Indigenous and Northern Affairs Committee on April 19th, 2007

[Jennifer Lynch]

Thank your for your question.

Our role is not formally one of consultation. It's important for us to underline that, because consultation is the duty of the government. We want, though, to have good working relationships and to perform our work in a way that is most acceptable to the stakeholders we regulate through the Canadian Human Rights Act. So as a matter of courtesy and curiosity, we have gone to these key stakeholders to find out what their concerns and issues are, what their ideas are. And we have told them about ours, as well. We have shared the content of our submission, as recently as yesterday, with the Assembly of First Nations, as an example of the level of dialogue we have had.

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

How much time is left, Mr. Chairman? Two minutes?

[The Chair, Conservative, Colin Mayes]

Keep it very short.

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

I read your 2006 report. You say in that report that the Commission intends to begin discussions on specific questions such as conflict resolution techniques adapted to Aboriginal traditions or culture and to ensure that relevant information is accessible on its Web site. Is that done?

[Jennifer Lynch]

The secretary general is looking after the operations of the commission.

She's going to answer.

[Marc Lemay]

Good morning, madam.

[Hélène Goulet, Secretary General, Canadian Human Rights Commission]

Good morning, Mr. Lemay. Thank you, Mr. Chairman.

We are building a Web site that will contain all the relevant information. As you know, we've requested resources with a view to the repeal of section 67 of the act. We haven't yet received those resources from the government.

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

We'll have to talk to the person who's hiding. His hands are hidden.

[Hélène Goulet]

We're going to have to talk to the Treasury Board. We're doing what we can right now with a small program that is headed by Ms. Helgason and the resources we have. We're moving forward as quickly as we can in the context of the resources we have right now, but we're preparing to launch the Web site.

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

I don't think I'll be the only one to say that it should be stated in Bill C-44 that an interpretative clause has to be drafted. The question I'm asking you is very specific. How are you going to draft an interpretative clause in collaboration with the First Nations, when they've already developed one? That's what they want, and it's Appendix B of the brief that they have presented to us. Have discussions already started on that topic? It can take a long time to develop an interpretative clause.

[Hélène Goulet]

Yes, it takes time to develop an interpretative clause, but that interpretative clause will be used to guide complaints resolution at the Commission. That clause can't go so far that it prevents implementation of our act. So the balance that should be struck will have to be discussed with people. Ultimately, the Commission will have to have an interpretative clause that belongs to it, after consulting and dialoguing with all the stakeholders. When the act goes into effect, we'll have to be ready to receive complaints and interpret the act in order to settle those complaints.

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

Are there already any examples of interpretative clauses in the world? Pardon me.

[The Chair, Conservative, Colin Mayes]

Mr. Warkentin, please.

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

Are there already any interpretative clauses in the world?

[Hélène Goulet]

I unfortunately can't answer that question.

[Jennifer Lynch]

On the question of whether or not there are interpretive provisions anywhere in the world that might inform, I think Mr. Goldberg might well, with his deep knowledge, be able to give us an example.

[Harvey Goldberg, Team Leader, Strategic Initiatives, Knowledge Centre, Canadian Human Rights Commission]

I'm not aware of any legislation in other jurisdictions that would approach this specific kind of problem, but I should point out that this is a common issue in international human rights law, the whole issue of how to—sometimes it's put in terms of balancing western rights against the right to development, or the right of people in the third world. A lot of thought has been given to this, to the notion that rights are interdependent and indivisible, and that you always have to work to balance one right with another. It's not a unique issue to the aboriginal situation, so there is a lot of international and Canadian experience.

A good example of Canadian experience is the way the courts have balanced the right of freedom of speech under the charter with the right to be free from hate. The Supreme Court has showed the balance there, how you protect those rights. So I think a lot of experience is relevant to this, which the commission and others could call upon.

[The Chair, Conservative, Colin Mayes]

Thank you.

Mr. Warkentin.

[Chris Warkentin, Conservative, Peace River, AB]

Thank you, Mr. Chairman.

Thank you very much for coming and bringing your testimony this morning. We appreciate it.

I'm going to continue on the whole issue of collective rights and the whole issue of an interpretive clause. I'm imagining, but I'm looking for clarification on this. I guess the interpretive clause would be a clause that defines those collective rights that might trump individual rights in certain circumstances. Is that generally the idea of the interpretive clause?

[David Langtry]

Not really. It wouldn't say that these rights will trump, because in individual cases, what you always look to do in a balancing is to try to minimize the adverse impact on one or the other. You're looking for a middle, so it's the interpretation, hence the word. It's the overall guiding—

[Chris Warkentin, Conservative, Peace River, AB]

So that I might better understand, in terms of a hypothetical example, how the wording of interpretive clause might go forward, what type of things would you see included in the interpretive clause? I don't want to get into a lengthy discussion, but just so we might better understand.

[David Langtry]

The interpretive clause would recognize the rights that are there, and how the commission, in considering a complaint, would look to a balance, how best to accommodate both so there's a minimum impact, but it would be an individual case. As was said earlier, the interpretive clause as proposed by the AFN would be a starting point for us to begin the discussions.

Our concern is that because of the complexity of this area, whether it's section 35 and the consideration being given in the other place on the issue of non-derogation, it requires that working together to find out how you might say we can strike the balance, because an individual right to property, for example, real property, competing with the collective right—

[Chris Warkentin, Conservative, Peace River, AB]

I understand that. Maybe that's what the biggest issue might be, the issue of property rights. But I think there's a concern out there that at the end of the day we don't want to see rights being taken away, or a second set of rights—a downgraded set of rights—for people who are living in aboriginal communities. I think that's a concern, and I guess we'll have to work toward a resolution to ensure it doesn't happen.

[David Langtry]

Other than that currently we have a balancing in the legislation already, through our section 15 in particular, whereby there can be a bona fide occupational requirement, or a bona fide justification that can support an individual discrimination.

[Chris Warkentin, Conservative, Peace River, AB]

I think Mr. Bruinooge has just a couple of additional questions.