Evidence of meeting #49 for Indigenous and Northern Affairs in the 39th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was consultation.
A recording is available from Parliament.
Conservative
Executive Director, Atlantic Policy Congress of First Nation Chiefs Secretariat Inc.
I agree. I think there are very serious implications, and on the numbers, all you have to do is do the math, do the financial math. It doesn't matter what number you use for basic services, whether it's social, health, housing, education, or just basic fundamental services, if you just do the math, any economist who knows anything about this will see that it will destabilize communities in terms of where communities are at.
As for our communities back home, a number of communities had a very large influx of people as a result of this legislation, so that the populations in some communities almost doubled; and then with Corbiere, all these people who have now doubled the population, who now have kids, and they have kids, and so on, are causing greater pressure on a fixed-growth budget. As a result, it really has all these negative implications that I think are going to play out over the next while in terms of the fiscal pressure on government and the fiscal pressure on the individual communities.
We really looked back at what the intent of all this stuff is. Is it similar to a policy that was created in 1969, called the Chrétien policy, of eliminating citizens plus, and basically moving to a strategy of dismantling communities and total assimilation of our people? Is that where this is going? I think our people and our leaders are very concerned about that, about the intent and the outcome of these kinds of issues, especially the impact on the children and grandchildren in our communities, as to who they're going to be in the future. It's serious stuff for the communities.
Thank you.
Conservative
Rod Bruinooge Conservative Winnipeg South, MB
Thank you, Mr. Chair.
Thank you, everyone, for coming today, especially my fellow Manitobans. Of course, I have nothing against those from Nova Scotia.
I'll start with some of the reasoning our minister and our government have employed for this repeal of section 67. That is that it is to resolve issues that we see brought before government on many occasions, especially in relation to matrimonial real property in particular situations where the marriage compact is broken, for whatever reason, and families have to vacate the home, not based on any direct division of marital assets, but rather through the current model employed throughout most of our first nations communities, which is the allocation of assets through the direction of band councils.
The issue that I face and our government faces as legislators is that we have what we see as a problem typically, in some situations, for mothers and children, who aren't necessarily guaranteed housing upon a marital breakup.
As part of our plans to remedy this situation, which we feel we must do, repeal of section 67 was asked for, to be undertaken as part of the process, as it is seen as necessary to provide matrimonial real property. That is one element of some of the reasoning.
I would ask the question, would you not agree that matrimonial real property is an essential part of families' lives on reserve, and do you not agree that a remedy is important?
Maybe I'll put that question to Ms. Eastman first.
Canupawakpa Dakota Nation, Assembly of Manitoba Chiefs
Thank you.
In regard to matrimonial real property, we had our dialogue sessions in Manitoba. You can't understand what it is like in the community. These dialogue sessions tend to be information sessions, because some of the women don't understand the term “matrimonial real property” and what it actually is. We ended up for two days giving information on the provincial laws.
At the end they said, why are they trying to tell us how to live our lives and what to do? First of all, they said, this isn't our land. We don't even own the land anyway. The property we have is just the tangible property; that's all we have. For Manitoba anyway, it is not land that we own. We don't own the land.
Then we have natural laws that we go by if there's a breakup in the family. They are just natural laws, that there are in-laws who take in the family, the children.
It was the first time they had ever heard about this. They were saying, they are going to implement something; legislation is going to be coming in April. That's only three months. We have to go home and look at this and talk about it.
We gave a lot of information, which was good. That is the positive part about it. The women who came got a lot of information out of it. But those are some of the things that came out of the dialogue sessions we had.
The scope of it is really large within the community. It is really different from living in a community in urban areas. If each and every one of you came out and lived in the community for a year, you would realize what it is like. It is not the same as living in urban areas in the province. That is one thing we found out.
That's all I'll say about that.
Conservative
Rod Bruinooge Conservative Winnipeg South, MB
In response, it's my hope as a legislator that I'd be able to work through Parliament to extend that security to women and families, so that when they go through a marital breakup they would have the opportunity to reside in a home. That's really my intention through being a part of this process.
Canupawakpa Dakota Nation, Assembly of Manitoba Chiefs
One thing is that we don't want provincial laws to be presented to the communities. I know that this was the first thing that was said by the women.
Conservative
Conservative
Rod Bruinooge Conservative Winnipeg South, MB
I'll go back to one of the points raised by Mr. Anderson.
You talked about how some of the human rights issues or abuses, perhaps, were unresolvable. Without a forum for individuals to raise the human rights issues they feel they have, how is it possible to quantify what they are and whether they are resolvable or not? Without a forum such as what we're suggesting, how would we be able to ascertain that?
Research Director, Natural Resources Secretariat, Manitoba Keewatinook Ininew Okimowin
Thank you, Mr. Bruinooge.
Ms. Keeper's question was directed somewhat at this issue, again.
The mechanism and the forum is the treaty relationship. It's the Crown–first nations relationship. It's the dialogue that would naturally result as part of the ongoing process of giving life to the perpetual commitment to build a nation together. So those issues that arise in first nation communities and as first nation concerns would be resolved directly through contact between the leadership and ministers of the Crown, parliamentarians, and committees such as this. It's the dialogue that the handshake of the treaty medal means: two nations together building one nation.
The concern regarding the repeal of section 67 is that we're proceeding immediately to developing a complaint mechanism and jumping right over the process of engagement. From the consultative questions that were asked, for example, we note, in our work on matrimonial property, that Ms. Grant-John was recommending that the minister and the Minister of Justice develop a culture of section 35 compliance. We see one of the critical points of engagement in that treaty relationship to be full implementation of the duty to consult that has been established as a doctrine by the Supreme Court of Canada.
The questions to ask—is there a right, is there an infringement of the right, and is the infringement justified?—are all at point of engagement. As yet, we have not fulfilled the obligation to engage in the consultative doctrine established by the Supreme Court in a meaningful, operationalized way.
Conservative
The Chair Conservative Colin Mayes
Thank you.
We're in the five-minute round now.
Turning to the Liberals, we'll have Mr. Russell.
Liberal
Todd Russell Liberal Labrador, NL
Thank you, Mr. Chair.
Good morning to each and every one of you. Thank you for coming.
I know a little of Chief Paul, being from the Atlantic. I never thought you were batting zero on anything, to be quite honest. I've often heard about your many accomplishments in Nova Scotia.
Building a little bit on what Tina was saying and on some of what you have said to the committee, if you use examples like housing and water and some of these other service-type provisions that one should have, wouldn't the impact be more dramatic on communities that have less capacity in terms of some first nations? That must be a double punch for some communities. The poorer communities, or the ones that are more challenged, would be more severely impacted. There's an assumption that all first nations seem to be at the same stratum, which is just not the case.
Take, for instance, the Innu. The Mushuau Innu and the Sheshatshiu Innu in Labrador are just two new first nations. In fact, its only been months in terms of the formation of the Sheshatshiu first nation. So they're going through a whole implementation of the Indian Act, and now they've had this foisted on them in six months.
Could you comment on how this would exist? This might just exasperate. We've talked about the Pikangikum here at this committee, and we've talked about the Kashechewan, for instance, two particular communities that have been highlighted in the media.
Can you pass some comment on that, Chief Paul?
Co-Chair, Atlantic Policy Congress of First Nation Chiefs Secretariat Inc.
Thank you for your little bit of praise. I certainly appreciate it.
First of all, when I look at the big picture, as I've done ever since I've been in politics—that goes way back to the sixties, that's why I mentioned earlier that I went through a lot of prime ministers in my tenure as chief and councillor in native politics—I've seen a lot of changes. One thing I never did like and I still don't like is that when I talk to this committee I like to talk to the committee members as equals. I don't like talking to a committee where it's a parent-child relationship—we know what's best for you.
My accomplishments in my first nation are based on my own people and my economic development committee. We decided we would do our own thing. We had a department tell us what to do for years, and it always went belly up. It was a miserable flop. So we said we'd take control, we'd look at free enterprise and economic development and how we'd go forward in the modern day, and we're successful.
In answer to the honourable members on matrimonial property, you have to give some credit to first nations, that we have intelligent people on our councils. For instance, I have six college graduates on my council.
As for matrimonial property, we've seen that issue coming, so we have our own policy. If there's a marriage breakup in our first nation, then of course it has to go through the family court process. Whoever gets custody of those children automatically, whether male or female, gets custody of that home.
A non-Indian mom or dad has the responsibility of a guardian, so they're able to live in a band-owned home until the eldest child reaches the age of maturity—19, I believe it is now—then it's up to that child whether they still want their non-Indian parent to live with them or not; they're in control now. That would be up to the family. We think that's equal.
I don't like the idea of using matrimonial property, beyond all comparison, to give that protection and eliminate section 67 by Bill C-44, because we look at too many things. There are going to be so many court challenges against chief and council. I've often said it takes two of us, and then of course we have to sue the federal government. You know there are $22 billion worth of court cases against the previous federal government in the court system now. That's going to double to $44 billion before this is over, because when they sue us, we have to sue the government. We have no other avenue; we have to go that route.
At this time, I can see the Human Rights Act is going to disrupt everything else. Right now my band has 60% mixed marriages on- and off-reserve. My band members stretch from B.C. to Prince Edward Island, from Florida in the United States to California, Massachusetts--they're scattered all over. Under the Corbiere decision, they vote for us.
My colleagues and I are here today to ask the standing committee to listen to what we are telling MPs. We know what's best for our people. We live there. We know the society on a first nation is quite different from a society in downtown Truro, where I live. We have a different society, a different way of handling things.
I guess what we're asking is for you to listen to us on this particular issue of the repeal of section 67 of the Human Rights Act. It's going to cause more poverty. It's going to be a drain on the limited financial things that we have now. It's going to cause headaches, not only for us but for the municipal government, the provincial government, because then it's wide open.
Is my time up, sir?
Co-Chair, Atlantic Policy Congress of First Nation Chiefs Secretariat Inc.
I'm quite worried about the whole effect of this Bill C-44. I think it's going to have drastic effects on the community life of our first nations and our local governments.
Thank you, Mr. Chair.
Conservative
The Chair Conservative Colin Mayes
Thank you.
I'm sorry, I have to keep track of the time or else my colleagues will give me a hard time about not giving equal opportunity.
We're on to the government side, Mr. Albrecht.
Conservative
Harold Albrecht Conservative Kitchener—Conestoga, ON
Thank you, Mr. Chair.
Again, my personal thanks go to each of you for appearing today. I want to especially congratulate Chief Paul on outlasting five or six prime ministers. That's quite a feat, especially from my perspective as a rookie MP.
The issue of consultation--adequate consultation, full consultation—has come up not just from each of you as witnesses today, but from many of the other witnesses we've heard. I think in answer to Ms. Neville's question, Chief Eastman said that it would involve consultation right to the individual level. Certainly I agree that would be ideal, but if we consider that consultation would occur at the individual level, then at the first nations level, at the regional level, at the provincial level, at the federal level, what do we do? I mean, we want to listen; I'm committed to listening. But at the end of the day we've listened already to a number of federal representatives only, and we have very disparate views on what should be done.
At the end of the day, someone needs to grapple with this and make a decision. How would we possibly begin to engage in dialogue, first at the 600 first nations level across Canada, and then at the individual level, and still be sure that we haven't offended anyone in the process? That's a challenge that I'm sure you face in your individual band councils, as well. You make decisions, and people will always say you didn't listen to them because you didn't implement the decision or the suggestion they gave you.
I want to ask, how can we ensure you that we've listened and still possibly not come up with the decision that your group would have preferred? I say that with respect. I'm not trying to be disrespectful. It's a challenge we face not just on this issue in this committee, but in many others.
If you could help me with that, I would appreciate it.
Research Director, Natural Resources Secretariat, Manitoba Keewatinook Ininew Okimowin
In terms of practical application on consultation policy, MKIO has put a lot of work into codifying the consultation policy for the application of the Crown consultation process in Manitoba. We began work on it within months of the Sparrow decision in April 1991. I can remember getting instructions from the MKIO executive council to proceed. Now, we are working with the Public Interest Law Centre of Manitoba to put together a workbook on Crown consultations so that first nations can present this workbook when a demand for Crown consultations is made.
The Northlands Denesuline First Nation recently issued a demand to the Government of Manitoba to engage in Crown consultations in respect of mineral exploration licences in their territory and have requested that no further licences be issued until the conclusion of those consultations. In order to give effect to that, a response on the process has to be provided. We're going to provide that.
I would add that on the Crown consultations conducted jointly by Manitoba and Canada on the Waskwatum generating system, MKIO was not part of that consultation process. The first nations that are directly affected were a part of the Crown consultations on Waskwatum. There was a report on that, so the mechanism can be reviewed.
The concept is that representative consultation does not meet the standard of consultation established by the Supreme Court in Sparrow, and Badger in our case, and then in Haida Nation and Taku River. It is a direct consultation with the directly affected first nations. The questions I listed before—is the right affected, is the infringement justified?—are the questions that must be asked.
From the work I do on the national policy advisory group with AFN's fisheries committee, we understand that DFO is awaiting the outcome in respect of Bill C-45. The Department of Fisheries and Oceans is awaiting the outcome of work being done jointly between Indian and Northern Affairs Canada and the Department of Justice to develop a national consultation policy for the Government of Canada. We're eagerly waiting for that. We're going to ATIP it, actually, and try to get as much of it as we can right away. The end result is that it is a codified mechanism. It is a reliable process. It is between the Crown and first nations, and there has been a lot of groundwork done. The outcome of the consultation is another matter.
This is my last comment, if I might, Mr. Chair.
The key comment in Sparrow is that the presumption of validity on the part of Parliament is no longer valid. The Crown consultation process is not a matter of listening and then acting. If the Crown is going to take an action or make a decision that will infringe the exercise of a right that is recognized under section 35 of the Constitution Act, it may not do so unless it justifies that infringement. Consultation is part of the justificatory mechanism. The outcome of it would be establishing a valid legislative objective that would cause justification to be a conclusion in the consultative analysis.
Conservative
Yves Lessard Bloc Chambly—Borduas, QC
Thank you, Mr. Chairman. I'd also like to thank our witnesses for coming here to discuss this important bill. There is no question that this bill is important. Your testimony here today is once again evidence of that fact.
I'm trying to understand where the real problem lies. Does it have to do with form, with substance, or with both? Right now, I'm leaning more toward form. However, I don't want to make a mistake here and that's why I'm seeking some clarification.
Your appeal to the committee this morning can be summed up by Mr. Lawrence Paul's request that we listen to you, engage in consultations, respect your beliefs, customs and practices and recognize the need for a fair balance between individual and collective rights.
I have the impression—and here's where we need to achieve greater understanding—that previous lawmakers tried to listen to you. The legislation adopted in 1977 contained an exemption, namely section 67. The matter was debated at length both at the time and during the ensuing years. To summarize, in 1999, a very important national committee—I believe Mr. Paul testified before this committee, as I believe some of you surely did as well—put forward a series of recommendations about, among other things, the federal government's fiduciary responsibility and the repeal of section 67. That debate took place in 1999.
The Assembly of First Nations has also expressed agreement with the principle of repealing section 67. The Native Women's Association of Canada is more specific, claiming to agree with the principle, but calling for an interpretative clause to be included in the bill. We understand that request, given the specific points you mentioned earlier.
As lawmakers, we feel that we have tried to listen to your concerns. Not only have we tried, but we've also given you opportunities to speak out. I gave you a few examples and today, you're here once again speaking to the committee.
One other thing aptly describes the situation. Mr. John Paul advises us that the proposed time frame will make it impossible to honour the obligations created by the repeal of the provision, because there will not necessarily be time to put in place the health, education and other measures to honour the various obligations.
Moreover, I'm here speaking to people who know that no one can be expected to do the impossible. This rule was also applied in 1977 to communities other than first nations communities. At the time, other very fragile communities were not able to honour certain obligations. In time, they succeeded.
My question is as follows: do you not feel that when you compare what has happened since the passage of this act in 1977 and the measures adopted to date, the additional benefits are apparent? The Canadian government is a trustee who has a certain number of responsibilities toward your communities. Do you not feel that we are debating form more than substance here, and that what we really need to decide is whether or not to adhere to the principle? Maybe I'm being somewhat blunt with you, but do we really agree on the principle here? For example, I would be surprised if you did not agree with the 11 prohibited grounds of discrimination.
Conservative
The Chair Conservative Colin Mayes
There is limited time for an answer to that. Please be concise so that we can move on to the next questioner.
Mr. Paul.
Executive Director, Atlantic Policy Congress of First Nation Chiefs Secretariat Inc.
As you said, in terms of the substance and the form, we all agree that we have evolved since 1977 in terms of the point communities have reached. But one of the things that are still lacking is the fulfillment of the treaty relationship that was promised to us and the protection of the constitutional rights and the financial resources to go with them. The dilemma we get caught in is making trade-offs, making choices. For the communities, until you actually carry it out one way or another, it's going to play out.
As Lawrence said earlier, it could end up with $44 billion more of litigation, liability, and so on, but there are other more important issues that need to be addressed in our communities. If you look at it from a perspective of poverty, dividing up poverty is still poverty. If you can't move beyond that, you can have all the rights and equalities you want, but if you're poor people, you're still poor people.
We need to empower our people to a future. We have to empower them to be part of Canada and the economy, to have a job and to have a future. That's where we need to go. And this won't do it; I don't think it will.