Indigenous and Northern Affairs Committee on June 7th, 2007

[Charles Pryce]

I'm sorry to be repetitive, but it's not clear. Other lawyers have said the same thing. Again, struck by the testimony on Tuesday, Jerome Slavik indicated that it's a matter of risk management. Whether or not there is a clear duty to consult, consultation as a matter of risk management or as a matter of policy to help develop good and effective legislation makes a lot of sense.

What would happen if it's more policy-based consultation than legally based consultation is that there's more flexibility. A lot of the questions that get raised about whether the hearings before this committee meet the duty to consult and whether it is necessary to consult with all first nations directly become less important if you look at consultation more broadly as simply a way to develop good and effective legislation.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Is my time up? Gracias. I will come back for the next round.

[The Chair, Conservative, Colin Mayes]

I think the answer was that it hasn't been established yet.

Madam Crowder is next.

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

Thank you, Mr. Chair.

I want to thank the witnesses.

Of course, I'm going to preface my statement by saying that I think it's incumbent upon the Crown to consult, then legislate, and then look at a transition period.

I am not a lawyer, but my understanding from Ms. Mandell's testimony the other day was that she actually talked about the existence of aboriginal right or title, so there is a question around aboriginal right, and many would argue that this particular piece of legislation has the potential to infringe on aboriginal rights.

I have two questions around that. Again, I'm not a lawyer; I'm sure you know this legislation far better than I do, but my understanding is that there's actually an ability for the government to put a question to the Supreme Court about whether or not it has a duty to consult--I think it's section 55 of some piece of legislation--so there's that question about why in this particular case, in which it seems there's confusion about whether there's a duty to consult, we would not put that question to the Supreme Court for clarification before developing legislation.

Second, it seems there is some jurisdictional question here. Are you in effect saying that first nations do not have jurisdiction over human rights and therefore the government must step in?

[Daniel Watson]

Perhaps I can touch on that, in the first instance.

I think it is fair to say, in terms of the approach here and the urgency that the minister has described about wanting to make sure the ability to discriminate is removed—

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

Under the Indian Act; let's put that in there.

[Daniel Watson]

I'm sorry, under the Indian Act, yes.

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

Yes, thank you.

[Daniel Watson]

To deal with that situation in as timely a way as possible probably is inconsistent with the length of time that any number of options and accords might take. If you were to go down the route of asking the Supreme Court on this, that is a very extended period of time.

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

My understanding of this, and again I'm not a lawyer, is that simply asking the Supreme Court for an opinion on whether there is a duty to consult is not as lengthy a process as if we were in full litigation.

[Daniel Watson]

It would probably be quicker than if you started and a trial went through all the different levels; there is no doubt about that. But it can also be a very lengthy process.

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

In your own testimony you indicated that there is a great deal of confusion around whether there is agreement. If there is that much confusion, it would seem to me that we would perhaps pre-empt extensive litigation down the road by sorting out that duty to consult, because I would argue that many bands, as soon as their first human rights complaint is filed, will file a case against the fact that the government failed in its duty to consult and will let that play out through the court system, which will then stall all other activity. That is my understanding. Am I right?

[Daniel Watson]

There are a couple things on that.

As my colleague here has said, it isn't our reading of the law from the Supreme Court yet that there is a duty to consult in legislative development clearly established at this point in time.

If we look at all of the different areas where there would be significantly different views about whether or not a particular piece of federal legislation has an impact on aboriginal rights—I think, for example, of questions around the Natural Resource Transfer Agreement of the 1930s, where there is a significant question, which many first nations have raised, about whether or not it in fact infringed on any section 35-protected rights—we could be moving in a direction with any number of pieces of legislation we try to work with whereby we're consistently going to the Supreme Court, time and time again, for each and every piece of legislation.

The risk management technique we have is to do our assessment whether or not we think there is a duty to consult legally. In a whole bunch of cases we consult, as my colleague has pointed out, not necessarily because we believe there is a legal duty to consult, but because in fact for good policy reasons it makes sense. I think Mr. Slavik's testimony the other day about risk management is a very good description of that.

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

Have you done the risk management around the duty to consult on this particular piece of legislation?

[Daniel Watson]

Our view on this, I guess, is twofold. The Supreme Court has not established a clear direction that there needs to be consultation on legislative development, and the Supreme Court has been very clear on some other aspects of requirements to consult. But in addition to that, we believe it's important for us, for public policy reasons, to consult and engage.

We look at this against the backdrop of all the work that has been done over the last 30 years. It is that broad range of things that we take into consideration, including the testimony that has been heard at this committee. The minister and the department are obviously very interested to hear what the conclusions are and have indicated an openness to considering recommendations in a number of areas.

[The Chair, Conservative, Colin Mayes]

You have less than a minute, Ms. Crowder.

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

Concerning the record on duty to consult, it appears to me that the government has in most serious cases only undertaken its duty to consult when it has been pushed into it by the Supreme Court.

I would argue that this is an opportunity to actually do the appropriate consultation in advance of the legislation, to pre-empt unintended consequences like those we've heard of many times about Bill C-31.

I know the department itself has done an analysis on Bill C-31 and the potential impacts and is saying that there could be up to 250,000 cases that could come forward.

In light of previous circumstances where that duty to consult was not undertaken and the consequences we are now seeing as a result of that legislation, I wonder why the department wouldn't encourage the minister to undertake that duty to consult.

[Daniel Watson]

And, again, I think it is the full range of activities that are under way that inform that decision-making. Certainly you're quite right in pointing out that the Supreme Court is making clearer and clearer what the rules in this area are. I think it's helpful to all parties to understand when it's required, when it may not be required, when we move into a policy-based consultation as opposed to a legally required consultation. But certainly we recognize both of them as being very important, and we recognize the importance of the parliamentary process of hearing from affected parties and interested parties and take great note of what you found out in this process.

[The Chair, Conservative, Colin Mayes]

Thank you.

Over to the government side. Mr. Storseth.

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

Thank you, very much, Mr. Chair. I want to thank the witnesses for taking the time to come forward today.

One of the things I was happy to hear from some our witnesses in their responses was that the Government of Canada will continue to work with our first nations communities and leadership throughout this process, not only in the consultation period prior to, but during and after, helping solve any of the unintended consequences that may follow out of this. I was happy to hear that from Mr. Watson.

I think it's important to set the record straight on some of these facts that are being addressed today. I mention the fact that the operative clause of this legislation is nine words long, and perhaps that's why the opposition is so desperate to try to avoid getting to clause-by-clause before the summer break.

One of the concerns I have coming out of Mr. Slavik's testimony, which I heard on Tuesday, was that he felt that the repeal of section 67 was very important. He feels that we need to move forward on it, but he did have two concerns. One was on the transition period, increasing the transition period to a longer time, such as perhaps 18 months, and the other was the potential need for more resources, and of course nobody can assume what resources we're going to need until we actually get into the process.

What would your thoughts be on extending this transition period and the additional resources, and is this not a better solution than shelving this for the summer?

[Daniel Watson]

In terms of the working together, if I can touch on that part first, yes, we're very committed to working with the CHRC where appropriate and working with first nations to understand the impacts. We understand very clearly that there are some legitimate questions out there on the part of first nations about how this would work. Any responsible government, as first nations are, wants to make sure they know how this will work and how they will be able to deal with it, and we want to work with them to make sure that happens.

On the transition period, the amount of time that's currently in there, which is six months, is a timeframe the minister has expressed as being adequate in his mind to allow for this to come into force. As I said today, that's a beginning, not necessarily an end, but the minister has also indicated that he's prepared to take advice on that from the committee as well in terms of whether or not that is precisely the amount of time that makes the most sense. Clearly, I don't think there have been any witnesses who have come forward and suggested that they think six months was the right one, so, again, he's open to recommendation on that front.

On the resource side of things, there are a bunch of open questions about exactly what this might require, what this might take, what impact this might have. We are instructed, not absolutely, but we find useful the information we do have that today there are some 40 cases a year involving first nations. It's not 400; it's not 4,000. That's not at all to say that it wouldn't change from this number. We fully anticipate that it would, but when we look at the commission's strong ability in a number of cases to work very closely with communities and with employers elsewhere to make sure that discrimination is avoided in the first instance, I think this has been one of the great successes of the commission in comparison to a number of places around the world. They actually work with people to make sure they understand the law and how to avoid being in a situation where there's a complaint in the first place.

Given all those types of things, it's not absolutely clear today what level of resources would be required, but the minister has again indicated that he would be happy to receive recommendations on that front. Certainly we would want to look at that over time. I cannot imagine any review that would take place under this act that wouldn't get into that set of questions in a fairly detailed way, and it would certainly be something that would come up there and need to be addressed. And that's in the second point of dealing with it, because you would have to deal with it in the first instance too.

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

Indeed, I have to agree with you. Any time the minister has been gracious enough to come forward and talk to us on this issue, he has always shown he is willing to work in cooperation with first nations communities. The witnesses who come forward have suggested they are more than willing to work with the Government of Canada on these issues.

It's unfortunate that we have members of the opposition saying that come hell or high water they're voting against this.

[Anita Neville, Liberal, Winnipeg South Centre, MB]

On a point of order, Mr. Chairman, I'm sorry, but no member of the opposition has said come hell or high water we're voting against this. This is an important piece of legislation that has to be dealt with thoroughly; the implications are far reaching.

I very much resent that kind of comment.

[The Chair, Conservative, Colin Mayes]

The chair takes note.

Please refer to the act and direct your questions to the witnesses in reference to the act, rather than the position of any other party.

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

Thank you very much, Mr. Chair. I would be more than happy to do so.

Mr. Chair, is the point of order going to take up my time?