Indigenous and Northern Affairs Committee on March 22nd, 2007

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

It is absolutely true.

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

You don't get the relationship part of this, and I'm sorry, you're never going to get it if you don't have it by now.

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

In terms of your comments about my stating that individual rights trump collective rights, “trump” is not a word that's in my vocabulary. I'd like you to find a statement anywhere in which I've ever said that. I haven't. So I don't know what you're talking about, and I find it gratuitous.

Clearly, there has to be a balancing of rights in all of this, and that's what we're searching for. As I said in my opening comments, the responsibility to achieve that balance rests where it should, which is with the Canadian Human Rights Commission. That's the job they're in. That's what they're good at, and that's what I fully expect, as a Canadian, they'll do a fine job of carrying forward.

But to do nothing, to stand back and say there hasn't been enough discussion about that—For 13 years we did nothing, and now we're going to do nothing again—I don't buy it.

[The Chair, Conservative, Colin Mayes]

Your time is up.

Mr. Albrecht, please.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Thank you, Mr. Chair.

I would just like to correct the record. Mr. Lemay indicated that we asked for two hours. My recollection is that we wanted two hours, but this committee decided we would pre-empt that by doing the housing study today. So I don't think we can put that onto the minister.

In reviewing the chronology of this entire scenario, it's obvious to me that there have been numerous attempts to correct this injustice. I find it completely unacceptable that aboriginal people continue to have less recourse to human rights protection than other Canadians. Over the past 30 years, as has been pointed out, a lot of bills have been tabled and a lot of reports have been tabled. In fact, the most recent was in March 2006, when the UN Human Rights Commission recommended that this section be repealed immediately. So there's no question in my mind that the action is needed now.

Up until now on this committee, there's been a lot of time devoted to discussing potential challenges and complaints and very little time given to preventative aspects of enabling this part to be removed. As a former dentist, I spent a lot of time in prevention, because I found I got the greatest reward in prevention, as opposed to dealing with problems.

On page 12 of your comments, Mr. Minister, you pointed out that the Human Rights Act not only processes complaints but also engages in educational activities concerning the act. The notes go on to say, “The Commission's efforts to prevent discrimination have...been remarkable.”

I'd like us to consider for a few moments what some of the potential benefits of having section 67 removed are, and just the educational aspect of improving the lives of aboriginal people, as that relates to their inability to have their rights protected.

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

You make a very good point, that in the restoration of the appropriate balance here in the country, where first nation Canadians have the same rights as other Canadians, we all have a responsibility to fulfill. It's my responsibility as the minister to put forward a legislative solution. It's the responsibility then of all of us, as members of Parliament, to decide whether we are prepared to stand and be counted and support that. At the end of the day, once it's passed, it's the responsibility of the Human Rights Commission to breathe life into the new rights that first nations citizens will have.

As I said earlier, this is something the commission is experienced at, that they are properly resourced to do, and that they will carry forward and do. They will engage not only in educational activities with first nations; they have the capacity to pass interpretive guidelines that will help wrestle with some of the issues that some of our colleagues are raising. It's an authority that they exercise in other contexts, and they do quite a good job of it. I believe their authority will carry on.

I don't know whether your intent is to hear from them, but I know they are readying themselves now. They're in preparation to be in a position to discharge this responsibility.

I don't think, again, we should lose of sight of the fact that over these 30 years of continual discussion of this, one of the voices that has spoken the loudest about repealing section 67 is that of the Canadian Human Rights Commission itself. It has called upon us as parliamentarians to do this, along with the many other groups whose respective counsel have done so.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

My point, Mr. Chair, is that once legislation is enacted, it doesn't matter which new legislation is enacted, you don't expect every single issue is going to be confrontational. There's an educational component to the new law, be that seat-belt laws or whatever, that people just begin to live by that new legislation, and I think we can expect a lot of that as well.

I'm not aware that there's been a huge increase of human rights complaints from aboriginal groups who no longer fall under this section. I've asked that question previously, and the answer I got was that there hasn't been a huge influx of complaints in terms of the follow-up. So I think that's one thing we can be less concerned about, although I'm sure there will be complaints.

For the record, could we clarify again this concept of duty to consult? I keep hearing this, and I certainly feel we have ample evidence that there's been a lot of consultation. Could we clarify? I think in some of our briefing sessions that was addressed. Mr. Ricard addressed that at one point.

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

I'm not aware of any case authorities that have examined the duty to consult in the context of human rights legislation. I stand to be corrected, but I'm not aware of any case authority, at any level, that has said there is a duty to consult before ensuring that first nations people have the same human rights protection as other Canadians. And I'd actually be surprised if that is the assertion.

However, there is a developing body of law, particularly with respect to government decisions that affect lands and resources, that there is a duty on the part of the crown to consult with the affected first nations and make sure their voices are heard in the decision-making process.

As I said earlier, there's quite a bit of confusion about how far this duty to consult goes and what the content of the duty is. Some people interpret it as a veto, which I don't think is the case, but its application to the legislative authority of Parliament I think is something that's very much undecided.

[The Chair, Conservative, Colin Mayes]

On the Bloc side, who would like to speak?

Mr. Lévesque.

[Yvon Lévesque, Bloc, Abitibi—Baie-James—Nunavik—Eeyou, QC]

Mr. Minister, we have always had very civil discussions. However, I am disappointed by the way your parliamentary secretary interprets our words.

Obviously, my colleague and myself both really take to heart the rights of aboriginal peoples. The same goes for individual rights. Today, we raise what could be recognized as a problem once all this data is analyzed. Let us remind you that all the first nations chiefs as well as the aboriginal women's groups have asked you for a delay and for funding in order to undertake consultations on this matter. Up to now the main objection of first nations is due to the fact they do not have the funds required to do this.

It is our belief—and the aboriginal chiefs agree—that at the present time equal rights are not matched by equal means. Contrary to the Quebec and Canadian nations, these people do not have the means nor the infrastructure that would allow them to fully respect the type of individual rights that we take for granted.

This is why we believe it is very risky to implement them without giving these people the opportunity to make recommendations based on their experience. It is an experience that we cannot imagine and that we would be very sorry to go through.

I would like to provide in the bill for a sufficient delay and the opportunity for these people to make recommendations based upon their experience. I do not know if you have considered the matter and taken these aspects into account. In any case, this is our recommendation.

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

I think we've covered much of that already.

I would say that there is a phase-in period that's been provided here. If you don't feel that is adequate, I welcome your thoughts on a period that is appropriate. Clearly, there will have to be resources assigned once the legislation is passed. Clearly, the Human Rights Commission, in particular, will have to be in a position to deal with any grievances that are filed. There will have to be a period of time over which everyone becomes familiar with the capacity of first nations citizens to file these kinds of grievances.

But I return to the point that I don't believe that the complexity of this should frustrate action. I don't believe that giving first nation Canadians the same rights as other Canadians should be delayed because it is complicated. I think we will have to figure out some of the complications once they have the same rights as other Canadians. Until we do, until they are in that position of equality, from my perspective it remains as an embarrassment that this country should address.

I don't disagree that there are other issues surrounding poverty that need to be addressed, and we're doing the best we can with respect to that. That job will carry on for many years in this country. But I can't countenance a situation where first nation citizens don't have the same ability to advocate on their own behalf as any other Canadian. I think it's abhorrent.

[The Chair, Conservative, Colin Mayes]

Two minutes.

[Yvon Lévesque, Bloc, Abitibi—Baie-James—Nunavik—Eeyou, QC]

Mr. Minister, I could agree with you on the urgency of implementing this bill but if the problems we raise are not solved by the date of implementation, will the government commit to ensure equal resources for these people until such time as they are able to achieve equality for themselves? In other words, are we going to transport people who need hospital care, are we going to bring them water and provide sanitation? The complaints will be filed against first nations governments but in reality, when we pass legislation that is not tailored to the people's experience or to the structural means at their disposal, we make ourselves responsible for the problems that the community will encounter vis-à-vis individual rights.

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

Of course, not to stray outside the debate about this bill, Bill C-44, but once you're into the whole question of how first nation communities are resourced and whether that resourcing is adequate, there's room for reasonable people to disagree in terms of how money is being allocated, how much money is being allocated, how it's being spent, whether the right priorities are being defined, whether success has been achieved in the way that's required.

My point is that give and take, that dialogue, is something that will go on for a long time. It will never be a perfect solution. In the meantime, we have a chance as parliamentarians to advance equality for first nation citizens. I think this is the way forward, and resourcing will inevitably follow.

[The Chair, Conservative, Colin Mayes]

Thank you.

Mr. Storseth, please.

[Brian Storseth, Conservative, Westlock—St. Paul, AB]

Thank you very much, Mr. Chair.

Thank you, Mr. Minister, for coming forward today.

I think we can all agree that the status quo simply is not working. I don't want to ask you another question on consultation because, quite honestly, 30 years of consultation is far too long; in 1985, 2000, 2005, we were getting the same message. The people in the communities that I represent, northeastern Alberta, give me the same message, that the status quo is simply not working.

Any time we look at a democracy, any time we talk about democracy, the first thing that people address is the fundamental human rights that citizens have within that democracy. Quite honestly, when you talk about addressing solutions for the future for a people, you would think that fundamental human rights would be a part of that.

One of the myths that the former government continually perpetuated was the so-called Kelowna Accord. Minister, I would like to ask you, did this so-called accord actually deal with fundamental human rights, such as the repealing of section 67?

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

I think the question is whether there was any discussion at Kelowna on the repeal of section 67 of the Canada Human Rights Act. I stand to be corrected, but I don't believe there was. I don't recall. Certainly it didn't form part of any press release that was issued thereafter.

[Brian Storseth, Conservative, Westlock—St. Paul, AB]

Thank you very much, Mr. Minister.

One of the questions that came up today was about creating the fundamental steps for some of the solutions that we have for first nation communities on things such as housing and water. Can you tell me and this committee a little bit about how repealing section 67 will address that?

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

The repeal of section 67 will provide first nation citizens, in particular first nation women, with the ability to do something that they cannot do right now, and that is to file a grievance in respect of an action either by their first nation government, or frankly by the Government of Canada, relative to decisions that affect them. This could include access to programs, access to services, the quality of services that they've accessed, in addition to other issues, such as membership, I assume, as well.

There's a wide variety of decisions on which first nation women in particular would be able to advocate on their own behalf now. At this point, these Canadians live in the circumstance of inhabiting what is very much a legislative vacuum, where there are no standards for education, where there are, until we deal with the issue, no standards for water, and so on. This will empower those individual Canadians to stand up and say this is not acceptable, and to challenge governmental authority. It is an extraordinarily important remedy to put in the hands of first nation Canadians.

[Brian Storseth, Conservative, Westlock—St. Paul, AB]

Thank you very much, Mr. Minister.

Now I'm going to ask you a tougher question. The Assembly of First Nations has advocated for the inclusion of an interpretive clause. Can you tell this committee a little bit about why no such clause has been put in this legislation?

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

Well, this is something the committee needs to discuss. As soon as you are into a context where you are trying to repeal section 67, to give first nation citizens access to human rights, and you engage in an interpretive clause, to some extent you are at risk of watering down the human rights that you are giving to individual citizens. It's a very complicated thing to do.

The point I made earlier was that all of this happens within the framework of our Constitution. Section 35 of our Constitution makes it clear that aboriginal Canadians have treaty rights and other aboriginal rights. No individual legislation of Parliament can trench on those aboriginal or treaty rights, so they are protected. It provides an overall interpretive umbrella, if you will, to anything that happens under the Canadian Human Rights Act or the Canadian Human Rights Commission.

In light of that, I don't personally believe that an interpretive clause is necessary. I have looked at different iterations of the interpretive clause over time. Mr. Lemay may have as well. It's very difficult to define an interpretive clause that doesn't water down the human rights protection but that contains acceptable language. Any of the attempts I've seen fail me. They don't seem to achieve balance; they just seem to achieve complexity. They themselves will then be the source of interpretations and litigation.

[The Chair, Conservative, Colin Mayes]

Thank you. That's the end of questioning.

Madame Crowder.

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

Thank you, Mr. Chair.

I'm ever hopeful that we actually don't have to wait for the repeal of section 67 to talk about standards in education, housing, and water. I would hope that we're not waiting for that to be the driver to look at some equality issues in communities.

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

No, and you're quite right. Just this morning I tabled in the House of Commons a report on the substantial progress that this government has made on the delivery of water.

So I'm not suggesting that to first nation communities. I'm not suggesting that we hold back on all of the important housing infrastructure questions that I know you share my concern about. I'm not suggesting we hold back at all, but we need to advance on a number of different fronts to empower and advance the interests of aboriginal people, and this is one of them.

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

I know that one of the concerns that has been raised by first nations is around funding. Certainly many communities are feeling pressure right now with the 2% cap that continues to be in place. It's a rising population and the fastest-growing demographic in Canada. Certainly the Auditor General identified that as well, in terms of the gap between the increasing population and the funding cap.

I wonder if the department has taken a look at whether there would be some additional money to help bands deal with first nation complaints. I also wonder about the impact on the department itself.

I assume there will be additional resources required in the department to deal with complaints if the repeal of section 67 goes through. I know part of the concern is that they don't want to see, for example, department lawyers diverted from claims and treaty processes, and into human rights complaints. Has there been any analysis done on that?