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.

[The Chair, Conservative, Colin Mayes]

I open the Standing Committee on Aboriginal Affairs and Northern Development of Tuesday, June 5, 2007.

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

As witnesses today, we have Jerome Slavik, a lawyer from Ackroyd, Piasta, Roth & Day; Louise Mandell from Mandell Pinder, barristers and solicitors; and Professor William Black from the University of British Columbia's law faculty.

Welcome to our witnesses.

We'll hopefully proceed with a 10-minute presentation from the witnesses, and then we'll move into a question period from the members of the committee.

I'd like to begin with Mr. William Black, please.

Aboriginal Affairs

[Jim Prentice, Conservative, Minister of Indian Affairs and Northern Development and Federal Interlocutor for Métis and Non-Status Indians]

Mr. Speaker, I am not entirely sure what the hon. member is speaking to but perhaps he could direct some of the same vigour, enthusiasm and zeal toward Bill C-44, which is currently before the aboriginal affairs committee of the House.

The operative clause of the bill is nine words long. The bill has been at the committee for 20 weeks which has allowed the committee, on average, 10 days to study each word, including complicated words such as “is” and “the”.

The member and others have had 20 weeks to study the bill. Perhaps he should get on with protecting human rights.

[Brian Jean, Conservative, Parliamentary Secretary to the Minister of Transport]

Mr. Speaker, I do not understand why the Liberals will not support Bill C-44. Why do they not want aboriginal Canadians to have the same human rights that other Canadians enjoy? Shame on them. Get on the program and support the government's initiative to bring human rights to first nation Canadians.

[Brian Jean, Conservative, Parliamentary Secretary to the Minister of Transport]

Mr. Speaker, the minister has contacted Chief Phillip. We remain committed to building positive working relationships with first nations, Métis and Inuit groups, but nobody is fooled by the Red Green comedy hour across the way.

The Liberals are trying to change the channel because they say they support our troops, they say they support tough on crime legislation, and they say they support aboriginals, but they keep voting against it. Support Bill C-44 and bring human rights to aboriginals.

Business of the House

[Peter Van Loan, Conservative, Leader of the Government in the House of Commons and Minister for Democratic Reform]

Mr. Speaker, with regard to the last point, we have already addressed that.

However, with regard to the balance of Thursday's statement, I am pleased to respond that today and tomorrow we will continue with Bill C-55, the expanded voting opportunities bill; Bill C-14, the adoption bill; Bill C-57, An Act to amend the Immigration and Refugee Protection Act; and Bill C-45, the fisheries act.

In the last Thursday statement, we indicated that we were hoping to have this week as “enhancing the quality of the life of first nations people week” but this was cancelled by the opposition parties when they did not release Bill C-44 from committee, the bill that would give the first nations protection under the Canadian Human Rights Act. Not only is it being held up now but, as early as this morning in this House, the opposition obstructed our efforts to get the bill dealt with forthwith so that first nations people could have the human rights that every other Canadian enjoys. We know that if all parties would agree to proceed with that, as we saw when we sought unanimous consent, it could proceed, but some would prefer to obstruct it.

Next week will be welcome back from committee week, when we welcome business that has been at committee, including some that has been stalled there for some time. We will deal with Bill C-52, the budget implementation bill, which will begin report stage on Monday and, hopefully, we can get third reading wrapped up by Tuesday.

Following the budget bill, we will call for report stage and third reading of Bill C-35, bail reform. After that, we will call Bill C-23, the Criminal Code amendments. I hardly remember when Bill C-23 was sent to the committee by this House. That took place long before I was even House leader 228 days ago.

Thursday, June 7, shall be the last allotted day. There are a number of other bills that we would like to include in our welcome back from committee week. I still hope we can see Bill C-44, the amendments to the Canadian Human Rights Act, to which I just referred; Bill C-6, the amendments to the Aeronautics Act; Bill C-27 dealing with dangerous offenders; Bill C-32 dealing with impaired driving; and Bill C-33 dealing with foreign investment, if the opposition parties will release those from committee.

[Chief Marie-Anne Day Walker-Pelletier]

I cannot comment on what the impacts would be. Right now, our communities need to understand what's going to happen with this legislative process. In my community, nobody knows what Bill C-44 is.

What they want to know is, are they going to get proper housing tomorrow? Are we going to have clean water? Are we going to have good sanitation? That's what they want to know. But to connect that to human rights, in our traditional ways of thinking, we've always been keepers of our human rights as first nations people, as community people in our communities. We've always done that through our oral history.

We need to ensure that what's coming from here needs to get to the community, needs to be understood, and needs to be communicated properly. We need to ensure that the understanding from our perspective is also included in how you understand us.

Thank you.

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

Thank you, Mr. Chairman.

Welcome, Chiefs.

I read Bill C-44 at second reading. I had spoken against the way it was presented. I looked at other agreements signed by the government and I disagreed with the fact that you had not been consulted.

If I remember correctly, there was a political agreement on May 31, 2005. In 1977, section 67 had been promulgated to protect the Indian Act. In 2005, after various disagreements and a lack of negotiations with First Nations, there was a political agreement aimed at improving the collaboration between First Nations and the Canadian government. There was also a statement indicating that First Nations would be consulted on any piece of legislation applying to them or that could have important consequences for them.

The parliamentary secretary said something very important a few minutes ago. He said that 18 communities had negotiated government rights. They had negotiated. Did the government sit down with you, if only for a day, to negotiate anything relating to repealing section 67?

According to the Canadian Human Rights Act, you have to provide drinking water, water systems, as well as minimum levels of adequate housing, education and healthcare. Would you be able in six months to provide all those services as you would be required to under the Bill? What would be the financial consequences for your communities if some of their members were to sue you because you did not provide such services?

Chief Day Walker-Pelletier, let us take the example of the First Nations University of Canada in Saskatchewan. Could you have received the type of education that you hoped for since it has been established and been operational? I will let you answer.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Thank you, Mr. Chair.

Thank you to each of the witnesses for being here.

I want to underline the fact that all of us around this table are here because we do want to see improvements made in how we deal with aboriginal people's concerns. I personally requested to serve on this committee. And I don't question the motivation of my colleagues across the table to try to work at workable solutions, but we will disagree on process. I hope that regardless of where we come out of this meeting, we will not cast innuendo on each other, implying that we don't care, because that simply wouldn't be factual.

The questions that Mr. Merasty asked were rather easy to say no or yes to, depending on the question. I think the harder question, and I don't think we'll be able to answer it, is who then is responsible. If it isn't your fault, whose fault is it? There's enough blame to go around for many centuries.

Ms. Day Walker, you mentioned that you support Bill C-44 in principle. You said that it would decrease the gap between the first nations people and the rest of Canadians. I think, if I'm correct, you said that you would be, as first nations people, in a better position to lobby government because they will have to follow their own laws. So there are a lot of ramifications to any changes to this bill.

I think another statement that one of you made, and I'm not clear on which one, was that no one in your community knew what Bill C-44 was. I can accept that. Is it not true, though, that there have been a number of attempts over the last 30 years to deal with section 67, which isn't Bill C-44, but it was dealing with the heart of this matter of having first nations people excluded from the ability to file human rights challenges? So can you say that no first nations communities were aware that in the last 30 years there have been attempts to deal with section 67? I think that's the real heart of what we're after here today.

Can you address that, one of you?

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

Do you feel that fair and reasonable consultation has occurred in unrolling Bill C-44 forward?

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Just as some further background, and this doesn't necessarily apply to the future, the amount of human rights cases that might come after Bill C-44 is put in place is somewhat unpredictable.

There are about 18 first nations communities that have negotiated self-government agreements, where their communities live under the Canadian Human Rights Act. According to the Canadian Human Rights Commission, they have not seen a disproportionate amount of violations coming forward.

Over time, as the opportunity becomes known to first nations people, they will know that there is this vehicle for them to consider.

As background, this is the evidence that was brought forward in this committee.

[Erica Beaudin, Executive Director, Saskatchewan First Nations Women's Commission Secretariat, Federation of Saskatchewan Indian Nations]

Thank you very much.

The consultation process that has been discussed in Saskatchewan is that before Bill C-44 goes any further in the legislative process, a fair and considerate consultation process that builds on a respectful nationhood must occur.

We believe the topics that follow must be thoroughly considered when analyzing implementation.

First of all, there is the role of culture, language, and traditions. When undertaking a comprehensive consultation with first nations, the government must understand that our cultures, spoken languages, and traditions, including our oral history, must be an essential component.

What is an understanding on a topic in one language is very much different in another. Also, our oral history may have an ability to approach the subject and define human rights in a way that may not be considered in foreign world views and languages, such as our two languages of French and English.

In terms of an operational analysis, in order for first nations to meet, at the very least, the minimum standards that will be required in first nations communities once the CHRA applies, what we're looking at is an operational analysis that considers that financial, capacity-building, and human resources are needed. In this process it's important that first nations and the federal government work together to provide a joint analysis that is agreed upon and that both are committed to fulfilling.

In order to look at the financial resources and capacity-building, the operational analysis needs to provide a foundation for further financial resources to build capacity in first nations. If first nations and the federal government work together, they'll have a greater chance of meeting the requirements of the Canadian Human Rights Act.

In terms of the first nations institutions, historically we as first nations have had mechanisms in place to adjudicate when a person or party has felt aggrieved. The application of the CHRA on first nations is an opportunity to strengthen and support our justice institutions and the processes and decisions they make that are relevant and meaningful to their community members.

In terms of document language and definitions, currently Bill C-44 narrowly defines aboriginal authority. It would be wise to have the language and the definitions in Bill C-44 discussed at length at the community level to ensure relevancy, understanding, and clarity. It's common sense that if people understand the language and the meaning of the language, they will understand and support its importance.

[Chief Marie-Anne Day Walker-Pelletier, Okanese First Nation, Federation of Saskatchewan Indian Nations]

Good morning, and thanks for the opportunity to be here today. I have Erica with me, who will discuss the consultation process, but I'll deal with the other issues.

I'm Chief Day Walker-Pelletier from the Okanese First Nation in Saskatchewan Treaty Four area. I have been chief of my first nation for 26 consecutive years. During my tenure I have witnessed many changes and many challenges within our first nations community—within my own community and within other communities that I'm from and that I represent.

I'm here to discuss my perspective on Bill C-44 and the repeal of section 67. I also bring common themes from my colleague Chief Sarah Gopher from Saulteaux First Nation, who was unable to be with us here today because of pressing commitments in her community.

I first want to state that I support the ideology of the application of the Canadian Human Rights Act on first nations land. I believe and, further, act every day to support our first nations processes that carry out just decisions for everyone.

In fact, there is potential for me as a leader to have greater access to funding from the federal government. This act may enable me to provide opportunity for my members in a way that I cannot do right now with the resources that are available. In the event that the Canadian Human Rights Act becomes applicable, additional resources for drinkable water, more housing, sustainable schools, and health centres now seem a possibility.

Further, as a leader I'll be in a better position to lobby the government to fulfill their obligation to us as first nations, because they will have to follow their own laws.

I have several concerns about Bill C-44 as it is presented and communicated.

First, I feel that the government is using a negative perception of first nation women living on reserve. I hear their lives have few rights and, further, little opportunity. As a woman who has grown up and lived on reserve all my life, other than leaving for schooling, I know this is not the case. We have issues that do affect women differently; however, these are part of the greater social considerations on the reserve. As a woman chief, I am more concerned about the vulnerability of all my members and believe that every situation is unique and must be considered differently.

Further, I feel that Bill C-44 is a premature bill to go before the House for further approval. If the intent is to bring federally legislated fairness and equality to our first nations and our members, then the government must ensure proper diligence be given to a first nation process for community input and guidance, and additionally, that once first nations have spoken, the government will respect that voice and enact their own recommendations, protecting our inherent and treaty rights.

In Saskatchewan, apart from our inherent rights as first nations people, we also have six other treaty areas and the rights that were negotiated with them. In fact, it is our belief that our inherent rights and the rights of the land treaties and the promises the Crown made to our ancestors must be paramount. We as chiefs hold the responsibility of keeping these promises alive in our present-day lives.

We believe that any legislation that will impact our collective inherent and treaty rights must go through a thorough review and recommendation process with our elders. This must happen before we as leadership even entertain endorsement or rejection. It is with their teachings and memory and guidance that they will provide an understanding and world view that must be considered.

Further, we believe that the government must give serious consideration to and take action to support our governance processes in trying to accommodate new mainstream legislation, especially if it is not first nation contrived. This is one of our inherent rights.

Finally, any legislation that is meant to protect individual rights of first nations must include language that will protect our collective rights. This is our unique status that we, as first nations, hold in this country. This language right must include provisions to guide and support the adjudicators who are entrusted with the interpretation of the Canadian Human Rights Act for first nations and their communities.

As for consultation with first nations, we have several issues to reference that demonstrate the negative impacts on first nation people when legislation is passed that does not have first nation approval for process, analysis, and implementation. We only have to mention Bill C-31 to see the lasting impacts on communities and how communities are still torn apart by that legislation.

As the chief of my individual community, which is part of the File Hills Qu'Appelle Tribal Council and the Federation of Saskatchewan Indian Nations, I know that the consultation process from the community level to the provincial level has been next to nil. In fact, when I mentioned to my community members that I was going to Ottawa to sit before this committee, not one of my members had even heard about Bill C-44. However, 20 years later, if you ask my members about Bill C-31, they still have much to say about its many effects—mostly negative—on our community. It is the general consensus that Bill C-31 created more inequalities than any measure of equality for our first nations women and children, despite it being purported to eradicate these inequalities.

Apart from the promise of the government in 1997 to exempt the Canadian Human Rights Act from being applicable to the Indian Act, without full consultation with first nations, my fear as a chief is that if a proper public education and communication process is not done, the impact will create a misinformed membership that will be further confused about their rights as well as their responsibilities.

Currently, the transition period that is referenced in Bill C-44 is six months. If a conscious, cautious, and respectful process is to be carried out, including elders, women, and the disabled in the community, then the six-month process is not realistic. I would suggest that the transition period be extended by at least 30 months. It would also be prudent to say that the consultation process should be adequately funded to ensure a comprehensive community voice.

On the process of consultation, I will turn it over to Erica to describe the process to you.

[Chief Rose Laboucan, Driftpile First Nation]

Good morning to everyone. I thank you for the opportunity I almost didn't have, but in saying that, I don't feel I should have any more drama than my plane ride and the responsibility and accountability to be here to speak on behalf of first nation women and children in my community, and that's the reason why I'm here.

I want to say that when I initially took this opportunity to speak, I didn't want anything in writing, because I think from my oral history I'm able to voice my concerns without having to write them down. So I didn't pass out any documentation.

The one thing that I saw in this process, the first flaw I saw, was that no genuine consultation occurred. In 1977 there was a promise broken, because the federal government said they would engage prior to the application of the Canadian Human Rights Act regarding any changes that were to be made. That was not my promise; it was the promise that was made.

So even from that point of view, I don't know how I'm going to be able to say that my human rights and my benefit are being reassured by the changes that are going to occur on section 67.

As the leader of a small community in northern Alberta where the collective rights when it comes to the land base supersede the human rights, I have no other option but to protect that small piece of land that has been designated to me as a reservation. And knowing that and knowing that the collective and individual rights issue is going to be an even bigger burden to us than you will ever know, I can't begin to say how the matrimonial real property rights issues and the other issues stemming from the land management act.... All of these are connected to the repeal of this bill, and I want to be consulted. I want to know what the future outcomes are going to be in this process. I want to know how to address those prior to that.

When Bill C-31 was imposed, no one looked at the future and the impact of that bill. In this case, I definitely want to be reassured that any financial burdens are not on me, because when you look at individual human rights and issues that will come forth, you can see there will be a financial burden to that. There's no way anywhere in my budget that I can accommodate that.

Do not get me wrong. I am for the women. I am for the children and the protection of the children. I'm a mother, I'm a grandmother, so no one can deny me that opportunity and say that this is not about those rights. It definitely is.

As for the principle of Bill C-44, the repeal of section 67 I don't have a problem with, but let's talk about the process and what has to occur prior to that, instead of ramming something down my throat again. I say that as a first nations person who has had to live under the Indian Act all my life.

I just want to say that there are other things I would like--definitely the transition period. There are other accommodations that could be made to this bill before it's passed in the House, but number one and foremost, without consulting me you have already violated my human rights as an individual. You can't have both, You can't have your cake and eat it too, and say collective rights are only this part of me, and individual rights are only this part of me. No. It's either that they encompass me as a whole individual or not. And don't strategize so that I'm isolated on one part of my human rights and not the other.

I know it's a really big issue, so when we look at it and we look at the land base and we look at the collectivity of our way of life, I need more time. I need to talk about this more openly and discuss all the alternatives and strategies that I could bring forth in this process.

It is from that perspective that I chose to come to speak to you today. Hopefully when there's a question and answer period, we'll get into more detail about it.

That's where I'm coming from. I just want the opportunity to have these discussions and move forward.

Thank you.

[The Chair, Conservative, Colin Mayes]

Welcome to this meeting of the Standing Committee on Aboriginal Affairs and Northern Development for Thursday, May 31, 2007.

Committee members, we are continuing with our study of Bill C-44, an Act to amend the Canadian Human Rights Act.

Today as witnesses we have Chief Rose Laboucan from the Driftpile First Nation; Chief Marie-Anne Day Walker-Pelletier from the Federation of Saskatchewan Indian Nations; and Erica Beaudin, the executive director of the Saskatchewan First Nations Women's Commission Secretariat.

Welcome to our witnesses.

We're going to provide time for our witnesses to make presentations, and then we will move into questions. I'd like to start with Chief Rose Laboucan.

Standing Committee on Aboriginal Affairs and Northern Development

[Tom Lukiwski, Conservative, Parliamentary Secretary to the Leader of the Government in the House of Commons and Minister for Democratic Reform]

Mr. Speaker, a similar motion was moved and adopted on October 3, 2006, concerning Bill C-24, the softwood lumber bill. That motion was challenged and the Speaker ruled the motion in order. The Speaker said at that time:

In fact, the effect of the motion is not unlike the effect of adopting a motion under Standing Order 26, which provides for the continuation of debate on a matter before the House, which is to say that it provides for an open-ended extension of the sitting for purposes of continuing debate on a particular matter. This, it can be argued, can be seen as the House managing its business and arranging its proceedings.

As I read the motion moved by the hon. the government House leader and adopted by the House, every member wishing to speak to the amendment and the main motion, who has not already done so, will be able to participate. The motion does not set a deadline for completion of the proceedings, as would be the case under time allocation or closure. Instead it simply extends the sitting of the motion then before the House. That is a significant difference. The precedents available to me, including my own previous rulings, are therefore insufficient in my view for me to rule the motion out of order on this occasion.

The motion the government House leader has moved is not unlike the motion moved on October 3rd. The only difference is that it concerns a bill that is before a committee. There is no deadline dictated to the committee as a time allocation motion would propose. Members are free to sit as long as they wish to consider Bill C-44. There is no deadline for reporting the bill back, except to direct the committee to report the bill back when it finishes its consideration of Bill C-44. The motion does not presuppose that the committee is going to adopt the bill. It simply says that if the committee adopts the bill, that it ought to report it back. That is what would normally happen.

With respect to committees being masters of their own destiny, that principle does not preclude the House from giving committees some direction. Committees are subordinate to the House. In fact, the House is the sole source of direction for committees through the Standing Orders and other motions. This is covered on pages 805 to 809 of Marleau and Montpetit. In part it says:

Standing committees are permanent committees established by Standing Order. They are mandated by the House to oversee a government department or departments, to review particular areas of federal policy or to exercise procedural and administrative responsibilities related to Parliament...other matters are routinely referred to them by the House for examination: bills, Estimates, Order-in-Council appointments--

It also says that the House can give an order of reference including “--conditions that the committee must comply with in carrying out the study--”.

I submit that Standing Order 56.1 is the proper means to achieve the objectives outlined in the motion. I refer you, Mr. Speaker, to section (b) of the Standing Order which says that Standing Order 56.1 is to be used:

--for the observance of the proprieties of the House, the maintenance of its authority, the management of its business, the arrangement of its proceedings, the establishing of the powers of its committees, the correctness of its records or the fixing of its sitting days or the times of its meeting or adjournment

As with the motion that dealt with the second reading stage of Bill C-24, the motion dealing with the committee stage of Bill C-44 can be seen as the House managing its business and arranging its proceedings.