Human Resources Committee on April 26th, 2007

[Patrick Brown, Conservative, Barrie, ON]

I realize that's a difficult area for you to—

[Mark McCombs]

Some of this would require program officials to be able to testify with respect to certain programs, and they would be much better placed than Mr. Beaulieu and I to answer questions in the program areas.

[Patrick Brown, Conservative, Barrie, ON]

There's another thing I wanted to see if you could wade into.

A Hamilton Spectator article I was reading said there are 2,772,000 children under the age of six. Ms. Chow said yesterday that the cost of institutionalized day care would be $8,000 per child. If you do the quick math on that, $22 billion is what this program would cost.

If we use that math instead of Ms. Savoie's, if we use the figure Ms. Chow used yesterday or two days ago rather than the one Ms. Savoie said, that's $22 billion. If we're not using existing funds, as Ms. Savoie said, I guess we'd have to renegotiate existing funds that go to the provinces. Following that logic, I guess Ms. Savoie would be suggesting we'd have to look at cutting funds to health care for the provinces, cutting environmental programs trying to combat global warming.

Does the federal government have the ability to change all these previous arrangements unilaterally with the provinces?

[Mark McCombs]

Any time the federal government enacts legislation, you have to look at the legislation already on the books and make sure that legislation fits with what Parliament has just done. That's why we have a long process of developing legislation through the Department of Justice. We touch all these pieces of legislation, and you can have hundreds of changes as a result of one piece.

So the impact of whatever this Parliament decides has an impact on everything else that is going on.

[Patrick Brown, Conservative, Barrie, ON]

That could change everything; wow.

Okay, thank you.

[The Chair, Conservative, Dean Allison]

Thank you very much, Mr. Brown.

We're now going to move to our second round, which will be five minutes of questions and answers.

We are going to start with our Liberal opposition; Mr. Merasty, five minutes.

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

Thank you, Mr. Chair.

My question will revolve around a first nations issue, which the bill and the proponents spoke about very briefly.

We know the federal government cannot regulate, as you pointed out very clearly, in areas where provincial jurisdiction is clear, as per the Constitution. How about in areas within provinces? I'm probably going to ask the provincial people who are here this question as well. Where provincial jurisdiction doesn't clearly apply, i.e., on reserve, what emerges is a jurisdictional gap in the provision of services, or what this bill speaks to.

Keeping in mind that in the Indian Act the first nations can pass bylaws on weed control but they can't pass bylaws on child welfare, there's a big gap between what the act allows first nations to do and what the relationship is between federal and provincial governments with respect to what is clearly provincial services--i.e., what this bill speaks to.

Nobody questions that child care and early learning opportunities are required on reserve. There's a huge baby boom happening in those communities. Is there any mechanism in this bill that legally allows and clearly prescribes how child care early learning opportunities could be extended on reserve?

[Christian Beaulieu]

To respond to your specific question, I haven't seen anything, by reading the act, that directly addresses your concern.

[Mark McCombs]

When you're into the first nations area--in regulation, rules, and programs--it's a quite complicated area. I don't think Mr. Beaulieu or I are qualified to be able to give you an answer with respect to first nations. It's not my area of expertise, certainly.

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

I guess from my perspective, one of the things I would like to see interdepartmentally within the federal government is a bit more of an awareness of that complex issue, because first nations issues are not only Indian Affairs, they're also through Health, through first nations and Inuit health, through HRSD, through Justice, and so on.

What concerns me is sometimes the government says that there are no standards on first nations reserves when it comes to.... The Minister of Indian Affairs clearly said there are no standards for education, which is completely--100%--wrong. The system is run by the band, but they adhere to provincial standards very clearly. It's the same with child and family services, the transfers that have occurred over the years.

I raise it more because I think it's an area that as a government we need to understand cross-departmentally much better. The stovepiping really contributes to damage and causes unsubstantiated comments by those who would use it as sound bites to diminish what's really happening on reserve.

Switching gears very quickly, how would this bill treat Nunavut, the Yukon, and the Northwest Territories?

[Christian Beaulieu]

It would treat them the same way as it would treat the provinces, because the act addresses all on the same footing, from what I can read.

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

Is there not a different constitutional relationship because they're federal territories versus provinces, or would there be no impact there?

[Mark McCombs]

I don't think either Mr. Beaulieu or I are expert enough in that area to even venture down that path.

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

Okay.

Do you have any speculation?

[Mark McCombs]

Never let a lawyer speculate.

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

Okay.

[The Chair, Conservative, Dean Allison]

Just like we don't want any MPs to speculate.

Just following up on Mr. Merasty's question, in this bill there's no reference to how funding would be handled on reserve? I mean, it does talk about provinces and territories, but it really doesn't address the issue of on reserve, in terms of whether that's included. It should be direct funding, I would take it, but it does not address that issue.

[Mark McCombs]

Not directly in the bill. The department has a number of programs with respect to first nations. They might be able to speculate.

[The Chair, Conservative, Dean Allison]

Okay. Thank you very much.

Madame Barbot, five minutes please.

[Vivian Barbot, Bloc, Papineau, QC]

Thank you, Mr. Chairman.

All things considered, the bill, in its present form, will allow Quebec to withdraw, which it will most probably do, and to not have to report to the federal government on the use it makes of the funding allocated, given that this is an area that falls under its jurisdiction.

You however inferred that there was a possibility that Parliament might one day change the criteria or whatever. Could you tell us if it is indeed possible to establish rules after the fact? This would amount to interference with Quebec's powers in order to force it to change its way of doing things. In what circumstances would that be possible?

[Christian Beaulieu]

With your permission, I will begin by answering your second question. As I mentioned earlier, Parliament is sovereign, subject to the limits set out in the Canadian Constitution. This is a fundamental constitutional principle. The federal Parliament, just as is the case of provincial legislatures, is free to adopt any laws it wishes.

I also believe, subject to correction, that with the exception of criminal law, nothing prevents Parliament from passing laws that have a retroactive effect. Could Parliament pass a law the effect of which would be to retroactively impose obligations on the province of Quebec, obligations that Quebec would perhaps not have to fulfill? Even if I wanted to, I could not really give an opinion on this issue. I do not possess the necessary expertise. What one must however keep in mind is that Parliament is sovereign and that this is therefore in the realm of possibilities.

[Vivian Barbot, Bloc, Papineau, QC]

But that remains hypothetical for me, in the present context. What this bill does however provide for, as it is drafted, is that if Quebec withdraws, it will be entitled to full compensation without any conditions other than those explicitly set out.

[Christian Beaulieu]

That is, indeed, our interpretation of the bill.

With regard to your first question concerning the requirement to report, I do not know about what, if Quebec asks to be exempted, it would report on.

[Vivian Barbot, Bloc, Papineau, QC]

Very well. Perfect.

Did you have another question you wanted to ask?

[Yves Lessard, Bloc, Chambly—Borduas, QC]

I would like to ask a question , with your permission, Mr. Chairman.

With regard to section 4, the government of Quebec is free to withdraw and be exempted from the bill. If it so chooses, Quebec could, de facto, receive the entire transfer payment it would be entitled to. Given that the French version of the bill says that it “peut“ receive this payment, this is not imperative; it is not as if the text stated that Quebec will receive it.

Would you agree with me?