Bill C-44 (Historical)

An Act to amend the Canadian Human Rights Act

This enactment repeals section 67 of the Canadian Human Rights Act and provides for a statutory review, within five years after the enactment receives royal assent, of the effects of the repeal by any parliamentary committee that may be designated or established for that purpose. It also contains a transitional provision with respect to aboriginal authorities.

[Beverley Jacobs]

Good afternoon. Thanks for the opportunity to come back.

I think where I left off was talking about the responses to the consultation issues. In the committee's report on Canadian human rights, they recommended an immediate repeal with a transitional period of 18 to 30 months, and Bill C-44 provides for a six-month transitional period.

As you know, we do support the repeal, but there has to be at least 36 months. That is what we have put together as a transitional period. I think it's an unreasonable expectation for communities to be prepared for a drastic change in legislation, and so far, the way the legal process works, it's far too complex to reconcile anything within six months. We have to be aware and sure that there are adequate resources available in the communities to ensure that this issue is addressed properly.

In the work that we've done, we wanted to make sure there was meaningful consultation. It was apparent during the matrimonial real property process that this was something that really needed to occur. There were serious and validated concerns that there wasn't enough time to ensure that there was a meaningful consultation process, since we only had three months to do that.

So as a minimum, in the early stages of the discussions, NWAC did ask for at least a year of consultation. The aboriginal women we talked to voiced this concern and felt a great deal of skepticism in the process underscoring the fundamental nature of consultation where important legislative change directly affects aboriginal peoples.

In the report of the special representative on the protection of first nations women's rights, a key recommendation was free, prior, and informed consent. This is absolutely crucial when individual and collective rights of aboriginal women are being impacted. The report elaborated that aboriginal women find legislation difficult to understand, that they would have greater capacity to offer constructive feedback if they were informed about the laws that affect their collective and individual rights.

The focus group recommended that an education and awareness strategy be implemented, where aboriginal women's organizations provided tools and resources to educate aboriginal women about their legal rights.

Then in June 1998, INAC acknowledged that there was no explicit departmental policy or directive to guide consultation with first nations. Although the broad, flexible approach used by the department has been advantageous in meeting the diverse needs, there has been a lack of consistency regarding the principles and the sharing of best practices.

The Auditor General's report in 2006 contends that meaningful consultation will reflect positively on aboriginal and governmental relations. Good governance and a trusting relationship between aboriginal communities and governments are essential in improving the quality of life for aboriginal people.

If the Canadian human rights mechanisms are to have any weight in aboriginal communities, full and meaningful consultation must occur. Since aboriginal women and children are most affected by human rights violations under the Indian Act, it is imperative that they are also included in this process.

As I said at our last meeting, we did develop a whole five-year implementation plan. The implementation plan would involve INAC, the Department of Justice, and the Status of Women. We also had formal discussions with the former Law Commission of Canada and the Canadian Human Rights Commission.

We have also had discussions with the president of the Indigenous Bar Association with respect to specific indigenous legal traditions that need to be respected in our processes.

From the proposal that we developed, we heard nothing back from any of the federal departments. We do believe it is a sound plan and that first nations communities have to be actively engaged in implementing the repeal.

This implementation plan addresses many of the concerns expressed about Bill C-44 and the immediate repeal. There needs to be some building upon the previous research with a goal of ensuring the recognition of indigenous legal traditions and exploring the best way to reconcile the domestic legal principles in the charter as well as in the Canadian Human Rights Act.

Canada has been proactive in advancing integration of indigenous legal traditions in some first nations communities with the implementation of various aboriginal restorative justice initiatives. We think that together with first nations, government parties can build upon that approach to also address human rights protections.

We believe there has to be an acknowledgment of the emerging knowledge base of elders in our community relating to indigenous legal traditions as well as looking at the responsibilities within the communities themselves and the leadership in the communities to respond to those issues.

We think there needs to be a bottom-up approach taken by engaging first nations through capacity-building. This will provide communities with the practical means to control and access justice and resources.

That's about it. There was a plan, with year one, year two, year three, year four, year five within our plan. We were hoping that with the development of this, we would work directly with first nations communities, with whom we developed very positive relationships through our MRP consultations. Also, there are best practices out there already that are addressing this issue seriously.

We believe human rights protections require much more than changing the black letter of the law. The implementation process and the allocation of resources are essential to success. There have to be meaningful consultations with all of the NAOs, first nations communities, and individuals throughout the process.

We need to ensure that there is a 36-month transitional period. Anything less would not account for the long-term impacts and root causes of human rights violations.

We undertake on the government to immediately undertake an open, transparent process for assessing the impact on individuals and first nations communities and to commit to an implementation plan that is collaboratively developed by government and first nations communities, including full and meaningful participation of aboriginal women. Through this plan, it will enable a meaningful engagement process to prepare for the impacts of the repeal of section 67.

Thank you.

[Chief David General]

Thank you, Mr. Lévesque, for the question. You present us with a whole Pandora's box of possibilities.

I'm very fortunate to have Richard Powless here and a number of my council, who have engaged in this whole discussion of Bill C-44. They're up here on the Hill.

I think that if we were to move forward with this piece of legislation--again I would hold up the jurisdiction as being the major achievement--in the time that you have as the government, I think maybe that would provide some peace of mind. But in the larger scene, I think the wisdom would be that we should take a step back, look at all that's been achieved right now, and realize that maybe we are again--I'm probably saying nothing that hasn't been said before--moving too fast with this. We're trying to address it too soon. There needs to be more discussion. There needs to be more information. As for talking about implementation and not knowing what the impacts, negative or positive, are going to be, as a leader, I feel that providing endorsement for continuing with the process would be a foolhardy approach.

Although one alternative may be to put jurisdiction and a longer timeframe in an amendment to the wording of the legislation right now, I think all 633 first nations need more time on this.

I can tell you, and I won't take too much time, that Six Nations is the largest first nations group, and I'm very proud of the capacity that we have, the minds that we have to put to this item, but even that is not enough. I have tremendous respect for Chief Balfour and his community and other communities across the country who do not have the time and have not had the time to put minds to this issue.

By saying we should move forward, I would be doing them a disservice. We all need more time.

[Yvon Lévesque, Bloc, Abitibi—Baie-James—Nunavik—Eeyou, QC]

Welcome, welcome.

The interests of the first nations are of great importance to me; these are my brothers. It is clear that your culture and your way of seeing things are different from ours. My colleague asked you if you would prefer striking out section 67 in favour of discussions and negotiations with the government to adopt measures that would streamline the application of Bill C-44.

Some point to the fact that article 25 of the Canadian Charter of Rights and Freedoms is often referred to as a protective provision. It is said that the fact that the Charter guarantees certain rights and freedoms does not adversely affect ancestral rights and freedoms flowing from treaties or other similar documents. Moreover, section 35 of the Constitutional Act, 1982, acknowledges and confirms existing rights.

Grand Chief General, you have been well advised by Mr. Powless. For the good of your nations, do you think that recommending delaying the application of the act while negotiations take place with the department or the government with a view to mitigating certain difficulties would be better than running the risk of having a majority government? Such a government could at some point enact the legislation as it stands currently, and this would give your nations nothing, aside from more difficulties.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

You made a comment about the Indian Act. When the Bar Association came before us, in their submission they actually talked about the fact that Bill C-44 could be used as a piecemeal approach to take apart the Indian Act without any appropriate look at the comprehensive picture. I wonder if you could comment on that, because you raised the Indian Act.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Thank you, Mr. Chair.

I want to thank you for coming to present your views to the committee today.

On a point of clarification, there is no reason why Bill C-44 cannot be put on hold until appropriate consultations have taken place.

But I think you've both addressed a far larger issue. We've heard consistently from witnesses who have come before the committee that they support the repeal of section 67. But it is the process. I know certainly that some of my colleagues and I have spoken about the need to repeal section 67.

Chief General and Chief Balfour, you've both touched on the larger problem. It doesn't matter whether it's Bill C-44, matrimonial real property, housing, or what bill comes before the committee; the larger issue is the lack of recognition of a nation-to-nation status. If we were talking to any other treaty signatory as a Canadian government, we would not present them with a fait accompli; we would not present them with a bill and ask them what they thought. If we wanted to change a treaty in which we'd already engaged, or change some rights that we had agreed to through a treaty process, we would engage in dialogue and consultation before we drafted any kind of legislation or treaty changes.

I think that comes to the heart of the matter of this. Once again we have a government that presents you with a proposal and asks what you think, instead of coming to you first and saying, “We think we need to do something about the repeal of section 67. How do you want to do this?”

I wonder if you could comment on that.

[Chief Marcel Balfour]

Thank you.

I'm not a parliamentarian, but there are particular tactics you could probably employ. That would be pushing this bill through as quickly as possible and then voting against it. If you are in a minority position, then arguably you would be able to have the support of your three parties to be able to vote it down, based on very succinct and well-established precedents in Parliament in the recognition of aboriginal treaty rights.

But if you're asking me, I don't know. I've never contemplated that before. I can't necessarily say that on the one hand I should like to see some amendments so that I agree with this process. I specifically spoke in front of you guys before with FNGA because I wanted it on the record that Norway House was not involved in that process, that Norway House was not agreeing to that process. I think that's really important.

That's why I'm here today, because Norway House is not agreeing with this process. It's a parliamentary process. As with Chief Balfour ten years ago, you supported Bill C-44 and you suggested some amendments. So what's so wrong about doing whatever may be up someone's sleeve ten years from now, right? It sets a very dangerous precedent for me, as chief of Norway House Cree Nation, to be able to say I support a bill that I think doesn't meet the criteria and respect my people.

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

Thank you for being here. I was not sleeping; I can assure you that I was listening to what you were saying quite attentively. Grand Chief, I wish to welcome you, and especially the aboriginal women from your six nations, who are here with you today. I had the opportunity and honour of meeting these ladies this week. Welcome to the committee.

Chief Balfour, I'm also very pleased to meet you and to understand your position. I've taken notes. I practised as a lawyer, you see. I have only one question, and I'd like an answer. You may take all the time you need.

We are in a minority government. Across the way, are the Conservatives. On this side, members come from the Liberal, Bloc and NDP parties. We are considering Bill C-44. We can propose significant amendments. My colleague, Mr. Merasty, has described the amendments quite eloquently. I will not go over them again, but I believe that we are heading down that track.

Would you be willing to run the risk of having us suspend the committee's work so that we can hold adequate consultations? This may take between six months to one year, and there's a possibility of an election. This is an entirely far-fetched hypothesis, but it is possible that the Conservatives will form a majority government, that they will once again table the bill and adopt it without any consultation. Or rather, would you prefer that we make the amendments that you have proposed, Grand Chief General?

I've read your submission. I would like to know your position. What do you really want? Now is the time to say so. I can assure you that I do not consider that the work of this committee constitutes the type of consultation referred to in the Supreme Court's rulings regarding Bill C-44. I know, and we all know what a true consultation should be. I would like to hear your comments on this matter.

[Gary Merasty, Liberal, Desnethé—Missinippi—Churchill River, SK]

Thanks, Mr. Chair.

First of all, I want to thank you for your presentations here today. I think they were done extremely well, and you were very analytical in the way you presented them.

I've heard many different views from the aboriginal community on Bill C-44 and on human rights. I respect Chief Balfour for his comments that sometimes we have to split the repeal itself apart from the act, because they are two different things. You said you'd support the repeal, but not necessarily the act, and I think that's a very valid and worthwhile statement. From what I've heard over the last number of months with this issue, there is tremendous support for human rights issues and so on.

Now, in 1985 the Conservative government--at the time, of course--rushed into an amendment to the Indian Act, the tinkering you talk about, Chief Balfour, and ended up with Bill C-31. It was rushed. It was done in the name of protecting women. I think at the time the Conservative government believed it was the right thing to do. I hope there weren't any alternative motives; I don't think there were. However, Bill C-31 ended up being much more discriminatory and is actually more unfair to women and children in many respects, and many studies have said it will lead to there being no status Indian people within a few decades. So it was a very problematic piece of legislation that was rushed into in the name of ideology.

Today, in 2007, we see the same rushing into Bill C-44. It's rushed. Again, it's in the name of protecting women and children. I truly believe that my colleagues across believe this is the right thing to do. In many respects I agree, because we need to do some work in this area.

Women's groups, other aboriginal organizations, witnesses have appeared before this committee and have expressed their concerns. I want to summarize some of them.

Very logically, as you've presented this morning, we've heard people talk about the need for an interpretive clause, a non-derogation clause or a notwithstanding clause; a longer transition period than what is currently allowed; a more detailed impact analysis done from a legal perspective, because this will have consequences on other legislation as we move forward, including the Indian Act itself; and analysis of the balance on the collective rights of our people, treaty rights and aboriginal title, and so on.

Now, these arguments and these positions sound fair to me. I have not heard anybody say we're against human rights, and I think it's important to state that if you're against Bill C-44--I'm repeating again what was said here--you're not against human rights. That is an unfair painting of people who speak to concerns about Bill C-44.

I've also heard some concerns that the Conservatives have said that this process is consultation. I don't know if it is, because consultation usually occurs before a bill is drafted and worded and so on.

In essence, all these concerns fall under two umbrellas, as I look at it. The first umbrella assumes that we scrap the bill and that the government immediately engage in consultation to address this gap in the provision of human rights, balanced against all other issues--the collective rights, the impact on the Indian Act, all these other things--so that we can begin to address this fairly and reasonably.

The other bunch of concerns fall under the assumption that if the bill is not scrapped, then we need a longer transition period, we need more study, we need the non-derogation or interpretive clause, and so on.

I'm hearing from people out there that there's support, but that Bill C-44 is not the vehicle to get us there. Is that a fair statement? What do you think of what I've laid out here?

I don't know who wants to start first.

[Chief David General, Six Nations of the Grand River]

Thank you, Mr. Chair.

Ladies and gentlemen of this esteemed committee, sekoh, sge:no. Sekoh is Mohawk for hello. Sge:no is Cayuga for hello.

I first want to acknowledge the Algonquin Nation, on whose territory we are meeting today for a very valuable discussion about nations, and this discussion of human rights falls right into the whole discussion of nationhood.

We have provided a short background on Six Nations in our formal brief, which we have tabled with the clerk. I want to start this presentation by stating clearly that this presentation and our participation in this committee process is not to be taken or referred to as consultation. There has been no consultation on this current bill, which I will speak about later. I'm referring to the fact that there have been no formal discussions with Six Nations of the Grand River on this particular topic.

The passage of the proposed Bill C-44 will once again be an imposition of an external law on our community, which is a violation of our treaty relationship with the Crown in Canada. Canada was peacefully settled because of the treaties with first nations and the treaty relationship that followed. These are solemn agreements viewed by many first nations as sacred.

It should be noted that none of the treaties before current day examples ever mentioned the rights of self-government. This is not something that we ever negotiated. It continues to this day. Let me be clear on that point. We still consider ourselves governing bodies of those we are responsible for.

Six Nations has one of the oldest treaties with the Crown in North America, called the Kahswentha, the Two-Row Wampum treaty. This treaty recognizes the equal but separate status of our respective governments and forms the basis of our current relationship. It means our governments and nations are equals. The Two-Row Wampum treaty means that in the same way as the two rows do not intersect, our respective governments also agree not to interfere with each other. Human rights is a jurisdiction of Six Nations. Six Nations has the inherent right to self-government, and only Six Nations is best placed to balance the rights of individuals with the collective rights of our citizens.

We are proposing that any legislation would recognize first nations jurisdiction in this area and would only be in place until first nations enact their own human rights legislation codes. It is important to state that any new federal legislation that has the potential to affect our aboriginal and/or treaty rights may trigger the duty to consult, accommodate, and obtain our consent. This duty is recognized by the Supreme Court of Canada. However, it is also a pre-existing duty based on our treaty relationships and alliances with the Crown as part of our Two-Row Wampum treaty. The Supreme Court of Canada has stated that the honour of the Crown mandated the duty to consult with first nations, and the principle is grounded in the honour of the Crown, which is also at stake in its dealing with the aboriginal peoples.

The federal government's duty to consult has clearly not been met with Bill C-44. You have heard from sponsors of the bill that section 67 of the Canadian Human Rights Act has been discussed for 30 years. However, much has changed in that time including the relationships, history, and Canadian law. During that time a constitution has been enacted in Canada that protects the aboriginal and treaty rights of aboriginal peoples of Canada. The specific wording in this bill is different from previous attempts.

It may be true that previous governments consulted native organizations in the past in other attempts to amend the Canadian Human Rights Act. However, the duty today is to consult the rights holders. This means that the government must consult with first nations communities represented by their governments, not with the aboriginal organizations. It means consultation must be held with over 133 first nation governments in Canada that will be affected by this legislation. Only Six Nations speaks for Six Nations. Consultation with anyone else claiming to represent us is invalid.

We submit that the consultation must be done before the legislation proceeds any further. A six-month delay in implementing the legislation will simply not do; the horse is already out of the barn. A six-month delay is meaningless if the ultimate result is the abrogation or violation of our constitutionally protected rights.

Any consultation must provide us with a full and informed analysis of potential impacts of this legislation. No one can say with any certainty what the impact of this legislation will be on our communities. Therefore, impact studies must be completed so that we have the best information available.

These studies must be completed before the legislation proceeds. This means that the timeframe for consultation must be increased to at least a year. We cannot see how the federal government could consult with 633 communities in a short timeframe. It also means resources must be provided to first nations so they can effectively participate. To be clear, consulting with first nations organizations will not meet the duty to consult.

Government sponsors of this bill have stated that any more delays in this legislation will lead to more human rights violations in first nations communities. Yet I would strongly argue that there is no pressing or immediate need for this legislation. The Canadian Human Rights Commission itself has cited only 20 examples per year of complaints amongst first nations. This is not a significant problem given the millions of first nations citizens across Canada.

The implementation and transition period provided in Bill C-44 must be extended. If it took the government 30 years to take action on this issue, surely they can take a few more to do it right.

It is important to note that when section 15 of the Charter of Rights and Freedoms was passed, three years were given before implementation. First nations deserve the same treatment and timeframe, 36 months, for implementation and transition and to ensure a grave mistake is not made.

This extra time should be taken at the beginning of the process, and following consultation, the legislation must be amended to reflect the results of the consultation.

The Canadian Human Rights Act primarily deals with individual rights. Like other federal legislation, it was developed from the different systems of law, traditions, and history and reflects a world view not shared by first nations, with the emphasis on individual rights over collective rights. Our histories, customs, traditions, and rights are based on collective rights, and they are reflected in our unique cultures, practices, traditions, and languages.

To be clear, we are fully supportive of individual human rights, but they must be balanced with the collective rights of our communities, cultures, and societies. We want to ensure that this legislation will not affect or interfere with how our traditional governments function. This would not only be an injustice but contrary to the international documents that recognize and protect our rights to our culture, traditions, and practices.

No other governments or people have the right to impose their cultures and cultural imperatives on our nations and societies—again, ladies and gentlemen, that two-row concept.

Article 27 of the International Covenant on Civil and Political Rights provides that persons belonging to ethnic, religious, or linguistic minorities “shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language”. Indigenous people are numerically a minority, so the rights of minorities apply to us. However, it is important to emphasize that we have the legal status of people...and the right to self-determination under international law. It is the obligation of the federal government, under international law, to respect and protect article 27 rights.

Six Nations is also concerned that non-supportive groups and organizations hostile to first nations rights could use the Canadian Human Rights Act to challenge existing first nations specific programs and services, such as education, housing, and tax exemption, etc., based on discrimination against non-Indians. If successful, this could unravel the entire basis of the social programming among first nations communities and create more poverty among first nations communities. I'm sure this is not the intent of this bill. This would impose a levelling agenda of the white paper of 1996.

This speaks to the need for both the interpretative clause and a non-derogation clause in the legislation that will balance individual rights and collective rights and protect the treaty and aboriginal rights of first nations. All first nations must be able to continue to provide first-nations-specific programs and services to their citizens without being charged with discrimination by outside interests.

The proposed legislation would impose unfunded, unforeseen, and potentially massive costs on all first nation governments. First nation governments will be required to participate in expensive tribunals. The current funding base is totally inadequate, and we've been subjected to a 2% funding cap, in place since the early 1990s. It is impossible to know the short- and the long-term impacts. However, we do know Six Nations does not have the existing resources to respond to potentially major costs resulting from this legislation.

For example, it is likely that the disabled or handicapped citizens will be the first to come forward and lodge complaints for the lack of accessibility to our facilities, yet we have never been adequately funded and we do not have the resources to make our facilities accessible to the handicapped. This is a very real example of where resources for first nations will be required immediately. Training in the entire process will be necessary. When you factor in 633 first nations communities, you can see it will take a much longer time than the six months' transition timeframe proposed.

The federal government has stated that international pressure led it to this action now, and we find it indeed ironic that the government, which is attempting to portray itself as the champion of human rights, is currently blocking the approval of the United Nations draft declaration on the rights of indigenous people.

The United Nations High Commissioner for Human Rights, Louise Arbour, the former Canadian Supreme Court judge, stated she does not understand why Canada has such a problem with the declaration. As a former Supreme Court judge, she sees no threat to Canada in the declaration, and she has said so to the Government of Canada. Perhaps this committee could persuade Canada, at a later date, to stop their hypocrisy and withdraw their opposition to the United Nations draft declaration, which is simply attempting to protect the international human rights of indigenous people.

Six Nations also is concerned with indigenous human rights and reminds Canada and this committee that human rights include the rights to safe water and adequate, decent housing; the rights to be employed, to clean air, and to good health; the right to culturally appropriate education, and the right to raise our children in their own first nations culture and language.

That concludes my comments to the committee today. I look forward to any questions you may have. From our territory, I say niawen ko:wa, which roughly translates into a big thank you.

Niawen ko:wa.

[Chief Marcel Balfour]

Okay. I won't go faster, but I'll cut out a lot.

My people have expressed fear with regard to Bill C-44. As I said, the small working group I had and I discussed this--for on-reserve only, never mind my off-reserve members--and some members of the band expressed fear that they might be excluded from housing on-reserve. Others expressed concern that the band might have to start providing services such as health care for people off the reserve. Other band members stated that they did not understand or know what the Human Rights Act is or what available remedies there are. Others were worried that the implementation of Bill C-44 would diminish our treaty and aboriginal rights, and others felt that it was leading to further assimilation.

I should like to perhaps just quickly identify three areas that I've thought about but I haven't really.... I sat down to present this, but I haven't thought about everything.

One of the ideas with respect to this particular bill--or an approach to a bill, if you wish to proceed on it at another time when there's actually consultation with those who are on-reserve who will be affected as well as those off-reserve and bands-- is maybe a first nations notwithstanding clause.

Now, I know you've listened to a number of presentations, and they're well considered. Certainly from AFN there was some good analysis.

The provision of a notwithstanding clause in the CHRA itself would allow first nations to override the equality protections of the CHRA, but of course such a clause would rather obviously require careful wording and might be objectionable in the eyes of many.

While the notwithstanding clause is controversial, history has shown us that its existence has not provided an insurmountable barrier to the protection of human rights in Canada. Federal and provincial governments have this, so why don't first nation governments have this?

The second consideration, another option that might be considered, would be a saving or justification clause serving a function similar to section 1 of the charter, that would allow restrictions on CHRA rights by first nations to the extent that such restrictions are demonstrably justified. There are a number of things of course that need to be considered. The wording would definitely have to be well thought out, and again, consultation would definitely be a key on this.

And third, as presented by AFN--and we are cautiously thinking about this--is an independent first nation mechanism, which of course leads to what we can actually do ourselves.

I look forward to questions, and I'm sorry for taking so much time and speeding along at too fast a pace at the beginning.

Thank you.

[Chief Marcel Balfour]

While Bill C-44, perhaps admirably, increases protection of equality of rights for aboriginal people under the Canadian Human Rights Act, it does not address the question of balance between individual equality rights and protection of other individual human rights. This a central consideration that I think you've been hearing a lot about from other witnesses.

I guess when I take a look at this, it's informed also from an international perspective. Looking at the international context, one might cite from an equality perspective articles 2 and 3 of the UN Covenant on Civil and Political Rights. These provisions, which are often cited as being violated by section 67, protect individual equality rights by requiring states to ensure to all individuals within their territory and subject to their jurisdiction the rights recognized in the covenant, without distinction of any kind, such as race, sex, colour, or religion, and requiring states to provide remedies for violations. However, at the same time, the covenant also provides that these individual equality rights may be limited to protect the existence of the states, i.e. the collectivity, for example, in cases of public emergency as set out in article 4.

Further, and quite significantly for first nations, article 1 of the covenant sets out important collective rights, namely, that all peoples have the right of self-determination, and that by virtue of that right, they may freely determine their political status and freely pursue their economic, social, and cultural development.

The Canadian Constitution, within the Canadian context, also recognizes the importance of individual rights, including individual equality rights and collective rights. You've heard analysis on section 15. From a broader perspective it also, of course, protects collective rights. The charter, though, does not limit the protection of human rights protected therein to individual equality rights. In direct reference to collective rights, the charter recognizes and protects, in addition to the collective rights of first nations, collective rights of linguistic communities with regard to the official languages of Canada.

For example, the charter recognizes that members of English or French linguistic minorities have the right to have, in certain circumstances, their children educated in their own official language. In this connection, the collective rights afforded to the English and French language communities in New Brunswick are particularly striking.

Sections 16 and 16.1 of the charter specifically recognize that the English linguistic community and the French linguistic community in New Brunswick have equality of status and equal rights and privileges, including the right to distinct educational institutions and such distinct cultural institutions as are necessary for the preservation and promotion of those communities.

While I recognize that there are limitations to any analogy that may be drawn with the situation of Canada's first nations, I believe that the wording in the charter with regard to New Brunswick's linguistic communities provides an interesting example of the important role of collective rights.

Similarly, one must also consider that the charter, as well as the Indian Act, mandate that first nations be empowered to take action to preserve their existence, identity and culture of their communities.

When I take a look at this, I think there might be a tendency to characterize opponents of Bill C-44, if there are any, in its current form as being anti-human rights. But that's not where I think this argument is coming from, or where I'm coming from at all. The diversity of rights protected in both the charter and international instruments demonstrates that the concept of human rights extends far beyond the equality of rights promoted by Bill C-44. Given the broad spectrum of human rights recognized in both Canadian and international law, as well as the recognition that equality of rights also can apply on a collective basis, I think that characterizing Bill C-44 as pro-human rights versus anti-human rights is both counterproductive and misleading.

Secondly--and I believe this point to go to the heart of many of my reservations about Bill C-44 in its current form--the broad concept of human rights also recognizes rights of the collectivity, and that collective human rights and individual rights must be reconciled.

While I do not want to address the various pros and cons of the Indian Act--and I find it kind of funny because the last time I was here I was speaking on the FNGA and we were talking about, “Don't tinker with the Indian Act” --it's kind of ironic that we are actually promoting an application of human rights law on race-based legislation. In effect, what we're doing is tinkering with the Indian Act.

So if I say yes to this, it means I say to the Indian Act, and I can't. It's just an untenable position I find myself in as chief.

There are at least areas recognized in the Indian Act as well as the charter that are exercised by bands with a view for protecting culture, language, and welfare, and there are specific powers within the act as well. And of course you know this already. There are always problems with the Indian Act in terms of bylaw-making power, and land designation, and the role of the minister. There is something there, weak as it is.

[Chief Marcel Balfour, Norway House Cree Nation]

Thank you.

I regret that I don't have a presentation for you. I pulled this together at the last minute, and hopefully I will be able to highlight some of my speaking notes here and provide you a copy later.

Tansi, distinguished members of the committee. My name is Marcel Balfour. I am the chief of Norway House Cree Nation, or what would be referred to under the Indian Act or Treaty 5 as the Norway House Band of Indians. We are located on the Norway House Indian Reserve, or on the Norway House Cree Nation reserve land, which is located in mid-north Manitoba, about 850 kilometres north of Winnipeg. We have a population of over 6,000 people now, with about 4,500 living on-reserve and about 1,600 living off-reserve.

Over time, we have been referred to by many as one of the more progressive first nations in Manitoba.

By way of background, I was elected chief in March 2006, and from 2002 to 2006 I was elected Norway House Cree Nation councillor. From that experience, I have a personal understanding of human rights on reserve, or the lack thereof, because during my term in office, I had to go to court to be able to carry out some of my elected duties.

In February 2006, the Federal Court found that I was subject to influence peddling and blackmail by the then chief and some of my fellow members on the council. The Federal Court also noted that the rule of law was not being followed in Norway House. Luckily, with time things changed, and some members of my council and I have remain committed to human rights, to ensuring accountability for the spending of band funds, and to protecting aboriginal and treaty rights.

It is within this context that I have both concern and measured enthusiasm regarding the repeal of section 67 of the Canadian Human Rights Act, as set out in Bill C-44. In my presentation, I should like to first deal briefly with human rights and aboriginal and treaty rights; second, identify the need to balance individual and collective rights; third, share with you some concerns identified by my people in Norway House on reserve, when we met to discuss Bill C-44; and finally, identify some possible avenues to address the shortfalls of the bill.

I should like to encourage the efforts of Canada’s current government to further human rights for Indians and bands of Indians, as defined under the Indian Act. It is well known that section 67, enacted in 1977, was originally intended as a temporary measure. I believe it is long past due to address the inequalities imposed by section 67.

Unfortunately, however, over time with respect to this issue, things have not changed much for Norway House. For the last 30 years, there has been no consultation with the Norway House Cree Nation, neither with the Norway House Band of Indians nor with individual Norway House Band members. This includes not working together with the Canadian Human Rights Commission, the federal government, the Assembly of Manitoba Chiefs, the Assembly of First Nations, NWAC, or any other aboriginal organization that has been talking to you or working on this particular issue.

I find that I'm being pressed here to present on something that has been looked at over the years and is something that really needs to go forward. I believe the Canadian Human Rights Commission presented to you and asked, why is the repeal so urgent? They were saying that it's long overdue. I would say, why is it so urgent now? I haven't had a chance to take a look at this stuff. This legislative agenda is extremely fast for me as a chief, but also for my band. Ironically, we have not been informed or consulted.

I asked the Canadian Human Rights Commission and Indian and Northern Affairs to please come and do a presentation at Norway House, at least to inform my people as to what's going on. Both said they didn't have enough resources to be able to do that. Luckily, I had the benefit of a technician who came from the Assembly of Manitoba Chiefs to try to explain what's going on here, which was really hard to do.

When I had that session—and it was only last week—we had 30 people discuss it. I kind of forced my staff to attend, because I knew people probably wouldn't be too interested. Of the 30 members of my band on reserve, 17 of them are women and 13 are men. It became clear to me that I should present to you that while a repeal of section 67 is supported, Bill C-44 is not.

Both the CHRA and the implications of Bill C-44 are not necessarily well understood by my people, who have not been consulted. I would wholeheartedly agree with the revocation of section 67, but I cannot support the bill.

My rationale for this position is based on two interrelated factors: my belief in the fundamental importance of human rights, aboriginal rights, and treaty rights, and the crucial role of consultation in the democratic process.

Canada’s first nations, both individual Indians and Indian bands, who are living under the Indian Act have their own long-standing customs of governance, many of which pre-date those of Canada itself, and which have traditionally provided an harmonious balancing of both the collective human rights of the community and the human rights of the individual.

I go further in my presentation, but I think I could probably address the issues more appropriately in questions and answers, because I'm sure you've heard them before from other presenters.

The way I look at this, the CHRA, in its current form, embodies an essentially western or Euro-American notion of one aspect of individual human rights, notably, equality rights, and western or Euro-American remedies and dispute resolution mechanisms to ensure protection of those rights. The CHRA offers little with regard to protection of other human rights, whether collective or individual, of the community, such as constitutionally protected treaty rights and inherent aboriginal rights.

[The Chair, Conservative, Colin Mayes]

I open the Standing Committee on Aboriginal Affairs and Northern Development of Thursday, May 10, 2007.

Committee members, you have before you the orders of the day. We're continuing our study of Bill C-44, An Act to amend the Canadian Human Rights Act.

We'll be going for three hours. We have two panels, so we'll deal with the first panel of witnesses now.

From the Norway House Cree Nation, we have Chief Marcel Balfour. From the Six Nations of the Grand River, we have Chief David General, and Richard C. Powless, consultant.

Welcome, witnesses. Thank you very much.

We'll be asking for a presentation of 10 minutes from each of the representatives. Then we'll be asking questions.

I apologize for the delay.

Mr. Balfour, do you want to begin?

[The Chair, Liberal, Tom Wappel]

The committee that is waiting for the use of this room is the committee on aboriginal affairs. It is considering legislation, Bill C-44.

Consequently, it seems to me that I have to give priority to that committee. So what we will do is suspend this meeting and look for another room in which to consider carrying on our debate.

I ask all members to hang around until such time as we see whether the clerk can find us another committee room.

I apologize to the members of the other committee that we interrupted their meeting.

Thank you for bringing that to my attention.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Mr. Speaker, clearly the member is very ashamed. For 13 years, her party had the opportunity to remedy so many of the issues about which she is talking. At the last moment of their dying regime, the Liberals brought forward their press release on Kelowna. Of course it was not something on which they could deliver. Of course it was something that they never intended to deliver. They made so many promises before that and they always broke them.

We are moving forward. We are making systemic changes, changes that will bring important new rights to aboriginal people. Specifically, I talk about Bill C-44. It would be nice if the member would perhaps bring her party to support human rights on reserve. Instead, she is exiting the House, afraid.