Indigenous and Northern Affairs Committee on April 26th, 2007

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

Can we have the analysis then? Can the committee have the analysis that you've done on any documents where inequities have already been identified?

[Daniel Watson]

Again, it would be the question of a subject of a complaint that would come forward that would be specific to facts and circumstances and dealt with through the process of dealing with those things. It's not our place to prejudge what the outcome of that might be. It is our job to figure out programs and to design them in a way that respects not only the law but also the policy objectives that the department has and that Parliament approves. That's our role. Obviously, as we're developing those things, we see challenges from time to time. We work towards fixing those challenges. To go from there to trying to figure out how to play a role that is more along the lines of the role of a tribunal or a court is obviously different.

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

That wasn't the question. I wanted to know if you had done an analysis.

[The Chair, Conservative, Colin Mayes]

We are on to the—

First of all, I'd like to welcome National Chief Patrick Brazeau to the committee.

I'm just going to finish the first round of questioning, and then we'll move on and ask you for your opening statement.

From the government side, Mr. Bruinooge.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Thank you, Mr. Chair.

Thank you to everyone who's come before the committee today.

If I were to start my line of questioning, it would be mostly in relation to the consultation that has occurred over the last, well, 30 years now. In terms of the Canadian Human Rights Act being introduced, it dates back to 1977. Perhaps you could talk a bit about the process, where this exemption has been debated through the years.

I know there was some debate in 1985, as well as in 1992, and extensive debate in the year 2000. I'm not sure if there's anyone amongst you today who was a part of that departmental process. Perhaps you could talk a bit about the different types of submissions that have been made throughout the 30 years we've been considering this very act.

[Daniel Watson]

Okay. Thanks.

In 1977, the act was introduced. In 1985, Bill C-31 made some amendments to the Indian Act, and there was significant discussion across the country at that time and after about some of the provisions in the act that were seen as quite discriminatory.

In 1992, Bill C-108 at the time, an act to amend the CHRA, was introduced. The repeal of section 67 was a part of that. That bill died on the order paper. There was a dissolution of Parliament in 1993.

In 2000, there was the CHRA review panel report, and you referred to that. Mr. Justice Gérard La Forest chaired it, and that again had extensive consultations, particularly about section 67, held across the country with national and regional aboriginal organizations as part of that in-depth process. That panel, as you may know, recommended that section 67 be removed and that the act apply to self-governing aboriginal communities until such time as aboriginal human rights codes applied. The panel also discussed a variety of other issues during the consultations, but again, the summary, going to the question on consultation, is that there was a significant consultation on it at that time.

In 2002, the joint ministerial advisory committee's final report to the Minister of Indian Affairs and Northern Development came up with the same recommendations as the review panel report a couple of years earlier.

In 2002 again, Bill C-7, the First Nations Governance Act, was introduced, and it too, as you may remember, proposed the repeal of section 67. That bill obviously was one that was discussed at length across the country.

In addition to that, in 2005, Bill S-45 came forward, again to amend the Canadian Human Rights Act. A Matter of Rights was published, a special report of the CHRC on the repeal of section 67.

There have been significant consultations in this context on this issue for nearly 30 years. I would suggest there would not be a whole lot of areas of public policy that have received this level of review on this single issue over that period of time. I stand to be corrected on that, but it is certainly one that has received a significant amount of considered attention.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Mr. Chair, how much time do I have left?

[The Chair, Conservative, Colin Mayes]

About a minute.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

I'm not sure if the justice official could elaborate as well, but my question would be in relation to the Taku and Haida rulings. Has any specific suggestion of time allocation come from these rulings in particular cases? Would there be a suggested timeframe that consultation must achieve, or is it left up to the government or the parliamentary committee?

[Christine Aubin, Counsel, Operations and Programs Section, Legal Services Unit, Department of Justice]

If you're referring to the cases that stood before the Supreme Court of Canada on Haida and Taku, no strict timelines were prescribed by the court. However, there were simply broader guidelines as to how Canada should conduct itself in the context of consultations. In Haida and Taku, the court has not alluded to duty to consult, for example, in the context of preparation of legislation. Rather, Haida and Taku dealt with a very different scenario of facts. In that context, certainly some of the guidelines that were provided tended more toward giving a contextual approach to what would be reasonable, meaningful consultations, given the specific context of the program, or transaction, shall we say, being discussed.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Specifically on resource environments, a community would be seeing a potential incursion into their resources versus perhaps what we're doing here. Is there a direct correlation between the ruling and perhaps what Parliament might be engaging in, in bringing a repeal to a specific part of the act?

Have we seen Taku and Haida applied outside, I guess, the resource environment?

[Christine Aubin]

Again, Haida and Taku were not decisions that dealt with the duties of the Crown in the preparation of legislation. In actuality, we don't have direction yet from the Supreme Court of Canada with respect to any legal duty to consult during, for example, a parliamentary process or in the preparation of legislation. The duty arises outside of that context.

[The Chair, Conservative, Colin Mayes]

Thank you. You're out of time.

We're going to take the opportunity for Mr. Brazeau to give us a submission.

Welcome, again.

[Chief Patrick Brazeau, National Chief, Congress of Aboriginal Peoples]

Thank you, Mr. Chair.

Good morning, and thank you for the opportunity to speak to you today.

On behalf of the Congress of Aboriginal Peoples, l am pleased to appear before you today to discuss our perspectives on the draft Bill C-44 under study by the members of this committee.

There are three areas that the congress wishes to address today relative to the implications of the draft Bill C-44. These include our comment on the Indian Act as an impediment to effective human rights protection in first nations communities; our views around band councils and on governance in general in first nations communities; and the need for education and outreach to increase awareness, allay concern, and engender understanding of the value of the provisions of the Canadian Human Rights Act.

Since 1982, Canada's Constitution and its Charter of Rights and Freedoms, which is the highest law of the land, has specifically recognized three groups of aboriginal peoples: Indians, Inuit, and Métis. However, some 25 years after the repatriation of our Constitution, the gap between theoretical equality and government practice in respect of the recognition and protection of aboriginal rights afforded by its provisions is a matter of daily issue for the constituents of the Congress of Aboriginal Peoples. Their concerns and aspirations continue to be dismissed by all levels of government. Time and time again they continue to have to contend with exclusion and ignorance.

l have said many times that the Indian Act should be, and in fact must be, replaced. This archaic legislation represents an artificial and foreign imposition of “Indian-ness” on aboriginal peoples. l reassert this call once again to the committee members present here today.

The Indian Act has resulted in the deconstruction of traditional, historical aboriginal nations. Under its prescriptive provisions, these historical communities were reassembled into Indian reserves, many of which have been home to social and economic hardship for aboriginal peoples for more than a century.

In addition to the establishment of the reserve system, the Indian Act, under section 6, prescribes who is entitled to registration as a status Indian. From that designation flows specific entitlements to programs and services. These include things like funding for post-secondary education, for non-insured health benefits, as well as access to housing and some income tax exemptions. Beyond the written words of the Indian Act and the bureaucratic system that sustains and enforces its colonial provisions are aboriginal peoples and their families.

Right now in Canada there exist many aboriginal families in which individuals within the same family do not share the same access to programs and services based solely on their entitlement, or lack thereof, to Indian Act registration. Reasonable people do not have to spend a lot of time pondering the implications of, for example, the fact that while one parent or sibling can access prescription medications, dental care, or eyeglasses, the other parent or child cannot.

Every parent wants their children to have a better life than they do. Imagine for a minute that parents who have successfully accessed post-secondary funding for themselves may see their own children denied the same access because of the application of the tenets of the Indian Act.

Clearly, the Indian Act, both directly and indirectly, is the foundation for discrimination against the majority of the aboriginal population in Canada today. There is a profound lack of federal-provincial consensus around jurisdiction and financial responsibility for programs and services for registered Indians. This includes education, health care, and social services such as income assistance and assisted living services. While federal and provincial governments argue about who should pay for what, aboriginal families and individuals go without.

That said, does the Congress of Aboriginal Peoples support the repeal of section 67 of the Canadian Human Rights Act? Absolutely and unequivocally.

The fact that the Indian Act has substantially escaped human rights scrutiny for three decades is unacceptable in a country that is otherwise held up throughout the world as an example of a successful and prosperous democracy.

The federal government has spent a great deal of time, effort, and money in trying to support the establishment of the modern fundamentals of good governance on Indian Act reserves. It has also spent an extraordinary amount of money and effort defending the Indian Act from court challenges. Much of this effort has stemmed from the Indian Act's outdated and inadequate direction on governance-related matters within the act's band council governance system.

Since 2003, when the proposed first nations governance act was withdrawn, we have waited for government and first nations communities to present viable alternatives to the much publicly maligned proposed Bill C-7. Nearly four years later we are still waiting. For people who live on Indian Act reserves, the band council is the be-all and end-all in their community. It is the source of jobs, housing, income assistance, education, and training.

CAP and its affiliates across the country continue to be contacted by band members, many of whom have left the reserves because of disputes over access to programs and who report numerous grievances and concerns. They cannot obtain copies of program criteria or policies. They are denied access to redress mechanisms or have had their appeals adjudicated by the same people who denied them access to those programs in the first place.

The provision of on-reserve programs and services is typically done by means of funding from Indian and Northern Affairs Canada under standardized contribution agreements with band councils and their organizations and agencies. These agreements include funding for education, health, social programs such as income assistance, child and family services, family violence, and assisted living. Contribution agreements require band councils to deliver programs with processes that adhere to principles of transparency, disclosure, and redress.

We are aware of a band bylaw that was passed that forced family members to reside separate and apart because spouses or children are not band members. There are also electoral processes that deny individuals the right to run for councils on the basis of their religion, marital status, or residency.

How can we permit these grievances to perpetuate? How we, as aboriginal leaders, and you, as parliamentarians, cannot be morally moved to remedy these situations with speed, conviction, and precision is quite frankly beyond me.

There remains a great deal of debate and controversy in this country about what constitutes a human right and whether or not aboriginal peoples enjoy the same human rights as Canadian citizens generally do.

Sadly, at this point in our history we know that Canada has failed to address a significant source of real and potential discrimination against its aboriginal peoples. Thankfully, the repeal of section 67 from the Canadian Human Rights Act will begin to deal with this pressing issue.

There is an enormous need for education at the individual, band council, organizational, and federal and provincial government levels in order to mitigate and manage what may be a significant conflict of values, program standards, and jurisdictional issues as a consequence of the repeal of section 67.

We, at the Congress of Aboriginal Peoples, are under no illusions that the application of the Canadian Human Rights Act to the Indian Act and the full implementation of the Canadian Human Rights Act on reserve will be anything but challenging and at times perhaps even overwhelming. That being said, we do not wish to see a prolonged implementation period for these measures. Human rights are not negotiable, and cannot be deemed negotiable, and their application cannot, and again must not, be deferred in 21st century Canada.

In summary, we strongly encourage the committee to make strong and specific recommendations to the government about the need to work with aboriginal peoples, their band councils, and representative organizations in order to ensure that the implications of the repeal of section 67 are understood and embraced by impacted individuals, communities, and federal-provincial government departments whose existing programs and services have been tied to Indian Act registration and processes.

We live in a nation that enjoys almost boundless prosperity. We, in Canada, are indeed “the true north strong and free”. We need to move quickly and sincerely to ensure that our first nations sisters and brothers, be they youth or elder, living both on or off reserve, enjoy the full freedom, benefit, and protection of the provisions afforded by Canada's Human Rights Act.

So we applaud Minister Prentice and Prime Minister Harper for taking the necessary steps to make this occur, and we encourage the committee to help make these plans a reality.

Meegwetch, merci, and thank you.

[The Chair, Conservative, Colin Mayes]

The chair would like to mention to the witnesses that because we bridge over the lunch hour, we have lunch brought in, so the committee members and you are also invited to participate if you wish to have something. We do not stop for lunch, but it is available. Just so you know.

We're going to continue on the second round, and I'm going to start with Madam Neville, please.

[Anita Neville, Liberal, Winnipeg South Centre, MB]

Thank you very much, Mr. Chair, and thank you too for coming.

I have five minutes, Mr. Chair?

[The Chair, Conservative, Colin Mayes]

Yes, you do.

[Anita Neville, Liberal, Winnipeg South Centre, MB]

Mr. Watson, I'll come back to you. I don't like to beat up on bureaucrats, but I have to tell you that I'm finding your responses to the questions, as I've heard them, very difficult to follow and certainly, not providing—and maybe it's me—much clarity to the issue.

I'd like to follow up on Ms. Crowder's comments, and Mr. Brazeau mentioned it in passing in his, and I'll come back to it. I'm really struck by the fact that you're not able to tell us in a more comprehensive way what analysis you have done on the impact of the repeal of section 67 on first nations communities. We know there are internal government reports that have advised the minister on health issues, housing issues, education issues. We know that. Some of us have some of these reports. The exposure is there.

What kind of analysis have you done to prepare for the potential impact and to mitigate it with the communities so that they have a capacity to respond? I'm not hearing that from you.

Mr. Brazeau makes a comment in his presentation that he's aware that there are many processes in place that will be set upside down. Those are my words, not his.

Help us, because right now I'm not hearing anything.

[Daniel Watson]

I apologize if I'm not being helpful. It's certainly not by design.

In terms of responding on the ongoing operations of the department, we're aware that we have many areas of significant challenge. We work to improve education systems, we work to improve child and family services, we work to improve water quality, we work to improve any number of areas. We do that because we know there are challenges there. We know there are-

[Anita Neville, Liberal, Winnipeg South Centre, MB]

Do you know what, Mr. Watson? I understand all of those challenges. I don't mean to be rude and to interrupt you. I think we all understand the challenges. We understand the resource issues, but we want to know what kind of analysis you have done on the impact of the implementation of this bill on all of these issues that you're identifying, and issues that the department has given advice to the political decision-makers on. We need to know that before we make this kind of decision here.

[Daniel Watson]

I'll ask my colleague, Daniel Ricard, to speak in a moment about the carriage of litigation, because that's part of how we think through this.

We are aware that there will be complaints that come up. Those complaints will be spec-specific, they will be circumstance-specific, and they will be arguing specific points of law.

[Anita Neville, Liberal, Winnipeg South Centre, MB]

I'm sorry to interrupt, but I want some answers. They will be complaints based on information that you already have and have supposedly provided to the minister on shortcomings that are in place already. What analysis have you done on the basis of that?

[Daniel Watson]

It won't only be on the basis of information that we have. People will base their complaints—

[Anita Neville, Liberal, Winnipeg South Centre, MB]

I understand that, but I am asking you specifically, based on the information that you have provided....

[Daniel Watson]

We haven't gone out and tried to figure out what the pleadings might be by a specific plaintiff who might launch a complaint. We know there are areas in which we are trying to do better to avoid the need for complaints in the first place. For example, recently in child and family services in Alberta, we launched an initiative that will take a very different look at trying to deal with the way child and family service issues are dealt with by first nations there. We do that because we know there is that problem.

What we would like to do is design programs so that we don't have complaints. That's where we focus our efforts. It is on designing them so the people don't feel the need to make a complaint. But we haven't sort of tried to craft what the complaints would be by plaintiffs and tried to apply that as a lens to a program design.