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.

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

Mr. Watson, please don't spend the entire morning repeating what the Minister said; I know what he said.

At the present time, the First Nations are saying that they will not be able to start implementing Bill C-44 in its current form overnight. According to them, that would lead to absolute chaos. When I asked them what we should do, they suggested adding an interpretive clause. You read it. Do you agree? Is the Department prepared to act on that? Is it prepared to talk about developing and incorporating an interpretive clause and a non-derogation clause?

My question is very specific—at least, I hope it is.

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

You're right; I think it would be better to go back to the question raised by my colleague earlier.

Mr. Watson, Mr. Ricard and Ms. Aubin, I would like to give you my own impressions. I am pleased to see you here at this stage in our consideration of Bill C-44. I have been comparing your comments to those made by witnesses who appeared previously, including the Indigenous Bar Association in Canada, and I see that we are dealing here with two completely different viewpoints.

On the one hand, departmental officials say they will have no trouble handling this. According to them, after 30 years working in this area, they have seen other such challenges. On the other hand, the Indigenous Bar Association quotes the words of Justice Muldoon of the Federal Court. I do not wish to make a mess of His Lordship's statement, but in the case in question, the title and title of which I've forgotten, the judge handed down a ruling in which he said that interpreting decisions made by the Human Rights Commission under the Canadian Human Rights Act was tantamount to assimilating Aboriginal people and shutting down the reserves. My description is rather harsh. However, that is what he meant and that is what we were told by people representing the Indigenous Bar Association.

I have to say that everything I've been hearing this morning seems very ambiguous. I would like you to provide some clarification. We need to know who is right and who is wrong. The people representing the Assembly of First Nations want there to be an interpretive clause, but representatives of the Human Rights Commission tell us that it would be possible to put a provision in the Bill that would define an interpretive clause, so as to have some warning of what is to come. The First Nations want a derogation clause.

What is your position this morning on the demands made by the Indigenous Bar Association and the Assembly of First Nations? Are they of no concern to you?

[The Chair, Conservative, Colin Mayes]

I'd like to open this Standing Committee of Aboriginal Affairs and Northern Development meeting of Thursday, April 26, 2007.

Committee members, you have the orders of the day before you. We're going to continue with the review of Bill C-44, An Act to amend the Canadian Human Rights Act.

With us today as witnesses from the Department of Indian Affairs and Northern Development are Daniel Watson, senior assistant deputy minister, policy and strategy direction; and Daniel Ricard, director general, litigation management and resolution branch.

From the Department of Justice, we have Christine Aubin, counsel, operations and programs section, legal services unit.

Later, from the Congress of Aboriginal Peoples, we'll have Patrick Brazeau, national chief.

It was the desire of the subcommittee to bring these witnesses together at one time, so we won't have a break and we will use the time as best we can. I say this because I didn't want anybody to be concerned about the association between departmental officials and Mr. Brazeau—just so you're aware of that.

We do not have an opening statement from the Department of Indian Affairs and Northern Development, nor from the Department of Justice, so we're going right into questioning.

Mr. Brazeau is going to be a little late; he said about 11:15 to 11:20. So if you want me to proceed this way, I'll let Mr. Brazeau make his statement when he arrives. Would that be acceptable to the committee, and then we can continue right through?

[The Chair, Conservative, Colin Mayes]

Good.

Thank you very much to the witnesses. You were very informative and very knowledgeable on the subject. We really do appreciate the insights to Bill C-44.

We'll suspend now for approximately two or three minutes.

[Christopher Devlin]

Once Bill C-44 is passed, section 67 is repealed, and no one is going to look at Bill C-44 ever again. Isn't that right?

Bill C-44 should be amended, in our primary submission, so that the interpretive provision is then put into the Human Rights Act.

[Christopher Devlin]

I'm sorry, I don't mean to mislead the committee. We are saying that Bill C-44 should be amended so that it in turn puts the interpretive provision into the Human Rights Act.

[The Chair, Conservative, Colin Mayes]

The chair has a question. Would there be a possibility to put a justification clause in the Canadian Human Rights Act that would be sufficient to defeat any host of claims that would come from non-first nations people? Basically, instead of amending section 67 as we are with Bill C-44, could there be something in the Human Rights Act rather than an interpretation clause in Bill C-44?

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

Thanks, and I actually want to follow up on this. Again, I'm going to come back to this 2000 report. It's actually really interesting to me that we end up with this Bill C-44 without an interpretive clause provision, when it had been strongly recommended in a number of places, including this review back in 2000. They talk about the interpretive provision, and in it, in laying the groundwork for the reasons for an interpretive provision, they say:

We think that an interpretative provision should be added to the Act that requires the taking into account of Aboriginal community needs and aspirations in interpreting and applying rights and defences....

It goes on further to say:

This would supplement the bona fide justification argument, ensuring that it is properly adapted to the needs of Aboriginal government, without binding the Tribunal to any one interpretation. This is consistent with the Draft Declaration on the Rights of Indigenous People that requires that States take measures to assist Indigenous people to protect their cultures, languages and traditions.

Then they go on to make a very clear recommendation around the need for an interpretive clause. I think the challenge that many of us have is that most of us come from a Eurocentric background, where individual rights are paramount, and we keep bumping up against many indigenous people who have a very strong belief that collective rights are paramount, or at least need to be considered. I wonder if you've seen cases or examples, perhaps in other countries even, where that collective versus individual right has been balanced and taken into consideration. This seems to come to the core of what we're talking about.

[Steven Blaney, Conservative, Lévis—Bellechasse, QC]

We agree that the Indian Act is a yoke under which we have to live today. Attempts have been made in the past to modernize it, especially relating to governance, but there was a lot of resistance.

Trying to repeal the Indian Act would be a very ambitious project, considering the inherent difficulties. Do you think that the step-by-step approach underlying Bill C-44 is a good idea, since it would allow us to improve Aboriginal rights without attacking the Indian Act, which would call for a much more comprehensive approach? As a first step, should we try to eliminate the irritants of the Indian Act in order to move forward, slowly but surely?

[Steven Blaney, Conservative, Lévis—Bellechasse, QC]

Mr. Devlin, on page 2 of your report you express some concern about the cost of possible legal challenges resulting from Bill C-44.

I have been told that there are some communities that already come under the Canadian Human Rights Act and that this has not necessarily led to enormous legal costs for them. Do you have any information about that, based on the experience of those communities? I am told that the costs relating to the implementation of the Bill would not necessarily be high.

[The Chair, Conservative, Colin Mayes]

You're over.

You covered a question I had. My question, though, is a little bit more on the amendment to C-44, which is amending section 67, which was the implications for the non-aboriginals on reserve land. Does that give them more opportunity to challenge the first nations governance as far as their rights to taxation with representation and those kinds of issues? Even so, the Indian Act is in place, but is the fact that they've been extended human rights going to have some implications on those rights for those people who are non-aboriginal on aboriginal reserves?

[Christopher Devlin]

Yes. Our primary submission on that point is that the interpretive provision should be inserted in Bill C-44. Of course, if that's not what happens, then we support a longer delay in the effect of the repeal so that an interpretive provision can then be developed through a consultation process and enacted separately.

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

Thank you very much, Mr. Chair.

Thank you for your presentation. I have a couple of things, probably more observations than anything.

In your submission, am I understanding that you would like an interpretive clause put in Bill C-44? The Human Rights Commission had recommended that we pass the legislation and then work with first nations groups to insert the clause after.

[Christopher Devlin]

First of all, as a minimum thing that ought to be done, we would support that, and we do support that the Canadian Human Rights Commission should work with first nations as part of a consultation process to assist in the development of the interpretive provisions and even in the non-derogation provision.

I think the larger issue is the timing of when that would happen. In our submissions, we suggested that should happen as Bill C-44 is passed, not after the passage of the act in a subsequent amendment to the Canadian Human Rights Act. In our view, that work should happen, and we support that work happening with the commission. That work should happen now over the next period of time, and then Bill C-44 should be amended so that the interpretive provision can be added to the Canadian Human Rights Act so that we can address these issues all at once and not have to do it in two or three steps.

[Christopher Devlin]

That's correct, and this conclusion is found in the first paragraph on the last page of our submission.

Our submission is that Bill C-44 should be amended to include the non-derogation and interpretive provisions that we think should be the result of the next 18 to 30 months' worth of consultations and deliberations.