Indigenous and Northern Affairs Committee on April 26th, 2007

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

Thank you.

[The Chair, Conservative, Colin Mayes]

It's the government's turn. The chair would like a question around that, and I would like to direct my question to Madam Aubin.

With respect to what we're talking about, do you believe the determination of adequate housing, a safe and sufficient water supply, reasonable access to education, will be determined by the courts to better direct the department as to what level of service they need to provide?

[Christine Aubin]

The examination—the small “s” study, if you will—of the issues of housing, family services, and so on are twin-faceted. They stem from policy considerations, which obviously I'm not in a very good position to speak to, and they flow from socio-economic considerations. They may also flow from directions given by the courts.

You've alluded to the criteria of reasonability. There are various fact scenarios that may arise in the broader analysis of section 67, its repeal, the analysis of the CHRA. At this point in time we have the background of existing litigation, which is directed either against first nations or the Crown with respect to some of these subject areas.

We must always keep in mind the scope of the CHRA when examining complaints or potential allegations. The extent that these areas of operation or services are deemed to be services within the meaning of the act is how we may better direct the lens of the examination, if you will.

Again, while policy may be directed by considerations such as socio-economic, cultural, or other social considerations, there is also some breadth that will be given by the courts, further guidelines and development of case law, with respect to the adequacy of services. It's difficult to speculate on what those particular circumstances will be. They may change from case to case. They may change from community to community. That may certainly be one of the advantages of developing case law on the matter.

[The Chair, Conservative, Colin Mayes]

I guess that's the unknown. The challenge for the department is to determine a sufficient level of service, and the expectation of the aboriginal community as to what they think is a sufficient level of service needs to be determined by somebody—and whether Bill C-44 will give that access to make those determinations through case law.

I find some of the questions are really unknowns. Is the amount of money that's needed to bring a sufficient level of service for education $68 million? Is it more or less? Who is to determine that? That was my direction of the question.

We'll move on to the Bloc.

[Yvon Lévesque, Bloc, Abitibi—Baie-James—Nunavik—Eeyou, QC]

We are currently discussing the repeal of section 67, which deals with protection of the Indian Act, and having the Charter of Rights and Freedoms apply.

Once that has been established, as part of the process of developing measures to implement the legislation, many associations, including the Quebec and Labrador First Nations Association, the First Nations Association of Canada, the Congress of Aboriginal Peoples, represented today by Mr. Brazeau, and the various community chiefs, did they have the time and the means to consult each and every First Nations band here in Canada? Did they have an opportunity to do that?

Also, did you establish a timeframe and provide the necessary funding to allow associations to inform their members of the repercussions of these changes? You have been talking about that for the last little quite. You expect that things could happen in a number of cases. Did you make the Aboriginal people aware of areas where there could be differences of opinion, prior to the final repeal of section 67 and full implementation of this Bill?

[Daniel Watson]

Yes. I would just like to come back to the testimony of the Canadian Human Rights Commission last week. They spoke at length of the implementation process and the need to work with Aboriginal communities to determine how the legislation could be implemented. In some cases, the communities may want to develop their own procedure for resolving conflicts in the community before going any further within the system.

We will be contributing to that process in a number of ways. The Commission recognizes that it has an important role to play. We expect it will continue to carry out the work it has been doing for the last 30 years, particularly working with the communities affected by the legislation, developing various procedures and approaches, educating the public, and so on.

[Yvon Lévesque, Bloc, Abitibi—Baie-James—Nunavik—Eeyou, QC]

Pardon me for interrupting. Given your 30 years of experience, can you tell me whether, with respect to the implementation of this legislation, recommendations were made regarding areas that you consider to be particularly controversial—for example, water and health care? If the legislation were to be implemented without the various band councils and First Nations chiefs being properly informed, the result could be bankruptcy for certain band councils or assemblies.

Have you brought forward those controversial issues and made recommendations with respect to implementing the new legislation?

[Daniel Watson]

We are currently in the process of doing that. We continue to work with Aboriginal groups to ascertain the areas in which they would like to receive assistance. It is mainly employment that is the source of many complaints. We expect it will be necessary to work with Aboriginal groups to determine, among other things, what the source of those complaints is and how they can be resolved. In a particular context, we expect to be doing that work, which will be done not only by the Department of Indian Affairs and Northern Development, but also by the Commission itself, which has expertise in that area.

[Yvon Lévesque, Bloc, Abitibi—Baie-James—Nunavik—Eeyou, QC]

And what is the timeline for implementation?

[Daniel Watson]

It is currently six months. However, the Minister has expressed a desire to receive advice in that regard. We note that a timeframe of 18 to 30 months has often been mentioned in the testimony.

[The Chair, Conservative, Colin Mayes]

Mr. Albrecht, you have five minutes.

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

Thank you, Mr. Chair.

Thank you to each of the witnesses for appearing here today. I have a number of questions, but before I address my questions, I would like to make a comment on what I think is a very simplistic approach to assessing the potential impact of whatever the number of complaints might be based on documents that outline certain shortfalls in one particular arm of government. Shortfalls exist in all arms of government, and to start assuming we could somehow forecast the number of potential complaints we would get is I think simplistic at best.

However, on to my questions. Chief Brazeau, thank you for being here today. Thank you for the passion with which you shared your speech and the articulate speech you've given us, and also for your representation of aboriginal peoples across Canada.

I have a question that I think you're silent on in your speech, although I'm sure you have an opinion on it, and that is the issue of an interpretive clause. Many of the groups that have appeared before this committee have called for an interpretive clause. We've had positions stating that the current charter in sections 15 and 25 and the Constitution in section 35 are adequate to deal with the balancing of the individual and collective rights. I would like to have your opinion on that.

[Chief Patrick Brazeau]

Thank you, Mr. Albrecht, for your question.

Simply put, the congress does not necessarily see a need for an interpretive clause, because we feel that section 35 does cover and at least minimally tries to strike a balance between collective and individual rights.

But on that issue, it's important to note as well that in terms of human rights, no right is absolute. If you look a the jurisprudence over the years, the courts have always struck that balance between individual and collective rights.

One example of that is the 1999 Corbiere decision on the off-reserve right to vote in band elections. The court clearly struck a balance in that Supreme Court decision.

It's important to note as well when we're dealing with individual and collective rights that it's always going to depend on the facts presented to the courts and the conditions surrounding those particular facts. We feel very comfortable that the courts will continue to do the good work they have been doing in striking that balance.

Just as a note on some of the suggested language, in terms of interpretive clauses we would be against any attempt at undermining individual rights for groups of people claiming rights over those individual rights and undermining the actual repeal of section 67 and its intended purposes.

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

Mr. Brazeau, you are obviously familiar with a lot of first nations groups. It seems to me one of the challenges we would have in trying to insert an interpretive clause is that there are 600 first nations communities across Canada. Do you feel that if in fact the committee decided we should include an interpretive clause, there would be a problem in having a “one size fits all” within that clause?

[Chief Patrick Brazeau]

I think that is probably a reality and a fact. Given the reality that we have more than 600 reserves in this country, some might try to put in their own interpretive clause, just to undermine the purpose and intent of the repeal of section 67, which we would not agree with.

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

One other point that has come up frequently is this need to consult. Obviously we want to consult. We want to have all the input we can get. But it would seem to me that at some point we need to move on with action.

In your opinion, what would adequate consultation look like?

[Chief Patrick Brazeau]

It depends what context the consultation is in. If on the one hand the consultation is on the intent and purposes of the repeal of section 67, I don't think we need to further consult. There have been 30 years of discussion of this issue. Our organization participated back in 1999 and 2000. We also participated through these consultations in 2001, when the proposed First Nations Governance Act was on the table. As a matter of fact, it was the Congress of Aboriginal Peoples that had recommended at the time that the federal government take a look at repealing section 67.

As to consulting on the implementation of the repeal of section 67, I think consultation is needed on that basis. But having said that, again, what constitutes proper consultation? Back in 2001, for example, there were some groups that decided to not take part in those consultations. Is that a “lack of consultation”, or is it just boycotting a process? We took part in the consultations, we made recommendations, and we're glad that we're seeing those efforts come to life today.

[The Chair, Conservative, Colin Mayes]

Thank you.

Madam Crowder.

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

Thank you, Mr. Chair.

Just on the matter of consultation, I know Justice La Forest's report has been quoted, and I want to quote from his section around consultation.

He says:

Any effort to deal with the section 67 issue must ensure adequate input from Aboriginal people themselves.

Further on, he's talking about the potential impacts, 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 even in this report in 2000, clearly the justice himself says that there's far more need for consultation.

My question is more around whether, in this context, the department currently considers whether or not it's violating human rights.

Just a yes or no will do, because I have a follow-up.

[Daniel Watson]

We consider all Canadian law.

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

I would assume, then, in subsequent situations where there may be appeals, that the department will be defending its current policies.

[Daniel Watson]

There's a long history of the department working very hard to change its programs to get better results, because we recognize that there's a need to have better results, long before there's litigation.

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

The Auditor General, herself, has talked about the fact that the challenges, in many cases, have been launched when the department has vigorously defended existing policies that were subsequently struck down. In many cases, the department is also the one that makes the decision about whether something is going to proceed.

So with the passage of Bill C-44, it really isn't going to change how the department currently behaves then.

[Daniel Watson]

Well, certainly in the instance of a complaint being launched and the tribunal, for example, if it goes that far, ordering a different set of behaviours, obviously it will.

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

It will only be in response to behaviour. So the department isn't going through some process currently to look at where it may be open to complaint. Again, we have plenty of documentation that says there are inequities in the policy. So the department isn't examining where it currently may be in violation.