Indigenous and Northern Affairs Committee on May 10th, 2007

[Chief David General]

It sort of works on a sliding scale. In this piece of legislation, the recognition of jurisdiction for first nations to deal with human rights issues would be the optimum. But on a sliding scale, we realize we are in a parliamentary process and can only offer amendments to the bill. Some of the items Mr. Merasty offered--the non-derogation clause, the interpretive clauses--and maybe even consideration in developing an implementation schedule so we know what the real rolling out and operationalizing of this bill is going to be, would help a lot of first nations understand what it's about.

We take a chance every day. We take risks every day when we come forward to the government and ask for clean water and housing. That is no different from the approach we have for this issue. We always hope there is political will--good minds, as we conceive in our culture. We hope there is a willingness, that human rights doesn't know minority or majority governments, that it doesn't know party lines; it's just something we need to do because the Creator has obligated us to do this for our brothers and sisters.

[The Chair, Conservative, Colin Mayes]

Thank you.

Madam Crowder.

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

Thank you, Mr. Chair.

I want to thank you for coming to present your views to the committee today.

On a point of clarification, there is no reason why Bill C-44 cannot be put on hold until appropriate consultations have taken place.

But I think you've both addressed a far larger issue. We've heard consistently from witnesses who have come before the committee that they support the repeal of section 67. But it is the process. I know certainly that some of my colleagues and I have spoken about the need to repeal section 67.

Chief General and Chief Balfour, you've both touched on the larger problem. It doesn't matter whether it's Bill C-44, matrimonial real property, housing, or what bill comes before the committee; the larger issue is the lack of recognition of a nation-to-nation status. If we were talking to any other treaty signatory as a Canadian government, we would not present them with a fait accompli; we would not present them with a bill and ask them what they thought. If we wanted to change a treaty in which we'd already engaged, or change some rights that we had agreed to through a treaty process, we would engage in dialogue and consultation before we drafted any kind of legislation or treaty changes.

I think that comes to the heart of the matter of this. Once again we have a government that presents you with a proposal and asks what you think, instead of coming to you first and saying, “We think we need to do something about the repeal of section 67. How do you want to do this?”

I wonder if you could comment on that.

[Chief David General]

Again, I thank you for the question.

I can only say that the extreme standard and requirements of the duty to consult should have been looked at. This piece of legislation, on the sliding scale that the courts have provided us, impacts on our existing aboriginal and treaty rights, and therefore it needs the most consideration. It needs a large duty to consult, with ample time to consult.

It may require an accommodation. This sort of nation approach to providing jurisdiction, recognizing jurisdiction, and letting us look after the human rights codes and laws within our territories would be a significant accommodation. It may even require our consent.

So we need to study exactly what each other's obligations are. We have an obligation to our own people. The Crown has an obligation to us, working through this process. To understand this and have our citizens understand this, we need more time just for the consultation part of it.

A piece of legislation like this, although warranted and needed, is rushing into issues. The 30-year wait for this piece of legislation trivializes the 200-year wait we've had to resolve our land issues, our resource issues, and some of the history of the residential schools that our people have endured.

So when you talk about balancing 30 years against 200 years, I think you owe us the consideration of providing us more time to make sure you get this right. Then we won't have to go to the courts for interpretations and remedies.

Let's take the time, be considerate, be pensive, and do it right the first time through.

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

Chief Balfour, would you like to comment on that?

[Chief Marcel Balfour]

Can you rephrase the question? That was a big one for me.

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

Well, I guess for me it's a philosophical and legal consideration of whether the Canadian government recognizes first nations on a nation-to-nation basis. Canadian governments already have treaties with other nations outside Canada. We would never presume to change a treaty unilaterally without approaching the nation first. I would argue that in this case, and in any other piece of legislation the Canadian government puts forward, they're obligated to engage in nation-to-nation dialogue prior to developing and drafting legislation.

I think this is just an example of how successive Canadian governments, over many years, have unilaterally made decisions and then come and asked you what you think of the idea, instead of doing it before. And I just wanted you to comment.

[Chief Marcel Balfour]

Right, I agree. And it's not just this government. As I said before, the last time I was here before you, the FNGA, from the previous regime, was being pushed forward, and I think a lot of communities, including Norway House, weren't very comfortable with the approach the federal government was taking with us.

Yes, consultation is cool. It makes sense. The Supreme Court says it. Why don't we do it?

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

You made a comment about the Indian Act. When the Bar Association came before us, in their submission they actually talked about the fact that Bill C-44 could be used as a piecemeal approach to take apart the Indian Act without any appropriate look at the comprehensive picture. I wonder if you could comment on that, because you raised the Indian Act.

[Chief Marcel Balfour]

Oh, definitely, yes. That's where I was going with that. I totally agree.

I don't have the resources of the Canadian Bar Association, and I just did this yesterday and the day before, so I regret that I haven't fully analyzed it from that perspective. Definitely, you can hive off tonnes and chunks of the Indian Act. That's cool. That makes total sense.

That legal analysis I understand, and that's what concerns me. But I haven't seen anything, because I just did this in my spare time while I was doing my other duties. But I would make time in the community to participate in an analysis of that at the local level and then also take time to examine some of those things, because that's clearly where I was going with some of the comments I made on the Indian Act.

[The Chair, Conservative, Colin Mayes]

Thank you.

We'll move on to the government side. We'll have Mr. Bruinooge.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Thank you, Mr. Chair.

I'd like to thank all the members who are before us today: Chief General, Chief Balfour, and Mr. Powless. Thank you for coming today.

I'm going to perhaps go back to a comment you made, Mr. General, in terms of human rights. You said that human rights are the inherent right of the Six Nations government. I was wanting you to perhaps define human rights. Can you do that? Considering that it's the inherent right of the Six Nations government, do you have a definition of what human rights are?

[Chief David General]

I don't have something about that pocket right now, but we'll provide you with something more substantial later.

Basically, when we talk about human rights, it's a responsibility rather than a right, especially when you're in a position of leadership, whether elected or traditional, to make sure that the quality of life--the safety and well-being of your people--is organized in such a way that they can gain the greatest benefits from the rights the Creator provided to them. This is all laid out to Iroquoian people--Haudenosaunee people--in the Great Law.

You may have heard that the arrival of the Great Law in our territory came from a lot of conflict. We had warring tribes all around us. So this is why five nations came together, realizing that there was more strength from putting their energy and time and minds to looking at peace. The Creator provided us with a messenger to say what our responsibilities were.

It's very voluminous. I can get you a copy of what the Great Law is. That is the basis of principle that even we, as an elected council.... Although we're not the formal bearers of that responsibility of the Great Law, it's something we've all grown into, that we all grow up with. And it becomes the basis of our world outlook on our responsibilities to human beings, to wildlife, to the land, and to whatever the Creator provided to us.

So that's the basis of our sense of responsibility for human rights.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

So would human rights apply equally to all community members in your community?

[Chief David General]

Yes.

Richard.

[Richard Powless, Consultant, Six Nations of the Grand River]

The distinction that I think we make, and Chief General has made in the presentation, is that it is the balancing of the individual and the collective. In the Iroquois communities, it is the collective right. It is for the collective good, and you need to find that balance in the community. That is the distinction around human rights.

Human rights are common sense. They're natural rights. They are the rights of people to live and grow and live in healthy communities and aspire to be working, all the things that everyone can agree to.

But regarding how you approach that from the Canadian human rights perspective, legislation is based on the individual--the individual right always triumphs over the collective one--whereas in our community and our society, it is the collective that is primary, and we have to find what the balance is. Six Nations is the one that is best placed to determine that, to find that balance within our community.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

How is that determined? How would you determine the balance?

[Richard Powless]

Right now we have a collective society, and when there is a need, people get together and meet. If there is a conflict, people get together and meet and discuss it. We don't always have to go immediately to court and sue people, individuals. It is about trying to find some consensus around the issues and around the problems.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

And human rights would be defined through that same process.

[Richard Powless]

One of the processes, yes.

[Chief David General]

If I may add to that, I really don't think there is this compartmentalizing of human rights. There's this right to exist, and we try to instill in all of our children the relationship with the land, with the Creator, with each other.

So I think we resist this compartmentalizing and view it more as responsibilities to each other, rather than as having rights. We are talking about collective rights and individual rights, but the flip side of that coin is the responsibility to each other. There is more emphasis placed on that responsibility rather than on the whole discussion of rights.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Chief General, you also talked about how the rights of minorities apply to “us”--you being the Six Nations people--I guess in terms of the Canadian context, how minority rights apply to you, and that it is essential for many of the rights that you have.

Are there any minorities within your community?

[Chief David General]

Just to answer the previous question, I said numerically, in numbers, first nations people are low in numbers, so that would justify us as a minority.

But you are talking about inside of our community.

I guess everyone could view themselves, if they have a different point of view in terms of the different religions that we have in our territory.... Yes, they would be in the minority compared with the whole, the total membership. The number of people who make their living off the land, like farmers, is small, so they would be a minority within our community. As for the number of people who are still hunters or fishers, not everybody is a hunter or fisher in our territory, so they would constitute a small group or a minority inside the larger number.

So yes, there are. I am not sure if you want to call them minorities, but they have different perspectives and different interests, yes.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Are there any methods for balancing the minority rights within your community with the majority rights?

[Richard Powless]

The reference was to section 27 of the political protocol, which talked about minority rights with respect to the state, so indigenous peoples being a minority within the state, as is known in international law and in Canada. That's what the reference was to.

If you're asking whether there are racial minorities, we are all first nations. Haudenosaunee is the word we use to describe ourselves, but within that there are seven nations--Mohawk, Cayuga, etc.--within the community.

So I'm not sure what your question is aimed at. Are you talking about racial minorities? What kind of minorities are you talking about?