Thank you, Mr. Chair.
I have to say that I appreciate the generally respectful tone of the debate today, because I think it's a very important issue. There's just one issue around respect, and Mr. Storseth raised the issue that he felt that this committee wasn't being respectful.
I would argue that if we truly to talk about respect around process, this committee has passed two motions in the past calling for consultation, which the government has chosen to ignore. So in terms of respect for process, when you have a majority of members of the committee laying out a careful framework around consultation, I think that's important to note.
Just to come back to the interpretive clause, I think the big challenge we have before us is the fact that, on a number of occasions, either the Human Rights Commission, in a report that it's put forward, or individual commissioners have talked about the importance of an interpretive clause.
When Jennifer Lynch, the Chief Commissioner of the Canadian Human Rights Commission, appeared before the committee, her submission on April 19, 2007, talked about the need for an interpretive provision:
The need for an interpretive provision is one important area where differences of view have been voiced and Bill C-44--the now Bill C-21--is silent on this matter. With respect, we submit that it should not be. First nations communities and people have a unique history and a special status in the Canadian constitutional and legal system. Their existing aboriginal and treaty rights are affirmed in the Constitution, and have been progressively confirmed by the courts, and are recognized by governments at all levels.
An interpretive provision is, in our submission, imperative to give application to the inherent right to self-government and is fundamental to developing an appropriate system for first nations human rights redress. An interpretive provision would help to ensure that individual claims are considered in light of legitimate collective rights and interests.
While many agree on the need for an interpretive provision, there are differences on how this should be achieved.
So you have the Chief Commissioner of the Canadian Human Rights Commission calling for an interpretive clause. The very people who are going to be responsible for hearing complaints are saying that they need this particular piece.
I guess this is a question for the department. There were a couple of comments earlier that left me feeling really uncomfortable. It almost seems like there's an underlying presumption that first nations couldn't possibly have egalitarian human rights. I hear these concerns voiced around all kinds of decisions that first nations make that are potentially discriminatory. Inherent in that is a presumption that first nations somehow or other don't recognize human rights as valid in their own context.
I'll frame this in the context of the question that I want to ask. In “A Matter of Rights“, the Canadian Human Rights Commission, as I pointed out earlier, raises interpretive provision but they also point out that there are provisions where there's a bona fide occupational requirement, a bona fide justification--you lawyers know all about this stuff--for why it treated an individual in a way that would otherwise be contrary to human rights law.
They go on in their documentation to outline some cases where there is this bona fide requirement. In footnote 28, they're citing the Ontario Human Rights Commission, but I think it's a legitimate comment. It says, for example, under subsection 24(1) of the Ontario Human Rights Code, that the right under section 5 to equal treatment with respect to employment is not infringed where
a religious, philanthropic, educational, fraternal or social institution or organization that is primarily engaged in serving the interests of persons identified by their race, ancestry, place of origin, colour, ethnic origin, creed, sex, age, marital status, same-sex partnership status or disability employs only, or gives preference in employment to, persons similarly identified if the qualification is a reasonable and bona fide qualification because of the nature of the employment.
And so on.
So there are human rights codes, and in this context about giving people a bona fide requirement of employment--and arguably a bona fide requirement of employment for first nations might be that you speak the language and have some knowledge of the culture and tradition--I wonder why we wouldn't consider an interpretive clause that looked at some legitimate restrictions around things like employment.
I wonder if you could comment on that.