Indigenous and Northern Affairs Committee on March 22nd, 2007

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

But it would simply be an ability to file a complaint. It wouldn't provide the band with any additional funding. It would simply be a complaint.

Unless the government is prepared to step up to the table and provide the funding that's required for special education—and we know there's a huge gap in special education funding—the ability to file a complaint isn't going to substantially have an impact on that child's life. By the time the complaint plays itself out and actually informs government policy, the child will be years down the road.

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

I'm a little more optimistic than that. My experience in life is such that when you empower citizens to stand up and advocate on behalf of themselves and their children, they will increasingly hold governments to account. There will be progress as a result, and I think that's a good thing.

[The Chair, Conservative, Colin Mayes]

You have a little over a minute.

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

I want to go back again to the consultation process for a moment.

Given the fact that the Auditor General has cited the fact that the federal government has not developed a policy around the duty to consult, and given the fact that this section of the act has been in place for 30 years, I don't know how it can be unreasonable to allow appropriate consultation.

You cited a number of instances around consultation, but my understanding is that those consultation pieces were not specifically around developing legislation or dealing with the repeal of section 67. They were often in the context of other larger issues.

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

To be fair, Gérard La Forest, one of the most respected jurists in Canada, chaired the Canadian human rights review panel in the year 2000. There were extensive consultations specifically about repealing section 67. They were held extensively with national and regional first nations organizations over an extensive period of time. The panel recommended that section 67 be removed and that the removal be applied to all self-governing first nations until such time as they could put their own codes in place.

There has clearly been consultation. It's been going on. I'd say to the honourable member that we've been wrestling with this as a country for 30 years.

This is a six-word or seven-word repeal of section 67. It is not that complicated.

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

But the very people it's going to have an impact on feel they haven't been consulted.

[The Chair, Conservative, Colin Mayes]

Okay, Ms. Crowder, that's enough.

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

How can you say the consultation has been adequate?

[The Chair, Conservative, Colin Mayes]

Mr. Bruinooge, please.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Thank you, Mr. Chair.

I'd like to thank the minister for coming today.

I'm very surprised at my colleagues across the way and their perspectives on this. It's rather surprising to not want to actually bring liberty to first nations people and to give them access to human rights that all of us in Canada accept. I find it very surprising.

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

You're putting words in her mouth.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Perhaps we can talk a bit about the Taku and Haida rulings Ms. Neville raised and the obligation on government to consult.

If you were to consider a scenario where the repeal of section 67 were to occur, can you imagine any court in the land overturning this repeal and removing first nations people from the Human Rights Code, thereby removing their human rights? Can you imagine that scenario ever occurring?

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

Well, it's a fair question.

Much has been said and written about the duty to consult. If one reads the Supreme Court of Canada decisions in the Haida and Taku and other cases fairly, I think it's obvious that the duty to consult is an elastic duty and it is a duty of which the content is informed by the specific decisions under discussion. The duty to consult in the context of a resource project is one thing. The duty to consult in the context of the repeal of a human rights barrier, I would submit to you, is something entirely different.

There is kind of a sense in some quarters that the obligation to consult is an obligation to achieve unanimity, and I don't accept that. There is an argument in some quarters that the obligation to consult basically vests a veto in the hands of a number of parties in this country, before we actually start to deal with some of the injustices. I don't accept that either.

I looked at the parliamentary record, the public discourse record in this country since 1977, and in particular since 1999, on the repeal of section 67. I'm satisfied there has been continuous and extensive public discussion and consultation with first nations leadership on this issue.

Virtually no one is standing up to say section 67 of the Human Rights Act should not be repealed. That being the case, I think there has been adequate consultation. I think there is in fact a consensus on this, and I think we should move forward.

If someone has the temerity to stand up publicly and suggest there is a risk of a judicial authority revoking the repeal of section 67 on the basis that there was inadequate consultation, I would encourage them to make that argument, but I frankly don't see it passing muster.

There have been some very respected jurists in this country who have called upon us to do this. The issue at the end of the day is whether all of the parties in the House of Commons have the courage to set aside partisanship and pass this. It's as simple as that.

If you wish to hide behind this argument or that argument, fair enough, but I don't think it's appropriate. I think we have an historic chance to get this done.

I think this committee has a role to play in the sense that if you wish to address some of the details that surround this, there is ample opportunity for the committee to do so and to call witnesses and take part in the consultative process.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

How much more time do I have?

[The Chair, Conservative, Colin Mayes]

You have three minutes.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Okay.

Mr. Minister, you've obviously taken a lot of interest in on-reserve families and how the laws of Canada treat those families. It is one of the reasons you began the process of matrimonial real property consultations. Could you explain how this repeal is integral to the eventual bill that we might see and how the process to bring matrimonial real property to on-reserve families might happen?

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

I would like to think that there would be at this table a consensus, an agreement, that part of what we need to do in this country is to empower aboriginal women and specifically ensure that aboriginal women are in a position to advocate on behalf of themselves and their children and to take steps that will be protective of themselves and their children.

That's why reforms to the education system are so important, that's why reforms to the child welfare system are so important, and that's why both this legislation and the provision of matrimonial property rights for first nation women are also important. All of these steps, in the case of education and child welfare, will not only improve the system for children, but will also allow first nation women to stand up and advocate on behalf of their kids. That's why they are so important.

There's an overlap here between education, in particular, and the Canadian Human Rights Act. In my private life I've been in a circumstance where I've had to exercise, on behalf of parents of kids with learning difficulties, the authorities in provincial school acts to stand up and fight for those children to make sure they are getting the quality of education they're entitled to in law. The only children in Canada whose parents are not in that position, the only children who live in this legislative lacuna, are first nation children. First nation mothers do not have the capacity to stand up and make an argument that their children are receiving a substandard quality of education—a child with a learning disability, for example—and changing this will change that. It will empower those women to advocate on behalf of their children.

How can we as parliamentarians, with full knowledge, countenance a situation where those women don't have the ability to do that because it's too complicated to afford them that right?

[The Chair, Conservative, Colin Mayes]

Thank you.

We're on the five-minute round now.

Madam Karetak-Lindell, please.

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

Thank you.

I'm very saddened by the approach that you have chosen to take, when you talk about changing lives for aboriginal people in a positive way. I really feel that the way we could have done it was through mutual respect, partnerships, providing the resources and the power to change in the community, within the community, by the people. For me, that was Kelowna, and that was the start.

What I see with your approach, Mr. Minister, is a very adversarial way of achieving what you feel we need to achieve. Part of it is saying that the bands would not be responsive to the people unless there's legislation forcing them to, instead of saying it's the lack of resources in their communities and it's the capacity-building that we need to move towards. I'm very concerned that these measures are very divisive measures, instead of having collaboration and a group of people working together for a positive change.

None of us are saying that human rights should not be respected, but I'm also very troubled by your statement that individual rights trump collective rights. That's the basis of a misunderstanding of where you come from and where I come from.

Land, for example.... When we do land claims agreements, we keep that land in a collective right. That's the basis of most of our land claims. If you say that individual rights trump collective rights, then all of us in land claims agreements are in the danger of losing that parcel of land to someone else because an individual right won over a collective right. I think there needs to be a balance. That's why the interpretive clause is so important to us.

The timeframe is also really troubling—six months. Six months to enable a band to be in a position to deal with the fundamental change I don't think is fair.

There are more comments. I'm really troubled by the approach. We're not getting enough time, we're not getting enough resources, and there isn't a partnership approach and a mutual respect for the actual communities that are going to have to deal with this change.

Again, I'm just very worried about the position you have taken in the approach to this legislation.

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

I didn't hear a question in that. But if we're going to get into statements, I would point out that for the previous 13 years, the prior Liberal government—

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

We had interpretive clauses in those.

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

—did not get the job done.

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

Bill C-7 had an interpretive clause.

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

You were the government for 13 years. You did not repeal section 67 of the Canadian Human Rights Act. So you can make all the assertions you wish today, but you had 13 years to consult in partnership and collaboration and all the ways you've described, and you did nothing. We're moving forward.

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

That is not true.