Evidence of meeting #5 for Indigenous and Northern Affairs in the 39th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was amendment.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Jim Hendry  General Counsel, Human Rights Law Section, Justice Canada
Charles Pryce  Senior Counsel, Aboriginal Law and Strategic Policy, Department of Justice
Martin Reiher  Senior Counsel, Operations and Programs Section, Justice Canada

4:05 p.m.

Conservative

The Chair Conservative Barry Devolin

I'm sorry.

4:05 p.m.

Liberal

Nancy Karetak-Lindell Liberal Nunavut, NU

I do know what this legislation is doing. It's that I'm troubled by comments made by Mr. Bruinooge, in that he doesn't believe in these points. That's what I'm understanding. I know we already have affirmative action programs in different parts of the country, so I'm very disturbed by the fact that he is already presuming certain outcomes because of the repeal of the legislation, as Ms. Keeper was saying.

It's very troubling to hear those comments, because I don't know what that does to programs that already exist. What we're going to end up with is very different situations for different people, depending which people have managed to sign land claims agreements and which people have not, if he has a preconceived idea that those are the very things that, in his opinion, are going to be stamped out when this legislation eventually gets through.

4:10 p.m.

Conservative

The Chair Conservative Barry Devolin

I have Mr. Bruinooge, then Mr. Storseth and Ms. Neville.

4:10 p.m.

Conservative

Rod Bruinooge Conservative Winnipeg South, MB

Thank you, Mr. Chair.

In relation to the comments of both Ms. Karetak-Lindell and Ms. Keeper, this amendment says that a first nations government “is entitled to”, and then goes on through these points. If it were in relation to section 16, as already quoted by Mr. Hendry, that would be a different story. If it were to allow for the process where, for instance, there were good reasons in a community for the purpose of allocating a certain group of lands, maybe based on family, those are things that I think can be adjudicated by the Canadian Human Rights Commission.

That's not how I read this, though. I read this as being able to actually deliver, basically, all of these things as per the decisions of the first nations government. I think if it went further, to suggest that the Canadian Human Rights Commission was able to actually provide similar ideas as does section 16, which was already suggested, that's a different story.

That's why I was going back to my previous argument, how the Canadian Human Rights Commission needs to not be limited by a section such as this. I feel there are minorities within first nations communities who find themselves on the wrong side of many of these things. That's why we're trying to repeal section 67. That's why we're doing all the things that we've done so far, debating this very point.

And you're right, it is my view, my opinion. Of course, I'm not suggesting it is the be-all and end-all, but everybody needs to have an opinion on these matters, and these are the ones that I'm espousing. I think there's absolutely nothing wrong with these viewpoints. That's why I continue to argue them as fervently as I do.

4:10 p.m.

Conservative

The Chair Conservative Barry Devolin

Thanks, Mr. Bruinooge.

Mr. Storseth.

4:10 p.m.

Conservative

Brian Storseth Conservative Westlock—St. Paul, AB

Thank you very much, Mr. Chair.

In the hope that my honourable colleague will be able to clarify the position of her party, I'll defer to Ms. Neville right now.

4:10 p.m.

Conservative

The Chair Conservative Barry Devolin

Ms. Neville.

4:10 p.m.

Liberal

Anita Neville Liberal Winnipeg South Centre, MB

I have further questions, Mr. Storseth. I'm sorry to disappoint you.

I want to follow up with Mr. Hendry, then I want to make a comment.

You made the comment that it does not need to be disturbed to deal with these items. I'd like you to expand on that. I'd also like you to elaborate on your comments about first nations, Inuit, and others. Are you saying that these amendments should include all of those other groups?

I need some further information from you.

4:10 p.m.

General Counsel, Human Rights Law Section, Justice Canada

Jim Hendry

We have to understand that the Human Rights Act is principally aimed at employment. With respect to the first point, section 16 gives power to an employer or a service provider.

Most of the complaints are about employment or delivery of services. In respect of section 16 they have provided a general policy, which is available on their website, on what they call “special programs”. They also have an aboriginal employment preferences policy. They suggest such things as a reasonableness requirement, and some others. There are five pages of policy in the employment area alone.

So in a sense they have provided guidance on how these programs can be developed. Given time, presumably they could develop one with respect to services, as well, especially in the aboriginal context. They have been working at that.

They also have the power to make guidelines, which is a quasi-legislative power that enables them to set out their interpretation of provisions of the act that must be applied by them and the tribunal. That provides a power to provide guidance to employers and service providers about developing programs, policies, employment practices, and so on, that are consistent with the act.

With respect to the second point, as I said, the Human Rights Act would apply to aboriginal groups, within class 24 of section 91. We're principally talking about the first nations, and what I'm suggesting here is that the equality provision in the charter is concerned usually with exclusion of groups. To the extent there are some aboriginal groups that the Human Rights Act applies to that would not be covered by this particular provision, then that may well give rise to a charter challenge, based on that exclusion.

4:15 p.m.

Liberal

Anita Neville Liberal Winnipeg South Centre, MB

But I'm not sure you're answering my question. Are you saying that others should be included in each of the amendments we're putting forward in order to avoid a charter challenge?

4:15 p.m.

General Counsel, Human Rights Law Section, Justice Canada

Jim Hendry

Well, I think that's the inference from what I've said. That's about as far as I can take it, but I think you got the point.

December 4th, 2007 / 4:15 p.m.

Liberal

Anita Neville Liberal Winnipeg South Centre, MB

Okay.

If I can comment, Mr. Chair, I think we're in this conundrum that we're in because....

Well, let me back up. I don't think there is anybody around this table who opposes the repeal of section 67. I certainly don't, and my party doesn't. I don't think there is anybody here who does, and we have said that countless times. The issue is the manner in which it is being done.

What I'm hearing right now reaffirms the importance of an interpretive clause, the importance of responding to the twenty-plus groups we heard from, who came before the committee, and the importance, as well, of further consultation.

For me, the sadness of it is that the opportunity was lost when the House prorogued. When I first met with the new minister right after we reconvened, and he indicated that he was reintroducing the old Bill C-44, he didn't at that time tell me that it was exactly as we had it before. My hope was that there would be some consideration and accommodation by the committee from the various representations we had before us.

When I listen to Mr. Hendry, it reaffirms even further for me the importance of responding to the communities' anxieties, fear, perhaps their lack of trust--I'm not sure whether that plays into it as well--but the need for as much detail as we can have within the bill.

I'll conclude with that.

4:15 p.m.

Conservative

The Chair Conservative Barry Devolin

Thanks, Ms. Neville.

On my list I have Ms. Keeper, Mr. Storseth, Mr. Warkentin, and Mr. Albrecht.

Ms. Keeper.

4:15 p.m.

Liberal

Tina Keeper Liberal Churchill, MB

I have a question for the justice officials as well.

I'd like to go back to what I was talking about in terms of section 35, the constitutional and legal framework, Supreme Court rulings that have recommended consultation with first nations, so that when we're moving towards legislation with first nations, there should actually be a good-faith type of negotiations to move forward in developing that legislation.

As we see in this amendment that was put forward, there is a chasm between the response of the Conservative member to what is here in this amendment, which is taken from a first nations self-government agreement. We're talking about that chasm and really we require a process in which we can negotiate and move forward in a conciliatory manner.

Could we talk about maybe how it is that this process could possibly fit in that framework?

4:20 p.m.

Conservative

The Chair Conservative Barry Devolin

Who wants to try that?

Mr. Pryce.

4:20 p.m.

Charles Pryce Senior Counsel, Aboriginal Law and Strategic Policy, Department of Justice

I'm not entirely clear what the question is.

4:20 p.m.

Liberal

Tina Keeper Liberal Churchill, MB

If we're moving towards this type of legislation without that process, without the process of consultation, does that reflect the constitutional and legal framework and the Supreme Court recommendations, the Supreme Court rulings, in terms of a recommended course in which to move forward?

4:20 p.m.

Senior Counsel, Aboriginal Law and Strategic Policy, Department of Justice

Charles Pryce

If your question is about the need to consult—

4:20 p.m.

Liberal

Tina Keeper Liberal Churchill, MB

Are you a lawyer?

4:20 p.m.

Senior Counsel, Aboriginal Law and Strategic Policy, Department of Justice

Charles Pryce

Yes, I am.

4:20 p.m.

Liberal

Tina Keeper Liberal Churchill, MB

Okay, I will get out the specific sentence.

I'll just be a moment, Mr. Chair.

In Badger, the court said that the honour of the crown is always at stake when dealing with Indian people and it is always to be assumed that the crown intends to fulfill its promises. The integrity of the crown must be maintained when interpreting statutes or treaties that affect aboriginal and treaty rights. The appearance of sharp dealing is not sanctioned. When interpreting a treaty or document, any ambiguities or doubtful expressions in wording must be resolved in favour of the Indians. Any limitations that restrict Indian treaty rights must be narrowly construed and the onus of proving....

What I'm asking is that if these are the type of judgments that have been made by the Supreme Court of Canada...recommendations. The decisions of the Supreme Court of Canada in Sparrow, Delgamuukw, and others confirm the duty of the crown to consult...requires a fundamental shift in the way the crown has traditionally interacted with aboriginal people. And as a result of Delgamuukw and other judicial decisions, some governments have attempted to enhance their consultation policies and mechanisms. However, crown aboriginal consultation regimes have not yet resulted in the necessary stability with respect to government decision-making and predictability.

What I'm asking is that if this is the recommendation of the Supreme Court of Canada, do you think there is a possibility that there should be a process in place, or that there's an onus on the government to put a process in place, to move towards legislation of this type?

4:20 p.m.

Senior Counsel, Aboriginal Law and Strategic Policy, Department of Justice

Charles Pryce

In terms of kinds of policies government chooses by way of consultation, if I understand the question about...that it's a duty to consult in relation to the development of legislation. This was, I assume, in the earlier session a subject of quite considerable discussion, as to whether there is a duty to consult in the development of legislation.

I think there was...I won't say there was a consensus, but I heard lawyers who gave evidence to this committee say that the Supreme Court had not determined that question, and that it may well be, as a matter of risk management, that consultation would be appropriate. But the court had not clearly said that consultation was a prerequisite to the development and passage of legislation.

4:20 p.m.

Liberal

Tina Keeper Liberal Churchill, MB

I actually do have another question.

You're saying that there have not been Supreme Court recommendations that say there's a duty to consult, that it's all.... Like, even that concept is negotiable.

4:25 p.m.

Senior Counsel, Aboriginal Law and Strategic Policy, Department of Justice

Charles Pryce

I didn't say that. I said, in the context of the passage of legislation as to whether there's a duty to consult, the court has clearly said there's a duty to consult, and others have said this.

4:25 p.m.

Liberal

Tina Keeper Liberal Churchill, MB

Right, on aboriginal title....