Indigenous and Northern Affairs Committee on May 1st, 2007

[Chief Angus Toulouse]

If I may, section 67 protects the implentation of the Indian Act. There are human rights within the first nation communities--as an example, wrongful dismissals that are being dealt with at first nations administrations. The repeal of section 67 addresses the protection of an archaic piece of legislation called the Indian Act. There are basic human rights that are being observed. It's not like there is total anarchy and there are no laws and rights being recognized at the first nations level. Quite to the contrary, there are many rights that are recognized and dealt with.

If we are really serious about wanting to deal with first nations issues, one of the issues, which was raised in recognition of human rights, is child welfare. There is 22% underfunding currently. There are real, immediate measures that would ensure equality at the first nations level, which can be taken into consideration.

There is the 2% cap that has been in place, which again is discriminatory. The federal government continues to pick and choose priorities for us when we have identified.... If we are going to deal with the poverty of women and children, let's deal with that. Let's deal with some of the child welfare issues. Approaches have been put forward by first nations organizations and communities to deal with the outstanding issues that are there.

[The Chair, Conservative, Colin Mayes]

Thank you.

Moving back to the government side, Mr. Blaney, please.

[Steven Blaney, Conservative, Lévis—Bellechasse, QC]

Thank you, Mr. Chairman.

Mr. Toulouse, I just want to reassure you, members of the committee are aware of the significant needs of first nations, namely when it comes to housing in Quebec. At the moment, we are considering Bill C-44, and to date, we have heard from a number of groups. I'd also like to extend a welcome to Chief Picard who is also concerned with these matters; I know this because I was at the First Nations Socio-Economic Forum.

We are hearing from groups and hearing concrete recommendations on Bill C-44. This is, after all, a consultative process and the bill has not yet been passed, we should remember that. The committee will be issuing recommendations, reviewing clauses and referring the bill to the House. Although it may not be perfect, there is a process in place, one that is established under our parliamentary system.

The Native Women's Association of Canada, in its brief, suggested that section 67, which was at the time added as an interim measure, has in a way stopped the most vulnerable from filing human rights complaints when they involved a provision of the Indian Act. Thirty years have gone by and we now have to deal with this problem.

I heard what you had to say this morning, and I am conscious that the consultative process may not be perfect, but as Mr. Lemay mentioned earlier, efforts have been made over the last 30 years to correct the human rights gaps. I am wondering whether we should continue to wait or rather take this opportunity to improve the rights and living conditions of first nations. We are not talking about taking a giant step here, but rather a small step to move in that direction.

We know that first nations are doing important work when it comes to collective rights, but I would be curious to know whether steps have been taken to promote the individual rights of aboriginal people in their communities.

[Vice-Chief Ghislain Picard]

It's fairly simple as far as I'm concerned. Respecting and enhancing collective rights may be a way of dealing with individual rights. However, no one will disagree with the need to strike a balance which, otherwise, would probably not exist. We need to spend the time to reflect on the impact the Charter will have, once it is adopted under Bill C-44, on communities that may not have the means to enforce its provisions.

Let's take the example of Quebec. In several cases, people have taken the means at their disposal to make certain illegitimate claims, land claims or claims involving access to services . I could go to any region in Quebec and give you examples of this type of thing. One could easily imagine that the existence of such a charter in communities could be grist to the mill for the type of individual or group I am referring to.

The perfect example of this would be the roadblock on the 117. Several weeks ago, certain groups decided upon a cause. One group publicly made claims which would normally be something our groups are responsible for. What is there to stop communities from pointing to the Charter to say that there has been a human rights violation? I think we may be opening the door to that type of situation.

I could also point to land claim negotiations between my own nation and the Governments of Quebec and Canada. From year to year, because this has been ongoing for years now, it has not been unusual to hear people make public pronouncements on their status or their rights and the fact that there was a violation in the context of these negotiations. What would stop existing groups and future groups from referring to this Charter to point to an obvious breach of human rights?

[The Chair, Conservative, Colin Mayes]

Thank you.

You're out of time, Mr. Blaney.

Madam Crowder, please.

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

Thank you, Mr. Chair.

Thank you, Chief Picard and Chief Toulouse, for appearing before the committee. I apologize for stepping out; I was dealing with a motion in the House.

Much has been made about the duty to consult. I would argue, since so many people are coming before the committee saying they do not feel they've been appropriately consulted, that they have not been appropriately consulted.

In the matrimonial real property recommendations there are some specific recommendations around consulting. I just want to read this. It says:

The department should develop, as soon as possible, specific policies and procedures relating to consultation in order to ensure that future consultation activities can identify and discharge any legal duty to consult while also fulfilling objectives of good governance and public policy by: 1) Ensuring First Nations have relevant information to the issues for decision in a timely manner; 2) Providing an opportunity for first nations to express their concerns and views on potential impacts of the legislative proposal and issues relating to the existence of a duty to consult; 3) Listening to, analyzing and seriously considering the representation and concerns of First Nations in the context of relevant legal and policy principles, including their relationship to other constitutional and human rights principles; 4) Ensuring proper analyses by the Department of Justice of section 35 issues relating to any proposed legislative initiative are thoroughly canvassed before, during and after consultations; 5) Seriously considering proposals from mitigating potentially negative impacts on aboriginal and treaty rights or other rights and interests of First Nations and making necessary accommodations by changing the government's proposal; 6) Establishing, in consultation with First Nations, a protocol for the development of legislative proposals.

Now, it seems to me that's a fairly clear outline of what might be included in a duty to consult. I wonder if you could comment on that.

I'm happy to share this copy, and I apologize, I brought the English version only.

[Chief Angus Toulouse]

The points it references are the points that I think first nations have expressed for quite some time. From our point of view, “consultation” means something very specific. It means that we need to do things in a fair and respectful manner. When somebody asked earlier, what are you going to do in the three years, I guess some of what needs to be communicated is what would go into the interpretive provision, which is starting to talk about the entitlements of first nation government programs and services; how it gets to the member entitlement of first nation government to give preference to its members in training and hiring employees and contractors; entitlement of a first nations government to give preference to its members in the allocation of land, resources, or other economic benefits to its members. So there are many different issues at the local level, at the first nation level, that speak to the individual's entitlements or rights and that need to be discussed and need to be ironed out and need to be shared with the whole community.

I guess this is what we've been saying. It's not to wait another three years, and to say at the end of the three years, sorry, we want another three years. No, it's to actually get to do the work. It's to actually have the resources to clearly spell out for all the first nations members to understand and appreciate what their rights are.

[Vice-Chief Ghislain Picard]

It seems to me that the list you presented has just about everything, the basic requirements, to adequately consult our communities.

As I was listening to you, I was reminded of a protocol that we developed in Quebec, with great difficulty, trying to present to both levels of government, saying this is the guide for us. After listening to you, I was able to reference some of the points to some of our requirements, some of the requirements that we have adopted. Maybe it's limited, because obviously the reality of first nations might express itself differently in some regard. But there are some basic limits that are there, for sure.

[The Chair, Conservative, Colin Mayes]

Mr. Bruinooge, have you got something?

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Mr. Toulouse, I want to go back to some of the points you were bringing up. In particular, I wanted to ask you in relation to your topic on consultation. We had some constitutional advice as to what consultation is required as per the Taku and Haida rulings, and it was indicated that this was specifically in relation to resource-driven agreements. For instance, if the Government of Saskatchewan decided to run a hydro line right down through the middle of a first nation community, it was incumbent on them, the Government of Saskatchewan, to properly consult and negotiate to ensure that the community was in fact onside. But quoting Taku-Haida and that obligation to consult, as you did, you indicated that there would be litigation likely on the failure to consult if the government did proceed with its implementation of this repeal of section 67.

So I guess I was just going to get you to explain to me what judge you think in Canada would hear a case on the delivery of human rights to first nations people on reserve, and see that as being some sort of affront to first nations people.

[Chief Angus Toulouse]

What I have indicated is that we are not against Canadian human rights. We appreciate and respect the need for Canadian human rights. What we're saying is not that we believe there should be no Canadian human rights. Absolutely, there have to be.

What we're saying, as far as the consultation is concerned, is what member Jean Crowder was just referring to. What we're talking about are these six points: one, ensuring first nations have relevant information on the issues for decision in a timely manner; two, providing an opportunity for first nations to express their concerns and views on potential impacts of the legislative proposals and issues relating to the existence of a duty to consult; three, listening to, analyzing, and seriously considering the representations and concerns of first nations in the context of relevant legal and policy principles, including their relationship to other constitutional and human rights principles; four, ensuring proper analysis by the Department of Justice of section 35 issues relating to any proposed legislative initiative, so that they are thoroughly canvassed before, during, and after consultations; five, seriously considering proposals for mitigating potentially negative impacts on aboriginal and treaty rights or other rights and interests of first nations, and making necessary accommodations by changing the government's proposal; six, establishing in consultation with first nations a protocol for the development of legislative proposals.

Talking about it is a process that talks about how we're going to respectfully share the jurisdictions here in Canada. As a society, first nations people will be contributing members to the economic prosperity of this country. What we're talking about is ensuring that our rights are the same as pretty much anybody else's, other than at the community level, which allows us to develop our own first nations human rights act, if you will.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

I'm sorry; I just can't imagine a judge overturning a repeal, thereby taking away human rights from first nations people. I just can't ever see that happening.

[Chief Angus Toulouse]

All we're asking for is that there be some conditions, and I'll list those conditions again. The first condition I talked about is the need for consultation and accommodation, and that we have that understanding. An interpretive provision is what we're talking about as a second condition. The third condition is a realistic transition period to allow for those provisions to be understood and taken hold of. The fourth condition is adequate financial resources to implement this section, and a non-derogation clause.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

When the CRHA was originally brought in, there was about a seven and a half month transition period, in 1977. Do you think that was adequate?

[Chief Angus Toulouse]

Obviously not; it didn't get anywhere.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Clearly, it's been in place for 30 years now. I don't see any number of people saying that this seven and a half months was inadequate, but I guess you're suggesting that it was.

[Chief Angus Toulouse]

What I'm saying is, meet the six conditions we've laid out, put the three years in place, and we're supporting the repeal of section 67, if it's something that can be supported by this committee.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Okay, thank you very much.

[The Chair, Conservative, Colin Mayes]

Mr. Valley, please.

[Roger Valley, Liberal, Kenora, ON]

Thank you, Mr. Chairman.

I want to thank you, Chief Toulouse, for pointing out something in the communities that is important to say again, that there is not anarchy out there; the communities are functioning.

I'm fortunate to represent some of the best communities in Canada, and I have some that have a lot of challenges. Things can always be improved, but it's not anarchy out there, and we don't want to portray that right now.

We all want to make sure we can protect all Canadians. We have heard from you that there are options open for this.

My question is where the real damage is being done in this matter. Is it that this government is not willing to consult? Mr. Picard mentioned that we all have to work together. That's one thing we notice. We as the opposition have to work with the government, or nothing is going to happen; we're not going to accomplish anything for Canada or for our constituents.

I think one of the real failures of this government is that they haven't realized they have to work with anybody. I can tell you that sooner or later, they are going to be back on the opposition side and are going to have to work with others. They need to learn that lesson.

I ask my question to both of you. Where is the real damage being done here? Is it by not allowing for proper consultation? Is it not allowing your voices to be heard? Is it the damage to government-to-government relationships for everything that comes forward? Is it the hesitation about what they are going to do next?

Do you have an opinion on that?

[Chief Angus Toulouse]

We've attempted to communicate with the government to talk about our priorities in Ontario, as an example. There are obviously priorities we see that can improve the lives and protect the human rights of individual first nations in all our communities without having to rush into something like this.

As you've indicated, Mr. Valley, it is not anarchy in our first nation communities; there are laws that are being observed and enforced as we speak. To me, if there's a will by the government to sit down and talk about some of the conditions that we're raising, then we see that there could be progress to be made.

We're willing to look at this in a manner that's consistent with a timeframe...and I just threw out the three years, only because rushing into something isn't going to provide the kind of outcome....

First nations, a lot of times, aren't equipped financially to have the analysis and to provide input immediately, so there's a need to allow the first nations to get some resources to deal with this issue.

There are human rights in first nations communities. Again, I just want to stress that section 67 exempts only the implementation of the Indian Act. First nations didn't create the Indian Act, as you all well know. What we're saying is to take the time to do this together, in terms of creating a mood that is more conducive to good planning, and not create a huge jackpot and a whole bunch of chaos by saying that this is the way it's going to be without taking the time to have an appreciation as to how we're going to implement many of the sections.

Why would the government force first nations to go to court, especially on an issue that can be addressed and is as broad-based as this kind of a dialogue can be? I don't think it's necessary for us to be pushed into the corner of having the courts as the only alternative to deal with this matter.

[Roger Valley, Liberal, Kenora, ON]

Go ahead, Mr. Picard.

[Vice-Chief Ghislain Picard]

The only thing I could add is that the denial of basic human rights is an everyday thing in aboriginal communities. To me, it's really unfair to take this example and try to interpret that, or interpret our positions, as a possible denial of human rights in our communities.

I have to repeat what I said earlier: the right to education is very limited, as is the right to adequate housing, to health, and to others. It is an everyday thing for most aboriginal communities. That's why our presence here might be misinterpreted.

To me it's very important that I go on record as saying we are supportive of human rights, but at the same time we are also supportive of collective rights for our people.

As a matter of fact, the lack of progress on the collective rights approach might have some impact on the individual rights of our communities as well, so I think it's very important that we know that as well.

[The Chair, Conservative, Colin Mayes]

Thank you.

We will go to the government side for further questions.

[Steven Blaney, Conservative, Lévis—Bellechasse, QC]

Thank you, Mr. Chairman.

Do you wish to speak, Mr. Chairman? I can share my time with you, if you wish.

I understand the frustration of my opposition colleagues, since they were unsuccessful in taking action and advancing the rights of aboriginals. I believe that the bill on self-governance was poorly presented and did not come to fruition. Fortunately, we now have a new opportunity to act thanks to the bill that we are considering today. I have a question for the Grand Chief. I would like to know your thoughts on the following comments.

Thirty communities have already signed self-governance agreements that are not subject to the Indian Act. This means that the Canadian Charter of Rights and Freedoms must be unconditionally applied. To my knowledge, no transition period was set out in the agreement. Mr. Toulouse, you talked about the chaos that would ensue upon passing this bill. For the 30 communities I mentioned, there were no earthquakes, dramatic repercussions, or any major financial impact. I would like to understand on what basis you make your statement, because the experience of these 30 communities is that collective rights can continue to be fully exercised, and individual rights are still protected under the Canadian Charter of Rights and Freedoms.