Indigenous and Northern Affairs Committee on May 8th, 2007

[David Schulze]

Of course, you realize, if we're talking about decisions by a province or by most private sector employers, we're out of the realm of the Canadian Human Rights Act and into provincial human rights codes. But it's certainly open to give preferences in hiring to aboriginals to recognize their historic lower participation rate in the economy. Maybe I could just say that's nice, in terms of the big picture, and maybe it's not entirely for me to speak about this because I'm the lawyer from the city, I don't live in the communities, but there are a lot of communities where, after the gas station, the band council is about it for employers. So to say you're going to give preference to aboriginals doesn't get you very far, because the issues are more complicated.

[The Chair, Conservative, Colin Mayes]

Is there a comment from the government side?

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

We're concerned that the cultural practices are acknowledged and respected, and I tend to agree with that. What do we do in a situation where a cultural practice in itself is discriminatory, for example, on the basis of gender? The cultural practice of the last thousand years is discriminatory on the basis of gender. How would we address that in terms of respecting the rights of that person?

[Deputy Grand Chief RoseAnne Archibald]

First of all, if we go back again to traditional practice—and I wish I had the document in front of me—our societies are built on the idea of balancing roles and including women in the decision-making process. That is the basis of our societies. What has happened is that the Indian Act and patriarchal practices were introduced to our communities, primarily through the Indian agents and so on.

For example, I recently read a document—and I wish I had brought it with me—that actually said—I think it was the Indian agent or the government official, the treaty official, who said to the men in the community, “Why are you consulting with your women? Why are you including them in your decision-making process? That's wrong.” That was a non-native coming to our communities and telling us that it was wrong to have women in the decision-making process.

If we return to the valuable past, the things that are valuable from the past—and I'm not saying let's go back and live there, but there were principles in the past that are extremely valuable, and one of them is the balancing of roles.

By working with our communities, you will discover that these practices existed and that they can be revitalized. There are processes outside of this table that we can undertake to ensure that women's rights and women's issues are dealt with in a fair manner by our leadership.

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

I guess to follow up on your last comment, a lot of this is happening without a specific law to mandate it. Would it not also be true that if this section is repealed, we wouldn't have to count on a lot of actual challenges to the Canadian Human Rights Act, but that just by the fact that the new law exists, first nations communities would want to comply without facing a number of challenges? I think one of the concerns we keep hearing raised is, are we going to have this flood of challenges that we won't be able to deal with? In fact, for the number of communities that currently aren't excluded under section 67, we haven't had that experience. It would seem to me that we could trust—going back to your point of seeing the good—first nations communities to also willingly comply with this without facing a number of human rights challenges.

[Grand Council Chief John Beaucage]

I'd like to jump in on this one.

There may be a flood, but it's an issue that is very complex in that most communities across Canada are still under the Indian Act. The Indian Act is an outdated piece of legislation that really keeps us poor. Until we start getting into a self-government process where we have our own dispute resolution process, where we have our own governments that are stable for longer than two years, we're always going to have issues on elections, and problems, and so on.

To go back to some points that Deputy Grand Chief Archibald mentioned, there are inherent rights that are provided to us by the Creator, and these rights are continuing on despite human loss. The roles set out for men and women are very specific. If we followed our traditional teachings the way we should have, without having the colonialist aspect that has diverted us, then we wouldn't have any of these difficulties that we have presently. Many of the difficulties are caused by the colonialism, by the Indian Act, and by the oppression that has occurred for the past several hundred years.

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

In the current system, we are operating under the Indian Act, unfortunately. So we have to begin to try to find ways to mitigate the negative impact of that. I think by repealing section 67 we will take one small step. I agree that it won't be the be-all and end-all, but it will take one small step in that direction. That's our concern here, and I think I've heard all of you unanimously say you support the repeal. Your problems are on implementation and interpretive clauses—those are the two primary ones—and adequate consultation.

[Deputy Grand Chief RoseAnne Archibald]

And a third point, actually, which is the integration of our own values into the process.

[The Chair, Conservative, Colin Mayes]

Thank you.

We'll go to the Bloc now. Will it be Mr. Lévesque, Mr. Lemay...?

Okay, Mr. Lemay.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Ms. Archibald, what do you think about the consultations undertaken by the government, with Ms. Grant-John's support, on matrimonial real property? Consultations took place across the country to determine people's opinions on this. I believe you were there and I would therefore like to know what the experience was like for you and Grand Chief Beaucage. Did everything go well? Were your concerns well received? Are you satisfied with the report's recommendations?

[Deputy Grand Chief RoseAnne Archibald]

It's interesting that you asked both of us, because we both had a separate consultation process outside of the AFN and Native Women's Association of Canada. The result of that was the set of recommendations we made specifically on the amount of time the government wants to implement the matrimonial real property issue.

It does always come down to the unilateral actions of government toward our people. This is always a core issue for us--not so much give us more time for consultation as let's build these things together. This process of, for example, repealing section 67 is not a joint process. It probably has more to do with the idea of making individual rights a priority in our communities. It seems that's more of what drives this forward, the individual human rights that people have versus the collective human rights.

To get back to your question, we do want these consultative processes to be all-encompassing, educational, and moving us forward together so that we come up with solutions together as opposed to responding to government on their piece of legislation of what they think is good for us.

[Grand Council Chief John Beaucage]

At the Union of Ontario Indians, we rejected the process of the consultation through the AFN and the federal government. We undertook to go through our own consultation process, which we did in a period of about six months. We developed our own law on matrimonial real property that takes into account all of the basics that most provincial laws have across this country.

We have had first and second reading of this law. We are going to proclaim our own matrimonial real property act law, for 42 communities, in June of this year.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Mr. Schulze, there's a point I would like to understand. We agree that the Canadian Charter of Rights and Freedoms is Canada's supreme law.

[David Schulze]

The Constitution is the supreme law, and the Charter is a part of that, yes.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Should the Canadian Human Rights Act be interpreted based on the Charter or does it have its own formula and should it therefore be interpreted based on its own contents and on jurisprudence?

[David Schulze]

It must be interpreted in light of what is contained in the Constitution, including the Charter and the way in which the Supreme Court has interpreted the Charter. I believe we agree up to that point.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Where's the problem?

[David Schulze]

Are you referring to the question that your colleague, Mr. Albrecht, asked?

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Yes.

[David Schulze]

The problem is that I was asked if the interpretive clause in section 25 of the Charter was enough. I have the impression that I am being asked to defend the argument.

If I were before a human rights tribunal, I would tell people to interpret the Canadian Human Rights Act in accordance with section 25. My fear is that members of the tribunal would reply that section 25 spells out how the Charter should be interpreted, that they are applying the provisions of the Canadian Human Rights Act and that their interpretation must be consistent with the Charter, but that the Canadian Human Rights Act may go farther than the Charter. Sometimes it does. If section 25 were to limit the right to equality guaranteed under section 15 of the Charter—and I am now speaking as a tribunal member—and if I didn't have the equivalent of section 25 of the Charter in the Canadian Human Rights Act , I would allow the right to equality set out in the Canadian act to go farther than the Charter. As a tribunal member, I would tell the counsel for the first nation that the right to non-discrimination set out in the Canadian Human Rights Act is in no way limited by the aboriginal rights outlined in section 25, unless he could prove to me that a right protected by section 35 of the Constitution existed.

I hope I have not described too many steps.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

It is very clear. That is what I thought, but I just wanted to be certain. We're both on the same wavelength.

[David Schulze]

We should be associates.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Indeed.

[The Chair, Conservative, Colin Mayes]

Mr. Bruinooge, please.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

I know we're down to the last few minutes here. I'll try to be brief.

I want to go back to something Grand Chief RoseAnne Archibald said. I believe you indicated that you would want the process to include the implementation of your own values. I think those were your words.

My question for you would be this. I imagine you're speaking for your community of first nations and perhaps larger groups of first nations. Do you see those values as being the same or congruent with neighbouring communities and with communities on the west coast? Do you imagine a process where all those values could be encompassed within one body?