Evidence of meeting #57 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 witnesses.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Daniel Watson  Senior Assistant Deputy Minister, Policy and Strategic Direction, Department of Indian Affairs and Northern Development
Douglas Kropp  Senior Counsel, Resolution Strategy Unit, Department of Justice
Charles Pryce  Senior Counsel, Aboriginal Law and Strategic Policy, Department of Justice
Jennifer Lynch  Chief Commisioner, Canadian Human Rights Commission
David Langtry  Commissioner, Canadian Human Rights Commission

12:25 p.m.

Conservative

The Chair Conservative Colin Mayes

Thank you, Madam Lynch.

The chair is going to move forward with a five-minute round, just to make sure everybody has an opportunity. We left off with the government side; now we will go to Mr. Lévesque.

Anita Neville Liberal Winnipeg South Centre, MB

This is a new panel. You start the panel around--

12:25 p.m.

Conservative

The Chair Conservative Colin Mayes

It's at the chair's discretion, I think. We only have 25 minutes, and I want to make sure everybody has an opportunity to ask questions.

Go ahead, Mr. Lemay.

Marc Lemay Bloc Abitibi—Témiscamingue, QC

Mr. Chairman, I too believe that this is a new round. To avoid wasting time, I suggest that we start with the Liberals and that Yvon get the floor afterwards. I will not ask questions since I have made an agreement with him. My colleague will ask our questions and we could then go to the government members. In that way, everyone will have enough time to ask one question.

12:25 p.m.

Conservative

The Chair Conservative Colin Mayes

Okay, I will do that, but only for five minutes.

Anita Neville Liberal Winnipeg South Centre, MB

We're happy with five minutes, Mr. Chair. We're anxious that everybody have a chance as well.

I will ask a brief question and hope there's time for Mr. Russell to pick up on it.

Thank you for your presentation. You've addressed a number of important points of clarification, and I certainly appreciate it.

Mr. Pryce, who was here before, indicated that this bill has a broad impact, in spite of the nine words that are constantly referred to, and it is important that we do it well.

As you know, we met yesterday with the Human Rights Commission, and an interpretive principle was proposed to us. I am aware that aboriginal communities have suggested that you include the words in your principle, “indigenous legal traditions and customary law”. For some reason you're choosing not to include that in the interpretive principle.

You referenced in your closing, Ms. Lynch, that you respect the legal traditions, customary laws, and systems of dispute resolution. Why would you not include it, and could you tell us how those apply to those first nations that currently would not fall under Bill C-44--those that are currently exempt from it in your dealings with them?

12:25 p.m.

Chief Commisioner, Canadian Human Rights Commission

Jennifer Lynch

I will make a preliminary over-arching answer and then I'm going to ask Commissioner Langtry to go into a little bit more detail.

This proposal was raised with us in a meeting and we considered it afterward. One of our concerns is that we have potentially 600 communities with which we could be dealing, and the language proposed could lead us to having to make 600 different interpretations about traditions and cultures. Any given one would not necessarily inform or become a precedent for another.

That's an introductory comment, and Mr. Langtry is going to provide you with further detail.

David Langtry Commissioner, Canadian Human Rights Commission

Thank you.

Quite rightly, the question was asked. Our concern about it, our understanding--and I'll get back to our understanding in a moment--was that some first nations do have the legal tradition or customary law and others do not, and they're different from one to the other.

Quite frankly, from our point of view, part of the transition and part of the reason we want to develop the interpretive guidelines or whatever instrument in discussion and dialogue with first nations across the country is to learn more. So for us to incorporate or propose language on something we're not all that familiar with we felt was not appropriate. Also, we thought that collective interests could be broad enough to include legal traditions and customary laws.

The other aspect is that the legal tradition and customary law may in fact be an alternative dispute mechanism, which would mean that we wouldn't even deal with it because we do move disputes to alternative redress if it exists. So rather than building it into a statement of principle, we felt it was something that would be worked at with us through the transition period.

12:30 p.m.

Conservative

The Chair Conservative Colin Mayes

You still have a minute and 20 seconds.

Todd Russell Liberal Labrador, NL

Just very quickly, you said linking your submission to other testimony, you support an expeditious repeal of section 67.

Are you saying you support an expeditious repeal of section 67 once we have dealt with your other three points--points 2, 3, and 4?

That was on page 2, I believe.

12:30 p.m.

Chief Commisioner, Canadian Human Rights Commission

Jennifer Lynch

Yes, thank you very much. I'm very well aware of our key points; I was just formulating a response to your question.

I'd like to speak to the reality, first of point 4, which is the proper funding. It is absolutely correct that because of our own principles of wishing to engage stakeholders in dialogue about matters that affect them, we have embarked on as much dialogue as we can right now. This is very tied in to point 3, the transitional period, as well.

The two are inextricably combined, because although we are very gratified by a previous witness's testimony that talks about our involvement and our commitment to dialogue and interaction, we simply do not have the funding now to begin that in any real way.

Similarly, because our mandate and our vision is much broader than a smart recourse mechanism that is easily accessed and moves efficiently, because our vision is well beyond that and we want to shift towards education and awareness and behaviours that do not give rise to discrimination, it's a very long process that is needed for us to work with the various communities to achieve that end. Consequently, we do need time and we do need resources. However, we believe that can be managed within an appropriate transitional period.

Finally, with the concept of an interpretive principle, we're skilled at dealing with balancing individual rights and interests, striking balances, so in that regard, again, a transition period will enable us to develop whatever guideline or instrument.

I'm not sure if I've answered specifically.

12:30 p.m.

Conservative

The Chair Conservative Colin Mayes

That's all the time you have anyway. Thank you.

I'm going to turn to the government side.

Jean Crowder NDP Nanaimo—Cowichan, BC

Mr. Chair, on a point of order, I understood we were starting a new round; therefore, it's the three opposition parties and then--

An hon. member

That was your understanding, but I think the chair has made a ruling.

Jean Crowder NDP Nanaimo—Cowichan, BC

No, that wasn't my understanding of it.

12:30 p.m.

Conservative

The Chair Conservative Colin Mayes

If I'm going to start a new round, then I have to do seven minutes, and we--

Mr. Lévesque, we're wasting time here. We have to move it forward because we have to give everybody an opportunity.

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

Mrs. Lynch, you have said that this matter has been debated for 30 years and that it is now urgent to act. It is similar to the sovereignty of Québec, in our case: is also urgent to act. However, you would recognize that there are important issues to consider. I am quite sure that you will not tell us today that, after those 30 years, First Nations have really been consulted by the government. You might say that there have been no guidelines about that from any court or government.

However, I am quite sure that you were at the Commission in 2005 and that you remember the commitment made by the government to consult First Nations about all federal policies affecting the members of the Assembly of First Nations and having a specific and significant impact on their future.

I will put all my questions of the same time.

12:30 p.m.

Chief Commisioner, Canadian Human Rights Commission

Jennifer Lynch

I did not understand your first question. Could you repeat, please?

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

We might say that Bill C-44 is very important since it is going to change the life of the First Nations. Can you tell us if they have been consulted by the government since it made the commitment to consult them, on May 31st, 2005, two years ago?

Furthermore, I am quite sure that you were here when the department officials testified before us. You probably heard Mr. Watson's presentation. You have said that after repeal and in the implementation of Bill C-44, an interpretation clause would be necessary. You heard Mr. Watson express a contrary opinion. Do you maintain your position despite Mr. Watson's statement?

12:35 p.m.

Chief Commisioner, Canadian Human Rights Commission

Jennifer Lynch

Thank you, I will answer in English.

For your first question, about whether or not the government has consulted, I'm sorry, sir, that our commission is not in a position to interpret those activities and provide an opinion on that. The duty to consult is a duty of government; it's not part of our role.

With regard to the interpretive principle, there are divergent opinions about this, and we have heard all of them. We have a statute that provides us with avenues for developing an interpretive provision by the way, for example, of a guideline. The guideline may not be the appropriate approach; it may be a policy, it may be a regulation.

Hearing the stakeholders and knowing how impacted they may be by this repeal, we have come to you today to propose a principle, at least. In fact, when it goes into the statute it will be a clause within. However, a statement of principle that's broad, yet refers to rights and interests, will be helpful. And then afterward we will have more time during the transition period to flesh this out to create some more interpretive guidelines.

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

You are the chief Commissioner of the Canadian Human Rights Commission. We know that there are individual rights and collective rights. On the basis of nation-to-nation respect as well as on the basis of respect for human rights, should the government show respect to the other side and act on the basis of the vision of the Canadian Human Rights Commission?

12:35 p.m.

Conservative

The Chair Conservative Colin Mayes

You're down to 15 seconds. If you want an answer, you'd better allow the witness to reply.

12:35 p.m.

Chief Commisioner, Canadian Human Rights Commission

Jennifer Lynch

Thank you very much.

I know that's an important question to you; however, it is not part of our responsibility as a commission, and we can't be helpful in providing you with an answer to that question.

12:35 p.m.

Conservative

The Chair Conservative Colin Mayes

That's a sufficient answer, thank you.

We'll have Madam Crowder.

Jean Crowder NDP Nanaimo—Cowichan, BC

Thank you, Mr. Chair, and I want to thank the witnesses.

I have two brief comments, and I have a question about the Indian Act.

One is that we are actually missing an opportunity. I would argue that we should do the consultation before Bill C-44 is put in place. But we would also be missing an opportunity if we didn't provide the commission with some appropriate resources to undertake education and awareness right now. As we all know, the Canadian Human Rights Act does apply on reserve for non-Indian Act issues. So there would be an opportunity to do some work there.

The other point I want to quickly make is about the remedy. It is outside your mandate, but there has been a lot of concern expressed by the witnesses that if complaints are filed, they do not have the resources to actually address the remedy.

The piece I wanted to deal with was the Indian Act. The reason I wanted to raise it was because it wasn't just witnesses; there were also some experts in the area that raised concerns related to the Indian Act. One was the Bar Association. Their submission, on page 8, which I will not quote, quoted Justice Muldoon of the Federal Court of Canada, who speculated on the fact that the repeal of section 67 could have some substantial impacts on the Indian Act.

The second piece I wanted to bring to your attention was from the Native Women's Association of Canada on access to justice and indigenous legal traditions--it's on page 11 of that brief, in English. They actually quoted from the commission's own report. The commission indicated that they urged the repeal of section 67, but they actually went on to say, “However, the Commission would prefer that the Government take a proactive approach to preventing potential discrimination and not wait for complaints to be filed”, and so on. And it says:

The Commission, therefore, urges the Government, in consultation with First Nations, the Commission and other relevant bodies, to review provisions of the Indian Act and relevant policies and programs to ensure that they do not conflict with the Canadian Human Rights Act and other relevant provisions of domestic and international human rights law.

Although that doesn't talk about necessarily dismantling the Indian Act, it does address the fact that there are some serious problems with the Indian Act. So I think there was enough concern being raised about the potential one-off impacts of the Indian Act.... A number of people have talked about the fact that they feel a much more comprehensive review is needed.

I wonder, in light of this, if you could comment on your comment.