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
That's correct, and this conclusion is found in the first paragraph on the last page of our submission.
Our submission is that Bill C-44 should be amended to include the non-derogation and interpretive provisions that we think should be the result of the next 18 to 30 months' worth of consultations and deliberations.
Bloc
Marc Lemay Bloc Abitibi—Témiscamingue, QC
You have a vast knowledge of Aboriginal law, like me, and I believe that we should set a delay of 30 months rather than 18 because it could take much more than 18 months.
Chair, National Aboriginal Law Section, Canadian Bar Association
We say between 18 and 30 months. This is really in the purview of the committee to decide the adequacy of the length of time.
Certainly our point is that six months is inadequate, and it's the committee's decision from the submissions to determine the adequate length of time.
Bloc
Marc Lemay Bloc Abitibi—Témiscamingue, QC
But you understand that it is important. We have asked you to appear before the committee as experts and you certainly know that proper consultations take time and money. We are dealing with matters affecting directly the first Nations. Better take more time than not enough. This is how I understand your testimony.
Chair, National Aboriginal Law Section, Canadian Bar Association
Yes, I agree.
NDP
Jean Crowder NDP Nanaimo—Cowichan, BC
Thank you, Mr. Chair, and I want to thank the witnesses for coming before us today.
I want to talk about consultation, and I'm glad to see that you raised it. When the minister came before the committee on March 22, in a response to a question I asked about consultation, he indicated that lots of consultation had gone on. He specifically quoted the human rights review that happened in 2000 with Justice La Forest. I went back to the actual recommendations from that report, and it's quite interesting that in this review it talks about the importance of consultation. I just want to quote a couple of things.
It says, under “Consultations and Submissions”:
Any effort to deal with the section 67 issue must ensure adequate input from Aboriginal people themselves.
Then later in the report there's a great deal of discussion, raising some of the points that you have raised. He goes on to talk about the complexities, and he says:
These points raise huge questions about the social and economic structure of Aboriginal life and its legal underpinnings. Such matters deserve far more study than we have been able to give them.
So I take it, from the words of this report, entitled “The Report of the Canadian Human Rights Act Review Panel--Promoting Equality: A New Vision”, that the panel itself determined that this was not adequate consultation for a repeal of a section of the Canadian Human Rights Act that would have far-reaching impacts, and I think you've outlined some of those.
In your view, if we were to develop something around a repeal of section 67, what would that consultation look like?
Chair, National Aboriginal Law Section, Canadian Bar Association
I think we don't address the nature of that consultation in our submissions specifically. The reason for that is that fundamentally the nature of the consultations, in some respects, should be determined between the government and the first nations leadership, and this goes to the earlier question that was raised about who we are.
The aboriginal law section is a group of lawyers who practise aboriginal law. There are other organizations of aboriginal lawyers, the Indigenous Bar Association being one of them, and I understand that they may be witnesses to the committee as well. The interest of our section, as practitioners of aboriginal law, is to identify the law reform issues and bring them to the committee's attention.
In terms of the process of consultation, the courts have told us that consultation really is a two-way street between the Crown and the first nation, and while as practitioners we're involved in helping facilitate that two-way street on a daily basis, the lead very much has to be taken by the first nations in terms of the sorts of consultations they want. So we didn't feel it was appropriate to put in our brief what that consultation should look like.
But clearly, you've had submissions from the Assembly of First Nations, or you will have submissions from the Indigenous Bar Association.
The position of the Assembly of First Nations has been very clear that consultation needs to happen. There are other indigenous groups that have also put forward their views, and they are the ones that ought to be involved in sketching out the framework of what those consultations should be. And I agree that probably 18 months would be a bit tight. I think it's probably a bit longer process than that. We know that it's been 30 years that this exemption has been in there, and that's a long time for human rights to be suspended from reserves. We're not interested in seeing that continue indefinitely, and as early as 1977 the CBA was calling for at least a limited repeal of section 67.
We appreciate that a lot of time has passed, but whatever the consultations that happen, they should be done appropriately and not be rushed, so that the law reform issues that are raised and that are implicated by the repeal are adequately addressed by that consultation process. It's not just a question of setting up opportunities to chat for the sake of chatting. It should be meaningful discussion with first nations leadership to talk about the sorts of issues that would certainly include the issues we've raised today.
The Indian Act is a house built on clay, and you might not like the clay, but if you get rid of the clay foundation, you no longer have a house, right? We have to make sure that we don't remove the foundation and have the house fall down.
NDP
Jean Crowder NDP Nanaimo—Cowichan, BC
I think that is a valid comment.
I want to hearken back again to Bill C-31, which was intended to redress discrimination against women and has inadvertently created under subsection 6(2) a mechanism that is actually going to look at assimilation eventually, because people will lose their status under that section by continuing to marry out.
So I think your comment around the fact that section 67 and the Indian Act both can have far-reaching and complicated effects is very important, so that we responsibly look at those issues in a broader context.
Do I have any time left, Mr. Chair?
Conservative
Rod Bruinooge Conservative Winnipeg South, MB
Thank you very much, and thank you for your presentation today.
I want to go back to some of the comments you made in relation to first nations peoples potentially losing their reserves due to a ruling of the Canadian Human Rights Commission.
I guess perhaps you could elaborate on that in relation to section 35 of the Constitution. Do you think that perhaps section 35 would create an environment in which in fact the Constitution would be held a little higher than is a ruling of the Canadian Human Rights Commission?
Chair, National Aboriginal Law Section, Canadian Bar Association
That is a lovely complicated constitutional question.
We know that the Canadian Human Rights Act is afforded quasi-constitutional status. We know that section 35 protects aboriginal and treaty rights. But we also know that the Indian Act is enacted under Parliament's jurisdiction over Indians and lands reserved for Indians and is a statutory framework, an administrative framework, if you will, for that head of power under the Constitution Act of 1867.
It would be a very interesting case to see if section 35 would save the Indian Act as a whole if it were held by the Human Rights Tribunal that the Indian Act was fundamentally racist and contrary to the provisions of that quasi-constitutional document.
I suspect that it would be a rather complicated and messy affair. It certainly isn't a clear-cut case that section 35 would operate as a measure to save the Indian Act.
When we look at cases like Corbiere, in which section 15 of the charter was used to strike down certain provisions of the Indian Act, notwithstanding section 35, I suspect that if the Indian Act were held to be racist that section 35 wouldn't be a shield to protect it.
I am happy to elaborate further on the examples that I brought to your attention, to sort of work you through those if you so wish.
Conservative
Rod Bruinooge Conservative Winnipeg South, MB
It just seems to me that the constitutionally enshrined rights of aboriginal people in Canada would not be cause for the removal of lands from people due to a section 67 exemption, especially in light of the fact that non-derogation, to some extent, is actually incorporated into all law that we have in Canada due to section 35. You can't derogate from that section, in my opinion.
So as we proceed with a repeal, I am fully confident that not only would the Canadian Human Rights Commission be able to actually implement human rights in a judicious manner, but this type of scenario you're envisioning is one that I see as not practical under the current constitutional law in Canada.
But perhaps we could move on from there.
Did you see the submission of the Canadian Human Rights Commission?
Conservative
Rod Bruinooge Conservative Winnipeg South, MB
Okay. Within that there is the recommendation that after a repeal is put in place the commission have the opportunity to work with first nations groups to come up with language that is able to interpret the divide between communal rights and individual rights.
What are your thoughts on allowing for the Canadian Human Rights Commission to work with first nations groups to come up with that interpretation?
Chair, National Aboriginal Law Section, Canadian Bar Association
First of all, as a minimum thing that ought to be done, we would support that, and we do support that the Canadian Human Rights Commission should work with first nations as part of a consultation process to assist in the development of the interpretive provisions and even in the non-derogation provision.
I think the larger issue is the timing of when that would happen. In our submissions, we suggested that should happen as Bill C-44 is passed, not after the passage of the act in a subsequent amendment to the Canadian Human Rights Act. In our view, that work should happen, and we support that work happening with the commission. That work should happen now over the next period of time, and then Bill C-44 should be amended so that the interpretive provision can be added to the Canadian Human Rights Act so that we can address these issues all at once and not have to do it in two or three steps.
Conservative
Rod Bruinooge Conservative Winnipeg South, MB
But for the sake of timing and moving this process forward, the suggestion was made that the repeal occur and, subsequent to that, the discussions begin for the sake of, of course, moving this forward, as I think everyone agrees that 30 years is a long time to not have the laws of Canada be present in first nations communities.
Conservative
Conservative
Rod Bruinooge Conservative Winnipeg South, MB
Okay. Perhaps in the next round of questioning, if I'm so lucky, I'll ask you to comment a bit on some of the interpretive clauses that we've had presented before us. I'll give you a bit of a lead time, something I don't have the luxury of getting while I'm in question period, but I'll leave that with you.
