Indigenous and Northern Affairs Committee on June 5th, 2007

[Louise Mandell]

It's the nature of our system.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

I guess it is. It's the nature of our being elected here to represent Canadians.

[Jerome Slavik]

To put it bluntly, the courts, usually by the time it gets to that level, have heard the case three times, and first nations and other parties directly affected by those decisions have had extensive input into that decision-making.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

That's much like the 30 years that we've been here talking about this, or at least MPs have been doing so.

[Jerome Slavik]

Yes, this has been a long time coming.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Yes, it has.

[The Chair, Conservative, Colin Mayes]

We'll move on to Madam Crowder, please.

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

Thank you, Mr. Chair.

There are a couple of issues I want to address. First, I don't know if you said everything you wanted to say about consultation in the committee. One of the things we have heard from groups that have come before the committee is that in their view, this committee process is not considered consultation.

I come back to the point you made earlier about another nail in the coffin, regarding when you were speaking to an aboriginal leader in an airport. People are very concerned that people try to characterize this as consultation.

In my understanding of some of the court decisions, and certainly Wendy Grant-John did a great job in her recommendations around MRP, around what some of those elements of consultation might look like, given that the Auditor General has pointed out that the government has failed to develop a policy on consultation....

I don't know if you wanted to say something else about that consultation. Mr. Black, I know you didn't get a chance to jump in there.

[Prof. William Black]

The only thing I would say is that there has been some discussion about the consultation that was carried out by the Canadian Human Rights Act review panel. We certainly made attempts to talk to first nations organizations, but I think I should put that in context. Our panel was looking at the entire Canadian Human Rights Act. We were looking at whether social condition should be added, what is the situation with regard to urban people, and so on.

While we did consult for a year, I wouldn't want to leave the impression that our focus was entirely, or even primarily, on this particular issue.

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

A couple of times things have come up around capacity, both in terms of the first nations' capacity to respond to human rights complaints and that there is the remedy.

We know that the Assembly of First Nations and others have done an analysis of the 2% funding cap, which has been in place since 1996. The department also did an analysis on the implications of that 2% funding cap.

I wonder if you can comment on where that would leave first nations communities if they were found to.... You used housing as an example; other people talked about child care. But if you simply do not have the resources to deliver the services, where does that leave the first nations community?

[Prof. William Black]

I agree with everything that has been said by others about the need for resources. It would be sad if the result of your deliberations was just to say a different group of people didn't have houses, but the same number of people still didn't have houses.

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

I want to come back then to status of membership provisions. Mr. Slavik, when you talked about status of membership, were you talking about outside of Bill C-31? Could you expand on that?

[Jerome Slavik]

We just did some work. We think there are about 300 to 400 first nations that have their own membership codes. By their very purpose, these codes define who is a member and therefore entitled to certain rights, privileges, and benefits of being a member of that first nation. Also, by definition, it excludes others.

Right now these codes are exempt from human rights considerations. If this section is repealed, those first nations with membership codes would have to have their current codes reviewed, probably by legal counsel, to ensure that they're compliant with the Canadian Human Rights Act.

I can't tell you how many are or aren't, but that's just one example of a transitional initiative that would need to be undertaken. I can tell you that we did an extensive number of drafts of membership codes, and there are a lot of political, social, and fiscal factors that went into the development of those codes that would all have to be revisited.

Tax bylaws are another that would need to be reviewed, along with a whole range of policies and practices out there. It's not to say that they're in violation, but they would need to be checked.

[The Chair, Conservative, Colin Mayes]

Thank you.

Mr. Epp, please.

[Ken Epp, Conservative, Edmonton—Sherwood Park, AB]

Thank you very much, Mr. Chairman.

I'm intrigued with this subject, and the presentations you've made have certainly given me a lot of really varying thoughts about how this should be handled.

The message I'm hearing from you is that the first nations leaders are supportive of repealing the section; that's generally what I'm hearing. And yet, Mr. Slavik, you mentioned that there was an individual who said “Another nail in our coffin”. I would think they would be supportive of this and would say, “Great, we're glad this is happening”.

Can you speculate for me, or did he tell you, why he characterized it in that way?

[Jerome Slavik]

I think it was the intrusive character of it. If you asked this individual “Are you in favour of human rights?”—this is quite a sophisticated guy—he would say yes. But what he sees is the unilateral imposition of the way it's occurring. If he had a chance to better understand why it's occurring and to prepare and accommodate to it and reconcile current practices to it, whether or not there are problems, I think his concerns would be greatly ameliorated.

This was just a kind of gut reaction, sir, and we all have our gut reactions to things that are perceived as being imposed on us, regardless of whether in fact they're not good for us—we're all married.

[Ken Epp, Conservative, Edmonton—Sherwood Park, AB]

So he's probably reacting to the lack of consultation that's being imposed on him. That's the conclusion I'm trying to reach here now, then.

You have all mentioned the importance of consultation. Again, I agree with this. We as members of Parliament consult with our constituents. We bring their ideas here as much as we can. Very often, our constituents have conflicting points of view on issues, and then we have a difficult choice: which side do we represent, and how do we vote? There comes a day when we have to vote either yes or no on these issues.

My next question is, what would be the actual form of a consultation that would satisfy the first nations people?

[Louise Mandell]

In terms of the first question you raised, I want to also point out that the Canadian Human Rights Act creates the two institutions, the commission and the Human Rights Tribunal. The whole act is keyed for the adjudication of individual breaches or individual wrongs that are being addressed in that forum.

On the “nail in the coffin” point, what I've heard expressed is, first of all, the institutional inappropriateness of the commission and the tribunal to address many of the issues of concern to aboriginal people in terms of how they would address their own human rights violations under their law, and in terms of these being processes that aren't married to, or even trying to conform to, the aboriginal way of doing things—process issues involving the tribunals and the way they work.

In addition, I think primarily people are also concerned about the preserving of their collective rights and about there being no mechanism at the moment inside the Human Rights Act's system for the collective rights to be recognized.

For example, I work for a first nation. They're a fishing community, and the band council is responsible for distributing fish that are caught under their communal licence. Now, their practice would be to distribute fish first to elders, so in times of shortage, younger people might get no fish, or not enough. In that context, who's to say, if a younger person brought a human rights violation complaint on the basis that they got none but it conflicted with the value and principles of the society, how it would be addressed? I think that's the “nail in the coffin” kind of point, from the perspective of people I've talked to.

But on the other side, concerning what would be sufficient, I believe we had a good go-around about it, and the two important things are identifying the constituency with whom consultation needs to occur—and I agree with Madam Crowder about this forum not really addressing the people who need to be addressed—and the second, getting the question right that we're asking of them. That's where I suggested that the better question is to ask what a coherent human rights regime is from the perspective of the collective rights at stake.

Also, if there's going to be Indian Act impact, what is the driving policy that needs to be examined by way of amendments to the Indian Act directly?

I think these are the kinds of questions that would stimulate answers that would create a regime everyone would feel very proud of.

[The Chair, Conservative, Colin Mayes]

Mr. Black.

[Prof. William Black]

I would just quickly say that I think the difficult challenge for this committee is how to expand the human rights that are presently limited by section 67, but to do so in a way that doesn't infringe on other rights that could be considered human rights, that is to say the collective rights of aboriginal people.

I think everybody on all sides of this table agrees that human rights should be expanded, and your difficult challenge is how to make sure that it's a win-win situation rather than a win-lose.

[The Chair, Conservative, Colin Mayes]

I'm going to finish up.

I just want to thank the witnesses.

Just as a comment from the chair, I'm duly elected in Okanagan-Shuswap, and I have five bands. I engage those five bands in dialogue to understand some of their needs and wishes that they want me to represent, as I do the non-aboriginal people in my constituency. So that has merit too, and I think we've marginalized some of the fact that we are duly elected and that we do represent, as members of Parliament, aboriginal people from our various communities.

Thank you very much. It's been a great presentation, a very informative presentation.

I adjourn the meeting.