Evidence of meeting #45 for Indigenous and Northern Affairs in the 39th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was individual.
A recording is available from Parliament.
12:15 p.m.
Conservative
Rod Bruinooge Conservative Winnipeg South, MB
Two minutes? I might have to extend this into my next round of questioning, so I'll start it off and give you some time to maybe consider what I'm attempting to get at.
Of course our government is interested in matrimonial real property rights on reserve. Some of you may have heard anecdotally about situations whereby a first nation man may marry a non-aboriginal woman, have children, live on reserve in a home, and the marriage may break up. Then that non-aboriginal mother and her children are perhaps removed from the home because of a decision of a band council. This, I think, goes right to the heart of the preferential allocation of land and resources.
I guess my question would be this. Would this non-aboriginal woman and her children be more protected with an interpretive clause or without, in your opinion?
12:15 p.m.
Conservative
12:15 p.m.
Some hon. members
Oh, oh!
12:15 p.m.
Chief Commisioner, Canadian Human Rights Commission
Of course, every case has to be determined on its own merits. So with respect, there is no answer.
12:20 p.m.
Conservative
12:20 p.m.
Commissioner, Canadian Human Rights Commission
I appreciate that you're saying you think there's a clear answer. I'm not sure, because if there were no interpretive clause, then it might be that the collective rights could in fact trump the individual rights. If there were not an interpretive clause, it could be said that under the Canadian Human Rights Act the individual discrimination, if it were grounded on either marital status, family status, or sex as a basis of discrimination, might trump the others.
The interpretive clause is endeavouring to strike a balance. There are individual factual situations one could conjure up as to what the circumstances are—there may be other considerations for an off-reserve, Bill C-31-reinstated woman who's looking for housing back on reserve—and how this is managed. If she's reinstated, she might have a longer membership than people living on reserve. But there may be other considerations that come into play.
So I think it is a fairly complex one, particularly in this context, which is the other reason we're concerned about the interpretive clause being built into the legislation. It's a very complex area and requires much thought, legal interpretation, legal assistance, and dialogue with first nations.
12:20 p.m.
Conservative
The Chair Conservative Colin Mayes
Could I intrude to ask something?
You said a word that I picked up on. You said “might”. You said it “might” happen. My question would be, do you think, even if you work out an interpretive clause, that ultimately the courts are going to determine what the actual rights are, or the interpretation of those rights—collective and individual? The AFN is asking for more time to determine individual rights and collective rights, and yet ultimately, do you think the courts are going to determine a lot of the perimeters of the rights anyway? So why take more time?
12:20 p.m.
Commissioner, Canadian Human Rights Commission
The reason for more time is for the passage. We're certainly not suggesting that the bill not be passed. As you know, the legislation, upon royal assent, has an immediate application to the federal government and federally regulated employers. So it's the application to aboriginal authorities; the longer time is for the sake of trying to avoid the likelihood of it.
There are other factors involved in the longer time. We also want to see the development, the education, the awareness, and the alternative dispute mechanisms being created before its application in first nations. The other aspect is so that we can work out the terms of an interpretative clause, having said that there will be one, because of its being on individual situations.
Our guideline-making power went to the Supreme Court in 2003 in a Bell Canada case; it does get tested. That was in a pay equity guideline situation. Respondents, or a complainant, will contest these. The minister acknowledged that too in the testimony: that likely this is something that will be challenged and defined and redefined by the courts.
12:20 p.m.
NDP
Irene Mathyssen NDP London—Fanshawe, ON
Thank you, Mr. Chair.
I'm quite interested in this line of questioning. Clearly, first nations have asked for more time to create this kind of dispute resolution mechanism, because it gets very complex. Good heavens, we're talking about a marriage breakdown and the whole issue of the status of those children. To simply say we have to consider just the situation regarding the home—Those become homeless children if we're not considering that situation in a balanced way. I understand that quite clearly.
I am on the status of women committee, where we discussed this whole issue of what happens to that woman and her children. These are children, and they need to have a home; they can't simply be disposed of somehow or other. Very clearly, we need to come to some terms here.
You must have given some thought to the consequences of repealing section 67, because clearly there are going to be consequences. I want to come back to my hypothetical cases from the question I wasn't able to ask before. Could you provide some hypothetical examples of the kinds of complaints that might be filed against the Department of Indian Affairs if section 67 is repealed? What do you anticipate?
12:25 p.m.
Chief Commisioner, Canadian Human Rights Commission
Thank you.
To begin with, we will work to give you some subject matter areas, and not hypotheticals per se, for the obvious reason that were we to make up a hypothetical and that very complaint came to us, it could be difficult for—We can't pronounce on those. Ms. Helgason will talk to you about some of the subject matter areas.
In terms of numbers, it's really impossible to know, if we open the door, whether that's opening floodgates or whether there will be a learning period—an awareness period, and so on. Let's say we projected even a 14% increase. That 14% might be in numbers of cases; however, in terms of the complexity and the substantive issues, it could be a twofold increase. I'm just taking that number out of the air.
It's just that this case or that case, with the balancing and the complexity of the topic itself, could vastly increase our workload. It's very hard to put the finger on the pulse of the workload and say how fast it will quicken.
Concerning the subject areas that could come before us, Ms. Helgason is going to reply to your question.
12:25 p.m.
Director, National Aboriginal Program, Prairies and Nunavut Region, Canadian Human Rights Commission
Thank you so much.
Well, I can try. Hypothetical examples are just that, but there are many instances out there that could form the basis of complaints that have not yet come to us. This is just a very brief account.
You've asked about potential complaints against government. There are sections of the Indian Act itself, for example, that are shielded from human rights scrutiny, that govern who's eligible for status, who's eligible to be a member. A person currently can't file a complaint on the basis that those membership criteria or status criteria are discriminatory on the basis of race, colour, age, sex, family status—things of that nature. That's one example of a kind of complaint: the eligibility for status, for membership.
In addition, section 67 exempts from scrutiny such decisions regarding housing, education—such things as, let's just say hypothetically, Commissioner Langtry mentioned. A woman who was reinstated through Bill C-31, who had been living off-reserve for a number of years but has been a band member, might apply for housing. If she's denied that housing or is put very low on the list, she currently can't bring forward an allegation that the decision has been made in a discriminatory way.
Or take, for example, an application for education or funding for education. A person can't bring a complaint that they've been denied in a discriminatory way.
There's a plethora of examples. I would be pleased to discuss this further.
12:25 p.m.
Conservative
12:25 p.m.
Conservative
Rod Bruinooge Conservative Winnipeg South, MB
Well, since we've been engaged in hypotheticals, we may as well continue.
I find it important to return to the concept of matrimonial real property, as it's something our minister and our government are very interested in. I don't think it's a surprise to anyone that we felt it was necessary to bring about a repeal of section 67 before entering into a meaningful legislative consultation and debate in relation to any bill that might come forward respecting matrimonial real property. This is definitely an important step.
I need to return to the idea of marital property on reserve and how these assets would be split in marital breakup. Currently within the reserve system, the chief and council have the final authority on allocation of resources. Part of the reason we as a government have wanted to proceed with legislation to bring about matrimonial real property rights for first nations women is that that there are a number of cases many of us have learned of in which families aren't necessarily treated in a way we would accept in Canada as being appropriate.
When women and children are unfortunately not able to live in the home they resided in prior to the marriage breakup, and not only have to leave that home but also aren't provided with a secondary property—Of course, off-reserve there would be an immediate judicial splitting of whatever the assets were able to achieve in terms of value; perhaps a different property could be purchased, or one of the spouses would leave. This is really the crux of why I feel so passionate about ensuring that the Canadian Human Rights Act be applicable specifically in terms of allocation of resources, land, houses.
I wouldn't disagree with Mrs. Helgason about membership. I think that's a valid point. I don't think necessarily there is much of an argument for individuals who are not even first nations to bring about a human rights case to try to gain access to membership. But dealing specifically with matrimonial real property comes right down to the heart of the very issue of the interpretive clause.
I guess my question would be, do you imagine perhaps a different interpretative clause that could, in its very text, remediate this conflict that I have?
12:30 p.m.
Chief Commisioner, Canadian Human Rights Commission
That's a good question. We have not brought with us drafts of interpretive clauses to give to you. This issue is one on which we agree there is an urgent need for resolution. We also recognize that the solutions to the issue need to be consistent with the inherent right of first nations to self-government.
Commissioner Langtry, do you have something you might add?
12:30 p.m.
Commissioner, Canadian Human Rights Commission
It's obviously a difficult question to answer, whether you could accomplish something like that under an interpretive clause. We remain of the view and we certainly hope that a resolution of the consultations and the discussions between NWAC, AFN, and INAC that are ongoing will lead to fruition.
As you well know, there is the dichotomy, especially in marital property regimes, under the Constitution as to the division of powers. Usually the property matters on marital breakdown are a provincial jurisdiction. But also, because of the overriding responsibility or power given to first nations to determine property on reserve, it would seem to me that in the absence of an agreement and a stand-alone act, which frankly we would support—and I'm speaking outside, probably, of the interpretive provision—I don't think it would be covered. That would be my initial sense.
Under an interpretive provision, because an interpretive provision is simply how the commission and the tribunal will reconcile individual and collective rights, the issue of distribution of matrimonial real property or matrimonial property is of a more fundamental nature, which, if it were brought within the context of discrimination within the act, would be dealt with in a complaint way.
That's my initial reaction. I hadn't really given it consideration, because of the separate process right now with the marital real property question that's ongoing in the country.
12:35 p.m.
Conservative
The Chair Conservative Colin Mayes
I'm sorry, that's the end of your questioning.
Do you have questions, Madam Karetak-Lindell?
12:35 p.m.
Liberal
Nancy Karetak-Lindell Liberal Nunavut, NU
In one way I'm encouraged that the other side is talking a lot about the interpretive clause. Maybe they realize that we need one.
Going back to some examples I'm hearing, that's where I was leaning in talking about balance. As soon as you put the word “aboriginal” in , people assume right away and come to some conclusion that there's a discriminatory case here. Every one of us, especially those who have sat on status of women, can talk about many women who are not able to get the home, no matter who they are. That's a problem with our society. It's the women and children today, no matter who they are, who, in statistics, will not get the fair end of the deal in a marital breakdown.
To assume it's only because of aboriginal communities and the way things are set up that this is always the case is what I'm worried about: the preconceived notion that there is already discrimination going on that is against non-aboriginal people. That's what I'm worried about: people not understanding collective rights versus individual rights and going back to property.
You're talking about second and third interests. To me, those kinds of conversations are very disturbing, in that they make me realize people don't understand collective rights. Until we get to the stage of being able to protect collective rights, I don't know where the balance is going to be.
Also, in the transitional time, we cannot exercise our rights if we don't know them. I can speak for Nunavut. That is the case; we're not under this section. But people do not exercise their rights because they don't know enough about them. That's why we really need to push for that transition time to be 30 or 36 months. You can't have people exercising their rights if they don't know them.
When you talk about that transition period, are you also talking about education and letting people know that certain practices are not acceptable in today's society?
12:35 p.m.
Chief Commisioner, Canadian Human Rights Commission
A considerable amount of research has been done on why people don't come forward. Some people do not come forward because they don't know their rights, or don't know how, or there's no method for how; also, from fear of retaliation, or of not being a team player, if you will—a lot of reasons.
Education is extremely important; yes, it definitely is.
