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
In our submissions we identify that problem, but we certainly don't proffer any solutions to it. The intersection between indigenous legal systems, which are recognized as a body of law in Canada that's justiciable in the courts, and modern individual human rights is one that we just have no real experience with in the courts to date.
So as to how that intersection would be reconciled, we can't say. But it is a problem that we flag.
Conservative
Harold Albrecht Conservative Kitchener—Conestoga, ON
I would just follow up, then, with the point that where you are asking for, and I think many of the submissions we have received are asking for, an interpretive clause, my question is whether or not it is really possible to have one interpretive clause in this legislation that would adequately address the needs of 600 first nations communities. I envision, maybe wrongly, a myriad of interpretive clauses based on cultures and traditions of the various first nations communities that are out there, or, what I think would be worse, only two or three first nations groups having all the say. Then we go back to asking, what is adequate consultation? I think we'd just get ourselves deeper and deeper into that question.
Perhaps you could respond to that.
Chair, National Aboriginal Law Section, Canadian Bar Association
I appreciate that challenge. That is a challenge that also has to be met. I appreciate, too, the sensitivity to the fact that one size often doesn't fit all in the first nations context. It's erroneous to refer to first nations as a homogeneous group. They're not a homogeneous group. There are many different indigenous legal systems.
That said, I think an interpretive provision could be developed that would enable the particular indigenous legal tradition of a first nation to be considered by the Canadian Human Rights Tribunal when reconciling the individual human rights of a complainant before it with the collective rights of that particular first nation community.
Conservative
Harold Albrecht Conservative Kitchener—Conestoga, ON
So you don't feel that sections 15 and 25 of the charter or section 35 of the Constitution Act adequately balance the collective and individual rights? We need an additional interpretive clause for this particular situation?
Chair, National Aboriginal Law Section, Canadian Bar Association
Yes. The reason is that the Indian Act is a piece of federal legislation, as is the Human Rights Act. Section 35 deals with the aboriginal and treaty rights, the constitutional rights. The Indian Act is a piece of federal legislation enacted under subsection 91(24), the head of power, under the Constitution Act, 1867. They're not talking about the same things. There is an intersection, sometimes, between the rights under the Indian Act and the section 35 rights, but they're not analogous. They're not the same. And however flawed the statutory rights and obligations are under the Indian Act, it's what we have and it's what these communities are predicated on in terms of their administration and operations.
Just the risk that we're identifying is that we don't want to throw out the baby with the bathwater, so to speak.
Conservative
Conservative
The Chair Conservative Colin Mayes
Actually, no.
I have a question. Do you think those types of questions can be answered by a clause in the act, an interpretation clause that would be specific enough to really present certainty, or could it be challenged by court? It's going to be interpreted through the courts anyway.
Chair, National Aboriginal Law Section, Canadian Bar Association
There is going to be litigation no matter how these things go. The whole tribunal process is all predicated on litigation, all predicated on complaints coming forward. Regardless of whether they end with the tribunal or in Federal Court afterwards, you're going to get interpretations of the enabling statutes.
Conservative
The Chair Conservative Colin Mayes
So is the framework going to be based on a court decision anyway?
Chair, National Aboriginal Law Section, Canadian Bar Association
No. I think the point we're trying to make is that if there's an interpretive provision, then it's not a question of the tribunal ignoring or.... What it comes down to is that the tribunal has, as its option, the ability to look at the collective communal rights of a first nation when assessing the individual human right and the degree of discrimination and whether it's justifiable, unjustifiable, or whatever the nomenclature that ends up being used is. So in the subsequent appeal to the Federal Court, the issue is whether the tribunal got that balancing act right, not whether the tribunal erred by considering communal collective rights. You see, that's the distinction.
NDP
Jean Crowder NDP Nanaimo—Cowichan, BC
Thanks, and I actually want to follow up on this. Again, I'm going to come back to this 2000 report. It's actually really interesting to me that we end up with this Bill C-44 without an interpretive clause provision, when it had been strongly recommended in a number of places, including this review back in 2000. They talk about the interpretive provision, and in it, in laying the groundwork for the reasons for an interpretive provision, they say:
We think that an interpretative provision should be added to the Act that requires the taking into account of Aboriginal community needs and aspirations in interpreting and applying rights and defences....
It goes on further to say:
This would supplement the bona fide justification argument, ensuring that it is properly adapted to the needs of Aboriginal government, without binding the Tribunal to any one interpretation. This is consistent with the Draft Declaration on the Rights of Indigenous People that requires that States take measures to assist Indigenous people to protect their cultures, languages and traditions.
Then they go on to make a very clear recommendation around the need for an interpretive clause. I think the challenge that many of us have is that most of us come from a Eurocentric background, where individual rights are paramount, and we keep bumping up against many indigenous people who have a very strong belief that collective rights are paramount, or at least need to be considered. I wonder if you've seen cases or examples, perhaps in other countries even, where that collective versus individual right has been balanced and taken into consideration. This seems to come to the core of what we're talking about.
Chair, National Aboriginal Law Section, Canadian Bar Association
I can't say I have. I would be making it up if I said otherwise.
Chair, National Aboriginal Law Section, Canadian Bar Association
But the submissions are honest ones, I'll tell you that.
I think we also have to be clear in terms of the Bar Association's position here. We're not suggesting that the collective rights should somehow trump the individual rights. The Bar Association has taken a very clear stand on the equality rights, for example, between men and women. I think we're suggesting here that it be open, and the collective communal rights and the indigenous legal traditions of a particular community should be something that the tribunal considers when dealing with the individual human rights of that particular complainant. But I can't point you to international cases, and we didn't refer to it in our submissions.
NDP
Jean Crowder NDP Nanaimo—Cowichan, BC
In their presentation, the panel review did talk about a case—the Jacobs case, but I don't see the date on it—where the court did recognize that there was the individual and the collective. So there is some jurisprudence in Canada already that does talk about that balancing of individual and collective rights and the need to recognize it. So I think we already have some case history that does talk about it.
Chair, National Aboriginal Law Section, Canadian Bar Association
To go back to some previous questions, while I distinguish between section 35 and the Indian Act, and I do see aboriginal rights and treaty rights as different from the statutory rights under the Indian Act, to a large extent, some of the section 35 jurisprudence could be helpful to us and to the tribunal in moving forward--for example, having, for the duty of consultation, the concept of reconciliation of crown sovereignty with the first nations interests as the goal of consultation. That kind of reconciliation concept could be very much considered by the tribunal when it comes to recognizing the individual human rights of a complainant and reconciling those human rights with the collective rights of the community. It doesn't mean that the community's collective rights would trump the individual's human rights. There would still have to be some kind of balancing process there so that the collective rights that are recognized in Canadian law for first nations aren't suddenly wiped out vis-à-vis the Indian Act--and we're talking about only the Indian Act--and the individual's human rights don't trump a whole community's collective rights. There has to be some kind of balancing there.
We see that in the section 1 jurisprudence under the charter. This is not a foreign concept to Canadian jurisprudence in different contexts.
Conservative
The Chair Conservative Colin Mayes
The chair just wants to clarify. I didn't mean to slight your profession; it was in jest. I have great respect for your profession.
To the government side, Mr. Bruinooge.
Conservative
Rod Bruinooge Conservative Winnipeg South, MB
Thank you, Mr. Chair.
Just going back to my previous line of questioning, in relation to interpretive clauses, it seems that this committee has found the one element of discussion for this bill that seems to be the most difficult for us to move forward on--and I think that's for a good reason, because I think it's difficult to make this interpretation.
We've received one suggested interpretive provision, and this was from the Assembly of First Nations. Have you had a chance to read through it?
Chair, National Aboriginal Law Section, Canadian Bar Association
I saw it in passing. The one I have is the one suggested in the commission's report. I don't have the AFN's in front of me, I'm afraid.
Conservative
Rod Bruinooge Conservative Winnipeg South, MB
Again, these are similar questions to ones that I've asked other witnesses, but they would be in relation to part of the interpretive provision supplied by the AFN, where it talks about the entitlement that is granted to a first nations government to provide preferential treatment to its members in relation to allocation of resources, employment, and economic benefits, etc.
In part, my concern on this particular point would be in relation specifically to housing allocation. It seems one of the largest impetuses for us even to begin to take on this big challenge of wanting to extend human rights on first nations reserves is not, obviously, to destroy first nations communities, by any means. It's more to extend some things that we take for granted in the rest of Canada, such as when there is a marital breakup and the marital asset is distributed equally. Within Canada that's one thing that so many families take for granted. Of course, one would argue it's one of the biggest benefits that women throughout Canada have been able to retain through marital breakup. So one of the biggest reasons that I think we're doing what we're doing today is for this very purpose.
Do you envision our government being able to proceed with a matrimonial real property legislation without first repealing this section of the Canadian human rights code? Also, do you envision our being able, from a legal perspective, to have that legislation be considered lawful before the courts with an interpretive provision that allows for this preferential allocation to still be done?
Chair, National Aboriginal Law Section, Canadian Bar Association
On what I understand of the matrimonial real property initiative on reserve, it's going to be a suggested amendment to the Indian Act itself or regulations under the Indian Act. Normally I don't give legal opinions off the cuff, but I'll make some assumptions here.
It strikes me that you wouldn't need to repeal section 67 of the Human Rights Act to amend the Indian Act to provide further clarity about the allocation of real property on reserve. That has already been done under the Indian Act. There's a whole statutory and regulatory regime about the allocation of property and resources on reserve. The repeal of section 67 isn't a necessary first step to putting in matrimonial real property provisions under the Indian Act.
I'm glad you raised that specific issue, because although we refer to inheritance law as one of our concerns in our submissions, it works equally well with matrimonial issues. On an Indian reserve, the best title you can have as an individual is a certificate of possession, which isn't equivalent to fee simple but it's getting close.
So people get a parcel of land under a CP and build a house. The marriage splits up. If they're both Indians, the matrimonial real property law would likely address the division of the marital assets, quite similar to how it's addressed provincially. However, if one of them isn't an Indian and is no longer entitled to live on the reserve, not only are they forced to leave the reserve, but under the Indian Act only an Indian, a member of that band, can actually be on the title for the CP. Then you get into questions of whether there is a resulting trust. I can see a situation where that non-Indian person, particularly if it's a woman with kids, says, “I don't want money. I want to live in the family house, and he should go. Just the fact that he's an Indian and I'm not shouldn't change that.” So the underlying property regime, for good or bad, under the Indian Act could fundamentally be attacked on exactly that kind of fact pattern.
The question for the Human Rights Tribunal is whether it would be entitled or permitted as part of its jurisdiction to look at the public policy on why property is held communally and the whole concept of communally held property in the form of a reserve when considering that woman's individual human right to have a share in the family home--and have that balancing.
So while we haven't endorsed the interpretive provision that the AFN has put forward--or for that matter the provision that was recommended in the Human Rights Commission report--we think that from a jurisdiction point of view, the tribunal should be able to look at those sorts of factors when coming to its decision, rather than just privileging the human rights, not looking at the communal rights, and effectively trumping the communal rights, or worse.
Conservative
Liberal
Anita Neville Liberal Winnipeg South Centre, MB
Thank you very much.
Thank you very much for your presentation. You've certainly raised a number of issues that have not been raised before and some that many of us have been talking quietly about.
You keep referring to the Indian Act. I'm not a lawyer, but I've certainly looked at it in all its complexity, and it's not easy to make one's way through. You talk about the policy and legal implications of the repeal of section 67. How do we identify them, and how do we address them as a committee? Some of them are far-reaching and maybe very much counter to the traditional and historical culture of aboriginal peoples.
You've raised so many questions in your presentation today, I'm trying to get my head around how we address them.
Chair, National Aboriginal Law Section, Canadian Bar Association
Fundamentally, I think we can't address all of them here. I think there are two things we can do, though. We can give the Human Rights Tribunal a framework in which they can consider these factors when they're making their case-by-case assessment, such that we don't create the capacity for indirect repeal of the Indian Act without replacing it with something else.
Ideally, Parliament would say the time has come, not after just 30 years but 130 years, to replace the Indian Act, and that it was going to move forward to do that. That's where all of these policy implications would properly be vetted and sorted through. We can appreciate the magnitude of that challenge.
I think the interpretive provision and the non-derogation provision would help to prevent that kind of process from happening in a particular case in front of the Human Rights Tribunal, so that the Human Rights Tribunal wouldn't be faced with saying, “You can't do this, no matter how egregiously this individual's human rights have been violated, because if you do this you strike down the Indian Act and potentially affect 600 communities.”
That we don't want to put the tribunal in that position would be my submission. If the tribunal is enabled and given the jurisdiction to look at the collective communal rights of first nations, they can try to engage in the appropriate balancing for the case in front of them. They can limit the critiquing of the Indian Act as best they can to the case in front of them and to the specific community in front of them, so that they also don't end up using an egregious set of facts from one community to affect 600 other communities.
That's the hope behind the interpretive provision and the non-derogation provision; that we could limit, so that the sections of the Indian Act that are repugnant in a particular case could be somewhat limited to that particular case without the whole act falling down.