Indigenous and Northern Affairs Committee on May 17th, 2007

[Wendy Cornet]

Would the repeal be undone?

[Rod Bruinooge, Conservative, Winnipeg South, MB]

I mean the repeal of section 67.

[Wendy Cornet]

Well, I don't.... That's a good question. I hadn't considered it.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

What would it look like? Could you consider it?

[Wendy Cornet]

If it were to be undone, then you'd be back to the status quo. As with any other provision that was deemed unconstitutional, you'd be back to the drawing board to get it right.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

In theory, though, there would be a period of time in which the Canadian Human Rights Act would apply to first nations people, and then if the repeal were undone, it would be removed from first nations people. Would that be the scenario that you envision?

[Wendy Cornet]

I'm not aware of a situation in which repeal of a provision has been struck down, but I suppose that's theoretically possible. It would take quite a few years, presumably, to establish that, because someone would have to come forward to show the existing or potential aboriginal treaty right that is at risk of serious infringement by repeal of the Canadian Human Rights Act and somehow argue that before a superior court and get that judgment. That could take some time.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Do you see that as logical, though--that a judge would take away the Canadian Human Rights Act provisions from first nations people?

[Wendy Cornet]

I think it would depend on the arguments placed before them. We're talking about a completely hypothetical case, but this goes back to why the consultation process and the two-way flow of information is so important, because now you're placed in a position of only contemplating theoretical situations. If you have an opportunity to discuss these things long before actual drafting begins, it gives some time for people to assert specific aboriginal rights and describe them. The courts have been clear that you can't just assert a right in the abstract; it's got to be rather specific.

I don't know what the chances are of someone asserting an existing aboriginal treaty right that is actually implicated by repeal of section 67. I have no idea.

In answer to your question, I suppose it's theoretically possible that the repeal could be struck down.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

To provide more perspective of the government side, I'll mention the Taku and Haida court cases, which are basically the benchmark for an analysis in consultation with first nations communities. It is specifically in relation to resources. That is part of the problem that is being seen, especially in discussion of this topic: the resource element is not in place in this discussion. That's not to say that consultation shouldn't occur, but the legally mandated consultation from Taku and Haida is not seen to be in relation to this particular legislation.

[The Chair, Conservative, Colin Mayes]

Time has expired, so I'm not going to let you answer that, unfortunately.

[Wendy Cornet]

Sorry.

[The Chair, Conservative, Colin Mayes]

I guess we're moving on to the Bloc. Go ahead, Mr. Lévesque, please.

[Yvon Lévesque, Bloc, Abitibi—Baie-James—Nunavik—Eeyou, QC]

Thank you, Mr. Chair.

What I find exasperating in this matter is that we are having a discussion on rights that are not only constitutional but must also be social rights for some nations. We are talking about a government that has refused to recognize some nations before the United Nations. I am referring to a pointed remark made by Larry a moment ago when he talked about Kelowna and I believe his remark is quite relevant to this debate.

I will ask all my questions and then I will let you answer.

If we had implemented the Kelowna accord at the very beginning and if we had talked about repealing section 67 thereafter, we would have brought first nations to an acceptable level, albeit a level that would not have been quite the equal of the whole of Canada, for the application of the Canadian Human Rights Act.

My next question is directed mostly to Ms. Cornet. Section 25 of the Canadian Charter is often considered as a protection clause. Indeed, it says that the guarantee in this charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms. Section 35 of the Constitutional Act, 1982, for its part, recognizes and affirms the existing aboriginal and treaty rights of the Aboriginal peoples of Canada.

Ms. Cornet, could you comment on the various roles that are played by each of these provisions? My colleague is a criminal lawyer. Personally, my area of expertise is as a sociologist in work relations. Hence, there is a gap between our respective opinions and we would like you to fill that gap. Eventually, could you tell us how the courts have interpreted section 25 up to now?

I invite you to comment.

[Wendy Cornet]

Section 25 speaks to a requirement not to abrogate or derogate aboriginal and treaty rights. But we don't actually know the scope of potential conflict.

A starting point of analysis, I've suggested in the past, would be to adopt an analysis more consistent with international human rights theory, which doesn't start with the premise that collective and individual rights are necessarily in conflict, in that the same international human rights covenants that protect individual rights with respect to economic, cultural, and social development, and from racial discrimination, and so forth, also recognize the right of peoples to self-determination. A primary tenet of international human rights theory is there's no hierarchy of rights; they're interdependent. So part of having full enjoyment of individual human rights in respect to culture and social development implies the right to self-determination of peoples, and vice versa; you can't fully enjoy your right to self-determination of peoples if you're experiencing racial discrimination.

So we might have less fear, and have an ability to work through these issues, if we started with that understanding from international human rights theory, that these rights are interdependent and are meant to work together. There may be instances when you come across an irresolvable conflict, and they'll have to be reconciled. But I think the courts—as the Canadian Rights Commission has tried to do in the past, too—make every effort to reconcile those rights in a way that respects both.

I think that's the overall direction of the Constitution, in that we're all supposed to make every effort to respect both, and to reconcile them, as opposed to picking one over the other. Now, there may be instances when that is required, and the existing constitutional provisions will provide guidance to courts on what to do when faced with those difficult situations.

[The Chair, Conservative, Colin Mayes]

You're down to less than 20 seconds, Mr. Lévesque. Are you done?

[Yvon Lévesque, Bloc, Abitibi—Baie-James—Nunavik—Eeyou, QC]

I would simply like to allow Larry to give me a brief answer. First of all, would it not have been more acceptable for the first nations peoples to start by settling the Kelowna accord issue and then talk about repealing section 67?

[Larry Chartrand]

I think the communities would have an opportunity to develop some of the infrastructure that doesn't yet exist, and address some of the poverty issues, some of educational issues. That, of course, would create an awareness level in the community that's going to promote more positive relationships. When you're dealing with substandard housing and crowded conditions, and then of course the impact of alcohol and substance abuse in dealing with those negative situations, that leads to human rights abuses on various levels, not just with the band government.

So when you address the poverty issue, you address human rights issues. Unfortunately, this government has not seen fit to do that.

[The Chair, Conservative, Colin Mayes]

We're going to the government side now.

Mr. Blaney.

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

Good morning.

I will speak in French. My first question is directed to Mr. Chartrand. First of all, I want to thank you for sharing with us your views as an expert having a good knowledge and understanding of the issues.

Ms. Cornet, during the questions and answers period this morning, you said that the present situation was unacceptable, that we had to do something, that we had to act.

We have heard several groups, as you know, including the Assembly of First Nations, the Assemblée des Premières nations Québec-Labrador, representatives from the communities, law experts from the Barreau du Québec, various experts in the area as well as women groups. Also, mention was made of the consultations as well as the points raised by Mr. Chartrand regarding the clauses for protection of collective rights and the rights of first nations.

My question this morning is quite simple. Of course, we are aware that the parliamentary process is not necessarily perfect and that we desire to move toward a new form of relationships. However, within the framework of the present structure, we have had the opportunity to make a small step forward, even though it does not solve the enormous problems that you have referred to, such as housing, education, issues that we also want to examine.

I would like to ask you whether it is a good start, wether we are on the right track. The next step is the clause by clause study. How do you see the follow up regarding the existing bill?

Mr. Chartrand, perhaps you could start.

[Larry Chartrand]

Thank you very much. You raised a couple of good points.

I think this is an important step simply because of the overall historical impact of colonization and assimilation and the nature of aboriginal communities today. I see it as an interim step in the greater process of aboriginal communities becoming self-governing and being able to exercise their own human rights processes and principles.

In the meantime, until aboriginal communities acquire their own jurisdiction with respect to human rights, this is an important step. As Wendy mentioned, there are self-government agreements out there that are starting to now include reference to human rights. This involves negotiations. Some of the communities agreed it should apply, but some may want to develop their own, and that's part of the negotiation process in the treaty development.

That's why I say it's an important first step for those who have engaged in that self-government exercise. Some communities may very well be comfortable with an individual human rights model. Others may want more of a marriage between traditional and western ideals.

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

You mentioned that there were about 100 people per year who would have applied to launch a complaint, which means about 3,000 persons overall during the last 30 years. Would you think that if this bill were to pass, whether amended or not, there would be an opportunity for them to have their fundamental rights recognized, or at least to have a chance to challenge the court to have them recognized?

[Larry Chartrand]

Oh, yes, absolutely. And that's a fairly conservative estimate; it doesn't even include the chilling effect of having that provision exist for 30 years, so it's very conservative.

There's nothing more frustrating than going to a place where you're supposed to get justice and being told you're denied.

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

Some witnesses have recommended that there be adaptation period for the bill to come into effect. Would you see some transitional period as a positive, constructive amendment? Would you see it as useful, or not necessarily?

[Larry Chartrand]

I think it would be very useful. It would give aboriginal communities an opportunity and time to reflect on what this means for their governments and their communities.