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.

[Tamra Thomson, Director, Legislation and Law Reform, Canadian Bar Association]

Thank you, Mr. Chair, honourable members.

The Canadian Bar Association is very pleased to have the opportunity to appear before your committee today to address the very important issues reflected in Bill C-44.

The Canadian Bar Association is a national association. We represent over 37,000 lawyers across Canada. Our primary objectives include working toward improvement in the law and the administration of justice. It is in this optic that we developed the submission before you today.

I will ask Mr. Devlin to address the issues in the bill.

[The Chair, Conservative, Colin Mayes]

We'll open this meeting of the Standing Committee on Aboriginal Affairs and Northern Development on Tuesday, April 24, 2007.

Committee members, you have the orders of the day before you. We are still working on Bill C-44, An Act to amend the Canadian Human Rights Act.

Today we have witnesses from the Canadian Bar Association. We have Christopher Devlin, chair of the national aboriginal law section, and Tamra Thomson, director of legislation and law reform.

Welcome to the witnesses.

We'll have a presentation of around 10 minutes and then we'll be moving into questions.

Committee members, I would like to take a bit of time at the end of the meeting to talk about the two motions that have come forward from Madam Crowder and Madam Neville. I think we're going to deal with those on Thursday, but we'll talk about that.

Welcome. I'll allow you to begin now, please.

[The Chair, Conservative, Colin Mayes]

Okay. That's exactly what Mr. Albrecht has said. The chair just wants some clarification, and the chair fully agrees with the decision of the committee. So that's what we shall do; we just needed some direction on it.

Just to let you know, the budget for Bill C-44 was adopted, and we have the approval for the budget amounts to conduct this study or review this bill.

The other thing that was brought up for attention is that we advertised that the committee was dealing with Bill C-44 and was looking for people to have input via sending in briefs and comments. There's some question whether the way we advertised was sufficient to notify all interested parties. Somebody brought forward the possibility of expanding it and getting better coverage through Canada NewsWire. There's a cost to that of $1,000. What we did is simply put it into the press gallery. If they want to deal with it, they will. If they do not, they will just put it on the pile. And it's there on our website.

Does the committee wish to spend that $1,000 to put it on the Canadian wire service, just to make sure?

Mr. Lemay.

[The Chair, Conservative, Colin Mayes]

Members, we need to deal with some committee business here. I'd like to go through it fairly quickly.

We had a notice of motion from Madam Crowder, but she is not here today. We'll postpone it.

The second item I have is that the clerk has received a brief, and the question has come up as to whether these briefs are confidential. I want a determination from the committee. If the briefs are sent in to the committee, are we going to treat them as confidential?

We advertised and asked for briefs to be sent in on Bill C-44 from anybody who wants to contribute information that they are not going to be here to give as witnesses. We received some briefs with some statements, I think, in the briefs that there was a concern that they wanted to keep that information confidential. And so the question came up whether or not we can do that as a committee.

As we are a public committee, is all the information we receive public? The second thing is, can we determine that we will receive these briefs maybe in camera so that they are not public?

I am looking for some direction.

Mr. Lemay.

[The Chair, Conservative, Colin Mayes]

Thank you very much.

I want to thank the witnesses for being here today.

This has been very interesting and informative for the committee. We're looking forward to moving forward and doing what's best for aboriginal people with regard to Bill C-44. So thank you for your attendance.

I'm going to suspend for three minutes.

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

I don't think I'll be the only one to say that it should be stated in Bill C-44 that an interpretative clause has to be drafted. The question I'm asking you is very specific. How are you going to draft an interpretative clause in collaboration with the First Nations, when they've already developed one? That's what they want, and it's Appendix B of the brief that they have presented to us. Have discussions already started on that topic? It can take a long time to develop an interpretative clause.

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

Thank you very much for being here this morning.

I want to go further into collective rights versus individual rights, and also go back to the solution you have in your report about having a statutory statement that would then determine your mandate.

I'm a little uncomfortable with that, rather than having an interpretive clause right in the legislation, for a couple of reasons. One is that I think it's again putting off putting in the interpretative clause. Having the interpretative clause right in the legislation gives a comfort level, I think—for AFN, definitely, and for the people this legislation is going to affect.

The other part I'm not that comfortable with is that if you don't put an interpretive clause in the legislation itself, the balance is shifted in determining where you look at collective rights versus individual rights.

I know I'm not probably getting that point across properly. I'm just trying to figure out what words I could use.

If you don't put the interpretive clause in BillC-44, I'm worried that the balance is not going to be there. I'm worried that it's a shift to words interpreting collective rights versus individual rights more on the individual side; that it would not be in the middle is what I'm trying to say.

In all the discussions I've heard around the table, everyone is leaning, I think, towards individual rights trumping collective rights, only because they don't understand the impact and how important collective rights are to aboriginal people. That's the point I'm trying to make; that I don't think the balance is there, only because people don't understand what it really means in the life of an aboriginal person when collective rights are being talked about rather than individual rights.

Perhaps you can expand on that: my arguments that it should be right in the bill, versus the third option that you have before us.

[Jennifer Lynch, Chief Commisioner, Canadian Human Rights Commission]

Yes. Thank you.

Mr. Chairman and members of the committee,

thank you for welcoming me here today.

Thank you for introducing my colleagues, Mr. Mayes.

As Canada's national human rights institution, it's important that the Canadian Human Rights Commission has a strong line of communication with Parliament, and that is why I am so pleased so early in my mandate—this is my third week as chief commissioner—to have an opportunity to appear before you to discuss as fundamental a human rights issue as the repeal of section 67.

I will focus today on five key areas, and these are as follows.

First is the commission's support for the repeal of section 67. The repeal of this section is long overdue. Its existence has real and negative impacts on people every day, and it must be repealed now. We are very encouraged by the introduction of Bill C-44 and we support its enactment as soon as possible.

Second, the commission submits that an interpretive provision should be created that will help to ensure the Canadian Human Rights Act is interpreted in a manner that appropriately considers and strikes a balance between individual rights and aboriginal community rights and interests.

Third, we submit the transitional period should be longer than the six months proposed in the legislation.

Fourth, we submit that both the commission and first nations need to be properly resourced to ensure successful implementation of repeal.

Fifth, I'd like to clarify the commission's broader mandate as a guardian of human rights.

Now I will expand on these five areas.

Point 1 concerns the urgency of repeal. Why is repeal so urgent? The Canadian Human Rights Act was enacted 30 years ago. The purpose of the act speaks powerfully to every Canadian. It reads:

2. The purpose of this Act is to extend the laws in Canada to give effect, [...] to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted.

The rights enshrined in the CHRA - the right to be free from discrimination and where discrimination occurs to have it redressed - are fundamental to our citizenship. In everyday life that means when a Canadian believes that a federally regulated employer did not hire him because of his race he can seek redress. It means when a person who uses a wheelchair is prevented from entering a building because there is no ramp she has a way of getting that barrier removed. It means when a woman is sexually harassed on the job she can have the matter considered by a competent body. It means that when a Canadian believes that federal legislation discriminates against him or people like him, he has a means of contesting the validity of that legislation.

Yet the Canadian Human Rights Act does not mean these things for any First Nations citizens. As a result of section 67, the Act and its noble purpose do not apply to them.

Repeal is urgent because 30 years is too long to wait for human rights. Yet First Nations people have been waiting that long to have their rights recognized. Because of 22 words tacked on to the very end of the Canadian Human Rights Act in 1977 they often have no means of having their human rights concerns addressed.

Section 67 has real and serious implications in their everyday lives. And the repeal of section 67 has the potential of positively affecting over 460,000 people in 600 communities. The Canadian Human Rights Commission has consistently called for the repeal of section 67. We are encouraged that, while there are differences on how to best accomplish repeal, the government, the members of your Committee, the AFN, NWAC and other stakeholders all support the Commission's opinion that section 67 must be repealed.

The second point I'd like to emphasize is the need for an interpretative provision. I'll go into some detail on it.

The need for an interpretive provision is one important area in which differences of view have been voiced. Bill C-44 is silent on this matter. With respect, we submit that it should not be silent.

First nations communities and people have a unique history and special status in the Canadian constitutional and legal system. Their existing aboriginal and treaty rights are affirmed in the Constitution, have been progressively confirmed by the courts, and are recognized by governments at all levels. An interpretative provision is, in our submission, imperative to give application to the inherent right to self-government and is fundamental to developing an appropriate system for first nations human rights redress. An interpretative provision would help to ensure that individual claims are considered in light of legitimate collective rights and interests.

While many agree on the need for an interpretative provision, there are differences on how this should be achieved. Some have suggested that an interpretative provision be added to Bill C-44. In our special report on section 67, called A Matter of Rights, the commission recommends that an interpretative provision be developed post-repeal, in dialogue with first nations, to allow for needed dialogue, analysis, and consideration to take place without unduly delaying repeal.

Today the commission would like to recommend a third solution that incorporates, in our mind, the best of both approaches. We propose that Bill C-44 be amended to provide for two clauses.

One would be a statutory statement of principle that would enshrine the principle that the Canadian Human Rights Act should be applied to first nations in a manner that appropriately balances individual rights and collective rights and interests.

Second would be a mandate to the commission to develop, through a process of dialogue with first nations and other stakeholders, the appropriate instrument for applying the statutory interpretative principle in the handling of human rights disputes. This could be accomplished by way of regulation, or perhaps by resort to the commission's statutory powers under subsection 27(2) of the Canadian Human Rights Act. Under subsection 27(2), the commission has the authority to enact guidelines on how the act should be applied with regard to a particular class or group of complaints.

What might be included in a statutory statement of principle? The statutory statement of principle should have as its objective a clear articulation of the desired balance, while not indirectly reinstituting the very effects that the repeal is intended to relieve. This is completely consistent with the recommendations of the Canadian Human Rights Act review panel, which was led by former Supreme Court justice Gérard La Forest, and was included in their 2000 report, Promoting Equality: A New Vision.

Our third point for discussion is the length of the transition period. The length of the transition period is another issue on which differences of opinion have been expressed. The commission submits that six months is not sufficient time to allow first nations and the commission to properly prepare for repeal. The challenges of implementation are large, yet they are manageable. A significant amount of engagement and dialogue between first nations and the commission is desirable to manage the implementation.

This is not a simple matter of repealing it and seeing complaints flowing to the commission in the normal course. In modern conflict management approaches, strong complaint processes are important, yet they should be a remedy of last resort. Our legislation is consistent with this and encourages parties to a complaint to try to resolve their dispute within their own milieu before coming to the commission.

The need for local level systems to resolve conflict and provide redress of complaints is critical to the success of repeal. No matter how much the commission alters its procedures and processes to be responsive to the unique status and circumstances of first nations—and the commission intends to do just that—it will always be preferable to resolve human rights issues in the communities and workplaces where they occur, respecting their cultures. To allow this to happen, the commission and first nations must embark on an appreciative process of listening and learning, designing and building, and finally implementing and realizing a new first-nation-integrated human rights and conflict management system based on core principles that can be adapted to the needs of different communities, cultures, and traditions.

It is important to articulate that our vision is for much more than an internal complaints system. Formal dispute resolution, although important, should be a relatively small part of an overall system that would also embrace prevention and education. There is such enormous potential here to develop a whole system that starts with a dispute resolution structure providing multiple options for the resolution of disputes and is supported by other processes and practices that will shift the emphasis towards the front end—prevention of discrimination and education. The core principles to be developed should have as their goal the fostering of a culture that treats conflict resolution as a building block to creating inclusive and productive communities and workplaces.

By establishing integrated human rights and conflict management systems, first nation citizens will better understand their rights and how to realize them, first nation governments will better appreciate the rights they are mandated to promote and respect, and all parties will be able to work together to prevent discrimination and resolve human rights complaints.

First nations already have systems of dispute resolution, including traditional practices such as healing circles and community sanctioning. We honour and respect these practices. We have much to learn from first nations, and we will.

All of this will take time to realize; indeed, it will be an ongoing process. This is why the commission believes that a longer transition period is critical if we are to get this process off to a good start. We submit that this, in addition to the need for time to develop an interpretative provision, will require at a minimum 18 months, and would benefit from a period as long as 30 months.

Point 4 concerns resources. I would like to articulate clearly the imperative need of ensuring that both First Nations and the Commission have the resources needed to ensure that implementation is successful. No matter how well an interpretative provision is drafted or how long the transitional period is, implementation will not be successful without adequate resources to build needed capacity. Without that capacity, implementation may falter and this would bring the Canadian Human Rights Act into disrepute. No one wants this result.

First Nations have limited financial and human resources and have pressing problems they must address every day. At present many First Nations do not have the means to participate in the type of appreciative dialogue and collaborative problem-solving I have just discussed. Nor do they have the resources to develop internal redress and dispute resolution mechanisms. That is why the Commission welcomes Minister Prentice's statement to the committee that he would welcome the committee's views on the operational impact of repeal on First Nations communities.

The government has already indicated that resources will be provided to the Commission to carry out our expanded responsibilities when repeal proceeds. For this we are grateful. Should Parliament decide to expand the Commission's responsibilities beyond those in the current bill, we would of course want to discuss the resource implications of such changes with the government in order to ensure that we are adequately further resourced to carry out our responsibilities as mandated by Parliament.

Number five is the commission's mandate. Finally, I would like to clarify that the commission's statutory mandate goes well beyond the investigation and resolution of human rights complaints. The act makes the commission the guardian of human rights by giving the commission broad powers to ensure that human rights are effectively implemented in the federal jurisdiction.

As a statutory agency, independent of the government or other parties, the commission has and will continue to assert a leadership role in human rights by constantly encouraging all organizations under our purview to strive for excellence in the promotion and protection of the human rights of all Canadians in accordance with our act. It was in the exercise of this mandate that the commission issued A Matter of Rights in 2005 in order to bring to the attention of Canadians what the commission believes is a gaping hole in the fabric of our human rights protections.

In particular, section 27 provides that the commission may consider recommendations, suggestions, and requests concerning human rights and freedoms from any source and, when deemed to be appropriate, include in a report reference to and comment on any such recommendation.

We are mandated to carry out studies concerning human rights and freedoms as may be referred to us by the Minister of Justice and to include in a report the results of such study together with such recommendations as we consider appropriate.

We may review regulations, rules, orders, bylaws, and other instruments made pursuant to an act of Parliament, and we may comment on any provision inconsistent with the principle described in our purpose section, section 2.

And we shall try, by persuasion, publicity, or any other means that we consider appropriate, to discourage and reduce discriminatory practices.

In the process of implementing the repeal of section 67, the commission will use these powers as appropriate to call attention to progress in implementing repeal as well as impediments that need to be addressed. For example, the commission may decide, after a time period, to issue a special report on the implementation process.

The government and first nations could also request that the commission use one of our statutory mandates just iterated to work with them to delineate operational implications of the repeal, bringing our extensive experience in translating human rights principles into action.

To prepare, we are actively and proactively strengthening our relationships with first nations. We established a national aboriginal program in September 2006, of which Ms. Helgason is the director, based in Winnipeg. The program is mandated to lead and coordinate our ongoing work on this issue. The aboriginal program is being supported by commission officers who have expertise in areas such as policy development, legal analysis, communications, complaints handling, alternate dispute resolution, and conflict management systems.

In summary, we are recommending the immediate repeal of section 67; the incorporation of both a broad statutory statement of principle on the need to appropriately balance individual rights with community collective rights and interests, and a mandate for the commission to develop an appropriate instrument on this matter; a transition period of 18 to 30 months; and appropriate resources to support the implementation.

The time for action is now. We all agree on that. With imagination and cooperation, the commission is confident that repeal can happen soon. And with repeal, we will collectively open a new door and collectively build a first nations human rights system that honours and respects aboriginal and treaty rights and treats all first nation governments and peoples with the full measure of dignity and respect to which they are entitled.

We at the commission welcome this unique opportunity to work with first nations, their governments, peoples, and organizations, and with the Government of Canada and Parliament to build this better future together.

We are all here to respond to your questions. Commissioner Langtry, who holds this portfolio, and I will lead the responses.

Thank you.

[The Chair, Conservative, Colin Mayes]

I open the Standing Committee on Aboriginal Affairs and Northern Development of Thursday, April 19, 2007.

Committee members, you have the orders of the day before you, and today's meeting is video recorded. We're dealing with Bill C-44, An Act to amend the Canadian Human Rights Act.

Our witnesses today represent the Canadian Human Rights Commission. We have Jennifer Lynch, chief commissioner; David Langtry, commissioner; Sherri Helgason, director, national aboriginal program, Prairies and Nunavut region; Harvey Goldberg, team leader, strategic initiatives, knowledge centre; and Hélène Goulet, secretary general.

Welcome, witnesses, and thank you very much for being here today.

We'll have an opening address, and then we'll begin questioning. Madam Lynch, are you going to be speaking?

Aboriginal Affairs

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Mr. Speaker, on this the 25th anniversary of the creation of the Canadian Charter of Rights and Freedoms, I am very happy to note this government's significant progress on human rights issues, particularly the rights of aboriginal people.

For instance, we have introduced Bill C-44, An Act to repeal section 67 of the Canadian Human Rights Act. Bill C-44 proposes a fair, realistic approach to ending nearly 30 years of discrimination that, in many cases, prevented aboriginal people living and working on reserves from filing complaints under the Canadian Human Rights Act.

I also want to talk about the progress we are making on the difficult question of matrimonial real property on reserve. This issue is a serious injustice that often creates suffering for first nations women and children.

Under the guidance of Ms. Wendy Grant-John, a consultative process to identify a legislation solution was undertaken last fall. This process has been completed and Ms. Grant-John's report will be available shortly.

I am very proud of these initiatives and we intend to continue working to ensure that the human rights of all Canadians are respected.

Human Rights

[Colin Mayes, Conservative, Okanagan—Shuswap, BC]

Mr. Speaker, human rights are the foundation of Canadian values. Some Canadians believe that Canada defined human rights, but quite the contrary, human rights define Canada.

People from all over the world came to Canada to escape political oppression, religious discrimination and the lack of opportunity in their homelands. These settlers of our country defined our rights and values, how our society should be structured with law and order and the freedom for all citizens to pursue their individual enterprise.

Sadly, the people who met these settlers, the first peoples of this land, were not extended the same freedoms of this new Canada. The Indian Act discriminated against the first peoples of this land. The new Canada tried to change the culture and language of these first peoples.

Our government, led by our Minister of Indian Affairs and Northern Development, has tabled Bill C-44 which would amend section 67 of the Canadian Human Rights Act and once and for all avail the same rights to Canada's aboriginal people that non-aboriginal people have enjoyed since Confederation.

I ask all members to support the bill to remedy this injustice to aboriginal people.

[Beverley Jacobs]

With respect to the Native Women's Association, I'm not sure how many are aware of the organization itself. It is an aggregate of 13 provincial–territorial member associations, and the goals are to empower aboriginal women by engaging in national advocacy measures aimed at legislative and policy reforms that promote equal opportunity for aboriginal women, including meaningful access to human rights protections.

We are committed to ensuring that the unique needs of aboriginal women are reflected in any and all legislative and policy directives that have the potential to have a significant impact on the lives of aboriginal women and children. We adhere to a culturally relevant gender-based analysis. Basically what that means is that it's about balance. It's about ensuring the balance between men and women in our communities and promoting common goals towards self-determination for aboriginal people, and for women as the role models in our communities and as natural leaders.

We use this framework to assess differential impacts of proposed and/or existing legislation on aboriginal women and children. We believe this process enables us to review the policies through an understanding of historical, cultural, and political and socio-economic marginalization of aboriginal women within Canada. It thus makes it possible for governments to be more effective in responding with informed, equitable options. We will be using this process during our proposed implementation plan, and with any legislative change.

For the last 30 years, with respect to section 67 in the Canadian Human Rights Act the equality interests of aboriginal women have maintained a prominent place in policy discussions about the Indian Act and in discussions about self-government. This has primarily been the result of efforts by individual women and organizations to keep these issues in the public eye and on the federal policy agenda.

One high-priority area for NWAC has been the promotion and the protection of the human rights of aboriginal women in Canada. It is our belief that while often viewed as a champion of human rights in international fora, Canada has failed to ensure that basic fundamental standards of human rights are applied to aboriginal peoples in Canada, particularly aboriginal women and children. This is true in relation to many aspects of social, economic, cultural, political and civil rights.

Several United Nations bodies have been critical of Canada's human rights record and of its treatment of aboriginal people. Specifically in relation to aboriginal women, Canada has been criticized by domestic and international bodies for failing to protect the equality rights of aboriginal women in matrimonial real property issues, to redress such human rights mechanisms as the Canadian Human Rights Act, and for the rates of violence and the low socio-economic status facing aboriginal women.

We have learned as well about the impacts of the 1985 amendments to the Indian Act, called Bill C-31. We know that when amendments are made without consultations and without acknowledging the potential impacts, there are detrimental effects within first nations communities, such as divisions within the community, lack of resources and capacity, and effects upon education. Those are just some examples.

As to concerns with respect to Bill C-44, in the House of Commons we've heard members of Parliament voice a number of concerns. First, there is a concern that this does not address the root causes of human rights violence. From a balanced perspective the mere revocation of the Indian Act exemption will not address the effects of colonization. The repeal of section 67 is only one element in the advancement of human rights protection for aboriginal people.

Next, supporters of Bill C-44 purport that an immediate repeal is required, since aboriginal people have waited long enough, and consultation should not be used as an excuse not to act.

We agree that the repeal of section 67 is long overdue. However, we feel there has to be meaningful consultation as a strong first step of an evolving and collaborative process. We do not view human rights protection as compartmental. It is a process in which each step is necessary to achieve success in the overall goal. Consultation is not an excuse for inaction; it is an essential element in an active process.

In many cases, first nations communities do not have the capacity or resources to expose themselves to liability. As noted earlier, without proper resources and capacity as a result of Bill C-31, we have learned what this has done in our own communities. We don't want this issue added on as a burden in the communities nor resources taken from other programs and services to address issues we know will result from the repeal of section 67.

In turn, we believe that capacity-building and education are key factors for aboriginal communities to implement their own mechanisms of protecting human rights. This would greatly minimize the risk of conflict and promote prevention of human rights violations, unlike the current system of reactive measures.

Members of Parliament have also expressed apprehension about the six-month transition period. So why is the current government expediting human rights protection haphazardly after 30 years without meaningful action? And what validates these concerns, especially considering the lack of support that this government has for the United Nations declaration on the rights of indigenous peoples?

By implementing a community-based process that addresses the key factors of meaningful consultations—adequate implementation, resources, and capacity-building—Canada would be in a better position to support international standards, since they would then be in the process of complying with those standards. This kind of comprehensive process will require at least 36 months to implement.

Another important issue with respect to Bill C-44 is whether it addresses the individual and collective rights. This debate is at the very core of aboriginal and governmental relations in Canada and has yet to be resolved. Due to the complexity and cultural differences embedded in this question, NWAC advances that any conclusions on the matter must come from community consultations.

In the discussions we had with aboriginal women in our matrimonial real property consultation process, many discussed this issue; and to reconcile this issue, most talked about their responsibilities to their communities and to their future generations. Many said that we are individuals from nations. That's where we come from, and we cannot separate ourselves from that.

The core of this issue is addressing conflict through various forms of indigenous legal traditions, which we believe will assist in resolving the debate of individual and collective rights.

[The Chair, Conservative, Colin Mayes]

Thank you.

Thank you very much to the witnesses. I think it was really informative—at least it was for me, and I'm sure it was for the rest of the committee members—about the issues that arise from Bill C-44.

The committee has a list of witnesses that we're going to continue with. We have also advertised for submissions from aboriginal communities and individuals, which will be received by the committee. We are going to go through this process, and if at the end of our witness list the committee feels it hasn't adequately heard enough witnesses and had that input, we will extend the list of witnesses.

Thank you very much. We really do appreciate the time you have taken to be with us today.

We'll adjourn for four minutes.

[Proceedings continue in camera]

[Chief Phil Fontaine]

I'll respond to part of it, and Chief Price wishes to add her comments as well.

First of all, the distinction here is between on-reserve and off-reserve first nation citizens. Our position is that first nation governments ought to be able to extend the provision of good government to all of our people regardless of residency. In many situations, for example, you have tribal councils and first nation governments that provide education services off-reserve. There are tribal councils that have property off-reserve. They deliver child welfare support programs to communities off-reserve, and this is done in cooperation with provincial governments, sometimes by reference and other times by certain arrangements.

In terms of the application of Bill C-44, however, we're talking about the Indian Act. The Indian Act applies only on-reserve, so there's a distinction there that's the result of the Indian Act.

In terms of capacity, the demands on government--the federal government, for example--would be similar to the demands that would be placed on first nation governments to provide to first nation citizens. For example, in housing, in the case of access for the disabled, there's a real cost to this, and we're faced with a crisis situation right now. So someone could come to us or someone could file against the first nations government, and a ruling could be made that causes the first nations government to respond to this. If you don't have capacity, if you don't have the wherewithal, the decision could be meaningless. The person could be further jeopardized, because the resources and capacity would not be there in our communities.

I don't know how else to explain this matter.

[Chief Phil Fontaine]

In fact, Mr. Bruinooge—if you don't mind, Mr. Chairman, a quick addition to this point—in our community the preference is to provide protection to the children. So to whoever has custody of the children, preferential treatment will be provided and has in fact traditionally been provided. If it's the woman, it's the woman. If it's the husband or the man, it's the man who would be afforded preferential treatment.

In fact, this is the way this has been handled in our communities for a long time. In isolated situations, maybe people haven't been treated fairly, and we admit that we have to do all we can to provide the appropriate protection for the rights and interests of all of our citizens, including women, children, and elders. That's why—the point I made earlier—we support the repeal of section 67 and support Bill C-44, with appropriate provisions for the protection of our interests as distinct governments in the country.