Indigenous and Northern Affairs Committee on May 10th, 2007

[The Chair, Conservative, Colin Mayes]

He won't have a chance to answer if you don't—

[Steven Blaney, Conservative, Lévis—Bellechasse, QC]

All right. Thank you, Mr. Chairman.

We are consulting several groups. Aside from the additional delays resulting from the consultation process, and the risk that consultations get bogged down, as to the concerns I have just raised with you, what more could be attained? We have begun a parliamentary consultation process, which, I agree, is not an exhaustive consultation of each and every single first nation. What more would be achieved, when we are seeking to amend and strengthen this legislation in accordance with your recommendations?

I have concluded, Mr. Chairman.

[Chief David General]

Thank you very much for the question.

In your processes and your responsibilities as parliamentarians, and in ours as first nations leadership, we are all looking at improving the lives and interests and well-being of first nations citizens.

On your question that it's difficult to consult everybody, we need to consider the impact. That is something on which I have heard no discussion from anybody yet. They have not described what the impact will be. We are currently in a process of trying to reconcile our relationship as governments. We've been directed by the courts to reconcile what exactly section 35 means. We're trying to reconcile jurisdictions, resources, and land, and I would not want to see this discussion of individual rights, although they're important, have the opportunity to derail any work or progress that we're making on the discussions of land, jurisdiction, or fiscal responsibility. We need to consider this bill and its impact on some of the other works and discussions that are already in progress and that have had years and years also put into them. As I mentioned earlier, the land claims processes are on the minds of all first nations people.

Again, there is this whole balancing of rights and responsibilities. We also need to see the balancing of benefits and impacts.

[The Chair, Conservative, Colin Mayes]

I'm going to have to finish now.

I want to comment that when the charter was first passed, those were some of the unknowns that also were part of that charter. That was determined later, as the court cases determined what the impact was. So that would happen too. I'm not disagreeing with what you're saying, but I just want to say that those things happen in time.

I want to thank the witnesses very much, and I really do apologize for the delay. It wasn't meant to be, and I appreciate your being here today.

I will suspend now for two minutes to have the next panel come forward, please.

Thank you.

[The Chair, Conservative, Colin Mayes]

We will now reconvene.

We're moving on to panel B, with witnesses from the Native Women's Association of Canada. We have with us Beverley Jacobs, the president; and Ellen Gabriel, who is the president of the Quebec Native Women's Association.

Welcome, witnesses, and thank you very much for your attendance and your patience. We had our 10-minute address earlier, so we'll just move on to questions.

Do you want to make a little bit of a statement, or can we move right into questions?

[Beverley Jacobs, President, Native Women's Association of Canada]

Yes. I still have some of my presentation left.

[The Chair, Conservative, Colin Mayes]

Okay.

Committee members, we're going to ask the witnesses if they want to take a few minutes to summarize their previous presentations, and then we'll move right into questions.

We'll start with Madame Jacobs.

[Beverley Jacobs]

Good afternoon. Thanks for the opportunity to come back.

I think where I left off was talking about the responses to the consultation issues. In the committee's report on Canadian human rights, they recommended an immediate repeal with a transitional period of 18 to 30 months, and Bill C-44 provides for a six-month transitional period.

As you know, we do support the repeal, but there has to be at least 36 months. That is what we have put together as a transitional period. I think it's an unreasonable expectation for communities to be prepared for a drastic change in legislation, and so far, the way the legal process works, it's far too complex to reconcile anything within six months. We have to be aware and sure that there are adequate resources available in the communities to ensure that this issue is addressed properly.

In the work that we've done, we wanted to make sure there was meaningful consultation. It was apparent during the matrimonial real property process that this was something that really needed to occur. There were serious and validated concerns that there wasn't enough time to ensure that there was a meaningful consultation process, since we only had three months to do that.

So as a minimum, in the early stages of the discussions, NWAC did ask for at least a year of consultation. The aboriginal women we talked to voiced this concern and felt a great deal of skepticism in the process underscoring the fundamental nature of consultation where important legislative change directly affects aboriginal peoples.

In the report of the special representative on the protection of first nations women's rights, a key recommendation was free, prior, and informed consent. This is absolutely crucial when individual and collective rights of aboriginal women are being impacted. The report elaborated that aboriginal women find legislation difficult to understand, that they would have greater capacity to offer constructive feedback if they were informed about the laws that affect their collective and individual rights.

The focus group recommended that an education and awareness strategy be implemented, where aboriginal women's organizations provided tools and resources to educate aboriginal women about their legal rights.

Then in June 1998, INAC acknowledged that there was no explicit departmental policy or directive to guide consultation with first nations. Although the broad, flexible approach used by the department has been advantageous in meeting the diverse needs, there has been a lack of consistency regarding the principles and the sharing of best practices.

The Auditor General's report in 2006 contends that meaningful consultation will reflect positively on aboriginal and governmental relations. Good governance and a trusting relationship between aboriginal communities and governments are essential in improving the quality of life for aboriginal people.

If the Canadian human rights mechanisms are to have any weight in aboriginal communities, full and meaningful consultation must occur. Since aboriginal women and children are most affected by human rights violations under the Indian Act, it is imperative that they are also included in this process.

As I said at our last meeting, we did develop a whole five-year implementation plan. The implementation plan would involve INAC, the Department of Justice, and the Status of Women. We also had formal discussions with the former Law Commission of Canada and the Canadian Human Rights Commission.

We have also had discussions with the president of the Indigenous Bar Association with respect to specific indigenous legal traditions that need to be respected in our processes.

From the proposal that we developed, we heard nothing back from any of the federal departments. We do believe it is a sound plan and that first nations communities have to be actively engaged in implementing the repeal.

This implementation plan addresses many of the concerns expressed about Bill C-44 and the immediate repeal. There needs to be some building upon the previous research with a goal of ensuring the recognition of indigenous legal traditions and exploring the best way to reconcile the domestic legal principles in the charter as well as in the Canadian Human Rights Act.

Canada has been proactive in advancing integration of indigenous legal traditions in some first nations communities with the implementation of various aboriginal restorative justice initiatives. We think that together with first nations, government parties can build upon that approach to also address human rights protections.

We believe there has to be an acknowledgment of the emerging knowledge base of elders in our community relating to indigenous legal traditions as well as looking at the responsibilities within the communities themselves and the leadership in the communities to respond to those issues.

We think there needs to be a bottom-up approach taken by engaging first nations through capacity-building. This will provide communities with the practical means to control and access justice and resources.

That's about it. There was a plan, with year one, year two, year three, year four, year five within our plan. We were hoping that with the development of this, we would work directly with first nations communities, with whom we developed very positive relationships through our MRP consultations. Also, there are best practices out there already that are addressing this issue seriously.

We believe human rights protections require much more than changing the black letter of the law. The implementation process and the allocation of resources are essential to success. There have to be meaningful consultations with all of the NAOs, first nations communities, and individuals throughout the process.

We need to ensure that there is a 36-month transitional period. Anything less would not account for the long-term impacts and root causes of human rights violations.

We undertake on the government to immediately undertake an open, transparent process for assessing the impact on individuals and first nations communities and to commit to an implementation plan that is collaboratively developed by government and first nations communities, including full and meaningful participation of aboriginal women. Through this plan, it will enable a meaningful engagement process to prepare for the impacts of the repeal of section 67.

Thank you.

[The Chair, Conservative, Colin Mayes]

Thank you, Ms. Jacobs.

Madam Gabriel, do you want to add anything to what you said in your first appearance?

[Ellen Gabriel, President, Quebec Native Women's Association]

No, I would just ask if everyone's had a chance to read both our memoirs.

[The Chair, Conservative, Colin Mayes]

I'm not too sure about all the committee members, but—

[An hon. member]

I would hope so.

[The Chair, Conservative, Colin Mayes]

We'll begin our seven-minute round of questions with the Liberal side....

Mr. Lemay.

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

Point of order, Mr. Chairman.

If my colleagues agree, I move that we ask questions for only five minutes each. Otherwise, we will not have enough time to go over everything, because it is already 1:15 p.m. This way, everyone will have a chance to ask questions.

[The Chair, Conservative, Colin Mayes]

Certainly.

[An hon. member]

No problem.

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

Okay. Merci.

[An hon. member]

We need 48 hours' notice.

[Voices]

Oh, oh!

[The Chair, Conservative, Colin Mayes]

We're wasting time now.

We'll begin with Mr. Russell.

[Todd Russell, Liberal, Labrador, NL]

Good afternoon to each of you, and welcome back for the second time.

I find some of this pretty remarkable. The government has raised this issue around consultation, and they continue to ask questions of the aboriginal witnesses we have in front of us: What's your view of consultations? How much is enough? Do we have to talk to every aboriginal person out there? My comment might be that at least you should talk to somebody within the aboriginal community, not necessarily everybody.

In terms of timeframes, I find one thing very hypocritical on the part of the government. In order to get an honest and sincere apology around Indian residential schools, we have to wait four to five years for the Truth and Reconciliation Commission to do its work. But in order to implement Bill C-44, we're saying let's do it in six months, without any consultation. So I think there's a double standard, to say the least, when it comes to the government's response.

The government has also held out aboriginal women as the poster child for moving very quickly to pass and to implement Bill C-44. But what I've observed and heard is that aboriginal women have similar, almost identical concerns to the other witnesses we have.

How do the women you represent feel about the approach being taken by government? It almost seems to be a little bit of a divisive strategy, holding out one segment of the population, because human rights run the gamut, not just on gender, but on different circumstances.

So I would just like to know how you feel about that.

[Ellen Gabriel]

I guess it's similar to the so-called consultations of matrimonial real property. We were given three months after the contract was signed, but really, in essence, three weeks, and then it was prolonged.

How many people is proper consultation? Every single last person, because in our culture we are talking about human rights and collective rights. They're more stringent in our traditional ways. It's about spirituality, about taking care of yourself as a person and understanding yourself, about how to respect yourself--your body, your mind, your soul. And then it's how you respect other people-- heir body, their mind, their soul. And then it goes out to all the living creatures, the earth that nourishes us, and the creatures that feed us and clothe us. That is what human rights are, for us, because that is our obligation. It's not about “you can't do this or can't do that”.

We have talked about colonization. We have talked about the fact that aboriginal women have lost their rights and their standing in our communities, and we have both stated that we support the repeal of section 67. We don't necessarily support the way it's being done right now, without proper consultation. So for me--at least for the people I represent in Quebec--proper consultation is a necessity for there to be a semblance of respect on the government's part.

[Beverley Jacobs]

I'd actually like to respond to your comments about the poster child.

With respect to NWAC, we're working very closely with Minister Prentice with respect to the whole organization, the national aboriginal organization of the Native Women's Association of Canada, and the fact that we have a core funding crisis right now. And aboriginal women being a poster child and using aboriginal women as a pawn, I think, is totally wrong. It's totally wrong because it creates a division between us as women and our communities, and that is not what we want. That is not what the women in our communities have ever wanted.

[The Chair, Conservative, Colin Mayes]

Mr. Lemay.

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

Thank you for being here, once again. I will try to be clear. I will weigh my words carefully. I will try to be brief, concise, but this may be difficult.

It is abundantly clear that this bill, as tabled, must be amended. This is obvious. We will most likely have very specific amendments to make. For example, an interpretive clause, an obligation to consult, are provisions that must be introduced. In addition, to my mind, the timeline before this bill comes into effect should be 36 months, approximately 3 years, because this timeline is in keeping with the ruling made by the Supreme Court to bring into effect section 15 of the Charter of Rights and Freedoms. I believe that we cannot ask for anything less than this.

Ms. Jacobs, Ms. Gabriel, I need to understand one thing. Would you go so far as to ask that our work be suspended until such time that adequate consultation has been concluded, and run the risk of allowing this bill to die on the Order Paper, should an election be called over the course of the year, because we are after all dealing with a minority government?

Or rather, would you be willing to adopt the bill with specific amendments, and this is the first time I'm hearing such an interesting suggestion—including an amendment to delay the bill's entry into force? You suggested a timeline of five years; I personally would suggest three years.

I do not want to negotiate this publicly, but would you go so far as to agree to the adoption of this bill, with very specific conditions and amendments? Or would you prefer to run the risk of dealing yet again with another minority government, be it Conservative, Liberal, but... This is obviously a far-fetched hypothesis, but what if a new government were to table a bill that did not include anything about consultations...?

I would like to have an answer. I am of two minds on this issue and would like to hear what you think.