Indigenous and Northern Affairs Committee on April 24th, 2007

[The Chair, Conservative, Colin Mayes]

We'll open this meeting of the Standing Committee on Aboriginal Affairs and Northern Development on Tuesday, April 24, 2007.

Committee members, you have the orders of the day before you. We are still working on Bill C-44, An Act to amend the Canadian Human Rights Act.

Today we have witnesses from the Canadian Bar Association. We have Christopher Devlin, chair of the national aboriginal law section, and Tamra Thomson, director of legislation and law reform.

Welcome to the witnesses.

We'll have a presentation of around 10 minutes and then we'll be moving into questions.

Committee members, I would like to take a bit of time at the end of the meeting to talk about the two motions that have come forward from Madam Crowder and Madam Neville. I think we're going to deal with those on Thursday, but we'll talk about that.

Welcome. I'll allow you to begin now, please.

[Tamra Thomson, Director, Legislation and Law Reform, Canadian Bar Association]

Thank you, Mr. Chair, honourable members.

The Canadian Bar Association is very pleased to have the opportunity to appear before your committee today to address the very important issues reflected in Bill C-44.

The Canadian Bar Association is a national association. We represent over 37,000 lawyers across Canada. Our primary objectives include working toward improvement in the law and the administration of justice. It is in this optic that we developed the submission before you today.

I will ask Mr. Devlin to address the issues in the bill.

[Christopher Devlin, Chair, National Aboriginal Law Section, Canadian Bar Association]

We have three points to make today, for three reasons.

Our first point is that the Canadian Bar Association supports the repeal of section 67. There's no question that equality should be uniform across federal legislation as it applies to the Indian Act; however, we have two things to urge the committee to consider.

First, we would urge the committee to consider adding a non-derogation provision and an interpretive provision to the bill. The second thing we would urge the committee to do is extend the delay of the effect of the repeal from the current six months to the 18 to 30 months that we suggest in our submissions.

There are three reasons for these points. First, the Bar Association feels there should be sufficient time for consultation with first nations. Second, we feel there should be provision for the capacity of first nations to deal with the application of the Canadian Human Rights Act to their local governance and capacity for first nations members to take advantage of the rights that will be extended to them under the act. The third provision is the need to balance individual human rights with other first nations rights and interests, particularly the rights of the collectivities of these communities of first nations.

I would like to start with the third reason first, because it's there that I think our submissions add to what the committee has heard from other witnesses before the committee.

Our primary reason for urging the extension of time and the interpretive and non-derogation provisions is that the repeal of section 67 has the potential for the inadvertent repealing of the Indian Act itself and for significant reforms to the Indian Act itself, but in a piecemeal fashion. I would refer the committee to the comments of.... Let me explain this. Mr. Justice Muldoon, in the Federal Court, has described the Indian Act as a piece of racist legislation and has said that were the exemption under section 67 to be repealed, it would oblige the Canadian Human Rights Tribunal to tear it apart.

It's important to appreciate that the Indian Act is fundamentally a piece of 19th century legislation that is based on 19th century precepts of race and of ethnic and national origin that are very much at odds with our modern 20th century and 21st century views of individual human rights.

We have examples. We point to examples in our submissions, such as the blood-quantum provisions under the membership section, section 6, of the Indian Act; we point to the application of property tax bylaws under section 83 of the Indian Act; we point to the issues of inheritance of real property on reserve under several provisions of the Indian Act. All of these provisions illustrate the 19th century policies that are in place under the Indian Act.

That said, and notwithstanding that it's fundamentally a piece of legislation that I think we all view as being flawed from a modern perspective, it serves as the administrative and operational framework for over 600 local governments across Canada: most first nations continue to have their governance provisions regulated by the Indian Act; their entitlement to their reserves is predicated on the Indian Act; their communities are entirely governed by the Indian Act. It also safeguards certain treaty rights and entitlements under certain treaties between Canada and respective first nations.

The Canadian Bar Association is concerned that sections 15 and 16 of the Canadian Human Rights Act may not be sufficient to have a proper balancing between the individual human rights of first nations members, or of non-first nations people dealing with first nations, and the collective rights of first nations communities.

As you probably know, section 15 is the bona fide occupational requirement provision of the Human Rights Act, and section 16 is a special programs provision. I think there's some doubt that those provisions would be adequate to address the kinds of balancing that would be required to recognize the specific historical and constitutional place that first nations occupy within the Canadian legal framework.

In 1977 the bar association made submissions on section 67. We refer to those in our submissions here. At that time we urged that the government repeal section 67 but leave in an exemption for programs that protect the rights of Indian people as Indian people.

NWAC has made submissions, and so has the Human Rights Commission, to this committee about a non-derogation clause, and we support that non-derogation clause as well. Our view is that the next 18 to 30 months should be taken to develop and canvass the significant policy concerns related to the potential for piecemeal reform of the Indian Act by repealing section 67 so that a proper non-derogation clause and a proper interpretation provision can be drafted, so that as we move forward after section 67 is repealed, the collective rights of first nations aren't taken out from under them.

In an ideal world the Indian Act would be replaced on a proper modern footing, so that first nations would have the appropriate legal frameworks to move forward as local governments. However, what we don't want to see is the Human Rights Tribunal essentially striking down the Indian Act. Of course, it's not the appropriate body to replace the Indian Act with a legislative framework to help first nations move forward with their government.

That's the third reason why we say there should be the delay. From that, I think it's obvious that we need to have consultation with first nations to be able to discuss with them adequate interpretation and non-derogation provisions, and also that they need to have the capacity to engage in those discussions.

That's the opening statement that we have at this time.

[The Chair, Conservative, Colin Mayes]

Thank you.

Mr. Bagnell.

[Larry Bagnell, Liberal, Yukon, YT]

I have a lot of questions. I don't know how many I'll get through. Basically on your three points—the interpretative clause, non-derogation, and the time—I don't think we disagree. There are about six items already suggested by first nations leadership, and we've agreed, at least on this side, with all of them. Those are three of them, so those aren't at issue.

I'm curious. How many members did you say you had? Was it 37,000? How many of those are aboriginal?

[Tamra Thomson]

We don't track our membership statistics in that way.

[Larry Bagnell, Liberal, Yukon, YT]

How many aboriginal lawyers had input into your submission?

[Tamra Thomson]

Again, we don't track the membership of the section, but there are aboriginal lawyers involved in the section.

[Larry Bagnell, Liberal, Yukon, YT]

In which section?

[Tamra Thomson]

In the aboriginal law section, which is the section that was primarily responsible for the submission. The membership comprises lawyers across the country who specialize in this area of law.

[Larry Bagnell, Liberal, Yukon, YT]

Could the chap who suggested that if this passed it would cause the Indian Act to be torn apart elaborate on why that would be the case?

[Christopher Devlin]

It was in a decision of Mr. Justice Muldoon from 1994, the Canada Human Rights Commission and Department of Indian Affairs and Northern Development Canada judgment of December 30, 1994. I can read you the quotation from that decision.

[Larry Bagnell, Liberal, Yukon, YT]

I'm not worried about the quotation; I'm worried about some of the technical reasons, if you're aware of them—and whether you agree.

[Christopher Devlin]

The Indian Act is fundamentally predicated on the definition of what an Indian is, and all the entitlements flow from that. There are Indian reserves that are set aside for the use and benefit of bands of Indians. When you look at what a band of Indians is, it's a group of Indians. When you look at what an Indian is, an Indian is defined in section 6 fundamentally by blood quantum. There is the sort of historical perspective under section 6, and then as you move forward it's really a question of blood.

The fear here, or not the fear, but I think the law reform issue is that you have a statute that defines a group of people essentially by their race, according to their blood quantum, and that racial characteristic entitles them to their reserves and all of the benefits that flow from their reserves. So their ability to reside on these lands held in common by the group, their ability to have the tax exemption on their reserve, the exemption from seizure, their ability to inherit property on that reserve and pass that property down to their children, their ability to tax businesses that may start on their reserve for their own self-government, all of that, if you work it backwards, comes down to the definition of an Indian and the blood quantum.

Fundamentally, according to Justice Muldoon, that's predicated on a racist notion and a racist personal characteristic.

If that's attacked successfully and struck down, a whole series of dominos could fall. The potential implication is that communities that have lived on plots of land since the 19th century could suddenly find that they're no longer Indians. If they're no longer Indians, they no longer have a band and they no longer are entitled to possess the reserve set aside for that band by Canada. You suddenly have dispossessed whole communities of people from the remnants of their historic lands.

Again, if we appreciate sort of the nation-building exercise in Canada, these reserves, not in every situation but often, were the remnants of larger tracts of land that the first nations used, and the government ended up setting those reserves aside for the use and benefit of these communities.

If the statute is struck down, if the fundamental premise of the statute is struck down, these communities could be disentitled to their lands, to their remaining lands.

[Larry Bagnell, Liberal, Yukon, YT]

So in spite of these drastic possible ramifications of this bill, Indians could lose their reserve lands across Canada and not be Indians, etc., but you're still supporting this bill?

[Christopher Devlin]

We support it with the caveats that I mentioned.

We believe there should be a non-derogation clause, and we support the non-derogation clause in the concept advanced by the Human Rights Commission and by NWAC, which is found on page 3 of our submission, in terms of a non-derogation clause.

We also support, in the report from the commission, that there also be included an interpretive clause that would help then guide the Human Rights Tribunal in applying the Canadian Human Rights Act to the specific historical and constitutional circumstances of aboriginal people, so that you don't get this wholesale disentitlement as a result of a Human Rights Tribunal decision.

[Larry Bagnell, Liberal, Yukon, YT]

There is some suggestion of a separate institution. Quite often we have set up a number of first nations or aboriginal institutions in Canada to deal with some of these transitions. Some suggestions have been made to set up a separate institution to administer this, as opposed to the Canadian Human Rights Tribunal. What are your thoughts on that?

[Christopher Devlin]

We haven't commented on that specifically in our submissions. That's sort of in the hands of the committee, as far as our submissions are concerned.

[The Chair, Conservative, Colin Mayes]

Thank you.

Mr. Lemay.

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

Thank you, Mr. Chairman.

Thank you, Mr. Devlin and Mr. Thompson. Mr. Thompson, we do not need an introduction since we've already met at the Justice committee. I know your experience and I respect the Canadian Bar Association. This is the first time I speak to a member of the Indigenous Bar. I know there is an Indigenous Bar in Québec.

Let us forget the government for a while. If clause 67 is repealed without any consultation, as you recommend, would we not risk doing indirectly what cannot be done directly, that is to say abolish the reserves through a limited and narrow interpretation of the Canadian Human Rights Act?

[Christopher Devlin]

Thank you.

As I explained, it's not that it would happen overnight; it wouldn't happen tomorrow. It would be the result of a particular challenge and the result of a decision by the Human Rights Tribunal.

So the law reform issue we're trying to address here is that there should be reform of the Indian Act. But this should be done in a legislative process, so that there's something to replace it, in order to enable first nations to continue governing themselves as we move forward.

The problem with the Human Rights Tribunal is that if it decided it was going to strike down, for example, the status provisions of the Indian Act, things would fall after that. So it would be after a decision.

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

I am pleased to hear you quote Judge Muldoon. It is at page 10 in French and at page 8 in English. This is what it says:

Over time, if all the incorrect or illegal administration of the Indian Act were corrected by human rights tribunals, that Act would be so permeated by human rights precepts that it would be ultimately destroyed.

And, further:

...the guarantee in this Act of certain rights shall not be construed so as to abrogate or derogate from any Aboriginal, treaty or other right that pertains to Aboriginal peoples in Canada.

As you see, I am a lawyer and I wonder if one should conclude that, for you, everything that has to be interpreted after the implementation of the Canadian Human Rights Act will have to be interpreted by taking into account what you want to be included in the bill, which is:

...does not abrogate or derogate from any Aboriginal, treaty or other right that pertains to Aboriginal peoples in Canada.

I know I seem lawyerly, but you are following me?

[Christopher Devlin]

You've summarized our position well.

[Some hon. members]

Oh, oh!

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

I am not aspiring to be appointed to the Supreme Court bacause my chances are too slim.

If we are in favor of repealing section 67, we have to take that into account. This definitely has to be included in the Bill, otherwise it could lead to the repealing of immemorial rights of the first nations. Does this reflect your position?