Indigenous and Northern Affairs Committee on June 12th, 2007

[Candice Metallic, Legal Counsel, Assembly of First Nations]

I think the position of the Assembly of First Nations has always been that in an ideal world, consultation takes place first. I had the benefit of listening in on your question to the representatives from the Native Women's Association about this point. I agree with your proposed approach to consultations, and the law certainly points to that very process as well, with consultation at the beginning. But the Crown has an ongoing role to consult, and I think that's very important. They have an ongoing duty to consult throughout the various processes and stages of legislative and policy development.

In the circumstances in which we find ourselves with respect to Bill C-44, we gave it a lot of thought when we were looking at the position the Assembly of First Nations would take. We structured our amendments to extend the transition period to 36 months. And we tried to build in a consultation element. That's the reason we extended it to 36 months. It was to have a review period between immediately and within 18 months so those consultations can take place and so there will be this operational review and assessment to ensure that first nations have the necessary capacity to bring their buildings, their policies, and their laws up to the standard that would withstand the scrutiny of the Canadian Human Rights Act. But it was also to look at ways in which first nations governments can sustain the protection of human rights in general.

So there's a two-stage process here that we have to consider, and the way we have structured the amendments takes into account all of that.

[The Chair, Conservative, Colin Mayes]

You still have two and a half minutes left.

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

Based on that, then, all the elements are in these proposed amendments.

I want to come back to consultation again, just for a moment. I asked the Native Women's Association this question as well, but I think it's an important one because of the fact that the argument is made that there isn't a duty to consult on legislation or on rights; it's only on resources. Yet it would seem that when we're looking at section 35, when we're looking at other court decisions, they talk about aboriginal rights or title. I wonder if you could comment on that.

[Candice Metallic]

I would say that certainly, in the case law that has come down from the courts, and particularly from the Supreme Court of Canada, the facts in those cases have revolved around resource development. But the courts, in the language they've used to define the duty to consult, state, as Ms. Eberts has said, that whenever there's a right or—I think you quoted Louise Mandell in your question—whenever the government knows or constructively is aware of an aboriginal right and contemplates action, whether legislative or policy, that will negatively or at all impact those rights, that's when the duty to consult is triggered.

I think to limit it simply to resource development is not a very honourable way of looking at the Crown's duty.

[Chief Phil Fontaine]

In fact, every decision taken by government that has an impact on first nations we see as a matter that is consistent with the duty to consult. The government casts a wide net over everything first nations governments do, and every decision that's taken has an impact or an effect on our rights and interests.

If we're talking about good public policy here, in itself that issue requires the federal government, in our view, to sit down and talk with us in a very meaningful way. Otherwise, the policy is flawed, as well-intentioned as the government may be.

[The Chair, Conservative, Colin Mayes]

Thank you.

I'll go to Mr. Bruinooge, please.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Thank you very much, and thank you, National Chief, for coming back to provide us with your additional sentiments on this important piece of legislation.

I also want to commend you for your advocacy for the extension of the Canadian Human Rights Act to first nations people. I have to give credit where it's due, and clearly you have maintained that position since your first appearance before us.

My initial question will be along the lines of your second submission. I have only read it briefly, and I was just wondering if perhaps you or Mr. Jock or Ms. Metallic might be able to highlight any changes there might be from the initial submission.

[Chief Phil Fontaine]

I'll call on Candice to provide you the highlights.

[Candice Metallic]

What we've provided to you here is a clause-by-clause analysis of the legislation. The original text of the bill is in italics and our changes are in bold. So the majority of what we've provided is consistent with our original submission. The only thing we changed was the interpretive provision.

We met with representatives from the Canadian Human Rights Commission and we had several discussions with them about the best way to approach the development of an interpretive provision. In trying to find consensus with the Canadian Human Rights Commission, we agreed that we would outline a principle that would be included in the legislation, in the Canadian Human Rights Act. We essentially took the principle that the Canadian Human Rights Act proposed to us and we modified it to ensure that traditional laws and customary laws are included within the interpretive principle so that the traditional ways in which first nations people resolve disputes amongst themselves would be given due consideration in the resolution of disputes involving the Canadian Human Rights Act.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

The interpretive principle that was suggested by the Canadian Human Rights Commission I believe met with language that was put forward by all the opposition critics as well as the government. I believe they also indicated that they met with you, and I think you've just said that. On the language they put forward, you're suggesting that it's perhaps something that would be agreeable as part of any amendment that might be brought forward.

[Candice Metallic]

Our position would be that a modified version of what they provided would be acceptable on the condition that further policies and guidelines would be the subject of further consultations with first nations people.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Where, within the document, is the modified provision?

[Candice Metallic]

It's under number 3, “Interpretive Provision”:

In relation to a complaint made under the Canadian Human Rights Act against a First Nation government, including a band council, tribal council or governing authority operating or administering programs and services pursuant to the Indian Act, the Act is to be interpreted and applied in a manner that gives due regard to First Nations legal traditions and customary laws in adjudicating disputes to balance individual rights and interests with collective rights and interests.

Following that, there is an explanatory note that essentially sets out what I've just explained.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Okay. So at this point, based on much of the information that you brought forward and your answers to some of the questions of other individuals on this committee, with some of these ideas incorporated, there is some interest in seeing this proceed further to the next stage of this bill, which would be to become the law of the land.

[Chief Phil Fontaine]

If there is due consideration of all of the amendments that we've advanced, then of course we would support that work, provided it proceeds with the consensus of the committee.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

I guess, though, National Chief, it becomes challenging as parliamentarians when we have to adjudicate somewhat the varying positions that are put forward—from the Native Women's Association, of course, and there are a number of other regional leaders who have brought forward positions as well. So I think it would be difficult for the committee to be able to incorporate all of the elements that you've put forward, in light of the fact that there are other bodies that have differing views.

As a parliamentarian, I find that perhaps the most difficult part of the job, to assess what needs to be incorporated, because I think you can't incorporate everyone's position. So do you have any advice for me as to how we might be able to adjudicate these varying positions?

[Chief Phil Fontaine]

Well, one of the areas where there's obvious consensus is with respect to consultation. So if we haven't been able to reach a consensus view or position on the proposed amendments, it's incumbent upon the committee to undertake appropriate and full consultations with all of the interests that have presented amendments to the committee.

I would be completely unfair if I came here and suggested that our amendments are the best. If you spoke to me in private, I would probably argue that they are, but publicly....

Consultation is absolutely essential, and we would urge the committee to make the right decision in that regard.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

How much time do I have, Mr. Chair?

[The Chair, Conservative, Colin Mayes]

Actually, you're out, unfortunately.

Okay, we've finished one complete round. Do you want to continue?

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Mr. Chair, if the committee is open to Mr. Russell's having a brief session and then moving on, could we see that as...?

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

Do it for the Atlantic Accord.

[Some hon. members]

Oh, oh!

[The Chair, Conservative, Colin Mayes]

Please stay focused. Remember where you are.

Mr. Russell, I'll allow your question.

[Todd Russell, Liberal, Labrador, NL]

Good afternoon, National Chief, and your support staff as well.

If this bill went ahead as is, without any changes, from a process perspective, do you believe there's been a breach of the duty to consult?

[Chief Phil Fontaine]

One point I would make here is that we would be cast, as I said earlier, in a very unfair position. We would be treated differently. Our governments would be treated differently in terms of ensuring that there's appropriate time to ready our governments to be able to deal with this legislation. All governments in Canada were afforded three years as a transition period; our governments were being asked to undertake this very important task in six months.