Indigenous and Northern Affairs Committee on April 19th, 2007

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

Thank you.

[The Chair, Conservative, Colin Mayes]

Madam Mathyssen, you have seven minutes.

[Irene Mathyssen, NDP, London—Fanshawe, ON]

Thank you very much for being here. I appreciate the information you bring to us.

I have a couple of questions.

The provinces and territories have their own human rights commissions, so first nations people on reserves would then, in effect, become the only Canadians who have access to the Canadian Human Rights Commission for complaints against community governance. Is there any reason why a tribal council or a provincial organization couldn't set up their own human rights codes and commissions and provide the rights protection more effectively than having Canada's national commission deal with what is essentially a local matter, a local concern?

[Jennifer Lynch]

Thank you very much for that question.

First of all, there is no reason why not. Our report, A Matter of Rights, suggested that human rights institutions that are first nations specific should certainly be considered. The commission does not have, nor do we wish to have, a monopoly on human rights redress. Our only objective in promoting the repeal of section 67 is to ensure that all Canadians have access to a human rights redress system. We have no institutional ambitions. If first nations and government determine that they want to move in the direction of establishing statutory human rights institutions, the commission would be pleased to work with them and the government.

It should be noted that this type of evolution is similar to what has happened with the territories. Originally the commission had jurisdiction in Yukon, the Northwest Territories, and Nunavut, but as these jurisdictions developed their human rights mechanisms, jurisdiction was ceded to them.

Another thing to take a snapshot of, because you used the specific language of a human rights code, and that's fair enough language when we're talking about something that would be more what we might call rights-based or recourse-based; in other words, a place for people to raise a complaint and have it dealt with in whatever way, but with a decision being made that resolves it—so the resolution of a dispute. In modern conflict management, that is one of two components of a good human rights/conflict management system. That component is the modernizing or creating of a dispute resolution structure or recourse mechanism.

The other component is the creation of what we might call, in an organization, organizational support or community support for the creation of a culture or environment where people will raise issues of concern and they will be respectfully received and responsibly addressed; where there are mechanisms for dialogue for people working things out and for learning about how to prevent; being respectful when one learns there is an issue, and communicating that throughout the community. This community support or organizational support that I referred to in my opening remarks is moving to the front end and very much needs to belong in each community.

We know from our external work that when you take an integrated approach that also looks at the front end of disputing—if you will, the prevention, education, and internal capacity building—that work is really 95% of the effort. That's why I said it's not a matter of flicking a switch and turning on the complaints system within the Human Rights Commission or saying start your own; it should be a whole approach, and first nations need lots of time and good resourcing for this.

[Irene Mathyssen, NDP, London—Fanshawe, ON]

You have already received complaints from reserve residents and status Indians. It's my understanding that it's only when the complaint deals with the Indian Act, specifically section 67, that it applies.

How many complaints do you receive a year from reserve residents and status Indians and how many are rejected because the complaint deals with the Indian Act in terms of—? I'll leave it.

[Jennifer Lynch]

I'm a quick study, but I don't have all the statistics. I'm sorry. I'm going to turn to Ms. Helgason to respond.

[Sherri Helgason, Director, National Aboriginal Program, Prairies and Nunavut Region, Canadian Human Rights Commission]

Thank you so much for your question.

In answer to your question of how many complaints we receive from reserve residents against first nations on a yearly basis, we've received between 35 to 50 over the last several years.

In terms of your question of how many we turn down because of section 67 currently, in terms of our screening process for dealing with complaints that would invoke section 67, in all likelihood they are either initially screened—that is, they don't proceed to a formal complaint—or because of the knowledge of the section 67 exemption that's currently out right now, people might not even call the Canadian Human Rights Commission to begin with. The complaints that are admissible, that are not currently barred by section 67, are between 35 to 50 each year.

[Irene Mathyssen, NDP, London—Fanshawe, ON]

Could you give some hypothetical examples of the kinds of complaints that—

[The Chair, Conservative, Colin Mayes]

We are running a little bit short of time. You will have another opportunity, but it'll be five minutes soon.

[Irene Mathyssen, NDP, London—Fanshawe, ON]

Okay. Am I out of time?

[The Chair, Conservative, Colin Mayes]

Yes, I think so. You don't have time to get a proper answer.

Before I turn it over to my colleague, I wanted to ask a question of the commission.

The position of the commission in the 2005 report was that there should be a period of transition that would be used for the development and the enactment of the interpretive provision. It meant we would move forward, but there would be that term for the enactment. Why has there been a change in the position of the commission?

[Jennifer Lynch]

The more we dialogue with stakeholders, the more we learn, and the more we see what might be more workable for all stakeholders. That's why we are proposing a hybrid at this time.

[The Chair, Conservative, Colin Mayes]

Okay.

Go ahead, Mr. Albrecht. I only took a minute of your time.

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

Thank you, Mr. Chair.

There are a couple of different areas I'd like to head into.

First of all, let me thank you for being here, and thank you for the emphasis that I see here in terms of prevention and this front-end mechanism, as you describe it, recognizing and honouring and respecting the healing circles and community sanctions and those kinds of things.

I have a question in that regard. Since we've had this in place for 30 years, would there not be some natural automatic educational components that the first nations would have already been aware of as they saw the Canadian Human Rights Act implemented in the rest of Canada? Recognizing that it was a “temporary stay”, would they not have already been thinking about an educational component and about preparing for this eventuality?

Do you understand where I'm coming from?

[Jennifer Lynch]

I certainly do. Of course, with 600 communities and 460,000 people, there is no doubt that there is that kind of work going on all the time. That's why we used the language of “appreciative”, because our purpose at the commission includes being respectful of things that are being done well.

Whenever we're working with any regulated organization, we don't go in and say that it's our way or the highway; on the contrary, we conduct what we might call an appreciative assessment of what is being done well. In fact, we find that one will inform the other, and it would be our experience that during an appropriate dialogue format, we would probably be able to assist the first nations in identifying—or they could themselves identify—enormously successful best practices, good practices, and proven practices that they could exchange one to the other. We know of some already, and that work needs to be done.

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

That, it seems to me, would mitigate this lengthy implementation period. Maybe because some of this has already occurred rather naturally, we could especially come more towards the 18 months than the 30.

Let me go on to a little different approach. You commented about the need for balancing individual and collective rights. I think all of us are in agreement; we want to recognize that. The charter and the Constitution already, in my opinion, deal with many of those concerns related to balancing individual and human rights—sections 15 and 25 of the charter, and section 35 of the Constitution Act.

You're suggesting those might not be sufficient in terms of dealing with first nations complaints. In that case, how would an interpretive clause apply to the 600 nations you just mentioned in an equitable way? In other words, would there be a need for an interpretive clause of many different types to suit the specific cultures of the variety of first nations people in Canada? That would be my concern.

[Jennifer Lynch]

Of course all the questions are excellent, and this one is particularly interesting to us.

We would envisage developing core principles that could be implemented in different ways in different communities. It would be a litmus test of core principles, not a rigid interpretive provision. It would be something more along the lines of core principles that would enable different communities to engage those principles in a way that works within their own community.

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

My concern on that point, I think, would be that, looking down the road, I hypothetically could see the need for an interpretive response to an interpretive clause, and you'd begin to interpret the interpretations. I think that concern has been raised previously due to the fact that the balancing of individual and human rights already is within the charter and the Constitution Act.

I'm just wondering if we're not making it even more muddy by adding these extra layers of interpretation that we will need to come back and refine and revise.

[Jennifer Lynch]

Thank you.

First of all, in terms of an interpretive provision, another core use of it, of course, is that it helps the commission interpret when complaints come to us. And having input about the development of an interpretive provision from all key stakeholders is very important to our work.

I'm sorry, I missed the second part.

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

It was about the constant need for going to a different interpretation.

[Jennifer Lynch]

Right, yes.

The AFN is concerned that section 25 of the charter, to which you've referred, doesn't apply outside the charter. Section 35, some legal analysis would say, should be sufficient. So we already have them, although there are some complexities there as to the application.

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

I think it's probably a matter that we're just seeing it from a different perspective, and I'm prepared to accept that.

[Jennifer Lynch]

Yes, I think you are.

Mr. Langtry might have something to add.

[David Langtry, Commissioner, Canadian Human Rights Commission]

Yes, thank you.

Certainly, it's true. Obviously sections 15, 25, and 35 of the Constitution Act, 1982 would have application. We're not saying that those are not sufficient. The reason there was a concern of having an interpretive clause, as the chief commissioner has indicated, is to govern the conduct of the cases in doing a balancing between the aboriginal treaty and other rights of first nations and aboriginal peoples with the individual rights as set out in the Human Rights Act.

Our concern is that one should not trump the other, which is the concern of embedding, if you will, a section 25 type of claim, because of the other rights. It could mean band council resolutions under the Indian Act, therefore we would not be able to consider those in a complaint.

The interpretive provision that we're talking about being outside of the act is simply that the guiding principle is that we need to balance the collective rights and interests with the individual rights found under the Canadian Human Rights Act. So it's not for an interpretive provision that would vary amongst the 600 communities. It's how the Canadian Human Rights Commission, which would also be binding on the tribunal in considering—but only on the commission and the tribunal—takes those charter rights and balances them with the individual rights.

So it's the collective versus the individual.

[The Chair, Conservative, Colin Mayes]

Thank you.

Madam Karetak-Lindell, please.