Indigenous and Northern Affairs Committee on March 22nd, 2007

[The Chair, Conservative, Colin Mayes]

I open this meeting of the Standing Committee on Aboriginal Affairs and Northern Development.

Committee members, you have the orders of the day before you. Appearing today will be the Honourable Jim Prentice, Minister of Indian Affairs and Northern Development and Federal Interlocutor for Métis and Non-Status Indians.

Welcome, Minister.

We also have witnesses from the Department of Indian Affairs and Northern Development: Daniel Watson, senior assistant deputy minister, policy and strategic direction, and Daniel Ricard, director general, litigation management and resolution branch. We also have, from the Department of Justice, witnesses Douglas Kropp, senior counsel, resolution strategy unit, and Christine Aubin, legal counsel.

Welcome to our meeting.

Minister, I understand you're going to give a presentation first. Then we'll move to questions.

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

I'll speak first, Mr. Chair, with your permission. Then I'm pleased to answer any questions.

I know that Mr. Lemay is anxious to have a dialogue on this, and I always enjoy that.

Mr. Chairman, thank you for the opportunity to discuss Bill C-44. I'm pleased that the committee members are undertaking a review of this important projet de loi. It is human rights protection legislation that will repeal section 67 of the Canadian Human Rights Act. Bill C-44 proposes to end an exemption that was included in the original legislation when it was enacted some time ago, actually in 1977.

As a result of this exemption, individuals, mostly residents of first nation communities, have had limited recourse under the Canadian Human Rights Act should they feel their rights have been violated. This fundamental injustice represents a black mark on Canada's democracy. I would draw to your attention a number of reports to the United Nations that have singled this out and recommended change.

Section 67 clearly permits discrimination against a particular group of citizens, and Bill C-44 proposes to ensure that the laws of the country will apply equally to all Canadian citizens.

This is not the first time that Parliament has tried to repeal section 67. Bill C-108 was introduced nearly 15 years ago, only to die on the Order Paper. More recently, attempts to repeal section 67 through Bills C-7 and S-45 suffered a similar fate. Parliamentarians now have an opportunity to see the job through.

Support for the repeal of section 67 comes from a wide variety of groups, including this very committee. In its report on matrimonial real property on reserves, Walking Arm in Armto Resolve the Issue of On-Reserve Matrimonial Real Property, members of this committee called for the repeal of section 67.

Your committee's position on this matter was based largely on the testimony of representatives from several key groups, including the Native Women's Association of Canada. In fact, I would point out that Beverley Jacobs said this before your committee at that time, as follows:

—many first nations women have no recourse at all when their rights are being violated in their communities. They have no recourse to challenge their band councils for discriminating against them and for forcing them out of their own communities. We demand basic human rights for our women and children.

As minister, I take that statement to heart. Nothing will change unless action is taken, and that is precisely what we have done with this legislation.

Over the years, calls for the repeal of section 67 have come from a wide variety of sources, including the Assembly of First Nations, the Congress of Aboriginal Peoples, the Canadian Human Rights Commission itself, and other independent commentators who have filed reports with the UN.

The fundamental injustice engendered by section 67 has also attracted international attention, unfortunately earning Canada censure from the United Nations Human Rights Committee.

Mr. Chairman, in my opinion, it all boils down to a simple issue of human rights. Canada must not perpetuate the discrimination inherent in section 67.

I appreciate that some groups have raised concerns about Bill C-44, despite its noble goal. Most critics focus on three points: a perceived lack of consultation, the absence of an interpretive clause and concerns about the potential impact.

Today, I will address each of these criticisms in turn.

On the perceived lack of consultation, I would contend that in fact there's been a significant amount of discussion and consultation on the repeal of section 67, all of which has informed the bill that is before you today. There have been, really, 30 years of discussions since 1977 about the repeal of section 67.

Perhaps the most comprehensive consultation was launched in 1999 as part of a formal review of the Canada Human Rights Act. As you know, the Canada Human Rights Commission itself has spoken on this issue.

Among the many regional and national aboriginal organizations to participate in the review were the Native Women's Association of Canada, Alberta's Aboriginal Human Rights Commission, and New Brunswick's Aboriginal Peoples Council.

The final report issued by the review panel in 2000 recommended the repeal of section 67, and two years ago consultation with aboriginal groups informed a special report on section 67, completed and filed by the Canadian Human Rights Commission itself. Again, repeal was the recommended option.

In 2003 section 67 was also discussed as part of the committee's hearings into Bill C-7, the controversial First Nations Governance Act. During these hearings, several aboriginal groups lobbied for the repeal of section 67, a position restated during hearings that were held in 2005 on matrimonial real property on reserve. The Assembly of First Nations has also expressed its views on the public record.

While not every stakeholder and aboriginal person has had the opportunity to participate in consultations, there can be no doubt that a determined effort has been made to gather relevant opinions. And that the consensus was and continues to be clear: section 67 must go. Thirty years is long enough.

A second criticism of Bill C-44 concerns the absence of an interpretive clause. In this regard, an interpretive provision is required in the Canadian Human Rights Act to balance the interests of individuals seeking protection from discrimination with aboriginal community interest. That is the argument put forward.

I share the view that the Canadian Human Rights Act should be applied in a manner that is sensitive to particular circumstances of aboriginal communities, but the truth is that three factors preclude the need for an interpretive clause in the legislation. The first is that laws already exist that provide for a balancing of individual and collective rights. I refer to the constitutional protection already in place for the recognition of collective aboriginal and treaty rights in section 35 of the Constitution Act, which remains as the paramount authority in our legal system.

Given these protections, members of the Canadian Human Rights Tribunal, the body that will adjudicate complaints under the statute, are required by the act to be sensitive to human issues as they pertain to aboriginal and treaty rights. They can also be expected to interpret the existing defences in the act, bearing in mind these concerns. With these protections in place to help guide the application of the Canadian Human Rights Act and the commission, there's no need to add an interpretive clause to Bill C-44. In effect, the Constitution Act provides that overall interpretive umbrella itself.

The second factor has to do with the critical role of the Canadian Human Rights Commission itself. The commission is charged with the administration of the Canadian Human Rights Act, which means that it not only processes complaints but also engages in educational activities concerning the act. Since it was created nearly 30 years ago, the commission has acquired unsurpassed expertise in interpreting and in resolving cases involving discrimination—that is what they do, and they're good at it. The commission's efforts to prevent discrimination have also been remarkable.

Rather than relying on a specific statutory interpretive clause to safeguard theirs interests, aboriginal groups can discuss the future operation of the Act with the Canadian Human Rights Commission. In fact, many aboriginal governments have had experience with complaints under the Act, situations where section 67 has not applied.

The commission has vowed to work directly with aboriginal groups on implementation. In fact, the commission's aboriginal program is already established and a series of regional workshops are planned. The workshops will provide guidance and support to aboriginal groups that need help to exercise and carry out the new responsibilities under the act. Additionally, the Canadian Human Rights Act already grants the commission the power to establish guidelines or regulations on how the act should be applied to a particular class or group of complaints. These guidelines are statutory instruments with the same legal weight as regulations, but they are flexible enough to be adapted as required. I have full confidence that, given its mandate, its track record, and in dialogue with first nations, the Canadian Human Rights Commission is best placed to offer advice on how the act should be applied, and to do so over time. With passage of Bill C-44, this work will begin formally.

Thirdly, we know from experience with the interpretive clause, which was originally proposed in the First Nations Governance Act, Bill C-7, that it is extremely difficult to capture in a single clause fail-proof language that would address all the competing considerations for handling a Canadian Human Rights Act complaint in a first nations context. To attempt to distill the interpretive power of the Human Rights Commission into a single clause, I submit, is quite problematic. Additionally, an interpretive clause, if passed into law, would have to be interpreted by the commission and the Canadian Human Rights Tribunal, in any event, in specific cases, and would obtain clarity really only after the litigation of many complaints and conflicts, undoubtedly, with the charter.

In summary, with the protection offered by Canada's legal framework, the support provided by the commission, and the scope that already exists within the Canadian Human Rights Act and the powers of the commission, I'm personally convinced that the full application of the Canadian Human Rights Act can be implemented in a manner that is sensitive to aboriginal communities. I have confidence that the Human Rights Commission is best able to provide that oversight and that interpretive responsibility.

Other aspects of the legislation are helpful to consider. The mandatory review included in Bill C-44, for example, offers additional protection for those who are concerned about its impact. The legislation proposes that a parliamentary committee undertake a comprehensive review of the effects of the repeal of section 67, within five years. I think this is a useful fail-safe.

On this point, I would like to draw to the committee's attention that it is within Parliament's authority to undertake such a review earlier. I would respectfully caution against so doing, but this remains the prerogative of Parliament.

I acknowledge that the repeal of section 67 will have a significant impact on many groups, including First Nations and federal departments. To ensure that First Nations have time to prepare for these impacts, Bill C-44 proposes a delayed application to First Nations' governments six months after royal assent is granted.

With the support of the Canadian Human Rights Commission, which has already begun to engage and to raise awareness of human rights legislation with representatives of national and regional aboriginal organizations, I believe this period provides the appropriate balance between, on the one hand, proceeding with repeal in a timely fashion while on the other hand allowing first nations to take measures to prepare for full implementation.

The question of resources has been raised, but until the bill is passed, these costs remain hypothetical. Yes, it will be important to assess what resources might be needed, and I invite your advice on that topic.

Mr. Chairman and members of the committee—and we have a knowledgeable group of parliamentarians at this table today—the time has come to ensure that all Canadians are treated equally before the law of this country. Bill C-44 proposes a fair, realistic approach to ending 30 years of sanctioned discrimination in this country. This committee, in a non-partisan way, can seize the opportunity before it and ensure access to full human rights protection as provided to all. Now is the time for us to act to end the injustice that was created as a so-called temporary measure against first nations citizens 30 years ago. This is an historic opportunity for this Parliament, for all the parties in this House of Commons at this time, to accomplish something very significant. I urge you, as committee members, to review Bill C-44 and to support it.

Thank you. I will do my best to answer the questions from Mr. Lemay and others.

[The Chair, Conservative, Colin Mayes]

Thank you, Mr. Minister.

Turning to the Liberals, Madam Neville, please.

[Anita Neville, Liberal, Winnipeg South Centre, MB]

Why did you refer only to Mr. Lemay, Mr. Minister?

[Jim Prentice, Conservative, Calgary Centre-North, AB]

I don't wish you to feel slighted. There was a bit of repartee before we began about Mr. Lemay having a chance to cross-examine the minister.

[Anita Neville, Liberal, Winnipeg South Centre, MB]

Let me begin, Mr. Chair, and I hope you will indulge me.

I think it's important to correct the record that's been presented in the House of Commons. I say this to you, Mr. Minister, and I say it to you with respect: I have never indicated a lack of support for Bill C-44 or for the reform of matrimonial real property. I believe if you check the records, both in this committee and in the House of Commons, I have never indicated a lack of support on my own part or on the part of my party.

We have concerns about the issues of process. We will probably speak to them today, and we will speak to them in the ensuing weeks as we review this bill. But in terms of the intent of this bill and the intent of matrimonial real property reform, I am supportive of it and my party is supportive of it. We believe these are important issues to be addressed. I hope the record is clear on that after today.

Minister, you spoke about several issues, and you anticipated the concerns about the bill. You spoke about the issue of consultation.

I was part of Bill C-7. I sat around the clock for many days, as did my colleague here, in 24-hour and 48-hour sessions. I know the bill and I understand the importance to many groups of the repeal of section 67. But I can say that part of the lack of success of Bill C-7 was the abbreviation of the consultation process.

While you spoke to the fact that we have had 30 years of discussion—and I underline the word “discussion”—I believe there's a difference between discussion and consultation. We have not had consultation prior to the introduction of this bill. We've not had consultation with first nations, native women's associations, and a entire litany of groups as it relates to this bill.

There are a number of concerns. My own belief is that we're going to be doing the consultation after the introduction rather than prior to the introduction, which will in fact delay the progress of this bill. I'd like your comments on why there was not a real consultation on this bill, specific to this bill, in the introduction of the bill.

I'd also like your comments on the abbreviated timeframe of six months, when we know the Human Rights Commission recommended a minimum of an 18-month to 30-month implementation.

I have more questions, but I'll start with that.

[Jim Prentice, Conservative, Calgary Centre-North, AB]

If the honourable member and her party are supportive of the intent, I certainly hope they will support this legislation, at the end of the day.

I reiterate my comment that it's a historic opportunity for all of us as parliamentarians to achieve something that's significant in this country vis-a-vis human rights. It'll be a chance someday for all of us to look back and see that something meaningful was achieved on this subject.

In terms of consultation, the record we have as a nation of discussing this issue is 30 years long. The effective clause in the bill is eight words long; it's that “Section 67 of the Canadian Human Rights Act is repealed.” It's as simple as that.

There was a legislative attempt in 1985 to deal with this. There was a legislative attempt in 2005 to deal with it. There was a respected panel, the Canadian Human Rights Act Review Panel, chaired by Gerard La Forest in the year 2000, with which I think you're well familiar. It had extensive consultation with aboriginal organizations. The aboriginal organizations have called for the repeal of section 67 themselves. There have been recommendations by the Canadian Human Rights Commission itself, following consultation with first nation leaders and others. There have been at least two reports to the United Nations that included consultation with first nation groups.

At some point we have to act. At some point we have to move forward in this country. Consultation cannot be employed as an excuse for inaction or as a method of paralysis. This is a very straightforward piece of legislation that provides citizens in this country who have been segregated on the basis of race some human rights protection. I think there has been adequate consultation to repeal section 67.

For sure there will be a consultative process carried on by the Human Rights Commission about implementation and the interpretation. That's how it should be. It's something they're good at, and they will do a fine job. But Parliament has to act.

[Anita Neville, Liberal, Winnipeg South Centre, MB]

With respect, Minister, you cite what has gone on, but you neglect to cite the Supreme Court rulings that speak about the duty to consult. I think we are abbreviating the process, circumventing the rulings we have had several times from the Supreme Court on the duty to consult.

While I accept that it's a straightforward bill, I would say to you that it has left out much that is important that might have been included in the legislation had the appropriate consultation process taken place. It is simple in its appearance, but it is complex in its implications.

I too would like to see this issue addressed. I would like to see human rights for aboriginal peoples in all their manifestations addressed. I don't want to get into a debate with you on the many other human rights violations that we know aboriginal peoples suffer.

I support it and I want to see it passed, but I want to see it done in an appropriate manner that brings everybody along in the group so that everybody subscribes to the bill when it's completed, and not in a manner of imposing it.

[Jim Prentice, Conservative, Calgary Centre-North, AB]

I say respectfully, if you wish to make the case publicly that you do not think first nation citizens should have the same human rights as other Canadians because a period of 30 years of continual public parliamentary consultation and discussion is inadequate, you can make that case, but you won't convince me.

[Anita Neville, Liberal, Winnipeg South Centre, MB]

I would make the case that aboriginal people are entitled to housing, water, and education as well, Mr. Minister.

[Jim Prentice, Conservative, Calgary Centre-North, AB]

Well, this will help them get there.

[The Chair, Conservative, Colin Mayes]

I have a schedule of speakers, and Mr. Lemay is the speaker.

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

I will try not to take too much time. I respectfully remind you, Mr. Minister, that we had asked your presence for two hours, since this is probably one of the most important pieces of legislation regarding Aboriginal peoples that your government has and, regrettably, will introduce.

Over the last few days and weeks, since the bill has been tabled, I have met with many Aboriginals. They told me there had been consultations, and that, on the whole, it is a good idea to repeal section 67, but that they did not have time to discuss fully the impacts of this abrogation because they have too many issues to deal with from day to day. They did not take the time to ponder this important issue.

I have to admit, Mr. Minister, that I am somewhat torn about this matter and I mentioned it to Mr. Ricard, when I met him. I understand the difference between collective and individual rights. You do not need to belabour that point. After all, I have 25 years of experience as a lawyer. Aboriginals in this country do not get the consideration they deserve and they have many problems. However, I am not certain we are ready to go ahead with this section because the collective rights of First Nations people protect them at the present time against a large number of claims and legal challenges.

You have experienced difficulty with a similar situation this week, Mr. Minister. Let us suppose a member from Kashechewan brings a complaint against his or her community because of the lack of clean water or hydro power, in the case of Pikangikum, for example. I have a hard time seeing how this situation could be resolved by the time the bill is passed.

I hope you will agree with me that passage of this bill will give precedence to individual rights over collective rights, which are the rights of aboriginal peoples. Are we on the same page? Do you share my interpretation?

[Jim Prentice, Conservative, Calgary Centre-North, AB]

You are a very well-respected lawyer in your community and your profession. If you mean to say that collective rights are more important than individual rights because otherwise things would be too difficult and complicated, I do not agree with you.

At the end of the day, how can we not proceed to provide first nations citizens with the same human rights as other Canadians on the basis that it's too complicated? I don't accept the premise of that, and I'm surprised that you as a lawyer would. I don't think you do.

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

Mr. Minister, I am not saying that collective rights should take precedence over individual rights. What I am saying is that in the end, Aboriginals are presently grappling with huge problems. How are we going to bring them up to the same standard as the other people in Quebec and Canada, while they do not even have drinking water or hydro power on some reserves? This is where I have difficulty. We have to bring them up to a certain level. They tell us that collective rights give them better protection than individual rights.

This is the heart of the discussion, Mr. Minister. I believe I am right at the heart of the issue.

[Jim Prentice, Conservative, Calgary Centre-North, AB]

I appreciate your concern about social problems in the communities, including poverty. I accept your proposition but if I understand what you say, individual rights would present a problem.

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

Yes, they could. A person could, under the Canadian Human Rights Act, sue the band council because he or she does not have running water. I read the Act and I know it almost by heart. There are also matrimonial rights.

Let me give you an example. Under the Canadian Human Rights Act, a woman has the right to deliver her baby under the best conditions possible. An aboriginal woman living on a reserve 300 kilometres away from an urban centre could sue her band council based on the fact she is not given access to a hospital.

Do you understand the issue? I am neither for nor against such an action, but it raises questions. What will happen after the passage of bill C-44? Do you understand, Mr. Minister? It is an important question.

[Jim Prentice, Conservative, Calgary Centre-North, AB]

I will express myself in English.

Let me say, taking your illustration of access to health care services, that surely we want a country where a first nation citizen has the same ability to raise a human rights complaint about access to medical services as someone who is not a first nation citizen. Surely we want a country where there is equality and where a Canadian citizen, irrespective of status as an Indian or not, can voice or articulate a complaint and take it to the authorities.

It's not simply the band council that is responsible, if section 67 is repealed; it is the government authorities generally, in particular the federal government. I appreciate there are complications, and I appreciate that this will change the circumstances for many people, but that surely is the reason to do it. It's to put the woman you have described in a position where she can make that complaint, because now she can't. Now she has no cause for grievance, because there is a sealed door at the entry of the Human Rights Commission that she can't access. I don't see how you can keep that door closed on the premise that it's too complicated to open.

[The Chair, Conservative, Colin Mayes]

Okay. Thank you.

Madam Crowder, please.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Thank you, Mr. Chair, and thank you, Mr. Minister, for coming before the committee today.

I think I'm fairly safe in stating that a number of us support the repeal of section 67, but the devil is in the details, and I think what we're seeing is a fundamental difference on what we consider is adequate consultation. It's a philosophical difference, it's an ideological difference, and it's a cultural difference. That's the crux of the matter.

The Chiefs of Ontario have said that in their view there has not been formal government-to-government discussion on the issue specifically focused on real proposed legislative language. In many people's view, their experience with the mid-1980s Bill C-31—and you and I have spoken about this before—reinstated women into their community, but paragraph 6(2)(b) has had the unintended consequence of stripping status from people who share the same family. That's part of the concern that's coming forward from people.

I have a broad question and a specific question for you. I'll ask them both so that you can have the time to respond to them.

Although I'm going to cite an international convention—I'm going to talk about the Universal Declaration of Human Rights, article 26, and about the United Nations declaration on indigenous rights, which, unfortunately, Canada didn't sign on to. It is article 14 in that particular one. Both of those articles deal specifically with the right to education. Under the universal declaration it's the right to education and the full development of the personality, and under the United Nations declaration on indigenous rights it's the right for indigenous peoples to establish and control their educational systems.

My general question is just about how we might expect that band councils will deal with the issue around the fact that they could well see a number of complaints about the differences in education that first nations people on reserves get versus the education of the general public. That's the broad general question around that, how band councils can deal with and anticipate it.

The second question I wanted to ask was around a specific reserve, which Mr. Lemay referenced already. I would expect that the people of Kashechewan could line up to file complaints about the lack of access to adequate housing, the lack of access on a consistent basis to drinking water. I wonder if you can provide any guidance about how the council in Kashechewan could deal with potential human rights complaints and what kinds of resources they would have for that.

Could you address those?

[Jim Prentice, Conservative, Calgary Centre-North, AB]

Those both seem like specific questions, but let me try to wrestle with them as best as I understand.

In terms of the position of band councils, I would reiterate the point that if you have a barrier in the Human Rights Act to the protection of first nations citizens in this country, and that is lifted, it puts all governmental authorities in a position where they're going to have to be in a position to respond. They're going to have to be in a position to defend their actions and defend the situation. That's why I think that the repeal of section 67 is so important, because we want a country where all citizens are in that position where they can call upon governmental authorities to defend their actions and to defend—whether it's in the education system, the health care system, allocation of resources within the community—decisions by governments and ministers of the crown.

I personally think we need to repeal section 67 so all governmental authorities are subject to that scrutiny. I'm pleased that you are supportive of the bill.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

No, I said I'm supportive of the repeal of section 67.

[Jim Prentice, Conservative, Calgary Centre-North, AB]

You will have a chance, then, to show your support for that proposition.

I think it's an important step forward. In terms of education, to cite a specific example, why would you wish to see a situation where a mother of a first nation child—let's assume it's a child with a learning disability—does not have access to the Canadian Human Rights Code to ensure that her child is being protected in the education system? You can talk all you like about how much consultation there's been over the past 30 years, but if you fall into not supporting this legislation because there's been inadequate consultation, that mother in that circumstance is there because of your vote.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Mr. Minister, I think the mother in those circumstances would actually be there because of inadequate funding rather than because of my vote.

[Jim Prentice, Conservative, Calgary Centre-North, AB]

Well, your vote holds the possibility to change that and to hold people accountable.