Indigenous and Northern Affairs Committee on May 8th, 2007

[David Schulze]

Exactly, but as long as it is a power set out in the Indian Act that is at issue.

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

As a representative of the Quebec Bar, would you be prepared to recommend that we suspend our study on Bill C-44 and come back to it later after having evaluated how it would impact first nations, or would you prefer that we continue our study, but introduce your amendments?

[David Schulze]

I am reluctant to go beyond the position set out by the President of the Quebec Bar in his letter.

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

Mr. Rivard would not be upset with you. Tell him to call me—I know him well.

Do self-government agreements provide for the inclusion of Canada Human Rights Act provisions? I am obviously only referring to those with which you are familiar.

[David Schulze]

Allow me to briefly explain the difference between the various types. We have the modern treaties, the comprehensive land claim agreements that we have in the Northwest Territories, in Nunavut, in the Yukon, and with the Nisga and the Inuit in Labrador. Self-government is part of these agreements, but they also address wider matters. In addition to these agreements, the Department of Indian Affairs and Northern Development is also in the process of negotiating self-government agreements that do not have treaty status, for example, the agreement with the Westbank first nation that is now in force.

The Westbank agreement includes a specific provision addressing the application of the Canadian Human Rights Act; it provides for a different application of the act so that the Westbank community can give preferential treatment to members of its own community. You have to realize that, with regard to the Westbank case, there are many non-aboriginals living on reserve in the Okanagan Valley.

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

I will wait until Ms. Archibald comes back before asking my next question. I will give her time to get her coffee. I feel that I ought to wait, because I have an excellent question for her, and for you, Chief Beaucage. Take the time you need, Ms. Archibald. It's an important question.

I have two very specific questions for the two chiefs that are here with us today. Our committee also feels that a minimum transition period is required. In my opinion, the time frame needs to be extended to 36 months. We should have both an interpretive clause and a non-derogation clause.

That being said, would you be prepared to ask us to suspend our study of Bill C-44 until your communities have been directly consulted?

Secondly, could you explain in your own words what you understand by satisfactory consultation with your communities?

[Grand Council Chief John Beaucage]

My colleague asked me to go first, so I will.

I agree that six months is not adequate. At least 30 months is required to look at moving into this new regime. When we did our community consultation on matrimonial property we went out to nine different locations and took into account 42 different communities over a period of four months. That's what we determined as our consultation requirements for legislation that is so important to our communities.

The timeframe is not adequate, and we need to have the capacity to get education to our communities.

[Deputy Grand Chief RoseAnne Archibald]

I agree with Grand Chief John Beaucage that more time is required and there needs to be a suspension of the activities while we build a forum that is more conducive to a cooperative effort between our nations, so to speak.

[The Chair, Conservative, Colin Mayes]

Thank you.

We'll move on to Madam Crowder, please.

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

Thank you, Chair, and I thank the witnesses for coming before the committee today.

This is a really important matter, and I think what we've heard consistently from most witnesses—and I can certainly speak on behalf of New Democrats—is that we do support the repeal of section 67. However—and it's a big “however”—we've heard a lot about duty to consult. I think there is little trust in any Government of Canada to approach human rights in a way that is equitable and fair because of the fact that we've been cited in a number of international conventions that we violate human rights.

There's a recent Senate report on the convention on the rights of the child that specifically singles out aboriginal children as being discriminated against in Canada, because of the lack of funding, because of inadequate housing, because of inadequate health care and water. On CEDAW, the convention on the elimination of discrimination against women, aboriginal women have been specifically cited for lack of access to transition houses and violence against women that continues to unfold.

So I think there's little trust that simple repeal of section 67 will all of a sudden make everything right in first nations, Métis, and Inuit communities in this country.

I think the crux of the matter seems to be around consultation, and I would argue that if we had adequate consultation, an interpretive clause, non-derogation, section 35 of the Charter, then adequate timeframes would come out of an appropriate consultation clause.

In the court case of Halfway River First Nation v. British Columbia (Ministry of Forests), the justice said that:

The duty to consult, however, goes beyond giving notice and gathering and sharing information. To be meaningful, the Crown must make good faith efforts to negotiate an agreement. The duty to negotiate does not mean a duty to agree but rather requires the Crown to possess a bona fide commitment to the principle of reconciliation over litigation.

I know you've started to comment about duty to consult, but can you comment on how important the duty to consult is before legislation of any sort comes forward?

[Deputy Grand Chief RoseAnne Archibald]

In relation to my presentation, I think I really want to focus on what I presented to the committee in terms of those seven sacred teachings, because there's a larger picture to what we're looking at, rather than just this smaller piece of legislation.

In Canada, first nations are continually striving to heal the impacts of colonization, and part of that is to take those things from the past that are helpful about our laws, things that can contribute to the health of our communities, and bring them forward.

In terms of consultation, for us in the Nishnawbe Aski Nation it does come back to the issue of jurisdiction and self-government, in that when you're talking about consulting, you're still talking about the old paradigm of bringing legislation forward to us and asking “Will this work for you?” That, to me, is not really a part of the broader solution that first nations really need, which is a respect for the fact that for thousands of years prior to the establishment of this government, we had our own processes in place that worked for us. And those things can still work today in some way where we could coexist, because it's not necessarily talking about removing all things that are Canadian legislation but really figuring out how we balance those things.

So consultation becomes not so much what you're talking about, which is how do we consult with you, but how do we have meaningful dialogue so that the whole issue of human rights really is addressed in a meaningful way.

[Grand Council Chief John Beaucage]

I agree with my colleague wholeheartedly, and I'll just add a little bit to that. The aspect that occurred prior to recent Supreme Court decisions has always been the government telling us what to do, the government letting us know what is best for us, and then asking afterwards, “What do you think?” That is not consultation.

Negotiations have really been carried out for land claims and other kinds of processes over the years by us going to a table and asking permission. We're not going to do that anymore. The aspect of duty to consult is a process of consultation, accommodation—which is actually a way of asking “How do we consult and what is the best way to consult?”—and then what we at the Union of Ontario Indians say is engagement.

If we are consulted, if we have the process of how we consult and we are engaged in the consultation, then that is a true consultation, where we have buy-in from all of our communities and our community members. And the buy-in is so important that we move ahead and that we're all in agreement and that we do have this good, meaningful dialogue that will allow us to be fully engaged in new legislation, to be fully engaged in economic development processes, to be fully engaged in land claims and additions to reserves, treaty negotiations where there are no treaties, and self-government negotiations.

[The Chair, Conservative, Colin Mayes]

You have a little over a minute.

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

Do you want to comment, Mr. Schulze?

[David Schulze]

I won't speak to the consultation, but I would say that it is worth keeping in mind that the whole model of the Canadian Human Rights Act, which has many good points, is about individuals making complaints. The abrogation of section 67 will expand the number of points on which a member of the community can complain about how the limited resources of that community are distributed. The Canadian Human Rights Act is not something that lends itself very well to that community getting more resources from the federal government or from other places. This could push the conflict inward over how limited resources get distributed.

[The Chair, Conservative, Colin Mayes]

Mr. Bruinooge.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Mr. Albrecht is going to proceed.

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

Thank you, Mr. Chair, and thank you to each of the witnesses for appearing today.

I'm certainly committed to moving ahead on giving first nations peoples on reserve the same rights that other Canadians have. We all know it has been 30 years since the Canadian Human Rights Act was implemented, and section 67 was there as a temporary method to alleviate some concerns. But 30 years, to me, seems like a long time. It is time we moved ahead on that, especially as it relates to the protection of individual rights, especially women's rights, which I understand is one of our primary areas of concern.

I want to speak briefly to Deputy Grand Chief Archibald, to commend you on your reference to the seven sacred teachings. All of us can agree that those are certainly commendable, and good points to begin working in a successful society.

But human nature being what it is, the reality is that not everyone will always follow those good teachings. I'm wondering if you could outline what your practice has been within your communities for those who choose not to follow those teachings. There has to be some mechanism in place to address those shortcomings.

[Deputy Grand Chief RoseAnne Archibald]

As I mentioned, in the traditional sense of “prior to contact”, our view of the world is that of the collective and the need to collaborate for survival. That is the place we come from. If somebody in our community was not necessarily contributing to the survival and was doing things that were detrimental to the community, the most extreme example is that they would be banished. They would be sent outside that community to face the world on their own. That is the extreme of how we dealt with situations where unhealthiness occurred in our communities.

Today, I suppose I'm an eternal optimist in that I really believe in the goodness of everybody. One of the codes I live by is from Goethe, who was a Dutch philosopher. Goethe said: “If we treat people as they are, we make them worse. If we treat people as they ought to be, we help them become what they are capable of becoming.” That is the philosophy from which we come. We look at the individual as having perfection as a spiritual gift, which they're given to walk in this world with. From that, people always rise up.

Western society looks at it the other way, which is to pick apart the failings of individuals. In my personal experience, and in my experience in leadership, when you focus on the failings of the individual, you call more of that forth, so society begins to break down.

I'm not sure if I'm—

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

I think it's helpful. Human nature lends itself to focusing on the few negatives that exist out there instead of focusing on the success stories. That's true at the individual level but even more so at the community level. We've heard all kinds of success stories from first nations groups. I think we need to herald those stories across Canada.

I'm going to take a different tack now.

Mr. Schulze, in your letter you comment on section 25 of the charter. It's not your letter; it's from your group. You indicate that “Parliament has in fact incorporated such an interpretive clause in the Canadian Charter of Rights and Freedoms, in section 25”. If that interpretive clause is in the charter, and if removing section 67 would allow all first nations people equal access, why would we need an additional interpretive clause to ensure those kinds of things? When there are 600 different first nations communities, different practices, would it not be very cumbersome to have one interpretive clause that would fit all those different applications when the charter, it appears to me--I'm not a lawyer--has some of those safeguards already?

[David Schulze]

I'll answer the second part of your question first. I don't think an interpretive clause that would work for a large number of different communities is necessarily that difficult, because it could be drafted in a way that would require a certain amount of evidence. You would set out certain principles and say this is how these rights are to be applied in an aboriginal context in view of this and these elements, and then it would be up to the first nation making the argument to show why in their community that threshold was met. I'm giving you a quick answer to that part.

Drafting the interpretive provision would be a challenge I think, but I don't think it would be impossible.

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

I think the evidence that it would be a challenge lies in the fact that there have been a number of attempts at bringing some of those forward in some of the previous studies that have been done. To this point, I haven't seen one that has gained widespread acceptance, so that is a concern I would have.

[David Schulze]

Like Grand Chief Archibald, I have confidence in parliamentarians.

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

Don't trust us.

[Some hon. members]

Oh, oh!