Indigenous and Northern Affairs Committee on April 19th, 2007

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

Thank you very much for being here this morning.

I want to go further into collective rights versus individual rights, and also go back to the solution you have in your report about having a statutory statement that would then determine your mandate.

I'm a little uncomfortable with that, rather than having an interpretive clause right in the legislation, for a couple of reasons. One is that I think it's again putting off putting in the interpretative clause. Having the interpretative clause right in the legislation gives a comfort level, I think—for AFN, definitely, and for the people this legislation is going to affect.

The other part I'm not that comfortable with is that if you don't put an interpretive clause in the legislation itself, the balance is shifted in determining where you look at collective rights versus individual rights.

I know I'm not probably getting that point across properly. I'm just trying to figure out what words I could use.

If you don't put the interpretive clause in BillC-44, I'm worried that the balance is not going to be there. I'm worried that it's a shift to words interpreting collective rights versus individual rights more on the individual side; that it would not be in the middle is what I'm trying to say.

In all the discussions I've heard around the table, everyone is leaning, I think, towards individual rights trumping collective rights, only because they don't understand the impact and how important collective rights are to aboriginal people. That's the point I'm trying to make; that I don't think the balance is there, only because people don't understand what it really means in the life of an aboriginal person when collective rights are being talked about rather than individual rights.

Perhaps you can expand on that: my arguments that it should be right in the bill, versus the third option that you have before us.

[Jennifer Lynch]

Thank you. Just as a recap of it, the language of balance is something we are recommending be in the bill. So it's a question really of—

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

I'm wondering whose understanding it is going to be based on.

[Jennifer Lynch]

This leads us to the interpretive provision discussion and your question.

Commissioner Langtry is going to respond.

[David Langtry]

It is certainly a fair question and one of the reasons we're saying it should be the hybrid, to which end the legislation itself provides that there be the development of an interpretive provision that is a balancing of the collective rights and interests with individual rights, but then provides a direction for the commission to develop it in dialogue with first nations, so that it can be captured.

The hybrid position, just to go back to a question previously asked by the chair—the new position from our 2005 report—is based on, as the chief commissioner indicates, conversations we have been having with first nations, saying there is the need for balancing and there is the need for an effective balance between the two.

There have been examples. There was a decision in 1998, in a question that went to the tribunal, in the Jacobs case, which was a non-section-77 complaint that came forward, wherein the tribunal indicated that there are legitimate collective rights that could be upheld. In the Jacobs case, the collective right to uphold the culture and language of the Mohawk people was recognized in the facts of the case. The individual rights, they felt, had not provided a reasonable accommodation to the questions.

But our purpose, and the reason for the longer transition period, is to allow us to be in conversation with the first nations in order to develop this. Our intention is not to develop it on our own in a vacuum; it is, really, to work with the stakeholders to ask what an appropriate balance is, so that one does not trump the other; that it's neither one nor the other, but that middle ground, if you will, recognizing both.

[The Chair, Conservative, Colin Mayes]

Thank you.

Mr. Bruinooge.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Good afternoon. I missed part of your presentation, unfortunately, but I have read your submission.

I'm going to pick up on the last line of questioning that Mr. Albrecht and Ms. Karetak-Lindell had entered into. I guess the vein that I would like to pursue is more along the lines of the interpretive clause, again.

Those who may have been following our previous hearing perhaps will recall the submission we had from the AFN in relation to this repeal, and the interpretive clause they put forth. There have been a couple of different versions of an interpretive clause over the years; however, this is the most, I think, relevant one in light of the fact that it's the most recent submission from our largest aboriginal organization in Canada.

I'm not sure if you've had an opportunity to look at the interpretative clause that was submitted. Have you?

[Jennifer Lynch]

Oh yes.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Okay, good.

In relation to the interpretive clause that's been presented, my questions for the AFN were similar to the ones I'd like to ask you. Those would be in terms of schedule B of this interpretive clause, which allows for entitlement to the first nation government to give preference to hiring employees and contractors, and preference to its members for allocation of land, resources, and economic benefits.

What would be your understanding of how this could perhaps be a limiting factor to the benefits of the human rights code? Would this preferential system in essence be able to trump, I guess, what benefits would flow from the repeal of section 67?

[Jennifer Lynch]

Thank you.

With respect, there are current mechanisms in the Canadian Human Rights Act that do balance collective and individual rights in some instances. A case almost exactly on point is our section 15 and our section 16.

Section 16 deals with special programs and provides us with an opportunity to recognize and ensure collective rights already under the Human Rights Act. Under this section, the commission has developed a policy on special programs that provides advice to employers, subject to the Canadian Human Rights Act, on what constitutes a special program.

We use section 16 already as the basis for the commission's aboriginal employment preferences policy, which supports that: “It is not a discriminatory practice for an employer to give preferential treatment to Aboriginal persons in hiring, promotion or other aspects of employment, when the primary purpose of the employer is to serve the needs of Aboriginal people.” This aboriginal employment preferences policy is an example of how the commission has developed mechanisms to balance individual and collective rights. At the same time, the policy provides a framework to balance the discretion of the first nation to uphold the collective right of preferential hiring with individual rights.

So we have already exercised our legislative mandate in order to—

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Do you have cases that you've engaged in on that front? Has a human rights case been brought forward where you've had to employ that?

[Jennifer Lynch]

Ms. Helgason can answer that.

[Sherri Helgason]

We're aware of cases that have been brought where a first nation exercised its right to give preference in hiring to a qualified aboriginal person. We can't disclose the details of those cases—complaints of course are held as confidential—but the policy has been invoked upon occasion.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Okay. And—

[The Chair, Conservative, Colin Mayes]

You're out of time, Mr. Bruinooge.

Mr. Lévesque, please.

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

Mr. Chairman, let's say we're in full legal flight. My training is limited to labour law, and I'd be tempted to suggest to you that you allow our guests some time to go get something to eat. Then we could continue. I don't know what you think about that.

[Jennifer Lynch]

Thank you.

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

Do you want to continue? Yes? All right.

[The Chair, Conservative, Colin Mayes]

Yes, carry on.

[Jennifer Lynch]

You're very kind. Thank you very much.

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

I'm going to ask a very brief question to enable my colleague, who knows the law much better than I, to speak. Earlier you mentioned that you had consulted the Aboriginal communities. I'm asking you the question because the various associations that have appeared before us deplored the fact that they were given insufficient time to consult. We know that some communities that have moved forward in developing their community structure won't be too troubled by the repeal of section 67 and that others will be enormously troubled. This may cause major conflict. That's why I'm asking you the question.

At what level did you meet with the First Nations people?

[Jennifer Lynch]

At what level?

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

What feeling did you have during those meetings?

[Jennifer Lynch]

The level of the people or the level of the subject?

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

The line level.