Evidence of meeting #53 for Indigenous and Northern Affairs in the 39th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was peoples.
A recording is available from Parliament.
Conservative
Steven Blaney Conservative Lévis—Bellechasse, QC
Have you given any thought to what length it could be?
Director, Aboriginal Governance Program, University of Winnipeg
It's really hard, because some communities are probably ready now. Others are going to take a long time.
I think the recommendations of the Human Rights Commission before on that.... I think they were looking at 16 months or something; I'm not sure exactly. It could be a little more than a year, but certainly more than six months.
Conservative
Steven Blaney Conservative Lévis—Bellechasse, QC
Madam Cornet, would you like to have some comment on the transition?
NDP
Jean Crowder NDP Nanaimo—Cowichan, BC
I want to come back to a presentation the Canadian Bar Association made. In it they talked about the effect of Bill C-44 on the Indian Act and presented a case that has been cited by Justice Muldoon of the Federal Court of Canada, that without any kind of coherent approach, the repeal of section 67 without looking at broader impacts could actually result in the piecemeal destruction of the Indian Act.
I wonder whether you've thought about that at all and whether you have any comments on it.
Cornet Consulting and Mediation Inc.
Yes, I have thought about it. I think it would have certainly been true prior to 1982, which is why the exemption was placed in the act in the first place.
Since then, I think it's less vulnerable to being taken apart piecemeal, particularly with respect to the protection of reserve lands for members. But it's an interesting question what might happen if there were issues litigated around the Indian status provisions, which are pretty central to the Indian Act, and around band membership provisions where those are determined by the Indian Act.
That may not be a bad thing, because in my own view those issues need to be discussed, in large part because the way in which Justice Muldoon expressed himself in that case to me reflected the misconception that the point of protections for Indians, also more commonly known today as first nations people, is not to protect “Indians” as the racial labels that have been imposed upon them, but to protect their rights as peoples.
His remarks in that case, in my own view and with all due respect, seem to reflect some confusion about the distinction between peoples and their rights and an archaic, 19th-century piece of legislation such as the Indian Act, which still carries within it some of those old ideas about race.
If you think back to what happened in the early interactions with aboriginal peoples, including Inuit and Métis as well as first nations, they didn't present themselves as races. They presented themselves as peoples.
I'm sure you've heard that in many of the indigenous languages, the word for themselves in fact means “people”. The whole way in which collective rights have been asserted by aboriginal peoples is not on the basis of their race but on the basis of their distinct status as peoples who were here prior to other peoples and who have the right of self-determination. It is not on the fact that they look different from other people; I've never heard anyone say, I have a right to something because of my physical appearance. That's not the basis of those rights.
So I think to the extent that it is vulnerable on questions relating to race, we may actually get some clarification that would be helpful to the general public and others in understanding that aboriginal rights relate to rights of peoples, not—
NDP
Jean Crowder NDP Nanaimo—Cowichan, BC
If I understand it, the fear, rather than being of a planned, comprehensive approach—this was my understanding while the bar association was presenting it—was more around the notion that what you would end up with is sections struck down outside the context of an appropriate consultation that would probably see the revocation of the Indian Act.
What we're hearing from many people is that the Indian Act needs to be completely done away with or rewritten, but the fear was that it could be done in a way that didn't look at the whole piece of legislation.
Cornet Consulting and Mediation Inc.
That's true now, with charter challenges to the Indian Act.
Cornet Consulting and Mediation Inc.
Corbiere struck down a provision of the Indian Act relating to election provisions. The Indian status provisions are under challenge under charter grounds now. Presumably that's a policy consideration for the federal government: that certain aspects of the Indian Act—currently, now—are under attack on charter grounds and that those things need to be thought through.
NDP
Jean Crowder NDP Nanaimo—Cowichan, BC
And of course that's getting much more difficult since the court challenges program was eliminated. People need to have access to resources in order to be able to take some of this on, and there has been a door closed for people who don't have the resources, with the elimination of the court challenges program.
Do I have any time left?
Conservative
Conservative
Conservative
Brian Storseth Conservative Westlock—St. Paul, AB
Thank you, Mr. Chair.
Ms. Cornet, I'd be interested in hearing not necessarily about this piece of legislation and the process, but about the actual idea of repealing section 67 of the Canadian Human Rights Act. Are you in favour of it?
Cornet Consulting and Mediation Inc.
I am. That's my own personal opinion. As I said, I think more relevant is what first nations people who are affected by it think. That's far more relevant.
I think it's a good idea in part because there are cases that come before the tribunal. Section 67 is not a complete blanket exemption for all the acts and decisions of Indian Act band councils. There are many acts and decisions that Indian Act band councils take that fall outside the authority of the Indian Act.
Where that happens, challenges are brought before tribunals. If you read those cases, I think it is clear that there are some pretty serious issues. Just as in the larger society, there are issues of sexual harassment and of discrimination on any ground you can think of that's under the Canadian Human Rights Act.
When you look at the cases to see, as I said earlier, which issues fall outside the exemption and which fall in, I just don't see any rational reason for the distinction. If the Canadian Human Rights Act has fulfilled a useful function to the extent that it applies now, which I think it has, I don't see why we have that exemption for these other cases.
Conservative
Brian Storseth Conservative Westlock—St. Paul, AB
So you do agree in essence with a little bit of what my colleague Ms. Crowder is saying, that it's more about the process than about whether or not this is a good thing to do.
I'm not sure if it was you or Mr. Chartrand who was mentioning sitting down with first nations, bodies such as the AFN, and drafting some of these things. Something interesting came up at the last committee meeting. I'd be interested if you agree with some of my Liberal colleagues who feel that we should go community by community and allow them to pick out which aspects of human rights that they want to be able to apply within their individual communities. Do you agree with that?
Cornet Consulting and Mediation Inc.
I think the benefit of speaking with first nations communities is that you'll have a better idea perhaps of what structural and program changes need to accompany this repeal, and I think the commission referred to some of those issues.
For example, the review panel initially looked at the entire Canadian Human Rights Act, including this exemption. It made quite a number of recommendations about the operation of the Canadian Human Rights Commission and the tribunal. I don't believe the government, or any government of any stripe, has ever replied to that report in its whole. So there are other issues about the operation of the commission and how best to deliver human rights protection to all Canadians.
There may be specific issues in the first nations community of which we should be aware. That would be the advantage of speaking to people about the application of the act.
Conservative
Brian Storseth Conservative Westlock—St. Paul, AB
Do you agree with my colleague opposite that the individual community should be able to pick out which human rights they feel should apply to their community and which ones shouldn't?
To me, it then seems like a hodgepodge of human rights all across the country, if you go to that degree.
Cornet Consulting and Mediation Inc.
I think the issue would be that just as each provincial government has jurisdiction to enact human rights statutes in its sphere of jurisdiction that aren't federal, conceivably first nations could do a bang-up job on enacting their own human rights codes.
Conservative
Brian Storseth Conservative Westlock—St. Paul, AB
I don't mean to interrupt here, I just want to have a little back and forth with you.
Cornet Consulting and Mediation Inc.
I think that would be more a straightforward way if—
Conservative
Brian Storseth Conservative Westlock—St. Paul, AB
But the local municipality operates underneath the governance act of the provincial government.
Conservative
Brian Storseth Conservative Westlock—St. Paul, AB
So I'm just trying to get from you your impression of whether we should go right to the individual community level, as my colleague across has suggested, or if we should go with a broader approach. Should that be at the AFN level? I'm just asking your opinion on this.
