Indigenous and Northern Affairs Committee on April 26th, 2007

[Daniel Watson]

What I would say is that we have a constant look—not just legally but in terms of policy objectives—at where we're not achieving the objectives we want. Sometimes those things are bound by the charter, sometimes they're bound by other pieces of legislation—environmental, for example—and sometimes they're bound by policy directions that don't sort of have their basis in any particular legislative requirement.

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

From what you're saying, it really doesn't sound like there is going to be any change in how the department currently operates, whether Bill C-44 is in place or not.

[Daniel Watson]

Well, what I would say is that the ongoing attempt to make sure we meet the spirit and letter of the law in Canada will continue. But part of the law of Canada would change in that people who currently do not have the opportunity to bring certain complaints against us will. To the extent that we take a different position at that point in time, for example, but are perhaps required to respond through a tribunal process and are found not to have been acting consistently with the act, absolutely, there will be a change on that front too. So that's a second--

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

Right. But it sounds like there's nothing proactive that's going to happen. The department will wait until complaints are brought before the tribunal and then they'll respond.

[Daniel Watson]

No. The first part of my comment was that today we do an active review to make sure we are consistent with the spirit and intent of the law—any number of laws, not, obviously, just the Indian Act or the charter, but any number of directives and pieces of legislation. So that's a critical part of it.

If this law changes, then obviously that will be part of that mix in a different way than what exists today, when that isn't part of the law of Canada.

So I think it's important to recognize that the first part is in fact, in a sense, where, in a perfect world, we would always be, in that we would understand perfectly what the law is and we would be able to respond perfectly to what it says. But obviously we don't respond perfectly and we don't understand perfectly all the time. That's why we have these processes in place, to, in a sense, make clear where we're off track in some instances.

[The Chair, Conservative, Colin Mayes]

Okay. Thank you.

We'll move on to Mr. Albrecht again.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Thank you again, Mr. Chair.

Again, I just want to respond to this idea of the department doing some study to assess all the what-ifs. I think, first of all, that would be a waste of time, even if it were clear that this committee was going to move ahead.

But in these last few studies, it appears that the opposition has been intent on dragging its feet in allowing us to move ahead to address some of the concerns we have in terms of equality in Canada for all our first nations people.

On the matter of implementation time, I wonder, Chief Brazeau, if you'd be prepared to comment. There has been a wide range suggested, anywhere from six months to 30 months. What would you feel would be an adequate time lapse from the time this act is passed into law to implementation within the first nations communities?

[Chief Patrick Brazeau]

Well, in terms of consultation on the implementation, acknowledging that if indeed it happens, I think there has been some precedence set, again using the Corbiere decision, where the Supreme Court gave an 18-month timeframe in terms of consultation and implementation.

If you look at even recent exercises of past governments, for example, with respect to the round table process, that too was roughly an 18-month process. Anything beyond 18 months is, I believe, far too long, and anything below—it's for people to make their own assessment. To be quite fair, I think 18 months would serve the purposes of implementing this piece of legislation.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Another concern—and this may be addressed to whoever wants to respond to it—that has been expressed is the potential huge influx of complaints that may arise if this legislation is passed. I don't think anyone disputes that there will be an increase in cases. But I think to assume that there will be a huge influx doesn't give enough credit to our first nations people.

All of us know that when new laws are enacted in our country, or in any country, 95% or more of the people will begin to comply with that law before they wait to be charged by the new law. I would hope that would be true in this case as well, even though my colleagues across the way may disagree.

Can we not assume that the large majority of first nations communities will already have begun to understand some of the implications that we're dealing with here? With the help of the commission, with the help of the department, with the help of other first nations, larger groups have begun to take some preparatory steps to avoid this huge influx of cases that will potentially come to the table.

Mr. Ricard, would you like to respond to that?

[Daniel Ricard, Director General, Litigation Management and Resolution Branch, Department of Indian Affairs and Northern Development]

Thank you.

I'll just say that I think that is a fair assumption. In fact, as the representatives from the commission mentioned when they came, they have created an aboriginal subgroup within the commission's internal structure with a view precisely to work on that front. I think it is a fair assumption that much work will be done in advance of the repeal being effective with respect to first nations.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Thank you.

I think it's important that we allay the fears of all Canadians to think that somehow we'll be inundated with this huge flood. As I said, I agree there probably will be an increase, but—

[Daniel Ricard]

Just on that point, it is difficult to predict exactly how much there will be or how long that will last. It is not inconceivable, for instance, that in the first year or two there may be more, simply because you will have had sort of 30 years of denying. It's not inconceivable that there will be a larger number coming in the initial years.

About the question of whether this will remain or subside over time, we don't know. All we know is that if you look at the examples of where self-government provisions make those self-governing first nations subject to the act, that has not been the case. If you look at the number of cases that are already being filed with the commission against other provisions of the Indian Act, again, the numbers have tended to be pretty stable.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

I think you said roughly 60 per year, which is manageable.

[Daniel Ricard]

That's right, and my understanding is that those numbers have also been fairly stable. I guess that's what we know, but as for the rest, it's a lot of speculation.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

I think it's important that we look at this realistically and rationally and not fall into the trap of using hyperbole in trying to assess what the potential impacts will be.

[The Chair, Conservative, Colin Mayes]

You're out of time, Mr. Albrecht.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

You've got to be kidding.

[The Chair, Conservative, Colin Mayes]

No, I'm not.

I do have a question. Who should the consultations be between? Obviously, the aboriginal leadership and the communities, but on the government side should it be the department, the Department of Justice, or should it be the committee? Who should be the other party? I'm curious. Is anybody else curious about that?

I would ask Mr. Watson.

[Daniel Watson]

I guess when we look to the court decisions, the court speaks to consulting with the potential rights holders, or the actual rights holders would be my lay description of it. Obviously, there are any number of ways that consultation can take place. First nations can group together to do that, or other aboriginal groups can group together, or they may wish to speak individually on the subject.

In terms of the government side, as my colleague from the Department of Justice who spoke earlier said, there hasn't been explicit direction through the legislative development process yet from the Supreme Court of Canada. Most of what we have seen has been more of a regulatory nature and sort of program driven.

[The Chair, Conservative, Colin Mayes]

To me, the determination of the amount of time it is going to take has a lot to do with how you'll facilitate and be that channel for that consultation.

Mr. Brazeau, do you have any thoughts on that, as far as who on the government side should be speaking or sitting at the table on behalf of the government? Would it be the department, this committee, or the minister?

[Chief Patrick Brazeau]

I'd certainly suggest that first and foremost the department should be the ones consulting on behalf of the government with the band councils and aboriginal representative organizations, because in our view they are the lead on this topic. They have the vested interest in reserve communities, so I think they should be the primary group.

[The Chair, Conservative, Colin Mayes]

Thank you.

Mr. Russell.

[Todd Russell, Liberal, Labrador, NL]

Thank you, Mr. Chair.

Good morning to each and every one of you, and a special good morning to Patrick, because I've known Patrick for quite some time.

I certainly don't agree with much of what you've written in your submission, or at least the politicized comments. Probably we can take that up at another point.

By its own admission, Mr. Albrecht, the Congress of Aboriginal Peoples says that the implementation may at times, perhaps, be overwhelming. It is fair of us as a committee, when we have a significant piece of legislation, to ask questions, to have an investigation into a significant piece of legislation that is before us. So there's nothing wrong with asking questions.

Nobody around this table and not one witness who has ever appeared before this committee has said we should not repeal section 67. It is how best to do it and the process by which we do it that is important.

I have a question to Mr. Ricard. The Canadian Human Rights Commission was before us. This is the same organization through which we want first nations people to now have recourse to for the repeal of section 67. That organization itself has said that we need a longer transition period, we need some kind of interpretive clause, or, in the absence of it, we need some binding guidelines.

They say there'll be an increase in terms of complaints, because we have 60 now without any recourse. So how many will we have when we have full recourse? There will obviously be an exponential number of complaints coming forward, so we need additional resources for first nations, for maybe the CHRC, and maybe even the government will require additional resources itself, to defend itself with the repeal.

With all of these groups saying transition time extension or a further transition time, resourcing, interpretation, or something like that, why was none of that included in this bill? I am sure that in all the consultations, adequate or not, that have been conducted since 1977, that would have been there; that would have formed part of the consultation. With all that arose out of most of the consultations that took place, why did the government decide not to include these things in this particular bill? What is the government's own policy? Outside of law as such, what policy does the government itself have in place for consultation with aboriginal people prior to the introduction of legislation? Do you have a policy that says we should do this, that, or the other thing, prior to submitting legislation? I only want to know, do you have a policy, an internal operating principle?

[Daniel Ricard]

Thank you for that.

With respect to the reasons why there are no provisions in the bill with respect to resources, it's simply because we don't believe this is something that necessarily belongs in the bill. The minister did speak to that when he came. We are looking to this committee to provide advice on that, but the issue of resources is not an issue that normally you will find in a piece of legislation.

With respect to the interpretive clause, that is an issue we have given thought to. It's an issue that's been debated for a long time. I think everyone's views are well known on this.

As the minister indicated, we don't believe that an interpretive clause is required. We do believe that the provisions within the Constitution Act are sufficient, and I'm specifically referring to section 35, section 15, and section 25, which tries to make a link or find an equilibrium between the collective and individual rights.

[Todd Russell, Liberal, Labrador, NL]

On that, very briefly, when has an aboriginal right ever been asserted under section 35 that hasn't been contested by the federal government?