Canadian Heritage Committee on Feb. 20th, 2019

[The Chair, Liberal, Julie Dabrusin]

Perfect. Thank you.

On that, we will start with Mr. Hogg for five minutes.

[Gordie Hogg, Liberal, South Surrey—White Rock, BC]

Thank you very much.

Mr. Newman, you mentioned that there were some things you weren't going to get time to get to. If I gave you another minute and a half, would you be able to do that?

He's not listening to me.

[A voice]

He's probably on mute.

[Gordie Hogg, Liberal, South Surrey—White Rock, BC]

You're on mute.

[Prof. Dwight Newman]

Can I come off of mute?

[Gordie Hogg, Liberal, South Surrey—White Rock, BC]

You already have.

[Voices]

Oh, oh!

[Prof. Dwight Newman]

Okay. Sorry. I didn't hear to whom that was directed.

I actually moved quickly through the additional matters that I was raising. I think I addressed all of them quickly. The one I was speaking to near the end concerns clause 24. I just highlight briefly the way in which that clause is constructed in terms of provision. Including things within it has the danger of potentially restricting the broader term to a greater extent than it might be under some other formulation.

That was the point I was going to end on. I just did a quicker conclusion.

[Gordie Hogg, Liberal, South Surrey—White Rock, BC]

Thank you.

All three witnesses made reference to the appropriateness of developing public policy and legislation that has input from, and a role of implementation from, those whom it most affects. Certainly we've seen considerable detail in the process for the development of this stage.

Mr. Marceau and Ms. Grant, I think you have reinforced what we've already heard. You've given us another context to look at that, which I found most helpful. Thank you so much for that.

I'll now turn it over to you, Mr. Oliphant, in terms of the detailed questions Mr. Newman has put forward, because you're a detail guy and I'm all concept.

[Rob Oliphant, Liberal, Don Valley West, ON]

Thank you, Professor. This is helpful. First, I want to give you a chance to add in writing anything else that you think would be helpful for the committee to consider now that the bill has passed second reading. I think it's always very helpful for someone with a different set of eyes, other than the legislative counsel and the drafters here, to offer something in writing. I think that could be helpful for the committee as well. Our goal as parliamentarians is to make the best legislation. We don't make perfect legislation, but we make the best legislation. Especially if there are issues of language or definitions that you think could be helpful, I think those would both be important, so thank you.

I want to ask you a little bit about the relationship between language and the administration of justice. It's a little bit different from what you were talking about in your testimony, but it's about the role of language in courts and the role of language in ensuring that people have access to justice. I'm wondering if you have any comments that you want to share with the committee on that. We don't just revitalize languages for the sake of language; we revitalize them for their use, to help make our world better. You might have some comments on that.

[Prof. Dwight Newman]

[Inaudible—Editor] languages for the sake of languages, but for the sake of the communities they support. I would see that as the broad aim of revitalizing languages.

Certainly it may be pertinent in the context of access to justice and the courts as well. Within the court system, of course, there are charter rights in relation to translation of proceedings that are available when needed, at least within the criminal justice context. That doesn't solve a broader issue of access to justice, though, in terms of the provision of services leading up to the court proceedings that would be available in a variety of different languages. Certainly that's an effort to which all governments could direct themselves in seeking to build opportunities for access to justice and the availability of advice and legal support for individuals in a variety of different languages, including, obviously, indigenous languages.

[Rob Oliphant, Liberal, Don Valley West, ON]

I don't want to put words in your mouth, except I do. This has to do with when I worked as a prison chaplain in the north. The number of incarcerated first nations or indigenous people there was high. I was convinced as I met with and talked to them that their capacity at language, or lack thereof, had actually put them in jail when they shouldn't have been in jail. I am quite convinced that if we don't restore and revitalize language, we will continue with incarceration rates that are too high.

I just wonder if you have any insights into that. I know it's not quite your field.

[Prof. Dwight Newman]

I have no doubt that there are instances where this becomes an issue, and you may have seen many of them. I don't disagree with anything you've said there, but I also think that it would be overly ambitious to expect that from this particular legislation right now—

[The Chair, Liberal, Julie Dabrusin]

I'm going to have you cut you off there. I apologize. You are out of time, but I think that's a good place to end it.

We will be going to Mr. Shields for five minutes, please.

[Martin Shields, Conservative, Bow River, AB]

I will follow up on the same line of questioning. What do you believe “rights” mean for what has been indicated are 90 possible indigenous languages? What is your definition or what would you believe are the rights for those 90 indigenous languages in this country?

[Prof. Dwight Newman]

What is a definition of rights for those languages?

[Martin Shields, Conservative, Bow River, AB]

Right.

[Prof. Dwight Newman]

That's going beyond even anything I necessarily suggested defining. I think the commissioner is going to have certain dilemmas about what exact support to give to different languages in light of the different requests that come in. [Inaudible--Editor] will always be a limited budget, relative to the needs that could be supported.

I would think that there would need to be some decisions on, a sliding scale, in a sense, and on an “as numbers warrant” type of basis, as with decisions about official language communities that are minority language communities. At the same time there are some different moral imperatives at stake in the context of indigenous languages, particularly where government action has led to their diminishment in very direct ways through the residential school system.

One of the other things I would think on is whether the commissioner should receive any more guidance through the legislation or whether all of that is left to the discretion of the commissioner.

[Martin Shields, Conservative, Bow River, AB]

I think that's a good question. As you see it, it's not a definitive right for 90 supposedly different languages, but that this is yet to be determined on a possible sliding scale determined by a number of other factors.

[Prof. Dwight Newman]

I would think that the particular rights for different languages are going to differ, based on a lot of different factors. Tragically, there are languages that are beyond the point of no return, in a sense, if they're down to a handful of speakers. There may be value in preserving and digitizing those languages, but there's not going to be an ability to save and revitalize those languages in the same way that there is for a language that has the possibility of being a vibrant language of life for communities.

[Martin Shields, Conservative, Bow River, AB]

Right. You mentioned the French-English version. Being on the regs committee, I know that the Siksika Nation had a land settlement for a piece of land in Banff National Park in 2013. That still hasn't been settled because the word “ownership” in French is different from English. It's now six years later and we still can't get that fixed on the regs committee.

With what you're suggesting to do with funding here, there is a problem with this legislation that could cause a problem in the future and needs to be fixed.

[Prof. Dwight Newman]

I think it would be constructive to fix it rather than have inconsistent versions. I'm not an expert on English language drafting, let alone French language drafting or bilingual drafting, but the language chosen in the English and French versions of clause 7 differs in ways not seen in other indigenous rights documents from the Government of Canada. I think it does need to be fixed, to either one version or the other, in order to clarify Parliament's intent.

[The Chair, Liberal, Julie Dabrusin]

You have two minutes.

[Martin Shields, Conservative, Bow River, AB]

I appreciate your point and I hope that you submit it. I think it's a critical piece to try to get the legislation as correct as possible going forward, so please submit that.

There are a couple of other words in clause 7, “diverse” and “adequate”. Do you have any idea how you would define those legally? You referred to clause 7.

[Prof. Dwight Newman]

Right.

In terms of the adequacy, it's open to some interpretation. It's something that could be determined through the ongoing processes. But there might be ways to offer a clearer definition to what would be considered adequate, particularly if this is giving rise to a funding obligation on the one possible interpretation of it.

The word “diverse”, on the ordinary language of it, would reflect an aim to deal with a variety of different indigenous governments—