Evidence of meeting #56 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 consultation.
A recording is available from Parliament.
Conservative
The Chair Conservative Colin Mayes
You have about 50 seconds left, and then we have to move on to the next questioner.
Mandell Pinder, Barristers and Solicitors
I am in the Supreme Court. Thank you.
I'd like to say that one of the problems of enacting first and consulting later is the implied assumption that it's the first nations band councils that are going to be the governance of the first nations, and that the band councils themselves are the ones that will be accountable for the violations that are perhaps rooted in the Indian Act, with which they now have to contend with their membership. That's a problematic assumption, both from the standpoint of the jurisprudence and also from the standpoint of consultation. I consult in airports, too, but if this legislation were passed and there were improper consultations about it or embedded in it, they would become subject to court challenge at some point.
The higher, loftier principles that the courts are articulating, that are not part of Parliament's or this committee's necessary daily consciousness, have to be looked at, because of the evolving jurisprudence and the very fast rate at which the courts are informing how Parliament's behaviour is going to be measured up.
I'm in favour, myself, of doing the work properly before passing the act.
Conservative
NDP
Jean Crowder NDP Nanaimo—Cowichan, BC
Thank you, Mr. Chair.
I want to thank the witnesses for coming and presenting a very coherent approach to how we might look at this legislation.
I just want to make a couple of comments.
First of all, one of my colleagues talked about pressure. I want to make it clear that the pressure is coming from the government for us to pass this.
What we've heard almost universally from the witnesses is yes, they support the repeal of section 67, as do New Democrats. We absolutely support the repeal of section 67--but after appropriate consultation. What we've heard quite strongly is that this legislation should not be passed prior to consultation. That's been quite clear.
There are a couple of points I wanted to pick up on. You mentioned Bill C-31, Mr. Slavik, and that's come up a number of times. People have been very concerned about Bill C-31, which reinstated women's status, but which in effect, with its second-generation opt-out clause--section 6.2--is going to lead to assimilation across this country. Many of the witnesses who appeared before us talked about the fact that the lack of appropriate consultation before the implementation of that bill has had unintended consequences in communities. The department itself has done an analysis on the impact of Bill C-31 on potential court cases that could come to the government, and they're saying they could ultimately end up with up to 250,000 cases. Now, that's the department's own analysis.
Could you tell me if there's any good reason why we would agree to go forward with this bill prior to consultation? I struggle to see why we would do it, knowing all the things we know. Is there any argument for going forward without consultation that would make sense, when we've got the time and the space to do consultation?
Is there any argument?
Prof. William Black
Obviously, as I said earlier, consultation is not only the way to deal with legal obligations but also to produce effective human rights legislation. At the same time, I think we do have to remind ourselves that there are some people connected with aboriginal communities who are deprived of rights against the government in these circumstances because section 67 protects the government from suits.
NDP
Jean Crowder NDP Nanaimo—Cowichan, BC
Mr. Black, what would happen, then, if we made an amendment to this piece of legislation that said section 67 is enacted to apply only to the government, put in a clause to say that we would do consultation with first nations communities, and then produced an amendment that would impact on first nations communities? Is that doable?
Prof. William Black
I'm wanting more thought to that.
My only worry is that you might, in some circumstances, be able to indirectly attack the powers of aboriginal governments by bringing an action against the government and attacking the section of the Indian Act that they were using for their bylaws, for example.
Mandell Pinder, Barristers and Solicitors
I haven't given much thought to that two-stage approach, but I like it in theory. I think it makes a lot of sense, because quite a few of the problems that manifest themselves as individual human rights complaints have their origins in the Indian Act. I was interested in the comment by Mr. Justice Muldoon in the Canada Human Rights Commission v. Department of Indian Affairs and Northern Development Canada, the INAC case in 1995; he said that if it were not for section 67 of the Human Rights Act, human rights tribunals would be obliged to tear apart the Indian Act in the name and spirit of equality of human rights in Canada. I mean, there are so many pieces of what band councils are left to administer that have their origin in the act.
The only problem that others may not have thought about is that the complaints are by individuals. It's an awkward moment when you've got individuals being able to take complaints. Perhaps it could be against the act itself.
I think the two-stage process has merit in the sense that we do know the problems in respect of the human rights complaints against Canada, but the real impact, which you're hearing about, has to do with the application of that to band councils.
Lawyer, Ackroyd, Piasta, Roth and Day, LLP
This is a “without prejudice” flyer.
It strikes me, as I followed the politics of this issue, that a lot of the drivers behind amending this act have to do with the implications of the Indian Act. In particular, I was looking at some of the other submissions. It seems to me that without getting into the politics of it too much, all parties have an interest in that. Having the act apply immediately to the federal government and removing the exemption of the Indian Act as it relates to the operation of the federal government from this protection would provoke the government to reconsider the status and membership provision of the act, just like the passage of the charter in 1982 provoked the government to reconsider the discriminatory clauses in paragraph 12(1)(b) of the Indian Act that then existed and then provoked an amendment to the Indian Act that we now know as Bill C-31.
That whole change, which was the last major change to the Indian Act, was provoked by the adoption of the charter by Parliament and the legislatures of the provinces. I can see the repeal of section 67 provoking a similar review of these provisions by Canada and the first nations, which in my mind is long overdue. As counsel for first nations—to be frank, we have an interest here—we're concerned about the impact of this on our clients. That's my knowledge. That's my experience. They understand broadly about human rights. People think it's gender inequality. I can tell you that many of our clients are led by women chiefs, women councillors, and women CEOs out there in the last 15 or 20 years and that you wouldn't have seen 20 years ago. I work for one organization that's almost entirely run by aboriginal women leaders.
Nevertheless, the impacts of how this may play out need to be cushioned. There needs to be time to accommodate to this, to reconcile this. There may be a need to make changes to avoid unnecessary complaints and necessary hardships and to think about, more importantly, how remedies to human rights complaints are going to play out in the communities
There has been very little thought given, in my mind, to how actual remedies to this legislation can play out. If someone is discriminated against and not getting a house where there are 20 applications for one house, and there's an act of discrimination, does that person get the house? I don't think so. I'm not too sure what the remedy is, but it's not getting the house. When the Human Rights Commission made an award against Canada for sexual discrimination in wage matters, Canada had to pony up over $1 billion. First nations don't have the resources to pony up money or other remedies that may be anticipated in some of these circumstances. That's another area that I think needs to be given a little thought.
To summarize, by all means, I think there's interest in removing the prohibition vis-à-vis the federal government, but I would really urge you to consider 24 to 36 months to do a thorough reconciliation consultation initiative with the first nations, information capacity-building. I think that could be a win-win.
Conservative
Conservative
Rod Bruinooge Conservative Winnipeg South, MB
Thank you, Mr. Chair, and thank you to all of our witnesses today for your testimony.
I'll start with Ms. Mandell and some of your comments in relation to consultation. Perhaps I'll start by describing my own position, and I'm sure it won't be a surprise to anyone. I'm very supportive of extending the Canadian Human Rights Act to first nations people. I believe that human rights in Canada are something that should be available to all humans who are within the confines of our territory. That's how this act has been administered, and that's one of the reasons why so many people see Canada as the greatest country in the world.
In light of the fact that I'd like to see this bill passed, in looking at your comments, Ms. Mandell, in relation to evolving jurisprudence, in order to keep current with that evolving jurisprudence, do you believe that my position is in some way in conflict with that evolving jurisprudence because I want to pass the act today perhaps, or tomorrow, or within the next few weeks?
Mandell Pinder, Barristers and Solicitors
I think in the present act as drafted, bringing in the amendment—I believe it's six months to delay the effect and then a period of five years for some kind of review, without any more—is a problem in terms of the law. I'd have to say that I, like you, agree with the general intent of it, although I have to say, just in terms of the law, that the Supreme Court of Canada has never actually yet addressed what the obligations of consultation are in respect of consulting about legislation.
I really want to make that clear. The principles we've derived from Haida haven't been in that context, so I suppose there's always, as with every outstanding legal debate, the possibility that this might hold muster. But I believe that in light of the principles especially that I recently articulated, if that were to happen, this act certainly would stand the chance of a successful challenge, based on not having taken into account the proper principles that are being required of it. So I recommend caution in that respect.
Conservative
Rod Bruinooge Conservative Winnipeg South, MB
What would then be an adequate amount of time to extend a period of transition? That's the challenge I see: getting communications from individuals within communities who would like to have the opportunity to appeal to the Canadian Human Rights Act; who wish they had had it 15 or 20 years ago, let alone tomorrow. That's the challenge I see. I see this balance as difficult to manage, because for many occasions, the groups we're talking to tend to be groups that perhaps see this as impeding their ability to administer resources, or what have you, within their communities.
On the other side of the situation, we have the individual who is saying yes, I'd like to have this opportunity to express how my rights have been violated. I would argue, though, that it's challenging for any court in the land to extend what you're saying—which would be overturning this repeal because of a shorter implementation period—because of the fact of the individuals who need the human rights extended to them versus the communities. I guess I can't imagine a judge in Canada overturning this repeal, should we proceed.
Perhaps you could talk a bit about...or Mr. Slavik wants to jump in.
Sure, feel free.
Lawyer, Ackroyd, Piasta, Roth and Day, LLP
Let me just say that I don't disagree about the extension of human rights to all without exception. That's an international covenant that we've signed. But Canada is a bit unique in the world. We are, I think, the only country that has constitutionalized collective rights of aboriginal people and put them in the Constitution. It's section 35 and the rights therein that in some way make Canada unique. Australia, New Zealand...I'm not aware of any other country in the world that has constitutionalized the aboriginal and treaty rights of their indigenous population.
It's from that charter right that the principle of reconciliation emerges. The extent you have is where those rights may “potentially adversely affect”—not even “actually” but “potentially adversely affect”. We have a set of rights whose definition and status are evolving, and we have another piece of legislation that's moving through the system that may affect how first nations are entitled to carry out their collective rights, particularly vis-à-vis governments. This is an evolving area, and I can see it being an issue that an enterprising legal counsel and aboriginal communities might want the courts to decide: what the balance is between the collective and the individual rights.
There is a litigation risk here. How serious it is, you could ask the Department of Justice and others to assess. But I think the litigation risk would be substantially mitigated by the approach of an extensive transition process that attempted to reconcile and accommodate, inform, take into consideration first nations views about how this act is then to be implemented and administered.
I think you can essentially put it in a nutshell: the transition period may significantly minimize your litigation risk for this legislation.
Conservative
Rod Bruinooge Conservative Winnipeg South, MB
In relation to your comment, Mr. Slavik, I would comment that as you so correctly stated, the charter would in fact protect those collective rights. We believe fully that the Canadian Human Rights Commission will be very mindful of the charter in all their decision-making.
But we'll move on.
Conservative
Liberal
Todd Russell Liberal Labrador, NL
Thank you, Mr. Chair.
Good afternoon to each of you.
I thought your presentations were very balanced and came with a certain sense of optimism that we could see our way through this. That's very important.
In my view, it was also very depoliticized, because this issue is becoming very politicized. People are trying to be painted as being for or against human rights.
I have a little notion. When the government tries to make aboriginal people the same, applying laws the same, without taking into account cultural or historical issues, or anything like that, I sort of get the sense that this is an assimilationist type of an approach.
But when it comes to the transition period, whether it's 6, 12, or 36 months, what difference does it make if we have a fundamentally flawed bill? So what if you have more transition time to implement a flawed bill? Fundamentally the argument here is to have a bill that meets the needs and desires that we're trying to articulate: the protection of human rights. The transition period, when it comes to this particular bill, is a moot point for me, because I believe the bill is fundamentally flawed in terms of its approach and process.
Conservative
Liberal
Todd Russell Liberal Labrador, NL
I'm there, don't you worry. I'll be voting against this bill as it is, come hell or high water.
If we have a consultation period for 12 or 18 months and then at the end of it we introduce a bill that first nations and aboriginal communities can live with, would this not cut down on the time we would require for it to take effect, depending on how the consultation process was designed, while understanding that you can do a number of these things concurrently?
Can I get your comment on that?
Prof. William Black
I don't have a solution for the committee. But it would be wonderful if the committee could come up with a solution that allowed for consultation but did not result in the same result as when section 67 came into effect, where 30 years from now, in 2037, we'll still be saying, well, we haven't quite done it yet.
So how do we achieve this in a way that allows for the consultation but somehow makes that consultation a priority over the next whatever it is—12, 24, or 36 months?
Liberal
Todd Russell Liberal Labrador, NL
Is there greater potential for human rights abuses in situations where we have challenging socio-economic conditions? Is that generally the view?
