Indigenous and Northern Affairs Committee on June 7th, 2007

[The Chair, Conservative, Colin Mayes]

No, just carry on.

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

I'll be more than happy to show the blues from the last committee meeting to my honourable colleague.

I guess the question I have, or my second question, is whether the goal of this legislation is to provide the same basic human rights to first nations people as other Canadians have and enjoy.

I fear that the interpretive provision and repeal of section 67 of the Canadian Human Rights Act could diminish the protective effects of that section of the act. Could you give me some more details on this and your opinion on whether there is the potential for this to happen?

[Daniel Watson]

My colleagues from the Department of Justice have given a fair bit of thought to this, and I would turn to one of them.

[Douglas Kropp]

Thank you for the question.

It is indeed a concern of ours as well that an interpretive clause could...as I said earlier, because it will be open to interpretation and to challenges and it is not clear how it will be interpreted and how the balancing it suggests between the individual and the collective interests will play out. The rest of Canadians to whom the CHRA applies do not have a similar balancing clause, so there is a concern that you would have, for instance, the development of dual systems, basically, or two systems, which could weaken the individual rights of first nations individuals, who might not then have the same protections that other Canadians enjoy.

One particular area of concern would be aboriginal women under the act—unless there were something specific to protect their rights in that balancing.

[The Chair, Conservative, Colin Mayes]

We will move on to the five-minute round, please.

Madam Karetak-Lindell.

[Nancy Karetak-Lindell, Liberal, Nunavut, NU]

Thank you.

I want to reiterate that on page 9 of your presentation there seems to be a section missing. When you say that all witnesses testified that they support the principle, many of them said, “but not Bill C-44”. I think that's very critical to the discussion, and also to answer what Mr. Storseth was insinuating, that we're stalling because we don't want to give rights to people who live on reserve and are under the Indian Act. I think that is very misrepresentative.

You're asking people to trust a government that with those nine words says the impact will be minimal and that there will be new resources to deal with these complaints. We've already heard from many chiefs that they don't have enough resources to offer the very benefits that people across the way are saying they're entitled to. Already they don't have enough money to give proper housing. They don't have enough money to give education to all the people who are applying. They don't have money to give proper health care.

These people are supposed to trust a government that says there will be resources to be able to deliver those very services that they will most likely receive complaints about for not receiving, while at the United Nations, Canada is one of the two countries that is not supporting the declaration for the rights of indigenous people. They are supposed to trust a government that on the one hand is fighting to get Bill C-44 through and on the international level is fighting against the declaration for the rights of indigenous people.

These people are supposed to trust a government that is still calling itself “new” after 16 months. They are indicating, “Give us time to learn to run a country. Give us time to learn to work on a new relationship with people.” I feel a government should not have to be legislated to be respectful to people who are going to be impacted by legislation, and they should not have to be legislated to form a good working relationship with people.

I'm really puzzled as to how people should trust the good word of the government without an interpretive clause, without a non-derogation clause, and without legislation stating there will be resources and capacity-building. They're supposed to take the words--as I say, nine words in a bill--and assume that all good trust is going to come after that. It's very hard for me to believe that.

Thank you.

[Daniel Watson]

Thank you.

I've worked with enough different first nations, Métis, and Inuit groups across the country to know there is nothing that I, or I suspect any other government official, could say that would create that trust.

What I can say is that the approach is designed with a number of different pieces. I don't expect that simply because somebody has outlined a path here that people will say we automatically lose what has led to the lack of trust we see in many instances across the country.

In this area I would say we are taking a known quantity in the CHRA and applying it more broadly than it has been applied before. It is not absolutely new in the context it's going into, but there are new parts of it. There is no doubt about that.

We are working very hard--and the CHRC is prepared to work very hard--with communities to understand how to deal with the impact. Again, it's not to focus simply on how you deal with complaints, but how to avoid complaints in the first instance.

The next part is that there would be--

[Nancy Karetak-Lindell, Liberal, Nunavut, NU]

I have just one question. Why wouldn't you do that now?

[The Chair, Conservative, Colin Mayes]

Would you just allow Mr. Watson to finish speaking?

[Nancy Karetak-Lindell, Liberal, Nunavut, NU]

I'm just asking why they wouldn't do that now for Bill C-44.

[The Chair, Conservative, Colin Mayes]

I realize that, but we're already--

[Nancy Karetak-Lindell, Liberal, Nunavut, NU]

Such as building capacity so that they don't--

[The Chair, Conservative, Colin Mayes]

Let Mr. Watson answer, please.

[Daniel Watson]

Certainly, we're prepared to do that. We've had many discussions with a number of different organizations about this area and how to avoid complaints. Again, it's a discussion that we certainly need to have a lot more of. We're prepared to have that. We've worked it so that there will be an increase in funding to the CHRC to allow them to do that type of work as well.

Again, I'm not under any illusion that there's anything that I or, I suspect, anybody else in government can say that would allow that issue of trust to melt away. I guess what we can offer is a staged approach by which we have some background, we have some experience, and we can demonstrate that we're prepared to go down those routes. The test will be to make good on it.

[The Chair, Conservative, Colin Mayes]

Thank you.

The chair would like to ask a question, and I'd like to direct it to Mr. Pryce.

Does the duty to consult, as defined by the Supreme Court, refer to an issue, or is it site-specific in contrast to the duty of an elected body of the Government of Canada to pass laws for all Canadians, all citizens? Would you say that this particular act is more to do with the duty of an elected body rather than a site-specific issue?

[Charles Pryce]

Thank you, Mr. Chair.

Again, to sound a little indecisive, in the Supreme Court case of Haida, there was definitely a very fact- and site-specific claim to aboriginal rights over title, dealing with a specific first nation, the Haida Nation or the Taku Tlingit First Nation. This current bill, Bill C-44, is a very different animal, if you can put it that way, in what the legislation is intended to do. It has broad impact across every first nation.

You mentioned fact- and site-specific, but that is how the jurisprudence on aboriginal treaty rights has evolved or exists. Different groups have different rights, so as far as how exactly this legislation will impact on particular first nations goes, it will vary. It is a very different animal.

The Supreme Court has not addressed the issue, first, of whether the duty to consult applies to the passage of legislation and, even if it does, whether it's engaged in this particular kind of legislation, which is about amending the Human Rights Act.

There would certainly be some difficulties or challenges if the court wanted to go down the path of finding the duty to consult in the legislative process. You know, there are well-established traditions of parliamentary supremacy, and the courts generally get involved once legislation is passed rather than during the passage of legislation. So it would require some deep analysis or thinking by the Supreme Court if they were to move in the direction of saying, in this particular context, that there is a duty to consult.

[The Chair, Conservative, Colin Mayes]

You've just said there's a good argument for what I've just said.

I'm going to turn it over to Mr. Bruinooge.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Well, perhaps I'll just follow up on the chair's question, though I'd first like to point out that the Canadian Human Rights Commission is an independent body that I'm sure will achieve a very good balance in delivering human rights to first nations people. I'm looking forward to seeing that happen.

Just following up on the concept of the duty to consult, in relation to Taku-Haida, you mentioned that there wasn't any deep analysis done at this point as to how it would relate, perhaps, to subsequent decisions or other matters maybe outside the realm of resources.

I had an argument that I was testing a little at the previous meeting, and perhaps I'll put it before you as well. Subsequent to Taku-Haida, the Supreme Court ruled to extend rights to the Métis people, like me, in regard to hunting and fishing. This, of course, impacts first nations people as these are finite resources we're talking about. They themselves didn't consult, so how would that be interpreted in relation to Taku-Haida?

[Charles Pryce]

Thank you for the question.

I think I was here at that previous meeting, and I can't remember exactly the response, but from a legal perspective the courts adjudicate on rights and they interpret the Constitution and the common law. So it's difficult to conceive I think conceptually that the court would have to consult with other people who might be affected by a particular decision.

What tends to happen, certainly by the time a case gets to the Supreme Court of Canada, is that other people who might be affected are allied to or they seek to intervene in the particular case. So in that way the judges do actually hear the views of other people who might be for or against the particular proposition.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

That's what we're doing here to some extent. We're taking the views of multiple—

[Charles Pryce]

Yes. I mean, there is a process in place that allows other views to be heard.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

One could argue that this is consultation similar to what occurs at the Supreme Court, and we can of course proceed with this bill.

[The Chair, Conservative, Colin Mayes]

I'll have to cut you off with the time, unfortunately.

Members of the committee, we have a second panel, and I know we started late. What is the pleasure? Do you want to continue or move on to the second panel?

Move on to the second panel? Okay.

I apologize for the lateness. We do appreciate your attendance at our meeting here and the information you have forwarded. Thank you very much.

We will recess now for a couple of minutes.

I want to also make the committee and the witnesses aware that we do have lunch. If you wish to partake, please do so. Thank you.

[The Chair, Conservative, Colin Mayes]

Can we reconvene, please?

We are going to be entertaining our second panel, the witnesses from the Canadian Human Rights Commission.

We have with us Jennifer Lynch, chief commissioner; David Langtry, commissioner; Hélène Goulet, secretary general; and Harvey Goldberg, proactive team leader, strategic initiatives branch.

Welcome to the committee.

Madam Lynch, will you have an opening address?

Welcome, again.

[Jennifer Lynch, Chief Commisioner, Canadian Human Rights Commission]

Thank you very much.

Thank you for your words of welcome.

Thank you for the opportunity to appear again before you as you conclude your hearings.

We, of course, have been following the hearings very carefully. We've listened and we've learned. And today, before answering your questions, I'd like to link the key points of our original submission with some of the testimony you've heard. I'd also like to provide a very brief analysis of some of what we might call misconceptions and concerns that have been raised by other witnesses about the impact of the repeal.

To begin with, to link our submission to others' testimony, on April 19 we made four key points: we support the immediate repeal of the section; there is a need to ensure that our act is interpreted in a manner that strikes an appropriate balance between individual rights and interests and collective rights and interests; the transitional period, in our opinion, should be much longer than six months--at a minimum it should be 18 months; and proper funding of the commission and first nations is crucial to ensure successful implementation of the repeal.

The witnesses before you, I would submit, have confirmed the strong validity of these four points.

Let us begin with the immediate repeal.

Almost all the witnesses that appeared before the committee supported the need for a system of human rights protection for First Nations. This is not surprising. We continue to stress the urgency of repeal. The Commission has been calling for repeal for 30 years. Although the Canadian Human Rights Act has been amended several times in order to maintain the Commission's ability to protect and promote human rights, section 67 has remained in the Act.

Thirty years is far too long to wait for people to have access to basic human rights protection that other Canadians take for granted. The time to act is now. Clearly, the issue is not whether there should be the fullest human rights protection for First Nations but how best to implement such protection.

You've heard testimony that the protection of both collective and individual rights is recognized by first nations as a core value necessary to the good governance and well-being of their citizens and that the balancing of these rights is consistent with first nations traditions and cultures. You've heard eloquent and moving testimony about the need to ensure that human rights are applied in first nations in a manner consistent with existing aboriginal and treaty rights, cultures, and traditions.

The need to develop a suitable mechanism to achieve the appropriate balance was emphasized by almost all witnesses. We submit that one way of proceeding is to amend the bill to include a statement of principle to guide the commission and the tribunal in the interpretation of complaints against aboriginal authorities, and today we are bringing suggested wording, which would read:

In relation to a complaint made under the Canadian Human Rights Act against an Aboriginal authority, the Act is to be interpreted and applied in a manner that balances individual rights and interests with collective rights and interests.

Such a provision is consistent with sections 15 and 16 of our act. Section 15 enables the commission and the tribunal to take into consideration matters such as the justifiable occupational requirements of a job in considering whether the act has been contravened. For example, denying a job as an airline pilot to a person who has poor vision is discriminatory under our act, but the discrimination may be justifiable, given the requirements of the job.

In their testimony before you, Professor Larry Chartrand and Ms. Wendy Cornet referred to court and the Canadian Human Rights Tribunal decisions regarding first nations, where balancing of collective and individual rights has already occurred using section 15. As for section 16 of our act, this allows for special programs that discriminate in favour of a particular group if the reason of the program is to overcome past discrimination.

As a result of sections 15 and 16, the commission and the tribunal already have considerable experience in balancing interests in the determination of human rights claims. To give practical effect to this balancing of collective and individual rights and interests, the commission has committed to working closely with first nations and other stakeholders on an ongoing basis. Dialogue is essential before considering what further instruments, such as regulations, guidelines, or policies, or some combination of these, might best help to ensure that the statutory principle is realized in the day-to-day handling of human rights complaints. And of course we've already begun this dialogue.

I will now deal with the transition period.

Almost all witnesses agreed that time is needed to build the necessary capacity and processes to deal with potential human rights issues in communities.

Some noted that while their communities support human rights, they have little understanding or knowledge of how a human rights redress system might work in their communities.

Many times it was emphasized that First Nations communities need time to build the consensus and understanding that is essential to establishing a strong foundation for an effective system for managing and resolving human rights issues.

This testimnoy has confirmed our conviction that six months is entirely inadequate to do the work required. At a very minimum, we believe that 18 months should be allowed before the Act applies to First Nations and preferably significantly longer.

Let us now deal with the matter of resources.

Witnesses before you emphasized the need for adequate resources to ensure a smooth implementation and ongoing operation of First Nation's human rights systems. In their testimony before you, DIAND officials indicated that the government was aware of this need and willing to consider it further, although they did not feel financial matters should be included in the legislation. The Commission understands the concern of First Nations that the resource demands that may result from repeal should not come at the expense of other urgent priorities such as housing, health and education.

As we indicated to you when we appeared previously, the Commission has been in discussion with the government on the resource requirements of the Commission to effectively implement repeal.

However, as of today, no new resources have been allocated to support the Commission's initiatives to engage with First Nations stakeholders or to plan for the implementation of repeal.

Given that resources would not flow until passage of the Bill, we are only able to modestly implement our outreach strategy at this time.

The second portion of my remarks is related to the impact of the repeal, what I might call perception and reality.

Some misconceptions have arisen during your hearings on the possible impacts of the repeal. For example, a hypothesis has been advanced that a complaint to the commission could result in significant changes and impacts on first nations governments. Some have suggested that repeal of section 67 will undermine the whole structure of relations between the government and first nations, leading to a wholesale dismantling of the Indian Act.

These are difficult issues for the commission to comment on. I do so with great caution.

The commission considers each complaint that comes before it on the basis of its statutory mandate, the evidence presented, and the relevant jurisprudence. Nevertheless, in the interest of assisting committee members in better understanding the statutory mandate of the commission and how it operates, I make these points.

First, the statutory mandate of the commission, as important as it is, is relatively narrow. Human rights have many dimensions, including a panoply of civil, political, social, cultural, indigenous, and many other forms of rights. The work of the commission focuses primarily on the right to be free from discrimination in employment and in provision of services.

Second, in order for a complaint to proceed, it must be based on one or more of 11 specified grounds: sex, age, colour, national or ethnic origin, marital status, family status, sexual orientation, disability, religion, and conviction for which a pardon has been granted.

It is not sufficient to simply assert that two individuals or groups have been treated differently, or that the quality or level of service received by one group is different from that received by another group. In order for the commission to proceed with a complaint, the link to one of the specific grounds must be demonstrated. I should point out that at this moment, “social condition” is not a prohibited form of discrimination.

Third, there are many situations where a person may feel that they have been treated unfairly. They may feel that their human rights, in the broadest sense of that term, have been infringed. Or they may feel that an administrative error has been made. Often, no doubt, they may be justified in these allegations. However, the commission can only deal with the prohibited forms of discrimination specified in the act. The commission is not an ombudsperson and has no authority to act as one.

Fourth, while some complaints are lengthy, litigious, and costly, they are the exception. Most complaints can be resolved in nine months or less; 27% are settled; and 28% are dismissed because the claim of discrimination is not well founded or are discontinued for other reasons. And 35% are referred to alternate means of redress or are not admissible. Just 10% of cases are referred to the tribunal, and many of these are resolved through mediation.

Because the commission actively promotes a non-litigious approach to resolving complaints, the need for the involvement of lawyers is minimal. Many, if not most, human rights situations are resolved before a formal complaint is filed with the commission. The commission actively encourages employers to implement their own internal conflict management systems.

A fairly major point is a misperception that our mandate is restricted to complaint processing. One of the key aspects of our implementation strategy is to work with first nations to build community-level redress systems and strengthen existing ones. In modern conflict management approaches, strong complaint processes are important, yet they should be a remedy of last resort. Our vision and mandate are for much more than an internal complaints system. Formal dispute resolution, although important, should be a relatively small part of an overall system that would also embrace prevention and education.

There is such enormous potential here to develop a whole system that starts with a dispute resolution structure providing multiple options for the resolution of disputes and is supported by other processes and practices that will shift the emphasis towards the front end: prevention of discrimination, and education.

The core principles to be developed should have as their goal the fostering of a culture that treats conflict resolution as a building block to creating inclusive and productive communities and workplaces.

By establishing integrated human rights and conflict management systems, first nations citizens will better understand their rights and how to realize them, first nations governments will better appreciate the rights they are mandated to promote and respect, and all parties will be able to work together to prevent discrimination and resolve human rights complaints.

Sixth, while it is true that a complaint could result in parts of a federal statute being found to be discriminatory, it is unlikely that such a determination could ever result in the piecemeal dismantling of a legislative regime. The commission operates remedially and not as a sword. A government faced with a finding of discrimination has the opportunity to use such a finding as an impetus to examine its procedures or laws and adjust them so as to not conflict with the CHRA.

In closing, I would like to reiterate the commission's respect for first nations communities and governments. We respect the right of first nations to self-government. We respect their legal traditions, customary laws, and systems of dispute resolution. We are committed to working with first nations to develop a human rights system that fosters and sustains this respect and enhances human rights for all first nations citizens.

I hope these comments on the hearings will be of assistance to the committee in completing your very important deliberations on this bill.

My colleagues and I would be pleased to answer your questions.