Indigenous and Northern Affairs Committee on May 8th, 2007

[David Schulze]

To answer the first part of your question, though, section 25 is an interpretive provision about the charter. The charter rights are similar to the rights in the Canadian Human Rights Act, but they're not the same thing. If I'm before the Canadian Human Rights Tribunal, I can't ask them to apply section 25 of the charter because they'll say, “No, no, this isn't the charter. You've been accused of discrimination contrary to the Canadian Human Rights Act, not discrimination contrary to section 15 of the charter.”

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

Do I have a little more time?

[The Chair, Conservative, Colin Mayes]

You have 20 more seconds, but I'll add it to the next—

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

No, I won't take more than 20 seconds.

In 1977, when the Canadian Human Rights Act was implemented, my understanding is that it was implemented within one year. So I'm somewhat surprised to hear from many of our witnesses that we need 36 months to implement it in this case. Could you respond to that?

[Grand Council Chief John Beaucage]

I talked about it earlier, that there have been many processes set up in first nations right across the country that may not fall within the confines of the present human rights legislation, and it really deals with the paucity of resources available to these communities. There are situations in which decisions are made saying that people can't have houses, or people can't have an air ambulance, or people can't have a post-secondary education, because of no resources. I think we need to have education, we need to have a local dispute resolution process within the community, so that we don't have to go outside the community and so there's better understanding within the community context.

[The Chair, Conservative, Colin Mayes]

Thank you.

Mr. Russell.

[Todd Russell, Liberal, Labrador, NL]

Thank you, Mr. Chair.

Good morning to every one of you.

Some very interesting points are being raised. There are a lot of questions being directed at witnesses about what their interpretation of “adequate consultation” is. What is it, about two years since the Taku and Haida decision came down? Have any of you ever seen the government policy that is supposed to enact around what its obligations are with regard to consultation? Have any of the witnesses ever seen this document, with the government's own...?

[Grand Council Chief John Beaucage]

No.

[Todd Russell, Liberal, Labrador, NL]

So that's two years after a Supreme Court decision came down. I use it as a point, when people say sometimes the transition period is too short or...well, some people say it's too long if we go to 36 months. You know, it takes time for communities to adjust, once you repeal a law or bring in a law. I simply use that as a point, that the government itself doesn't even have its own vision of consultation down, but then it demands of aboriginal people to define what their vision of adequate consultation is.

I think there needs to be some coming together of that.

I would like to ask Mr. Schulze a question. The government has said, “Well, we don't need this sort of non-derogation clause, or we may not even need this interpretive clause, because people can always appeal to section 35 of the Constitution.” They're referring to the existing aboriginal treaty rights and that type of thing, subsections 35(1) and 35(2), but the government has fought every single one of those in court. Every time an aboriginal group or individual has brought an action based on section 35 rights, the government has fought that. It has usually taken 10 years, on average, at the cost of millions of dollars.

How do you see section 35 as part of this whole debate around Bill C-44?

[David Schulze]

It's not a point the Barreau chose to address directly in their letter. As a lawyer in the field, I have a lot of thoughts on it, and I'll try to limit my comments to the Barreau's position.

I think the point you made, Mr. Russell, is a good one. Proving a section 35 right is a very complicated and generally very expensive undertaking. Honestly, the community that wanted to argue a section 35 right would really have to budget. I don't want to put a figure on it, but it's a great deal of money to lead the expert evidence that would satisfy a tribunal that this was really a constitutionally protected right that took precedence over the Canadian Human Rights Act. It's legally true, but I'm not sure if it's a very practical solution.

[Todd Russell, Liberal, Labrador, NL]

That has been some of the debate: we don't need this interpretive clause, this non-derogation clause, because you can appeal to section 25 of the charter or you can appeal to section 35 of the Canada Act of 1982. To me, they do not seem to be adequate measures for us to go on, or an adequate avenue to explore. The reason I say that's so important is if people believe you can go somewhere else for a remedy, but it's not really there as a remedy, then we've got to come back to what other people are saying about the need for these interpretive clauses, the need for these non-derogation clauses under the Canadian Human Rights Act.

I was also very interested in hearing what you were saying. Could you give us an analysis? It seems this legislation would apply to some aboriginal communities and not others. There would be a different law for Westbank than for other groups. Could you give us a clearer sense of what you mean?

[David Schulze]

I made two points.

The first point is to the extent that there are communities that are not under the Indian Act, of which there are quite a few now: the Cree-Naskapi of Quebec, the Nisga'a, Yukon first nations, and Dene and Dogrib of the Northwest Territories, without even going into the Inuit. If they're not under the Indian Act they can't invoke section 67, as far as I can see. I fear one day I'll argue the opposite and someone will pull out these minutes, but I have trouble seeing it as a winning argument to say that a first nations government that's not under the Indian Act can still use section 67 as a shield against a complaint under the Canadian Human Rights Act. That was the first point I made.

The second point I made was about Westbank in particular. The Canadian Human Rights Commission has the power to issue directives on how certain parts of the act will apply. They've said they've issued an aboriginal preference policy that says preference to aboriginals in hiring is okay; preference by a council to members of its own community is not okay. I can't pretend to explain the reasoning. However, when the federal government negotiated a special self-government agreement with Westbank, which ended the application of parts but not all of the Indian Act to the Westbank First Nation, they included a special provision that says the Canadian Human Rights Act applies, but Westbank has the right to give preference in hiring and contracting to its own members.

I would say we're probably already in a situation where the Canadian Human Rights Act applies one way in Westbank and another way in most Ontario reserves.

[The Chair, Conservative, Colin Mayes]

Thank you.

On the government side, Mr. Storseth, please.

[Brian Storseth, Conservative, Westlock—St. Paul, AB]

Thank you very much, Mr. Chair.

I want to thank you all for coming forward today. It's been rather enlightening.

Deputy Grand Chief Archibald, I listened very intently to what you had to say. You talked about the seven sacred teachings as the basis of how you live your life. Can you explain to me how that's different, how those seven points you brought up aren't in the Charter of Rights?

[Deputy Grand Chief RoseAnne Archibald]

How is it different is your question?

[Brian Storseth, Conservative, Westlock—St. Paul, AB]

Yes.

My point is I think all seven are touched on in the Charter of Rights that we as Canadians try to live our lives by as well.

[Deputy Grand Chief RoseAnne Archibald]

It's different in that first nations people don't have the same rights as everybody else.

[Brian Storseth, Conservative, Westlock—St. Paul, AB]

That's the problem.

[Deputy Grand Chief RoseAnne Archibald]

I don't think it's a problem. I think it's a reality of the history of our country, which is our people welcoming others, and having your laws suppress and replace and sort of cover up the original laws of our people.

Why I talk about the seven sacred teachings is to let the committee know that while the repeal of section 67 is one small thing that can be done, the larger issue of dealing with human rights in the first nations community must come from the values of our people, and those are our values.

We can actually find common ground. I think that through meaningful dialogue and a process other than our coming to the committee and making presentations, we could actually begin to find the common ground between what you're saying and what I'm saying. That is exactly what we want. We want to find areas where we can be mutually respectful of each other's values, and have those as the basis of how we proceed in this country.

Earlier Mr. Albrecht talked about why we can only do it in a year, why we are asking for so much time. Well, it's because our rights, the basis of our rights and the basis of our existence in Canada, are like nobody else's in North America. That's where we come from, that deep history that actually precedes all of this government process. That's the thing that keeps us moving forward as a people. It's a spiritual principle.

It's hard to take a spiritual principle and try to figure out the western law application of that. What we have to do is just find the areas where we can work together, and we are willing to work together.

[Brian Storseth, Conservative, Westlock—St. Paul, AB]

I'm a little confused. We've had some witnesses come forward with a little different suggestion, basically saying that they agree that there should be human rights given to first nations people, the same as there are for all other Canadians, but that it's a matter of money and timing, and we need more money.

What I'm hearing from you--and tell me if I'm wrong, because I'm trying to get your feedback on this--is that you don't actually believe that the people you represent should have the same human rights as average Canadians do.

[Deputy Grand Chief RoseAnne Archibald]

That's not what I'm saying.

[Brian Storseth, Conservative, Westlock—St. Paul, AB]

Okay. Could you clarify that for me?

[Deputy Grand Chief RoseAnne Archibald]

I think I just did.

[Brian Storseth, Conservative, Westlock—St. Paul, AB]

Then, in regard to repealing section 67, you're not in favour of that whatsoever?

[Deputy Grand Chief RoseAnne Archibald]

That's not what I said either.

What I've brought to this committee is a larger view, not so much to pick apart the legislation or to pick apart specifics of the process, but to look at the bigger picture of what this means. So the repeal of section 67 is one small part of that solution to having first nations have the same standards of living, the same kinds of opportunities that everybody else in this country has.

I'm not saying we're opposed to anything. I'm just saying let's look at the larger picture. And I'm asking you, for example, to understand the values that I've just presented to you as the seven sacred teachings and to have some kind of mutual respect for that, for the values that the Canadian Human Rights Act has, the principles of basic human rights, and how those things are linked together.

I'm not being combative in any way.