Indigenous and Northern Affairs Committee on May 8th, 2007

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Are you saying that the memorandum gave just an opinion then?

[Deputy Grand Chief RoseAnne Archibald]

No. What I'm saying is that the idea of underfunding is one component of fixing—

[Rod Bruinooge, Conservative, Winnipeg South, MB]

And system reform is another?

[Deputy Grand Chief RoseAnne Archibald]

Yes.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

That would be our argument all along, that it's the system itself that needs changing. This is part of that process.

[Deputy Grand Chief RoseAnne Archibald]

I think it's one small part that you keep focusing on, that you think is going to create a floodgate of opportunities—

[Rod Bruinooge, Conservative, Winnipeg South, MB]

But the system needs to be fixed.

[Deputy Grand Chief RoseAnne Archibald]

—and it's really not. It's one piece. And I'm not saying that repealing is an invalid suggestion. I'm just saying there's a larger picture that we have to look at. We have to be strategic in our thinking, and we, government and our people, have to be innovative in how we proceed into the future.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

But would you suggest that funding this broken system is the best means for delivering resources to first nations people?

[Deputy Grand Chief RoseAnne Archibald]

I'm not sure what you're getting at.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

The system is broken. We both agree on that. So you're saying increasing the funding to this broken system is an effective means of delivering resources to first nations people on the ground level.

[Deputy Grand Chief RoseAnne Archibald]

I'm not sure that's what I'm saying. I think that's what you're saying.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

That's definitely what I would say.

[Deputy Grand Chief RoseAnne Archibald]

Well, that's what you're saying.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

So I'm asking you the question. Do you agree with that? Do you agree with funding a broken system?

[The Chair, Conservative, Colin Mayes]

That's five minutes. That's all the time we have. We'll move on to the next.

Mr. Bagnell.

[Larry Bagnell, Liberal, Yukon, YT]

Thank you.

Thank you all for coming. It's been very helpful.

Before I ask Mr. Schulze a question, I just wanted to come in on Mr. Albrecht's suggestion of why you want more than a year when the Human Rights Act took only a year. I think they probably did some consultation in advance of the Human Rights Act. We've heard time and time again that there was no consultation in this. That would go a long way. Second, of course, the Human Rights Act was passed inside a nation that was used to having laws passed for them. Now we're dealing with a whole bunch of other nations, and an entirely different culture and a whole different coordination, so it's a much larger task.

Mr. Schulze, right at the beginning you talked about people side by each—I think maybe in Quebec, but very close—who had two different laws applying to them. I'm just curious, if nothing were to change, if this didn't happen, and if some of those people were charged and they were under a different regime, they could go to court and say it's not constitutional because they're not under the equality provisions of the charter, that they're being charged under something that wouldn't apply to someone else.

[David Schulze]

That kind of argument has been made and I don't think it would work. The courts generally haven't seen residence as a source of inequality; people, young offenders, are treated differently in different provinces and the courts have said that's okay. That's just part of living in a federal system.

[Larry Bagnell, Liberal, Yukon, YT]

I was interested in the Canadian Human Rights Commission's aboriginal employment preferences policy. The first thing that struck me was that there was no mention of Inuit in it, but my other question was about where it says they do not allow preference to be given to a member of a particular first nation band or tribe, even though preference may be given to first nations people in general. But all across Canada, in municipalities, provinces, territories, and the federal government, if there's a project in the community they'll write a deal that gives that particular first nation tribe or band employment preferences or economic preferences for a project such as a mine or something.

It seems a little strange that they're all doing something that seems to be in contradiction....

[David Schulze]

I've worked on human rights files, but it's not my principal area of expertise. I do know that under the Quebec charter, which serves a similar role to human rights codes in other provinces, there was in fact a case that went to the Supreme Court of Canada, where Longueuil, I believe it was, had a residence requirement, and it was struck down as being contrary to—I can't remember what right. I think it had to do with family status and privacy.

So it's not clear whether that's always legal, even elsewhere in the municipality.

[Larry Bagnell, Liberal, Yukon, YT]

My understanding is that under the affirmative action sections of the charter, though, you can make such provisions, and it could be for a single first nation.

[David Schulze]

That may be, and this lets me answer the question from Ms. Neville that I never got to. There is what's called a bona fide occupational requirement defence for discrimination. It's open to a first nation to say a requirement of such and such a job is that you have to understand, let's say, Anishnabe culture, and if they can satisfy the Human Rights Commission, or the tribunal if it goes to a hearing, that a knowledge of Anishnabe culture is a bona fide and good faith requirement of that job, a bona fide occupational requirement, then it will be held not to be discrimination. You can do that.

[Larry Bagnell, Liberal, Yukon, YT]

Yes, but I was actually going much farther than that and saying the Province of Ontario would give permission to open this mine here as long as you give the Cold Lake First Nation so many jobs.

[David Schulze]

Yes. I'm sorry, I wasn't answering your question completely. You're right.

There's a second thing, which comes under...I'm just going to make sure I don't misinform the committee. Yes, there is also the power to create equity programs, which is in the Canadian Human Rights Act, and the guidelines that we cited in the letter from the bâtonnier talk about how the Canadian Human Rights Commission has interpreted that power to create equity programs. They've said equity programs mean you can give a preference to aboriginals in hiring, but it doesn't mean that in a particular community you can give preference to members of that community.

[Larry Bagnell, Liberal, Yukon, YT]

So certain provinces can give local employment benefits, but we can't give local employment benefits to first nations.