so the public knows this, actually. When you talked about there being no remedies before section 67 was repealed, that applied to Indian Act bands, but there were a number of bands that did sign land claim agreements where section 67 didn't apply to them anymore so they had recourse to you.

The problem with repealing section 67 for some of the people was the difference between the communal rights of historic aboriginal societies in North America and the individual rights of our European culture. Now that the Human Rights Commission is having to grapple more with aboriginal issues, I wonder whether you have views on that distinction between the communal rights of historic aboriginal communities in North America and the individual rights of our European-based system when it comes to a complaint.

[Jennifer Lynch]

I'm not sure that I'm understanding the question--

[A voice]

I think you could pass that along to me, if you want.

[Jennifer Lynch]

Oh, my colleague would be pleased to--

[Larry Bagnell, Liberal, Yukon, YT]

That's why you pay him the big bucks.

[Michael Smith, Senior Policy Analyst, Canadian Human Rights Commission]

As the only non-lawyer on the panel, I don't think so.

The issue that comes up was addressed with the interpretive clause of section 67, which, while it's technical, is important. I'll read it to you: “In relation to a complaint made under the Canadian Human Rights Act against a First Nation government”--including related activities--“this Act”--and that's applying section 67--“shall be interpreted...in a manner that gives due regard to First Nations legal traditions and customary laws, particularly the balancing of individual rights and interests against collective rights and interests, to the extent that they are consistent with the principle of gender equality”.

So there are three balances, and the final balance looks to the impact of whatever is being decided as not diminishing the rights of girls and women. So with respect to individual and collective rights, it's a sense in some camps that the sense or philosophy of individual rights is an importation on our traditional aboriginal collective rights and that mentality.

The commission has undertaken a fair bit of research and will be developing positions and guidance on how to do that kind of balancing--that being done, it must be said, in direct collaboration with aboriginal communities.

[The Chair, Conservative, Bruce Stanton]

Ms. Neville, you wanted to ask a brief question. We have about 30 seconds left for a short one.

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

I don't know how brief it is.

Given that we've acknowledged there will be residual discrimination if the bill passes the way it is, and given that Mr. Duncan commented that it will be litigious, what would your advice be to us? We are doing all kinds of gymnastics to find an appropriate way to amend this bill so that there is no residual discrimination. Have you any advice for us?

[Jennifer Lynch]

With the greatest of respect, you are in a complex area with a tight timeline. The bill does appear to respond to the narrow order of the British Columbia Court of Appeal. As you've said, and as we've all said, it will rectify some but not all of the discrimination.

I found the submission of the Canadian Bar Association to be very good reading. This is a group of national aboriginal law experts who've identified areas of concern and made suggestions on amendments to address those concerns. My advice to you would be to turn there--

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

For their advice....

[Jennifer Lynch]

--for their advice.

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

Thank you.

[The Chair, Conservative, Bruce Stanton]

Thank you, Ms. Neville.

Now let's go to Mr. Dreeshen for five minutes.

[Earl Dreeshen, Conservative, Red Deer, AB]

Thank you very much for coming here today to enlighten us somewhat on this. We appreciate it.

I want to give you an opportunity to perhaps go back and discuss what you meant specifically when you spoke about review and process of “complaints of discrimination in employment or services”. You indicated that in your brief; I just wonder if you could expand upon that somewhat.

[Jennifer Lynch]

I'll give an example generically and then I can move to Bill C-3 as well.

That means we do not receive complaints.... Let me put it in a positive light. We have jurisdiction over complaints if they are based on one of our 11 enumerated grounds--religion, age, sex, family status, etc.---and the alleged act of discrimination must have happened in an employment setting or a service setting.

For example, let's take the banks. If I'm a bank employee and I feel I didn't get a promotion or what have you, I could complain to the Canadian Human Rights Commission. If I'm a customer of the bank and I go to the bank and I feel that for some reason they kept me waiting too long in line because of my colour or whatever, I could complain to the Canadian Human Rights Commission.

If I am a woman working in the trucking industry and I'm experiencing what I believe to be discrimination, I can complain to the Canadian Human Rights Commission, because we have jurisdiction over employment and services being provided.

But if you own the ABC motel and refuse people of a certain group, that doesn't come to us. It's a service, but it's not under our jurisdiction. That's what a service is.

When we get to the specifics in the world of status and funding, this is where we're getting challenges from the Attorney General that these are not services. I'll give you an example for a service.

Three complaints that we've sent to the tribunal recently are McIvor-like complaints--two brothers and a sister--and the Attorney General of Canada has filed a preliminary motion to stay the tribunal proceedings until Bill C-3 has been passed. The Attorney General has given notice that it will be challenging whether the determination of Indian status is a service within the meaning of section 5 of the CHRA. That's one. Now, in these three cases, they would all receive Indian status as a result of Bill C-3, hence the request for a stay. That's one kind of service.

We have another case before the tribunal as to whether funding is a service, funding by the federal government. It relates to aboriginal children in foster care. It's known as the Child and Family Services case. It's alleged that Indian and Northern Affairs Canada discriminates against aboriginal children in the provision of a service by inadequately funding child welfare services, and that the funding formula results in underfunding of services to keep families together and over-funding of services to put children in foster care.

Again, the argument will be made that this is not a service, that funding is not a service. Actually, on this whole definition of service, the courts have been quite broad in defining government services as service; however, there could be a narrowing. This is what we are waiting to find out through the courts.

[Earl Dreeshen, Conservative, Red Deer, AB]

So for band membership, is there ever a question as to whether or not that could become discriminatory? Would one ever consider that?

[Jennifer Lynch]

Now, I've just been reminded by my colleague that we cannot receive cases like that until June of 2011.

[Earl Dreeshen, Conservative, Red Deer, AB]

But once that time comes, then you would be able to deal with it, or you would be expected to...?

[Jennifer Lynch]

Well, provided that it is a service, yes. It would flow. The one would flow towards band councils as well, the definition of service, yes.

[The Chair, Conservative, Bruce Stanton]

That's about it, Mr. Dreeshen. Yes, the time goes rather quickly.

We'll have a final question from Mr. Lemay.

Monsieur Lemay, pour cinq autres minutes.

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

I listened to you very carefully, and I remembered that we had passed Bill C-21, An Act to amend the Canadian Human Rights Act. On March 30, 2010, I read a report entitled “Balancing Individual and Collective Rights: Implementation of section 1.2 of the Canadian Human Rights Act”.

I have a question for you. You have one year left. Are you prepared to deal with the dozens of complaints that are going to land on your desk, as a result of section 67 being repealed and Bill C-21 being implemented? You have one year left, just amongst ourselves.

Did the committee do a good job? Are there elements you are lacking, things we could ask the government for in preparation for June 18, 2011, so that you are not accused of being unprepared? I am not criticizing. On the contrary, we want to help you. Obviously, there will be a lot of applications.