Indigenous and Northern Affairs Committee on May 8th, 2007

[The Chair, Conservative, Colin Mayes]

Welcome to this meeting of Tuesday, May 8, 2007, of the Standing Committee on Aboriginal Affairs and Northern Development. Committee members, you have the mandate in front of you. We're continuing our study of C-44, An Act to amend the Canadian Human Rights Act.

Today as witnesses we have, from the Anishinabek Nation--Union of Ontario Indians, John Beaucage, grand council chief; from Barreau du Québec, we have David Schulze, a lawyer with Hutchins, Caron & Associés, and Nicole Dufour, a lawyer in the research and legislation service; and from the Nishnawbe Aski Nation, we have Deputy Grand Chief RoseAnne Archibald.

Welcome, witnesses.

We will begin with the presentation by Mr. Beaucage.

[Grand Council Chief John Beaucage, Anishinabek Nation - Union of Ontario Indians]

Thank you very much. It's a pleasure to be here.

I'd like to start out first by saying that the Union of Ontario Indians, the Anishinabek Nation, supports the repeal of section 67 of the Canadian Human Rights Act. There is a process that we must follow. Overall, we don't support the timeframe or some of the aspects of Bill C-44, in that it doesn't protect some of the aboriginal and treaty rights in a way that we would like to see done, in terms of the collective and individual interests of first nations. It fails to provide first nations with the capacity and training dollars to make sure that the implementation of Bill C-44 is carried out in a way that looks after some of our traditional and customary aspects of community life. We would also look at having a non-abrogation and a non-derogation clause included in Bill C-44. That would actually provide greater certainty for aboriginal and treaty rights, but then we would want an interpretive clause as well on the individual and collective rights of first nations.

Overall, we would look into perhaps going further than what Bill C-44 is purporting in terms of a first nations human rights act, which goes even beyond what we have in Bill C-44, and something that we can call our own. It's something that we can go further with in terms of looking after customary and traditional aspects of our communities right across the country. We would look at taking Bill C-44 and maybe stretching it out beyond the six months, looking at maybe a 30-month phase-in. Part of the phase-in would be the development—and a consultation process to create our own first nations human rights act, which would be enforced or worked for by our own process within our own community context on a region-by-region basis.

I think that's something the committee probably has not heard yet, but I haven't seen all of the information you've had. I think it's something new, but it's also something that is somewhat exciting: having first nations jurisdiction and first nations buy-in to the entire process of making sure that human rights take a very high place within the context of law in Canada, aboriginal law, and first nations traditions and laws.

We would look at having this process ongoing after a three-year period. That's one of the other things I wanted to talk about as well: the six-month timeframe that's currently within Bill C-44 does not give us enough time to institute and train our people for the human rights legislation, nor are there any resources there to make sure we have the appropriate capacity to look after this change that is encompassed within Bill C-44. So we do need to have those resources available to us. We do need a little bit of extra time.

I think eventually we will need to move on towards a first nations human rights act and a first nations human rights commission. There will be a written presentation that will have a summary of a number of recommendations on Bill C-44, and also recommendations on a first nations human rights act in summary. That will be provided to the committee as soon as the document is translated.

I don't think I've taken my full five minutes, but I'd like to thank you all for listening.

Gitchi-Meegwetch.

[The Chair, Conservative, Colin Mayes]

Thank you.

I'll ask Deputy Grand Chief RoseAnne Archibald to speak now, please. Thank you.

[Deputy Grand Chief RoseAnne Archibald, Nishnawbe Aski Nation]

Thank you, committee members, for the opportunity to make this presentation today. I'd like to say some of my introductory remarks in my own language.

[Witness speaks in Cree]

What I said in Cree was greetings to all of you. My name is RoseAnne Archibald. I'm from a community called Taykwa Tagamou, formerly known as New Post. I'm here to say a few words because our Grand Chief, Stan Beardy, was unable to make it to the committee today.

I feel it is important to speak some words in my own language, ininimoyan, as my presentation has more to do with linking the human rights issue with the natural laws and teachings of our people.

First let me reiterate that the 49-member first nations that belong to Nishnawbe Aski Nation honour the human rights of every citizen and have continually fought for social justice, individual rights, and the collective rights of our first nations citizens.

This standing committee has undoubtedly heard many presentations on Bill C-44 that have highlighted the need for proper consultation, or how we must balance individual and collective rights, or the need to protect women's rights, or the impact of this proposed legislation on first nations jurisdiction and self-government.

At Nishnawbe Aski Nation, we concur with other first nations and aboriginal organizations on these matters. Further, Grand Chief Stan Beardy has expressed support in principle for the repeal of section 67, as long as it becomes a means to gain access to universal rights that will in turn vastly improve the socio-economic conditions of our first nations.

So why aren't all first nations embracing the proposed legislation? The introduction of Bill C-44 insinuates that an external law is required to force first nations to honour the human rights of its own citizens. No such force is required because, first, we have a deep desire to improve the circumstances of our communities, and second, we have our own teachings to guide us in relation to human rights.

I want to talk briefly about the seven grandfather teachings, or the seven sacred teachings, as they relate specifically to Bill C-44. The seven sacred teachings form the principles upon what could be described as our own human rights code. The seven sacred teachings are: wisdom, truth, humility, bravery, honesty, love, and respect. Healthy and harmonious individuals, families, and communities are a natural result when individuals and groups follow the standards of behaviour as outlined in the seven sacred teachings.

Due to the limited time given for my presentation, I will highlight three main teachings as they relate to Bill C-44: wisdom, honesty, and respect.

Wisdom is about more than only acquiring knowledge. It is the proper use of knowledge to gain deeper insight and understanding of the world around us. Through our own wisdom, we can pass these teachings on to the next generations so that they can survive and thrive. One measure of wisdom is to reach your highest human potential by living a good life. When there is a proper consultation with first nations, we will have shared knowledge to make wise decisions on Bill C-44. To have real insight into human rights issues for first nations people, we must ask ourselves, “What are the real barriers to achieving justice and human rights for first nations people in Canada?” The answers will reveal more complex solutions than simply repealing one section of the Canadian Human Rights Act. Wisdom and insight can only be achieved through the thorough examination of Bill C-44. Moreover, rushing first nations through a six-month consultation/implementation process is not only unwise, it is unfair.

Honesty is more than simply speaking truth. It is embracing each person based on their true nature rather than projecting our own expectations onto them. It is a test of vulnerability that is achieved through our forthright acceptance of self and others. To honestly embrace who you truly are leads to a life of integrity.

For our people, we must honestly tell you that we will never be like everybody else in Canada. Our core values as nations, as Mushkegowuk, Ininew, or Anishinabe, are built around themes of collaboration and the balance between collective and individual rights. Despite your efforts to colonize and assimilate our people, we remain a society that, at our very best moments, understands our spiritual connection to everything; therefore, we will always place the well being of others equally to individuals. We must respectfully move forward with coexisting beliefs, which may mean modifying the current trajectory of your government in relation to Bill C-44.

The third sacred teaching I want to touch on is respect. Respect comes from within and it is always earned. When we conduct ourselves with dignity, we earn respect and goodwill in all of our relationships. Actively listening to others leads to respect. Respect and the golden rule are linked: treat others as you want them to treat you. In order to gain the respect of first nations peoples, we must be given the opportunity and forum to explore how Bill C-44 may affect our lives and our future generations.

Goodwill can be achieved between first nations and your government by actively listening to each other's concerns. As previously mentioned, social justice and human rights for our people are equally high priorities for our leadership. Let's be productive by cooperating to find comprehensive solutions to human rights issues. Through respect we can create an environment of trust where we can find common ground on our shared goal of a just society for first nations.

In conclusion, I respectfully request and recommend that we use the seven sacred teachings as the basis for future discussions on Bill C-44 and for all matters related to human rights.

Gitchi-Meegwetch. Thank you.

[The Chair, Conservative, Colin Mayes]

Thank you.

Mr. Schulze.

[David Schulze, Lawyer, Hutchins, Caron & Associés, Barreau du Québec]

I believe Maître Dufour will say a few words first.

[Nicole Dufour, Lawyer, Research and Legislation Service, Barreau du Québec]

I am responsible for the Barreau du Québec's aboriginal law committee. With me is Mr. David Schulze who is an active member of our committee. He will be presenting our organization's position. I would just like to point out that he is a graduate of both York University and the University of Montreal, and he has been a member of the Barreau du Québec since 1995. His main area of practice is aboriginal law. He has pleaded cases before many courts, including the Supreme Court. He will now make his presentation.

[David Schulze]

Thank you, Ms. Dufour.

I will give my presentation in French, but I will be pleased to answer your answers in either English or French, depending on the language of the question. You should all have received the letter on Bill C-44 signed by the President of the Quebec Bar.

Before I start, I simply want to make it clear that I will be speaking on behalf of the Bar and not any clients I represent in my law practice.

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

Mr. Chairman, I would like to know whether all committee members have received the letter signed by the President of the Quebec Bar. If not, we will make sure it is distributed, Ms. Dufour. I think this is very important.

[David Schulze]

That would be great.

[The Chair, Conservative, Colin Mayes]

It was distributed electronically, so all members should have that.

Is there anybody who does not have it?

Okay, thank you.

Continue.

[David Schulze]

The Barreau du Québec believes section 67 should be repealed. To provide you with a context, I will show you how section 67 creates inconsistencies which the committee may not be aware of.

Section 67 only applies to Indian bands governed by the Indian Act. It does not apply, for instance, to Quebec's Cree and Naskapi tribes, nor does it apply to most of the Yukon's first nations. Let me give you an example of how these inconsistencies play out. If you are a member of the Innu tribe, or the Montagnais, as they used to be called, which is located in Matimekush-Lac John and Schefferville, under section 67 you cannot file certain types of complaints with the Canadian Human Rights Commission. But if you live 50 or 80 kilometres away, in Kawawachikamach, that is, on land owned by Quebec's Naskapi tribe, you are not governed by section 67 and you can file a complaint against your band council. So you won't oppose this provision.

That being said, the Barreau du Québec, along with most other bodies, committees and taskforces which have studied the matter, supports the inclusion of an interpretive clause and let me tell you why.

I'll give you a concrete example. The Canadian Human Rights Commission issued a restrictive directive for any named court, which says that the Canadian Human Rights Commission does not allow a band council to give preferential treatment to its own band members in its hiring practices. Incidentally, there may have been other complaints, because section 67—I hope you understand this—does not prevent all complaints from being filed against a band council, just certain types of complaints.

You can file a complaint under section 67 respecting employment matters. The Canadian Human Rights Commission told its tribunal that an employment policy giving preferential treatment to natives was acceptable if it applied to natives in general, but not to members of one's own community. Tribunal members are bound by the commission's interpretation.

However, there is an agreement on government autonomy which now has the force of law in the community of Westbank, B.C. Under this agreement, which was quoted in the letter of the President of the Quebec Bar, the interpretation and implementation of the Canadian Human Rights Act as it relates to the Westbank first nation allow it to give preferential treatment to its members when hiring employees.

I point this out because that is exactly the kind of problem the commission and members of the tribunal will have to solve. What on first glance may seem discriminatory, based on a strict interpretation of the Canadian Human Rights Act, would be considered by many communities has being a good thing and normal policy reflecting the reality of these communities. There is one set of rules for Westbank and another for other first nations.

This leads us to say that, as is mentioned in the Library of Parliament report, in other human rights codes there are provisions which say that in cases involving an organization dedicated to the defence or promotion of the interests of a specific group, the organization may give preferential treatment to its members, and that this does not constitute discrimination. We have provided you a copy with section 18 of the Ontario Human Rights Code. This means that, in Ontario, a seniors' home or a home care centre for seniors from a particular ethnic community is not engaged in discrimination when it gives preferential treatment to members of its own community.

There is no similar provision in the Canadian Human Rights Act. I don't know all the reasons why this is so, but the scope of the Canadian legislation is somewhat different from that of provincial legislation. Because of the way power is shared, most activities in society are governed by provincial laws. The areas governed by federal legislation are rather unique: they are areas of federal involvement, including banking, railways and airlines—I've missed a few, but the list is not very long—as well as native affairs.

The Canadian Human Rights Commission usually deals with federally-regulated activities or those of certain inter-Canadian trade enterprises. It also deals with native issues, but native governments are neither federally-regulated entities nor business enterprises. The reasoning is different. It is probably the only non-profit area which is not federally regulated and which is governed by the Canadian Human Rights Act.

I am explaining all of this to you because, in practical terms, the application of the Canadian Human Rights Act will be problematic in communities which fall under the act if section 67 is repealed.

Lastly, the proposed implementation period for section 67 seems rather short. As we indicated in our letter, when the Supreme Court invalidates legislation, it will often suspend its ruling for 12 months. It seems that a six-month period to consult with communities and plan the implementation is extremely brief.

That concludes our remarks. I would be pleased to answer any questions you may have.

[The Chair, Conservative, Colin Mayes]

Thank you very much.

We'll move to the question period, beginning with a seven-minute round. The seven minutes will include both questions and answers.

Madam Neville.

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

Thank you very much.

I have questions for everybody, but I'll start with you, Deputy Chief Archibald.

When you outlined the seven teachings, you talked about respect. You talked about being given the opportunity and the forum to explore how it will affect your lives.

We heard when the department was here that no impact analysis had been done on it. I wonder if you could elaborate on how you anticipate Bill C-44 might affect your lives, or the lives of your communities.

[Deputy Grand Chief RoseAnne Archibald]

Can you be a bit more specific?

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

You looked at the legislation, and you said here that you need a forum to determine what the impact will be in your communities. Have you thought through what you think the impact will be, how it will affect issues related to housing, schools, and quality of water, and the capacity to respond to it? Have you looked at that in any way?

[Deputy Grand Chief RoseAnne Archibald]

On the specific impacts in relation to my presentation, I haven't gone into that type of analysis. I understand that as a standing committee you hear our recommendations, and those recommendations can either be taken or discarded in your process. I think the history of having our input on legislation that impacts our communities has often fallen into the category of being discarded.

My point in the document is that we need to create a forum where that mutual respect can happen; where people at the community level can really begin to understand what their human rights are and how their human rights fit into the larger picture of Canada.

When I think about the whole idea of the Canadian Human Rights Act in relation to the seven sacred teachings, this is another way for the federal government to sort of impose on or cover up our existing laws. We understand that if we use the seven sacred teachings in how we deal with everybody, we will have a society that is whole and healthy. We had that society prior to contact. For thousands of years we certainly survived and thrived based on those seven sacred teachings, as one of the tenets of how we treated each other.

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

Thank you.

Grand Chief Beaucage, I wonder if you can also give us your thoughts on the impact of Bill C-44 in your communities.

My other question is to the Quebec Bar Association. When members of the Indigenous Bar Association were here they raised a number of concerns. One overriding concern was that this piece of legislation was the beginning of the dismantling of the Indian Act by chipping away at it. I welcome your comments on that.

On the occupational requirements provision of the Human Rights Act, sections 15 and 16, the special programs provision, one member said:

I think there's some doubt that those provisions would be adequate to address the kinds of balancing that would be required to recognize the specific historical and constitutional place that first nations occupy within the Canadian legal framework.

I wonder if you can comment on that as well.

[Grand Council Chief John Beaucage]

Thank you very much.

The thoughts on that are quite complex and probably go back many years, as to what band councils have to do to set policies and procedures in their communities for housing, post-secondary education, and any of the services that are provided to their members. All of these policies have been developed over the years to look after traditional customs and processes, and not to take into account the specific aspects of human rights legislation. They look at a local community dispute resolution process.

If there were opportunities for band members to dispute decisions made by the band council, say for housing, where there are not enough resources to look after all of the housing that most communities require.... You may have a situation where a band council chooses one family over another, for whatever reason. The family that doesn't get a house says their human rights are being violated. It might occur dozens of times in many communities. Maybe there is a good reason for the decision, but the basic thing is that we don't have the resources and a decision has to be made.

The same could be said for post-secondary education. There isn't enough money for post-secondary education, so band councils have to decide who gets it and who doesn't. The people who don't get it say their human rights to education are being violated. This can be multiplied in community after community.

I mentioned having our own human rights legislation. If we have our own local dispute resolution process, rather than going to a human rights commission or a court of law outside of the communities, these disputes can be looked after within the community context and at the local level where there's understanding by elders, by community people. These disputes can be worked on in a community milieu where everybody understands what's going on.

As we look at communities that have too few resources and too much demand on community services, there could be concepts of human rights violations in many different aspects. I think our community members, our community administration people, need to understand what a human rights violation is and what it isn't in the context of Bill C-44. We also need to have the resources to make sure we can look after it.

[The Chair, Conservative, Colin Mayes]

Thank you.

Mr. Lemay.

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

Mr. Schulze...

[The Chair, Conservative, Colin Mayes]

We've run out of time. You're on your seven minutes now.

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

Don't worry, Mr. Schulze, you will have an opportunity to answer.

Thank you for joining us. It is an honour to welcome all of you here.

I have to say that I am of two minds with regard to this issue. It would be hard for me not to be. Mr. Schulze, I heard what you said and I would like you to explain something to me. You said that section 67 currently does not apply to Quebec's Cree and Naskapi communities.

[David Schulze]

That is how I interpret it, as it is the Cree-Naskapi (of Quebec) Act, and not the Indian Act, that gives Cree and Naskapi band councils their powers. Section 67 only refers to the Indian Act. If a Cree or Naskapi community seeks to uphold a right under the Cree-Naskapi (of Quebec) Act, it can plead however it sees fit; however, I'm at a loss to see how it could invoke section 67.

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

Section 67 applies to the Anishinabe, in other words the Algonquin, as long as they are living on reserve.