Indigenous and Northern Affairs Committee on April 26th, 2007

[Daniel Ricard]

Repeat that, please.

[Todd Russell, Liberal, Labrador, NL]

Has there ever been an aboriginal right, that you can think of, that's been asserted or claimed by an aboriginal group and has not been contested by the federal government?

[Daniel Ricard]

Well, in fact I'm not necessarily an expert in this area, but if I understand the BCTC process, we're not saying that in the context of the BCTC process we are challenging the existence of aboriginal rights. We do recognize that some rights possibly exist. But as you know, the specifics of those rights in terms of their nature, the scope, the geographical location, are very difficult issues and often in fact specific.

So going back to the bill, then, with respect to the interpretive clause, as I said, the view has been that the provisions of the Constitution Act are probably sufficient to provide the equilibrium needed.

Now, with respect to the policy on consultation with respect to legislation, it varies from case to case. There is no standard rule that requires there be x period of time allocated for consultation. It does vary from bill to bill or from legislation to legislation. It varies from one to the other.

[The Chair, Conservative, Colin Mayes]

Okay. Thank you. We're out of time.

We're going to finish this five-minute round, which will end at Madam Crowder, and then we'll go into committee business.

Mr. Bruinooge.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Thank you, Mr. Chair.

Thanks again to the committee members.

Perhaps I'll start by asking a question of Mr. Brazeau.

As a treaty Indian from Quebec, have you had the opportunity in your life on reserve to witness the allocation of resources in a way that you feel may be perhaps subject to challenge by the Canadian Human Rights Act if it were applied on reserve?

[Chief Patrick Brazeau]

Just as clarification, I'm a status Indian from Quebec, not a treaty Indian, because there are no treaties in Quebec, except for the modern James Bay treaty.

From my experience, not just in my own community but throughout others as well, obviously there have been some questionable practices against band members for a wide variety of reasons.

As a matter of fact, there are three individuals who are with me. There's Erin Wolski, who's a member of the Chapleau Cree First Nation in northern Ontario, and her son, Rudy, who is a non-status aboriginal person. There's also Irene Goodwin, who's a member of the Dalles First Nation in northwestern Ontario, and her one-year-old granddaughter, Cassidy, who is also non-status. There is also Cathy Graham, who's a non-status person, and her son, Michael. Michael's father was a member of the Mississauga First Nation and his grandmother attended residential school, and Michael is also non-status. These are grassroots people or grassroots organizations, as Mr. Russell would also be able to appreciate, having sat on our board for quite a number of years.

So allocation of resources is one question, but it's also more specifically with section 6 of the Indian Act, in terms of registration and entitlement. That has created a lot of problems for CAP's constituency in particular, which—well, we'll see what happens if this legislation passes.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

I'm not sure if you've had the opportunity to look at any of the interpretive clauses that have been put forward over the years, but recently we had a submission from the Assembly of First Nations. They laid out a suggested interpretive clause for consideration by this committee in relation to our work. It's something that I've wanted to work through on numerous committee hearings, as I feel parts of it, perhaps, go right to the very essence of what we're attempting to do by providing human rights to people on reserve. And a certain clause within that suggested text talks about allowing chief and band council to be able to allocate resources based on preference. What would your interpretation of text like that be in relation to what we're doing?

[Chief Patrick Brazeau]

I have seen the interpretation clause as recommended by the Assembly of First Nations. First and foremost, CAP rejects that interpretation clause because we feel it certainly demonstrates the true colours of some chiefs in the repeal of section 67 of the Canadian Human Rights Act.

If leaders are willing to be true champions of human rights, then even under self-government, leaders have to operate and offer the fundamental human rights that people deserve. So I think it's an attempt at undermining the intent and purposes of the repeal of section 67, and it's just basically giving powers to band chiefs and councils to further undermine—Basically the status quo would remain if that were to be adopted.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Thank you.

[The Chair, Conservative, Colin Mayes]

The Bloc? Any further questions?

Monsieur Lemay.

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

Mr. Brazeau, I must admit that I'm having a great deal of trouble following you. I am divided. But let's deal with it right here and now: I am a White man who lives in the Abitibi region, where there are seven Anishnabe, or Algonquin communities. Those seven communities have all asked me to do what I can in this Committee to ensure that section 67 is repealed. Everyone agrees that section 67 should be repealed. However, in order for that to happen, they need time for consultation and they especially need time to prepare for the implementation of this new legislation, which will play a critical role in the future of First Nations.

These communities are asking for time—at least 24 to 36 months—because not all band councils are located near towns, nor are they organized. They need time. You are telling us today that we should get rid of it immediately without any further consideration and, the sooner, the better.

Is that not what you're telling me?

[Chief Patrick Brazeau]

That is not what I said.

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

Then, what are you saying?

[Chief Patrick Brazeau]

I said that section 67 should be repealed immediately, but that there should be an 18-month consultation process following the amendment. The case law has—

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

All right.

With no interpretive clause?

[Chief Patrick Brazeau]

I don't think we need an interpretive clause.

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

But how will we ensure that rights are protected? Mr. Brazeau, the Canadian Human Rights Act applies to individuals. How then are we to protect the collective rights of the communities? That is what we are being asked to protect. That is what I find puzzling about your position.

[Chief Patrick Brazeau]

We have already discussed the issues with respect to the Indian Act. I have trouble understanding exactly what the collective rights of a reserve are. I can understand the need for collective rights for nations, such as the Algonquin Nation. However, in the case of a First Nation, a reserve or a band council, we are not talking about collective rights.

As regards an interpretive clause, we believe that section 35 of the Constitution already guarantees those rights. If courts of law are asked to rule on this or ensure the appropriate balance between individual and collective rights, they will do so. Indeed, they already have. I referred earlier to the Corbiere decision handed down by the Supreme Court in 1999, which struck a balance between individual and collective rights, and stated that no right in this country is absolute. Rights are relative and courts of law have always done a good job in terms of balancing those two types of rights.

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

I agree with you. So, that means that if a pregnant woman lives in an Aboriginal community located 450 kilometers north of Toronto or Montreal which has no clean water supply, as a pregnant woman, she will have to sue her band council and the Department. That will cost money. How is that going to work? That is the problem at the present time.

[Chief Patrick Brazeau]

We should not be anticipating problems. At some point, people will have to admit that, as far as Aboriginal communities are concerned, the problem is the Indian Act. The chiefs, ourselves, everyone will have to admit that. Trying to find answers to problems that already exist as we go along will not solve anything.

I can see the potential issues, but we're talking about human rights here. What is the point of thinking about potential issues ahead of time and anticipating the cost of dealing with them, while ignoring the real solution, which is to recognize the rights of people who didn't have any rights for 30 years?

[The Chair, Conservative, Colin Mayes]

Madam Crowder.

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

Thanks, Mr. Chair.

I want to come back to a question. Maybe Monsieur Ricard can take a stab at it this time, because I don't feel that we got an answer.

When the Canadian Bar Association came before us, they quoted Justice Muldoon, who speculated about the possible consequences of repealing section 67 in relation to the Indian Act as a whole. He stated, “If it were not for section 67 of the CHRA, human rights tribunals would be obliged to tear apart the Indian Act, in the name and spirit of equality of human rights in Canada”.

Mr. Brazeau makes a good point. Many others have spoken about the colonial, perhaps even racist, aspects of the Indian Act. But the Canadian Bar Association clearly said that to take it apart piecemeal rather than in a planned way could present all kinds of problems that nobody had anticipated.

So has the department considered that approach? Have they considered the impact if this Indian Act is taken apart clause by clause, instead of in a planned way?

[Daniel Ricard]

History shows that attempts to amend the Indian Act have been difficult at least.

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

But has the department considered the impact of a section 67 repeal on the Indian Act?

[Daniel Ricard]

I will repeat what my colleague said. You cannot look at potential issues in a vacuum and say that by definition they're going to lead to the striking out of a provision of the Indian Act.