Indigenous and Northern Affairs Committee on Jan. 30th, 2008

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

Amendments NDP-2, L-3 and L-4 deal with the same thing.

[The Chair, Conservative, Barry Devolin]

Sorry. I would agree that NDP-4 and Liberal-3 deal with the same thing. Liberal-4 actually deals with subclause 2(2), so it is different. But you're right that the first two do, and you could probably argue that one of the government ones does too.

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

So then, amendment L-4 does not deal with this point. I thought it did. I suggest that we examine amendment NDP-4. If the amendment passes, then we can set aside L-3 and L-4.

[The Chair, Conservative, Barry Devolin]

Right. So if I can clarify, NDP-4 deals with both the first and second subclauses. Liberal-3 deals with the first and Liberal-4 deals with the second. What that means is that if we adopt NDP-4, we will not consider those other two because they would be dealing with the same thing. Having said all that, none of these has yet been moved or placed on the table. But your point is well made.

We'll go to Ms. Wasylycia-Leis.

[Judy Wasylycia-Leis, NDP, Winnipeg North, MB]

Thank you, Mr. Chairperson.

I'd be happy to move NDP-4.

Let me first explain that I'll do my best at this committee. I'm following the good work of Jean Crowder, who couldn't be here today because, as you may know, her father passed away last week.

Shall I read the motion?

[The Chair, Conservative, Barry Devolin]

I don't think it's necessary. I think we all have it.

[Judy Wasylycia-Leis, NDP, Winnipeg North, MB]

Okay, then I'll just speak to it.

As I understand it, many of the witnesses to this committee actually expressed concern about first nations organizations having the resources to deal with human rights complaints. In that context, and in the spirit of those concerns, we have put forward a motion that tries to change the five-year period, which in the present bill is required before a review is done. We think, and I believe that many witnesses believe, that a review should happen much sooner than that. We're suggesting that it be done within 18 months. I see that the Liberal amendment is slightly different from that, but it is in the same spirit. We believe this is necessary to provide more resources to honour tribal decisions rather than having the first nations wait years for the funding they believe is their rightful due.

I so move.

[The Chair, Conservative, Barry Devolin]

Thank you, Ms. Wasylycia-Leis. I appreciate that you're pinch-hitting today for your colleague.

If I can, I want to point something out that has been brought to my attention with regard to several of these following amendments. Thinking chronologically, at some point, if Bill C-21 is passed by Parliament and becomes law, there will be a transitional period during which it is implemented. I expect that at some point today we're going to have a discussion about how long that transitional period should be. The bill proposes six months, and there are potential amendments that would extend that to 18 or 30 or 36 months, I believe. What has been pointed out to me is that if the report back is to deal with what is happening with implementation, that report really can't be done until after the transition period. Prior to the transition period, it's not really in force.

So one of the suggestions put forward was that the period of time identified for this report should really commence at the end of the transitional period. If there's a three-year transitional period and you have an 18-month review process that starts at the beginning, the review would be completed before the act was even implemented.

So I think the committee is going to have to have a discussion about the transitional period. Once we've agreed on that.... I put this on the floor for comment from committee members. I think it is logical that the report, in terms of how it's working, can't actually be done until the act is actually implemented.

I'll go to Mr. Lemay in a minute. If the committee were to agree with me on that point, you may want to amend this with regard to however many months there would be from the point at which the transitional period is complete.

Go ahead, Monsieur Lemay.

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

With all due respect, Mr. Chairman, the lawyer in me disagrees.

Amendment NDP-4 proposes that within 18 months after the passage of the bill, the committee, working with the parties identified in subsection (1), undertake a review and report back on the effects of the repeal of section 67. This would not prevent the act from coming into force, even in the event of a three-year implementation delay. This would not change anything. The amendment proposes that after the act comes into force, those organizations identified by the Government of Canada meet and report back to us on the effects of repealing this provision. It calls for a report to be tabled to both Houses within 18 months.

That is what I understood and how this was interpreted. Later on, we will talk about the time frame involved. We can come back to subsection (2) later. I hope that I haven't lost anyone and that my translation is better than my legal mind.

[The Chair, Conservative, Barry Devolin]

Monsieur Bruinooge.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Thank you, Mr. Chair.

I'm not a lawyer, but I am a conservative, and as such I have to disagree with everything the member from the Bloc has said, and usually—always—says; but today, anyway, for sure.

Mr. Chair, should the transition period remain as it currently stands, at six months or a year, then this will make sense. But if what has been suggested by multiple motions, including our own government's, extending the transition to 18 months...then this amendment becomes completely pointless, because there will have been no effect of the repeal to review. It will be a useless exercise of both Houses of Parliament.

I think it is important that we have a discussion in relation to transition before we pass this amendment; it would be irrational to do otherwise. If there is agreement to leave the transition period as it stands right now, then I think there is support, probably, for this amendment.

But I don't imagine that's going to be the case. Since it's likely not going to be the case, it would be irrational for us to support this amendment.

[The Chair, Conservative, Barry Devolin]

Mr. Lemay, I listened to your explanation, but I still am not totally clear. If Bill C-21 passes, there's going to be a transitional period, which means it won't come into force for a period of time. The bill proposes six months, but we know by looking at our package that some may want it to be longer than that.

For argument's sake, let's say it's 30 months. If you had to do a review in 18 months, you could discuss what the potential impacts might be, but given that it's not in force yet, how would you actually have any impacts to study? It would seem to me that the study needs to take place after the transitional period ends.

Mr. Bruinooge, are you suggesting that maybe we should discuss the transitional period first, and then, once we've determined it, discuss this? Is that what you're saying?

[Rod Bruinooge, Conservative, Winnipeg South, MB]

That would be my suggestion, yes.

[The Chair, Conservative, Barry Devolin]

The other option, which I had put forward, was that you could define the report period as beginning once the transitional period ends, so it could move around.

Is there anyone...?

Ms. Wasylycia-Leis.

[Judy Wasylycia-Leis, NDP, Winnipeg North, MB]

Just reviewing this material quickly, it's our understanding that the transitional period is to apply only to first nations communities and not to the federal government, and therefore it becomes more important than ever to ensure that you have a proper timeline in place to deal with complaints against the federal government, as opposed to waiting any lengthy period of time. If that is the case, then I think our concern rests and our amendment is in order.

Beyond being in order, the rationale for it makes sense and ought to be considered seriously, unless you have information otherwise suggesting that the transition period applies also to the federal government.

[The Chair, Conservative, Barry Devolin]

Mr. Bruinooge.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

I'd like to speak to that for a moment. The transitional period will prevent anyone from lodging a complaint, a first nations citizen or anyone living under the Indian Act. So there would not be a complaint to consider before the commission.

I don't see how this could make sense as it is currently written, unless of course we leave the transition period as it currently stands at six months. Then I think you could make an argument that after 18 months we'll have had a year to look at the bill and the transition period and how it's having an effect on the community.

So if there is a consensus amongst the opposition parties to remain at six months, then, like I said, there is government support for this motion.

[Judy Wasylycia-Leis, NDP, Winnipeg North, MB]

Sorry, could I ask a question for clarification? If we accept the six-month transition period as is, you would accept changing the five years to 18 months coming into effect as of the end of the six-month transition period?

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Yes, without question.

[Judy Wasylycia-Leis, NDP, Winnipeg North, MB]

I think I'd be willing to...but only if this was something that was sent to the House, and involved the House and the Senate, and was thoroughly reviewed on that basis.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

It doesn't sound like your vote is going to help us on this matter, because of the fact that we're outnumbered over there.

[The Chair, Conservative, Barry Devolin]

Mr. Bruinooge, I have a speaker....

[Judy Wasylycia-Leis, NDP, Winnipeg North, MB]

Could I get some clarification on that, though, if that is the case, in terms of the levels of government? Have you gotten any advice in terms of the first nations—

[The Chair, Conservative, Barry Devolin]

I'm going to ask the analyst to very quickly specify one point, and then I'm going to move back onto my speakers' list. It is the point that Ms. Wasylycia-Leis made about whether the passage of this legislation would have an impact during the transitional period or whether there would be no impact until afterwards.

[Mary Hurley, Committee Researcher]

The one point I can make is that it's clear that clause 3 only applies to the decisions and actions of aboriginal authorities and not to the decisions and actions of the federal government.

My understanding of this is that it means--and I believe this is in the material that was distributed by the department--that there is no transition period for complaints under the CHRA against the federal government and against the Department of Indian Affairs.

If you read clause 3, it says, “Despite section 1, an act or omission by an aboriginal authority that was made in the exercise of powers”, etc., “shall not constitute the basis for a complaint under Part III of the Canadian Human Rights Act if it occurs within six months”.

So that clause applies to decisions of the aboriginal authority and not to decisions of the federal government.