Indigenous and Northern Affairs Committee on May 3rd, 2007

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

Thank you. Chief Paul or Mr. Paul.

[John Paul]

Thank you.

Because of the implications of what could come out of this change, I think it becomes very important to engage all of our people, because every person is going to be impacted one way or another, whether they're a five-year-old or a 70-year-old, whether they're living in northern Manitoba or Vancouver or Halifax. Every one of us is going to be impacted by this. You have to understand that. So in that context, the standard of consultation really goes way up there, to ensure that all of our people have input and all of our people have a say in terms of this legislation, because it is legislation that will fundamentally affect all of us and our people into the future.

If we make mistakes or if you make mistakes on this now, we will pay for them for the next decades in terms of what comes out of this. There are legal obligations that you have to address. The standard bar has been set very high, and I think that in this one you have to go to the highest standard possible to ensure that our people fully understand, as Sydney said, how this is going to play out.

The Canadian Bar Association said at its presentation that it's like a bunch of dominoes. This is one domino that could cause implications that you do not know, and that's the worry we all have. It sounds simple, but the standard of consultation, I think, has to be comprehensive and complete and fulfill all of the legal requirements that exist.

[The Chair, Conservative, Colin Mayes]

Thank you.

[Michael Anderson]

Mr. Chair, I had a couple of comments, if I might.

[The Chair, Conservative, Colin Mayes]

I'm only going to allow one comment per group, if you don't mind.

We'll go to Madam Keeper.

[Tina Keeper, Liberal, Churchill, MB]

Thank you, Mr. Chair;

I'd like to thank everybody for their presentations. They were excellent. And I would like to especially thank Mr. Lawrence Paul for sharing with us his long history in terms of these issues.

I would like to ask this, following on what Mr. Paul just said. We are talking about human rights here and ensuring human rights.

Mr. Anderson, you talked about a couple of big items that are issues across the country for first nations--housing, water, and the list goes on and on. It seems to me that if we're talking about ensuring human rights, we're starting in the wrong place. This doesn't seem to be the right way to go about it, because we don't have a level playing field to begin with. There's a lack of services. There's a lack of adequate programs. Children are suffering.

So could we speak to that, about where it is we should be starting in terms of ensuring human rights for first nations? Is this the right place to be starting a bill like Bill C-44? Or is there somewhere else we should be starting in terms of ensuring human rights for first nations in Canada?

[Michael Anderson]

Is that a question directed to me?

[Tina Keeper, Liberal, Churchill, MB]

Yes, it is to all our presenters.

[The Chair, Conservative, Colin Mayes]

We've used up our seven minutes, but I'm going to allow you to answer.

[Michael Anderson]

Thank you, Mr. Chair and Ms. Keeper.

The recommendation made by MKIO that this committee recommend that Parliament engage first nations in a crown consultation in respect of the means to protect and address the human rights of first nations citizens is intended to consider the underlying root causes of those matters that would give rise to complaints. Establishing a mechanism for persons to complain about issues that are unresolvable doesn't resolve the issue.

We note that the tribunal has sweeping powers, for example, to make orders and to seek enforcement of the orders by making application to the Federal Court. A first nation subject of such an order may not have the ability to resolve the issue that underlies the complaint, as you pointed out, whether it's housing, water, child and family services, and so on.

So the issue is that in order to protect the human rights of first nations citizens, which is the focus, the treaty partners need to engage each other, focus on the well-being of first nations citizens at the community level, and address the causes that give rise to complaints prior to establishing a mechanism to deal with complaints that are inherently unresolvable.

[Tina Keeper, Liberal, Churchill, MB]

I think you've mentioned—

[The Chair, Conservative, Colin Mayes]

We'll go to the Bloc, please.

Go ahead, Mr. Lévesque.

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

Good morning, ladies and gentlemen.

Since 1977, section 67 of the Canadian Human Rights Act has contained an exemption in respect of provisions of the Indian Act. Section 67 was adopted in 1977 because negotiations were under way between First Nations and the government over the reform of the Indian Act.

Representatives of the Assembly of First Nations of Canada, of the Assembly of First Nations of Quebec and Labrador and of the Native Women's Association of Canada argue that section 67 should be repealed. More consultations are needed. Minister Prentice informed the committee that negotiations have been under way since 1977 and that numerous discussions and consultations have taken place on section 67. All have helped shaped this bill. In his opinion, the general consensus that has emerged from the discussions and consultations is that section 67 should be repealed.

The repeal of section 67 was recommended by the Canadian Human Rights Act Review Panel in 2000, as well as by the Canadian Human Rights Commission in its 2005 special report and by the Native Women's Association of Canada.

Unlike previous government bills that called for an interpretative clause, Bill C-44 contains no such provision.

How, in your opinion, could an interpretative clause facilitate the application of the act in communities and help balance individual and collective rights? I'm all ears.

[The Chair, Conservative, Colin Mayes]

Ms. Linklater.

[Irene Linklater, Director, Research and Policy Development, Assembly of Manitoba Chiefs]

I'm going to speak to the first point, to answer your question on how an interpretive clause is going to look with respect to balancing individual collective rights when it comes to an interpretive provision for human rights protection. But before I do, there's the issue of whether there has been consultation or not since 1977, when the Canadian Human Rights Act purposely exempted the Indian Act, and also on-reserve, by virtue of the problems that were encountered in the Bill C-31 provision.

I know that's the information that's been presented. Those are the reasons the exemption was stated in the first place. By that exemption, Canada assured first nations people that any amendments to the act would be done with full consultation with the people. We do not see that there has been full consultation when the consultation to this date has only been done with national political organizations or a number of other groups. From the information you provided, we don't know who has been consulted, because it has not been done with our communities and does not meet the test of consultation for pre-planned, informed consent that was stated previously.

Looking at the interpretive provision, we are not going to be able to provide you with an answer today on what the specific elements should be with respect to a provision to look at an interpretive clause, to look at the balancing of human rights, and at our individual and collective rights. That in itself requires proper research, consultation, and discussion from us as well and looking at it as a component of the necessity for consultation.

That is our answer to that question, and I hope I have properly heard the question. Thank you.

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

Chief Eastman maintains that this consultative process would take between 18 and 30 months. If I understood Chief Garrioch correctly, he stated that aside from laws that recognize his nation's Creator-given sovereignty, federal or provincial laws are not recognized in any case.

Since you believe in Creator-given authority, could consultations possibly lead to the introduction of clauses that would facilitate the application of the Canadian Human Rights Act in your communities?

In your opinion, would 18 to 30 months give you enough time to come to an agreement on the repeal of section 67?

[The Chair, Conservative, Colin Mayes]

There's one minute left for an answer to that question.

Mr. John Paul.

[John Paul]

As she said earlier, one of the things is that this problem has persisted over time. The set-up of the way it was exempted originally came from a previous government action that created this scenario. Now we're coming back twenty or thirty years later to try to correct a mistake that the government made before. All we're saying is that another wrong isn't going to correct it.

In terms of the interpretive clause, one of the things we always run into is that we never agree on what the interpretation is of different things in terms of government. The reason we're calling for an interpretative clause is to ensure that we're all clear about it and what happens in terms of any legislation—in particular, this one that we keep saying will impact everybody, in one way or another.

Thank you.

[The Chair, Conservative, Colin Mayes]

Madam Crowder.

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

Thanks, Mr. Chair.

I would like to echo my colleagues' thanks for your journey here today and being willing to come before the committee on this very important issue.

A number of you have talked about the unintended consequences of previous legislation. I'm going to reference specifically Bill C-31, subsection 6(2).

The department has done an analysis on cost drivers. I want to quote a bit from it because it talks about how big the impact has been, just in terms of the government's own assessment. This was titled “Legislative Change/Disruption”, and it says:

A successful court challenge against the registration sections of the Indian Act, in particular the “6(2) cutoff“, is likely in the near future, according to the Department of Justice. There are over 45K applicants whose claims to registration have been denied, and an additional 30K whose claims have gone dormant. These individuals will quickly be included in the backlog, and increase by ten times its current size. Depending on the impact of the legislative change, there may be a requirement to review all of the 250K C-31 applicants held at Headquarters, or even a review of many of the registrations completed by the regional offices as well, which could number in the hundreds of thousands of cases.

The reason I raise this is this. What I've heard many of you talk about is that one of your big concerns is that you haven't had the kind of consultation that would prevent a situation like the Bill C-31 subsection 6(2) cut-off. This is denying people access to their rights.

I wonder if you could comment on the kinds of unintended consequences and impact that bills such as Bill C-31 had on your nations.

Thank you.

[The Chair, Conservative, Colin Mayes]

Madam Crowder, could I ask you to identify the document you're referencing?

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

Yes, it's a document written by Jacqueline Cuffley called “Cost Drivers”. I can leave it with whomever if they need for the verification unit.

[The Chair, Conservative, Colin Mayes]

Thank you.

[Chief Viola Eastman]

I'll just pass this on to Chief Garrioch.

[Grand Chief Sydney Garrioch]

Thank you, members of the standing committee.

There are a number of issues out of that question. On the Indian Act, repeal of that section of Bill C-31, we were not consulted on how it would create an impact on our people. It kind of determined the reinstatement for the first nations on their status. That's one issue.

There's also extinguishment of the treaty rights that our first nation had in their system. As well, there was a cut-off--assimilation--to that as well, as part of the exercise.

Out of this matter of the Indian Act, with potential reinstatement, the issue will become the backlog, the capacity at both levels, at the INAC system for review and reinstatement of those first nations that may qualify under the criteria to be eligible to be registered, as well as the community to be registered at that level, how it's going to impact on the program, the existing underfunding as well as the capacity at the first nations government system. It will have a great impact. It will delay, it will obstruct, and it will do tremendous undermining of the system of government programs and services. It certainly will create tremendous frustrations, not only for the government but for the people themselves.

With regard to this issue, if there is a potential amendment, how many of those complaints will be filed across the nation? Will it be 50,000, or 500,000, or become one million? How is the exercise or process to work? What is the capacity of the government to achieve and potentially resolve those complaints that may come about? And that's a good example of the Indian Act amendment, how it affected us on that legislation.

Thank you.