Indigenous and Northern Affairs Committee on June 5th, 2007

[Jerome Slavik]

There's a lot more political unhappiness in small communities that have elected leadership making allocation of scarce resources, whether it's a job, a house, or post-secondary funding. People are bound to feel aggrieved by what they perceive to be an unfair process, and this will offer them a formal complaints mechanism. To the extent that it's used, to the extent that it's abused, that's as yet unknown generally, you're right.

I want to come back to your other comment, if I may. My understanding is that the aboriginal organizations do support the repeal of this bill. Proceeding with the repeal of this bill in the manner that we've talked about here, which immediately repeals it vis-à-vis the Indian Act and the federal government, has a number of positive features for all sides of this debate. So for those who are adamantly pushing for that, I think there is merit in doing so because the issue of the status and membership provisions of the Indian Act need to be addressed. In fact, for a government that may not want to look at those, it would be hard going against this repeal.

The implications are that first nations are going to have to come to grips sooner or later with these human rights issues. I don't think they can continue to be excluded or exempted as this act contemplates. My simple point on the transition time is that while Louise makes a very admirable and legitimate and thoughtful point about doing it in a manner that promotes reconciliation and accommodation, more importantly, it's just the fairness of giving them the opportunity to build capacity and respond effectively. We need, in my view, to move ahead with that process. I know there are many first nations out there that do not think this should happen at all, but we live in a larger Canadian society where first nations have to also accommodate and reconcile.

[The Chair, Conservative, Colin Mayes]

Mr. Albrecht, please.

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

Thank you, Mr. Chair.

Thank you to each of the witnesses for appearing today.

I want to point out that there's been some comment that we're under a great deal of pressure to put this bill into force in its current form. I want to indicate that is not the case. All we're asking for, Mr. Chair, is to move ahead to clause-by-clause, at which time there could be amendments suggested and we could move ahead.

We also know that there have been many previous attempts to repeal section 67 under various bills by at least two different political parties. I think it's unfair to suggest that this is just the move of this government. In 1992, there was Bill C-108. In 2000, there was the independent review panel, and, incidentally, all groups that represent aboriginal women strongly supported that recommendation. In 2002, there was Bill C-7, and in 2005, Bill S-45. In October 2005, the Canadian Human Rights Commission, again, on the matter of rights, strongly recommended immediate repeal. Again, in 2006 the international community, the United Nations, condemned our record in Canada for our failure to repeal section 67.

In light of all of that previous discussion, I'm surprised by your comment that this item is not even on the radar screen of the people whom you've discussed this with. I'm wondering what the general perception would have been in the Canadian public in 1977 in terms of their radar screen prior to the actual implementation of the Canadian Human Rights Act. You may not be able to answer that, but it's a question I have. Is it fair to assume that this will not become clear on the radar screen until we actually get it passed and maybe have a reasonable time for implementation?

[Jerome Slavik]

If I could clarify that, what I meant was that I don't think most first nations understand that this amendment is proceeding through the House or what its implications or consequences are. If you ask the average Canadian on the street, you might get a similar response, and perhaps more so in isolated communities.

That doesn't necessarily speak to the merits or necessity of this legislation. What it does speak to is the need for a period of time to reconcile, accommodate, and adjust to this legislation. That's where I was going with that, sir.

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

I think you made that point. In fact, if I understood you correctly, you encouraged us, as one option, to proceed with the amendment but to hold off on the implementation for a longer period of time, as opposed to doing all the consultation up front.

[Jerome Slavik]

Yes, the implementation, insofar as it addresses first nations, the implementation vis-à-vis the Indian Act and the federal government, can proceed. I don't have any objection to that proceeding right away.

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

Another point that--

[Louise Mandell]

I just want to comment as well.

I think the efforts to amend the legislation, including the international engagement of human rights standards, in terms of the political radar among the aboriginal people, is largely keyed toward the colonial legacy of the Indian Act and the problems that creates. That's as opposed to the problems associated with the band councils' actions in implementing the Indian Act.

I really wanted to reinforce the question from the opposition, especially on the point about this two-tiered approach. I do think that if you went ahead and made challenges against the Canadian government and the legislation coming out of Canada a first priority, you would, I'm quite sure, capture a lot of the political sentiment in terms of Canada not living up to its own human rights standards and its legislation.

If I could, I'll just say one other thing quite quickly. I don't know how well it's been expressed, but I want to re-express the point that many of the problems associated with the band councils' implementation, which result in potential human rights violations on the ground, have their origin in the Indian Act. It's hard to unlock them. For example, taking the example of the Bill C-31 issue, you have the original 12(1)(b) becoming Bill C-31. Then, through Bill C-31, you have the severing of status and band membership and a lot of aboriginal people passing membership codes that are inclusive. And then you have the federal government's allocation of moneys to bands that cover only status Indians. So a band that includes in its membership non-status spouses and children has to deal with the scarcity of resources. The problem winnows itself back to the amendment in 12(1)(b) and the problems it creates.

Similarly, many of the human rights complaints we can expect to see derive from the Indian Act section itself. For example, I have just gone through the Indian Act and looked at where the rubber might hit the road. You might have, for example, some bands with property tax bylaws levelling property taxes on commercial and non-member residents but exempting resident members from paying property tax. That all has its origin in the Indian Act and is now possibly the subject of a challenge. Or in the context of wills and estates, it might be the Indian Act preventing heirs not entitled to live on reserve from inheriting rights to possession on reserve. The band council simply mirrors what the act tells them to do. The complaint would be against the band council, because they're the ones making the decision, but the origin of the problem is in the Indian Act.

Similarly, certain Indian Act exemptions for taxation and protection from seizure of personal property on reserve, again, only for people who can meet the requirement of being registered status Indians, signals the chances of there being an attack and raises human rights issues.

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

Mr. Chair, since she answered some of the questions of the opposition, could I have an extra bit of time?

[The Chair, Conservative, Colin Mayes]

No, you can't.

We're going to move to Mr. Lévesque or Mr. Lemay.

Go ahead, Mr. Lévesque.

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

Thank you for having come here to give us your explanations and your opinions. Let me tell you that you have used some words that reflect my concerns.

You have referred to an interpretation clause, a transition period, the need to consult the First Nations and the duty of the Crown relating to reconciliation. There is however a matter that keeps bothering me. I am not a lawyer but I wonder if we could repeal section 67 and include at the same time in the Bill a clause postponing its coming into force with specific conditions and obligations for the Crown?

If at the end those objectives were not met, would the repealing of section 67 become null and void?

We may want to rely on the good faith of the government — someone referred to that — after repealing section 67 and on the commitment of the First Nations not to take legal action on the basis of the Canadian Human Rights Act but that would remain voluntary.

Taking all that into account and considering also the fact that governments may change, since we've had minority governments... I would like to remind you of the May 31st, 2005 example when the government made the commitment to improve its cooperation with the First Nations and to discuss with them before developing any new policy affecting them. Has that been done with this initiative? Not at all. Absolutely not.

There was also the commitment made by the government in the fall of 2005 with the Kelowna Accord. Has that commitment been met? Absolutely not.

If we repeal section 67, can we expect that in the future, despite all the good faith of the present government, a future government would be as committed to implementing this provision?

I wonder if you are not in fact suggesting to us instead to amend the Indian Act, perhaps even on a piecemeal basis, until it meets in the objectives of the Canadian Human Rights Act?

[Prof. William Black]

I certainly don't disagree with amending the Indian Act. But my colleagues are much more expert on that.

What I would say is that even if there's all good faith on everybody's part, there's a possibility or the danger that consultation would not come up with an adequate solution within the period of time. That's why our panel recommended that in the legislation there be in a sense a fallback interpretation clause. We'd hope that we could spell that out, and that much more elaborate and specific provisions could come into effect as a result of the consultation. But if all of that failed, the result would be that we still had some interpretation clause protecting the collective rights of aboriginal peoples in the legislation so that the ultimate result was not just to repeal section 67 and put nothing else in place.

[Jerome Slavik]

I think for any government to start down the road of amending the Indian Act, and particularly some of the more problematic provisions of that, is a challenge I don't see being undertaken in the near future. I don't think the amendments to the Indian Act should be in lieu of repealing section 67, which has its own merits and integrity.

You asked about a transition time and whether this had been applied in any other circumstances. When the Indian Act was amended in 1985 in Bill C-31, which was really an amendment to the Indian Act, that was done three years after the charter. The department and Canada had time to make it. The first nations had another two years after that, at any time, to put in place their own membership codes and essentially oust the membership provisions, to a certain extent, of the Indian Act.

That's another example of where there were two periods of time in which first nations could take steps to accommodate federal legislation that affected the composition of their communities or the governance of their communities. That's why, at a minimum, we're urging an appropriate transition time here to allow first nations to, if I could say, accommodate and in some cases support this.

If we're leaving you the impression that first nations are opposed to human rights leadership, I don't want to give you that impression. That is not my clients' position.

[The Chair, Conservative, Colin Mayes]

Thank you. I have to move on to finish this round.

We're on the government side. Mr. Storseth, please, for five minutes.

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

Thank you very much, Mr. Chair.

I want to thank you very much for coming forward with very well thought out presentations today.

Ms. Mandell, you talked about the consultation process and when it's most necessary to undergo this process. Would you not agree that the consultation should indeed take place prior, during, and after—throughout—the process?

[Louise Mandell]

It depends upon what it is you're consulting about. I don't disagree with the fact that you could develop some system that has a prior, during, and after, so it's definitely not to preclude that, but I did want to emphasize the prior only because the Supreme Court of Canada has emphasized the prior. This has come about in their discussion about when consultation should occur and on what issues, and they've stated in the context of the Haida case that it should occur at the strategic planning level.

The Supreme Court has said upstream of the actual impact, so that's the legal requirement. So I'd say you'd want to put most of your eggs in that basket, but that's not to say there wouldn't be issues upon which consultation would continue. For example, I see capacity being an issue where you're going to learn more as you do it, and that's going to give rise to different obligations. I can easily see an after consultation about that.

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

That would help us prevent some of Mr. Slavik's unanticipated/anticipated results.

In that case. then, would you consider the work that we are doing here as parliamentarians, as a standing committee of Parliament meeting with different organizations, groups, and individuals such as you as one piece of the consultative process?

[Louise Mandell]

It's like meeting at the airport in a way, in the sense that it hasn't really taken into account what the Supreme Court has said, and that is the consultation is with those who are affected by the decision when the Crown has knowledge it's making a decision that contemplates an interference. Because of the nature of this, that is, every first nation, rural, urban, is going to be affected differently.... Those that have human rights bylaws or traditional laws operating will be affected differently from those that don't; those that are wealthy will be affected differently from those that are administering poverty. So there is a broader need, in my opinion, for consultation of affected communities.

If the aboriginal organizations are going to be proxy for that, then the aboriginal communities need to know that so they can get their position to the organizations to talk to you.

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

Thank you.

I don't mean to be rude, but would you consider this a part of the consultative process?

[Louise Mandell]

I have no authority to be consulted on behalf of any first nation. I don't bring their views to you based on having been authorized by them to represent to you what their views are. So I'd say it's part of the process, but it doesn't take the place of real consultation as the courts have described it. It's not my rights that are affected; it's the communities rights that are affected.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Mr. Chair, I'm just going to jump in for a moment on Mr. Storseth's time.

Ms. Mandell, do you believe this duty to consult is incumbent upon the judiciary as well?

[Louise Mandell]

The judiciary interprets what the actions of government or government agents are, so I don't think the judiciary has the duty of consultation.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

So, for instance, subsequent to Taku-Haida, the Supreme Court ruled in favour of, in particular, my group of aboriginal people. I'm Métis. The Supreme Court ruled that, according to the Powley case, hunting rights were going to be applicable to Métis people. This is subsequent to Taku-Haida. This decision by the Supreme Court affects other aboriginal groups, first nations in particular. Would it not then be incumbent upon the Supreme Court to engage in the type of consultation you're talking about?

[Louise Mandell]

The court will declare what the framework for consultation or rights determination is, but they leave the consultation or the implementation of that to government.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

How can they make a decision like that? It impacts aboriginal people, yet it's subsequent to Taku-Haida.