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.
Chair, National Aboriginal Law Section, Canadian Bar Association
I think it's worth trying, until such time as the Indian Act is replaced by a proper parliamentary debate and a proper structure to move forward in.
I agree that this is a first step in that process, but it shouldn't be a first step that in fact achieves the process in a piecemeal fashion. The Indian Act can't be replaced in a piecemeal fashion. It has to be replaced with deliberative thought and a new governance act to move forward.
Conservative
The Chair Conservative Colin Mayes
The chair has a question. Would there be a possibility to put a justification clause in the Canadian Human Rights Act that would be sufficient to defeat any host of claims that would come from non-first nations people? Basically, instead of amending section 67 as we are with Bill C-44, could there be something in the Human Rights Act rather than an interpretation clause in Bill C-44?
Chair, National Aboriginal Law Section, Canadian Bar Association
I'm sorry, I don't mean to mislead the committee. We are saying that Bill C-44 should be amended so that it in turn puts the interpretive provision into the Human Rights Act.
Chair, National Aboriginal Law Section, Canadian Bar Association
Conservative
Rod Bruinooge Conservative Winnipeg South, MB
I guess I'll just go back to where we were prior to the last question, when we were discussing how matrimonial property would be allocated. You talked about how, if the individuals were both first nations, though there aren't provisions throughout Canada, there are some communities—a very small number—that have band council matrimonial resolutions. In those communities what you talked about would exist.
My issue would be that if a first nation citizen is freely able to marry and welcome into the community a non-aboriginal person, this non-aboriginal person should be extended the right of being able to live in that home with their children or have the opportunity to have that asset split. That's really the crux of the issue. That's why I see it as so essential that an interpretive clause not be able to allow those preferential allocations specifically in relation to matrimonial property. I just see that individuals being freely welcomed into communities as I just said should have that right.
What's your opinion on that?
Chair, National Aboriginal Law Section, Canadian Bar Association
My opinion is that it makes eminent sense until you run up against sections 20 and so on of the Indian Act, where it's very clear that only Indians can have an interest in the reserve, and that the reserve is for the use and benefit of a particular band of Indians. If someone is a member of the band, that's fine, but if they're not a member of the band and if they're non-Indian, then they can't inherit the land even if their parents were Indians.
Similarly, under the present property regime under the Indian Act, if you're non-Indian and you divorce an Indian, you can't have an interest in the land itself. You might get a resulting trust, or a constructive trust, where the person has to buy out your interest, but the CP can't be passed to a non-Indian.
Whether we like it or not, that's the Indian Act as it is, and the public policy issue there is to preserve the entitlement to the reserve for the benefit of that particular community as it's statutorily defined. If we start allowing non-Indians to have an interest in the land beyond a lease, for example, but an actual interest in the land equivalent to the--
Conservative
Rod Bruinooge Conservative Winnipeg South, MB
I think we're talking more than that. I think we're talking more about the actual physical asset, not necessarily the actual property but the land imprint. I think that would be going further down the line that you're talking about, which calls into question the entire system. I'm talking more the marital asset itself.
Chair, National Aboriginal Law Section, Canadian Bar Association
I'm not as up-to-date on the progress of the consultations about the matrimonial real property initiative that Wendy Grant has been conducting across the country, but I think the Indian Act probably can be amended to enable someone to continue to live in a house and give them statutory permission to do that, whether or not they're an Indian, without necessarily granting them the interest in the CP itself. I can see the Indian Act being amended quite readily to provide statutory rights to possess for a certain length of time without actually getting an entitlement to the underlying interest of the matrimonial home. I don't know what she's been doing on that, but I would imagine that's part of the discussion.
Conservative
Rod Bruinooge Conservative Winnipeg South, MB
We've talked about how whatever we do here as a committee and as a government is very likely going to see its day in court. I would argue that's inevitable.
From your perspective as a learned legal historian--especially in this area you obviously have a great degree of knowledge--what's your opinion as to why the Supreme Court hasn't taken a run at the Indian Act?
Chair, National Aboriginal Law Section, Canadian Bar Association
Well, they did in Corbiere.
Conservative
Chair, National Aboriginal Law Section, Canadian Bar Association
Oh, to repeal the exemption. I'll have to think about that.
I don't think a case has gone all the way up to the Supreme Court. I know that the Federal Court has considered it and we have a few cases. Justice Muldoon's comments came from one of the cases in which they considered the section 67 exemption, but none of those courts thought of striking down section 67. Is that your question?
Conservative
NDP
Jean Crowder NDP Nanaimo—Cowichan, BC
I just want to correct a piece of information.
On the Jacobs case I quoted, it's actually Jacobs v. Mohawk Council. It was actually the Canadian Human Rights Tribunal and not a court case. I just want to correct that information.
Liberal
Larry Bagnell Liberal Yukon, YT
I have one question. The federal government is always in court. There are lots of people taking us to court for lots of things. We have a system of lawyers to deal with that in Justice, etc., and it costs a lot of money. As Mr. Bruinooge and others have said, this is obviously going to end up in court--probably cases for Indian band administrations. From what you've seen, have there been any provisions to train Indian bands as to what they'll have to do to comply with the Canadian Human Rights Commission? Secondly, is there any suggestion of giving them resources so they can deal with these cases they're going to have before them?
Chair, National Aboriginal Law Section, Canadian Bar Association
That's what we referred to in our section on capacity of first nations governments. There needs to be some sort of capacity for training of first nations governments. I'm not just talking about band councils, but their administrators and band office staff, so that when decisions are made, the human rights filter goes over the glasses and they're able to make sure, as best they can, that they can make those decisions in compliance with the act. That's what we mean by needing the requirement for capacity. We try to minimize the amount of errors made by first nations governments.
