Indigenous and Northern Affairs Committee on April 26th, 2007

[The Chair, Conservative, Colin Mayes]

I'd like to open this Standing Committee of Aboriginal Affairs and Northern Development meeting of Thursday, April 26, 2007.

Committee members, you have the orders of the day before you. We're going to continue with the review of Bill C-44, An Act to amend the Canadian Human Rights Act.

With us today as witnesses from the Department of Indian Affairs and Northern Development are Daniel Watson, senior assistant deputy minister, policy and strategy direction; and Daniel Ricard, director general, litigation management and resolution branch.

From the Department of Justice, we have Christine Aubin, counsel, operations and programs section, legal services unit.

Later, from the Congress of Aboriginal Peoples, we'll have Patrick Brazeau, national chief.

It was the desire of the subcommittee to bring these witnesses together at one time, so we won't have a break and we will use the time as best we can. I say this because I didn't want anybody to be concerned about the association between departmental officials and Mr. Brazeau—just so you're aware of that.

We do not have an opening statement from the Department of Indian Affairs and Northern Development, nor from the Department of Justice, so we're going right into questioning.

Mr. Brazeau is going to be a little late; he said about 11:15 to 11:20. So if you want me to proceed this way, I'll let Mr. Brazeau make his statement when he arrives. Would that be acceptable to the committee, and then we can continue right through?

[Some hon. members]

Agreed.

[The Chair, Conservative, Colin Mayes]

Thank you.

We'll begin with questions to the departments.

Welcome, and thank you very much for being here.

Mr. Bagnell.

[Larry Bagnell, Liberal, Yukon, YT]

I assume that you've done your homework, read the first debate, and have some of the concerns that were outlined by previous witnesses.

As my colleague just said, a number of points were brought up by the witnesses and in our speeches, at least on this side in the House. So I'll give you a chance to comment on whether you have any suggested changes to or defence of those particular items.

I don't have my speech here from the debate, but the points I remember were: first, the aboriginal people said there was a total lack of recent consultation on this particular initiative; second, as we heard yesterday from the Law Commission, there should be a derogation clause to make sure that in something so sensitive, rights aren't impugned; third was definitely a longer implementation time period for something so difficult, in order to give people time to adjust; and my last point was an interpretive clause.

If any of my colleagues can think of any other major points.... Also, as sort of a corollary, do you have plans for training and also to provide resources?

Obviously, band councils that aren't used to this could cause all sorts of complaints and court cases against themselves, if they're not properly trained. It would help to train them, and that would be preventive. Second, they'll need some money to go to court and some training in advance so that hopefully they don't have to.

Did we hear any other major complaints from the witnesses? I think those are the major points. If you could respond to those, because I'm sure you're prepared and have heard them.... I think it was pretty universal between members of the opposition and the witnesses that those were areas of concern. I think they're fixable, but I'd be interested in hearing your responses.

[Daniel Watson, Senior Assistant Deputy Minister, Policy and Strategic Direction, Department of Indian Affairs and Northern Development]

Thank you very much for the opportunity to be here today and to answer questions.

Maybe I can take these in reverse order and follow up on some of the questions that arose when we were here last time with the minister.

On thinking through and planning how this would play out in the communities, there are a number of issues that are useful to keep in mind that we've tried to think through as we've gone through this set of scenarios.

There is already some knowledge and experience in this area. It's not entirely new. Despite section 67, first nations have had the Canadian Human Rights Act apply in some aspects of their operations and work until now. We understand there are 35 to 50 cases a year in some areas under the CHRA, so it's not as if we're in a situation where we're going from an absolute lack of application in all aspects of first nations business to full application. We do have some baseline data there. On that front, I thought a couple of issues might be useful to go through.

Currently, about 60 potential complaints involving first nations are received each year by the CHRC. This is data we have from our research with them, rather than departmental data. Of course, people can submit complaints, and one of the procedural issues is that the commission decides whether or not to accept them. On average, 60 a year are made and 40 a year are retained for further review. I can't speak to the actual disposition of those ultimately, but something like 40 go to subsequent steps.

Complaints that are filed against first nations are different, from what we understand. For example, 15% are on the basis of disability compared to over 40% in the rest of the caseload the CHRC sees. About 12% are on family status compared to about 4% in the rest of the population, if you look at the types of complaints the CHRC receives.

From the information we have, complaints against first nations are more likely to be settled than other complaints. That's consistent with a number of the comments first nations have made about the importance of being able to deal with issues outside the traditional litigation processes. They are less likely to be referred, but they are more likely to be sent on to a tribunal once they are referred to the commission. About 14% end up going to a tribunal, as opposed to 4% in the rest of the business the commission deals with. So there is a certain body of experience so far that we can actually take a look at.

Again, this isn't entirely new. Certainly there are some significant changes here, but it's a good baseline.

Self-governing first nations are, of course, subject to the Canadian Human Rights Act, so we've taken a look at that as well. There was not an enormous influx of complaints launched the moment the gates were lifted, as it were—when it ceased to be an Indian Act regime and went to a self-governing regime. That would be a significant issue in the Yukon and some other places around the country.

The other part we looked at and thought through is that the federal government, and most particularly first nations governments, are already subject to litigation in any number of areas that give rise to CHRC complaints. We have looked at the fact that first nations governments already need to deal very much in an environment where their decisions are subject to not only political review by the citizens of the first nation but to potential litigation as well, and that litigation does come. One of the key differences in the context of the CHRC and the CHRA is that there's a built-in mechanism to have a very different type of mediation in informal processes that you simply don't have built into most civil litigation contexts.

The impact of the repeal flows naturally into federal government machinery. Daniel Ricard, who is here with me, is our director general of the litigation management resolution branch. We handle over 1,000 cases at any given time.

We have mechanisms in the federal government to deal with these things, but I'm aware that first nations and aboriginal groups that have spoken are not as concerned with the department's ability to handle this as they are about their own.

When we think this through and look at the CHRC in its 30 years of experience in managing these types of situations, complaints, and processes, we recognize that first nations already have some significant systems of dispute resolution in place in some cases. We wonder sometimes if that has had an impact on the increased level of being able to resolve issues at the community level that the CHRC has found, as opposed to what we see in other circumstances.

[The Chair, Conservative, Colin Mayes]

Can I just interrupt you? We've gone over the seven minutes and are in the question part now.

I would like to move on to Mr. Lemay for questions.

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

Thank you, Mr. Chairman.

I listened carefully—

[The Chair, Conservative, Colin Mayes]

If you want him to continue, that's fine, but it's going to take up your question time.

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

You're right; I think it would be better to go back to the question raised by my colleague earlier.

Mr. Watson, Mr. Ricard and Ms. Aubin, I would like to give you my own impressions. I am pleased to see you here at this stage in our consideration of Bill C-44. I have been comparing your comments to those made by witnesses who appeared previously, including the Indigenous Bar Association in Canada, and I see that we are dealing here with two completely different viewpoints.

On the one hand, departmental officials say they will have no trouble handling this. According to them, after 30 years working in this area, they have seen other such challenges. On the other hand, the Indigenous Bar Association quotes the words of Justice Muldoon of the Federal Court. I do not wish to make a mess of His Lordship's statement, but in the case in question, the title and title of which I've forgotten, the judge handed down a ruling in which he said that interpreting decisions made by the Human Rights Commission under the Canadian Human Rights Act was tantamount to assimilating Aboriginal people and shutting down the reserves. My description is rather harsh. However, that is what he meant and that is what we were told by people representing the Indigenous Bar Association.

I have to say that everything I've been hearing this morning seems very ambiguous. I would like you to provide some clarification. We need to know who is right and who is wrong. The people representing the Assembly of First Nations want there to be an interpretive clause, but representatives of the Human Rights Commission tell us that it would be possible to put a provision in the Bill that would define an interpretive clause, so as to have some warning of what is to come. The First Nations want a derogation clause.

What is your position this morning on the demands made by the Indigenous Bar Association and the Assembly of First Nations? Are they of no concern to you?

[Daniel Watson]

In answer to your question about how implementation of this legislation will proceed, I would just like to give you an idea of the context and talk a little bit about the research we have done. Of course, predicting what would happen under a piece of legislation is an art, rather than a science. We have looked at what happened in similar cases in the past.

With respect to the question regarding the objective of the legislation, I can only repeat what Minister Prentice said before the Committee. I have the English version in front of me, and I would like to read it to you:

—surely we want a country where a first nation citizen has the same ability to raise a human rights complaint about access to medical services as someone who is not a first nation citizen.

In my opinion, that is a summary of the Bill's intent. It doesn't affect the reserves in the sense that this is about developing new policies. Instead, the intent is to create the same rights for people living on reserve under the Indian Act.

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

Mr. Watson, please don't spend the entire morning repeating what the Minister said; I know what he said.

At the present time, the First Nations are saying that they will not be able to start implementing Bill C-44 in its current form overnight. According to them, that would lead to absolute chaos. When I asked them what we should do, they suggested adding an interpretive clause. You read it. Do you agree? Is the Department prepared to act on that? Is it prepared to talk about developing and incorporating an interpretive clause and a non-derogation clause?

My question is very specific—at least, I hope it is.

[Daniel Watson]

When he last appeared before the Committee, the Minister, in response to a question regarding the timeframe for implementing the legislation, which is obviously an important part of the comments that have been made here, said he was prepared to consider advice in that respect. That continues to be the case.

In fact, we carefully read the testimony of witnesses who appear before the Committee, and we listen to what they have to say. We know that a number of stakeholders have suggested an 18- to 30-month timeframe. We are obviously aware of that and, as I would emphasize once again, the Minister has shown openness to the idea of considering that advice.

As regards the matter of interpretation, we have often received comments, both in this Committee and elsewhere, from people who wanted it to be clear that certain programs that benefit band members will continue to exist under the legislation, as is the case for other sectors of Canadian society. We heard that.

These are not principles that are already laid out in the legislation. The proposal would in no way diminish an Aboriginal group's right to take action in order to benefit its members. So, as regards an interpretive clause, I suppose that the principle that has been expressed by people is achievable. It's a matter of looking at the issue and clarifying it. However, we're not talking here about fewer opportunities for Aboriginal groups, and particularly First Nations, to benefit from programs that are available to other sectors of Canadian society.

[The Chair, Conservative, Colin Mayes]

Thank you.

I have to move to Madam Crowder now.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Thanks, Mr. Chair.

Thank you for coming before us today.

I want to take this from the theoretical to the practical and give you a specific example.

In 2004, the Auditor General did a report saying that the K to 12 school system on reserve was in a lot of trouble, and the department was going to respond with a framework agreement and a policy agreement. I understand that the policy work is essentially stalled and that the collaborative funding formula process that was ongoing has halted fairly recently as well.

When the minister came before the committee in March, he talked about the repeal of section 67. He said:

That's why I think that the repeal of section 67 is so important, because we want a country where all citizens are in that position where they can call upon governmental authorities to defend their actions and to defend—whether it's in the education system, the health care system, allocation of resources within the community—decisions by governments and ministers of the crown.

Now, in the department's own briefing documents, they highlight a huge inequity. They say, “Based on the above described analysis, there is a national comparability funding gap of $64 million in the band school system for the year 2004-2005.” So in the department's own material, they acknowledge that there are some inequities.

The bar association, when it came forward, said there could be an inadvertent effect from taking apart the Indian Act without any real transparent process. Given that the department says that, for example, band schools are seriously underfunded, I could anticipate that we could get appeals. And the minister says that the repeal of section 67 is a mechanism to deal with inequities in education.

Have you anticipated or examined circumstances where you could anticipate a complaint under the tribunal—based on the department's own data that there are inequities—against the government, from either band councils or band members who feel they don't have access to education like other Canadians do?

[Daniel Watson]

I see two parts in that question. First of all, what I hear is this. Could there be a complaint? Obviously there will almost certainly be a complaint.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Have you examined the department's information where they say there are inequities?

[Daniel Watson]

The second part of that is, would the department's information be used as part of that complaint process? The answer is—

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

No, actually that's the question. The question is this. Have you looked at the department's own data currently that already acknowledges there are inequities and examined the impact on the department, or the potential impact on band councils, when we already know there are existing inequities?

[Daniel Watson]

The easiest way to answer that is to say we have all sorts of information and data. We're already in a number of litigation processes, and I'll have my colleague Daniel Ricard maybe speak to some of the litigation. We know that information is discovered all the time in all sorts of different legal processes, sometimes to the tune of hundreds of thousands of pages. So yes, it will be used.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Maybe I'm not being really clear then. We already know the department acknowledges that there are some challenges. In this case they're saying there's a $64 million gap in what first nations children on reserve can access.

We know there are these inequities. Has the department examined department-identified cases where there are existing inequities, and have they examined what the potential impact is on the department? If I handed this over to every reserve that has an on-reserve school in the country and said, “I suggest you file a human rights complaint because the department is saying there's a $64 million inequity”, has the department examined all those inequities that the department itself has identified and determined what the impact would be on the department if every nation in Canada filed a human rights complaint?

[Daniel Watson]

Let me start a little further back. There will be complaints. People will use our information. Some of the conclusions that the department has come to they will use to advance the complaints they are making. Obviously it's not our place to stand in the position of the tribunal and come to some sort of definitive conclusion on that, but the very fact that we've—

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

The question is this. Has the department looked at this?

[Daniel Watson]

I'm not sure exactly which document we've done, but are you suggesting that—

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Well, any one of a number of documents. The Auditor General herself has clearly identified inequities in the system, for example. So my question is this. Has the department actually examined specific cases where inequities have been identified to determine what the impact would be? It's not whether people could use data in the future. Have you looked at what's already on the books?

[Daniel Watson]

To the extent that you're talking about one of our documents, yes, we looked at it and we're aware of it, in that a document like that sounds like one we would have created.