Evidence of meeting #46 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 indian.
A recording is available from Parliament.
Liberal
Nancy Karetak-Lindell Liberal Nunavut, NU
Thank you very much, Mr. Chair.
Thank you for your presentation. I have a couple of things, probably more observations than anything.
In your submission, am I understanding that you would like an interpretive clause put in Bill C-44? The Human Rights Commission had recommended that we pass the legislation and then work with first nations groups to insert the clause after.
Chair, National Aboriginal Law Section, Canadian Bar Association
Yes. Our primary submission on that point is that the interpretive provision should be inserted in Bill C-44. Of course, if that's not what happens, then we support a longer delay in the effect of the repeal so that an interpretive provision can then be developed through a consultation process and enacted separately.
Liberal
Nancy Karetak-Lindell Liberal Nunavut, NU
The reason I asked that question first is I'm convinced there has not been enough consultation, because if there had been, not every one of our submissions now would be asking for an interpretive clause and not every one of our submissions would be asking for a longer implementation period. Those are the two recurring points that we're hearing from every witness before us.
If there had been consultations, that's what would have been told to the government before the legislation was drafted.
The other point I want to make, more to put it on record, is going back to what you said about the section that determines who is an Indian. In my ten years here, almost ten years, on this committee, from 1997 to now, that has been one of the recurring things that we hear. Whatever subject, whatever piece of legislation we're dealing with, there's always someone complaining that it should not be the government who determines who is an Indian.
I'm very worried about the comments you just made, in that in the legislation I've seen with the matrimonial property and also with this legislation, I'm seeing under the layer a tone of undermining rights. I'm worried that there's a bigger goal than just what these bills are trying to do. As an aboriginal person, if there was someone determining if I was even an aboriginal person, and what rights I had as an aboriginal person, I would not be concentrating on other issues. It would be very difficult for me as an aboriginal person to pursue other things in life if I was being challenged as to whether I was even an aboriginal in the first place, and that I think is the tone in the country right now. People are being asked to deal with other issues to determine their very eligibility for services in this country and therefore can't even be running their bands and reserves in the way they should to serve their people. I'm very worried about that, with the legislation we're getting.
To go back to this legislation, you would support the need to have that interpretive clause right in the legislation. You feel that six months is definitely not enough, that we need to make sure that aboriginal rights are protected in this legislation before we pass it, and those amendments need to be inserted before it leaves this committee.
Chair, National Aboriginal Law Section, Canadian Bar Association
I would agree with that except to say that really what we're talking about here is specifically the Indian Act, not necessarily aboriginal rights as we know them under section 35. I'd like to give an illustration of what I mean by that.
Many urban and semi-urban Indian bands now have on their reserves significant populations of non-Indian residents through leasing of land for housing developments, so much so that on some of these reserves the Indians of the band are outnumbered by the non-Indians who live on the reserve. Nevertheless, the Indian band still has the authority for zoning, for property taxation, for the delivery of water and sewage services, and these sorts of things.
One of the inherent conflicts, then, becomes the non-Indian residents who don't have a legal say in the governance. There can be advisory and consulting committees with the band council, but the point is, the residents, because they're not Indians, don't have a right to have a say in what happens. They can't vote for chief and council, that sort of thing.
It's not difficult to envision that group of people, those non-Indian residents, challenging and saying they're being discriminated against by the provisions of the Indian Act in the place where they live, and I don't think that is a far-fetched example.
In reading the parliamentary discussion and the blues so far, there's been a lot of discussion about, for example, trying to ameliorate the situation of Indian women and how Bill C-31 has somewhat backfired in terms of advancing the rights of Indian women on reserve. The CBA certainly supports the equality rights of discriminated groups like Indian women, but one of the possible applications of the Human Rights Tribunal by these non-Indian groups is to take a run at the Indian Act because they feel, and perhaps rightly so, that they're being discriminated against by the provisions of the Indian Act.
Then you have this conflict between the community structure, for better or for worse, as a 19th century construct, being attacked on legal grounds in the 21st century, and that inherent tension. That's the kind of issue that I think needs to be wrestled to the ground through a consultation process, so that we don't end up seeing Indian bands disenfranchised on their own lands and the benefits they get from having these non-Indian residents on their reserve. They get the property taxes, they get the leases, and that helps them with their self-government, but that's all predicated on the fact that they're Indians.
If someone takes a run, and a successful run, at the underlying predication or foundation for that, which is the “Indian-ness” of these people as defined by the Indian Act, not as aboriginal rights under section 35 but as statutorily defined Indians, then that whole opportunity for self-government and getting the benefit of their reserve lands could be removed from them. That's the caution we're bringing to the committee today.
Liberal
Nancy Karetak-Lindell Liberal Nunavut, NU
Just on those comments, what I'm worried about is that's the ultimate goal of this legislation.
Conservative
The Chair Conservative Colin Mayes
You're over.
You covered a question I had. My question, though, is a little bit more on the amendment to C-44, which is amending section 67, which was the implications for the non-aboriginals on reserve land. Does that give them more opportunity to challenge the first nations governance as far as their rights to taxation with representation and those kinds of issues? Even so, the Indian Act is in place, but is the fact that they've been extended human rights going to have some implications on those rights for those people who are non-aboriginal on aboriginal reserves?
Chair, National Aboriginal Law Section, Canadian Bar Association
Certainly. The Human Rights Commission has identified on page 6 of the English part of our submission the use of reserve lands, occupation of reserve lands, housing, and enactment of bylaws. So all those provisions of the Indian Act would then be subject to the Human Rights Act, and properly so.
The fear isn't that...I mean, we're not here to support the Indian Act. We're not here saying it should be maintained forever. What we're saying here is it should be reformed, but it should be replaced by something that's a coherent legislative replacement, not attacked in a piecemeal fashion, which is the only way the Human Rights Tribunal could actually deal with it, because they decide things on a case-by-case basis, according to the facts presented to them in the case in front of them.
Conservative
Conservative
Steven Blaney Conservative Lévis—Bellechasse, QC
Thank you, Mr. Chairman. Thank you to the Canadian Bar Association and to their Aboriginal representative who have produced a clear and concise document for the nonspecialists that we are.
I have a few questions for you. To your knowledge, since 1977 have any governments passed legislation to improve the rights of Aboriginal communities?
Chair, National Aboriginal Law Section, Canadian Bar Association
Do you mean first nations governments or governments in general?
Conservative
Steven Blaney Conservative Lévis—Bellechasse, QC
The federal government. To your knowledge, have there been...
Chair, National Aboriginal Law Section, Canadian Bar Association
Yes. Now in Canada there are opportunities for first nations to voluntarily start to move out from under the Indian Act. One example is the First Nations Land Management Act, where a first nation can voluntarily opt in to assume jurisdiction of the lands and resources on their reserves. Then the Minister of Indian Affairs no longer has legal authority, responsibility, or liability for administering the reserves.
Similarly, under the First Nations Goods and Services Tax Act, first nations who wish to engage in GST taxation can enact a law and assume that taxation power. Canada then sort of shares the taxation room with them so they can get the benefits of being a taxing authority. But that's on a voluntary basis. If they choose not to take advantage of these opportunities, they remain under the Indian Act.
Conservative
Steven Blaney Conservative Lévis—Bellechasse, QC
Mr. Devlin, on page 2 of your report you express some concern about the cost of possible legal challenges resulting from Bill C-44.
I have been told that there are some communities that already come under the Canadian Human Rights Act and that this has not necessarily led to enormous legal costs for them. Do you have any information about that, based on the experience of those communities? I am told that the costs relating to the implementation of the Bill would not necessarily be high.
Chair, National Aboriginal Law Section, Canadian Bar Association
My understanding is that while there are some first nations that are currently under the Human Rights Act--Westbank comes to mind, for example--the vast majority aren't, in terms of the application of the Indian Act on their reserves. So decisions that are made outside the Indian Act are still subject to the Human Rights Act.
We certainly haven't quantified the cost and really can't speak to the dollars and cents. There would clearly be additional litigation costs for first nations governments. The other side of the equation is for first nations people to have access to justice so they can actually avail themselves of the protection that will be afforded to them by the repeal of section 67, and whether the repeal will give them meaningful access to justice.
Conservative
Steven Blaney Conservative Lévis—Bellechasse, QC
We agree that the Indian Act is a yoke under which we have to live today. Attempts have been made in the past to modernize it, especially relating to governance, but there was a lot of resistance.
Trying to repeal the Indian Act would be a very ambitious project, considering the inherent difficulties. Do you think that the step-by-step approach underlying Bill C-44 is a good idea, since it would allow us to improve Aboriginal rights without attacking the Indian Act, which would call for a much more comprehensive approach? As a first step, should we try to eliminate the irritants of the Indian Act in order to move forward, slowly but surely?
Chair, National Aboriginal Law Section, Canadian Bar Association
Our position is that we support the repeal of section 67, and have supported it since 1977. That's been the consistent position of the CBA. Our submissions also say we need to look at the underlying policy and legal implications for the administration of these 600 local governments across the country.
The repeal of section 67 potentially puts at risk the administrative structure, because it is predicated on a racist piece of 19th century colonial legislation. That's the conundrum that always faces everyone who has to encounter the Indian Act. How do we reconcile that with our modern values? It's a very difficult problem.
Bloc
Marc Lemay Bloc Abitibi—Témiscamingue, QC
I have listened to all the presentations and something stays in my mind.
Mr. Devlin, I would really like to have your opinion about this. At pages 6 and 7 of your brief, you refer to potentially serious problems and you say that in some Aboriginal communities, non-Aboriginals could claim the protection of their own rights if section 67 was repealed. I may have misunderstood but I would like you to tell us more about this issue which I find very interesting. I have not seen that raised anywhere else, this is the first time I hear about it. What do you mean exactly?
Chair, National Aboriginal Law Section, Canadian Bar Association
The example I used earlier was of, say, an urban first nations community or a semi-urban first nations community that has leased out part of its reserve for housing projects, so that you have non-Indian people taking subleases, building houses, and living on the reserve. This happens very frequently in urban and semi-urban areas now.
The Indian band and the band council are still the responsible local government authority on reserve. They have the jurisdiction under the Indian Act. They are the ones who pass the taxation bylaws, pass the zoning bylaws.
Very often in the property taxation bylaws I've seen, there are exemptions for Indian residents on reserve but not for non-Indian residents on reserve. It has always been the common understanding in the legal community that this is an ameliorative provision, whereby the band isn't going to tax its members but will tax other people who decide to either live or set up their businesses on reserve.
It provides a taxation revenue stream for the benefit of the Indian band. Sometimes there are even per capita distributions from taxation revenue streams, part of the tax revenues being used for band programing and part actually given out in the form of distributions to band members.
If a non-Indian band member living on the reserve finds out that their tax dollars are being distributed to individual band members, or finds out that their tax dollars are being used for a first nations community centre where only first nations kids can go to school, or whatever to assist in keeping that community intact, they may say, “I'd like to have a say about that; I'd like to have a say in where my tax dollars are going.”
The rest of us in Canada do have a say about that, in the municipalities in which we live and the cities. We can vote, there are referendums, there are municipal elections, and we're able to participate in the allocation of our tax dollars to a limited extent. There is no extent for that in the current regime.
I can see one of those residents saying, “I don't think that's fair. I think I'm being discriminated against because I'm not an Indian and don't have rights under the Indian Act. The Indian Act governs my reserve where I live, but I'm not an Indian and I have no say about what happens in the community in which I live. So I'm going to go to the Canadian Human Rights Commission and lodge a complaint.”
That's the example I use to illustrate how the Human Rights Act could be used by a non-aboriginal person to attack some of the provisions of the Indian Act. Of course, once you lift the lid on the Indian Act and dig deeper into what gives the band council the right to be there, you get further back to this fundamental premise of who is an Indian. From that definition all the rights follow, including the right to possess the reserve.
Conservative
Harold Albrecht Conservative Kitchener—Conestoga, ON
Thank you, Mr. Chair, and thank you to our witnesses for being here. Thank you for your commitment to improving the lives of all aboriginal Canadians. I know it's the government's intent, and it's certainly this committee's desire, to see that process move ahead.
Mr. Blaney touched on the matter of the number of complaints involving some of the first nations communities that are no longer under the Indian Act by a voluntary choice. Have we experienced a vast influx of human rights complaints from these communities, which are no longer under the Indian Act and therefore would have access to those kinds of complaints? Do we have any history? I know you said you don't have a dollar figure, but do you have a “number of complaints” figure?
Chair, National Aboriginal Law Section, Canadian Bar Association
No. We don't track those sorts of statistics. We're not a public agency in that sense.
Conservative
Harold Albrecht Conservative Kitchener—Conestoga, ON
But would it be fair to say there hasn't been a huge influx?
Chair, National Aboriginal Law Section, Canadian Bar Association
I really don't know.
Conservative
Harold Albrecht Conservative Kitchener—Conestoga, ON
Okay.
Another point that's made in the Assembly of First Nations submission in regard to the non-derogation clause is that they were concerned that customary laws and traditions, for example, be protected.
I would ask the CBA, what is your position in dealing with alleged discriminatory practices, for example to do with gender, that may be justified on the basis of customary traditions or laws? How would we deal with those conflicting perspectives?