Indigenous and Northern Affairs Committee on Dec. 13th, 2007

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

Thanks. There are a number of mechanisms that have provided rights and freedoms. In particular the Royal Proclamation of 1763 granted some nations, for example Six Nations, some rights and freedoms under that proclamation. I thought it was important to list a couple of those. That's why the Royal Proclamation plus the land claims agreement are included, so those two pieces are not overlooked.

[Chris Warkentin, Conservative, Peace River, AB]

If I might ask then, Ms. Crowder, is it your opinion that we've covered everything that's necessary in these points? I'm curious as to whether there should be other points, or if by including certain points we leave out different nations and different rulings over the past years and decades. Do we run the risk of having forgotten important clarifications? If that's the case, what I--

[The Chair, Conservative, Barry Devolin]

Mr. Warkentin, can you address the chair, please.

[Chris Warkentin, Conservative, Peace River, AB]

I'll address the chair. I'd ask Ms. Crowder whether there's any possibility that we should remove the subpoints for fear that we might have forgotten something. Is there something of substantial consequence that's included in the three points, or are we reinforcing rulings that are already in existence?

[The Chair, Conservative, Barry Devolin]

I appreciate the question. All members have the opportunity to weigh in on this discussion before this question is brought forward. I presume that other members of the committee, including Ms. Crowder, may have views on this. I am not prepared to weigh in as an expert on the content of the amendment and whether it is or it is not.

We have officials here from the department. If you have a technical question you want to ask, possibly one of those gentlemen could answer.

[Chris Warkentin, Conservative, Peace River, AB]

Thank you, Mr. Chair.

I would redirect the question, through you, to the experts as to whether there is something in new paragraphs 1.1(a), (b), and (c) that is necessary and wouldn't be implied otherwise with other legislation.

[The Chair, Conservative, Barry Devolin]

Mr. Pryce.

[Charles Pryce, Senior Counsel, Aboriginal Law and Strategic Policy, Department of Justice]

I'll try to provide what assistance I can.

The wording in this proposed clause, other than new paragraph 1.1(c), is fairly close to what appears in section 25 of the charter. In that sense there is a precedent for it, admittedly in a very different context.

Without getting into what is included in new paragraphs 1.1(a), (b), and (c) and whether something is missed, I would simply point out that the opening part of that provision talks about aboriginal treaty rights and other rights and freedoms, including what's listed in those new paragraphs. So in that sense, I suppose--this hasn't been interpreted by the courts very much--that new paragraphs 1.1(a), (b), and (c) in one sense may well be examples of what is in the umbrella clause of the opening words of clause 1.

I'm just not sure it's necessary to get into what's in new paragraphs (a), (b), and (c).

[Chris Warkentin, Conservative, Peace River, AB]

I would then understand that paragraphs (a), (b), and (c) are merely examples of what's outlined in new clause 1.1. Is that correct?

[Charles Pryce]

It says “including”, so the broader term is aboriginal treaty and other rights or freedoms that pertain to first nations people.

[Chris Warkentin, Conservative, Peace River, AB]

Honestly, I do this only for the intent of being constructive.

If we're going to get into a listing of examples, are there additional examples that we should have included, or should we maybe remove the examples and just let new clause 1.1 stand alone?

It is my understanding that (a), (b), and (c) are examples referring to new clause 1.1.

[Charles Pryce]

That's one way of looking at it. They could also colour what is thought of as aboriginal treaty rights and other rights and freedoms; they could be indicative of what's included under that umbrella.

[Chris Warkentin, Conservative, Peace River, AB]

It would be part of the explanation.

[Charles Pryce]

It could well be. It does have a precedent, if you want to call it that, in the sense that a somewhat similar provision--admittedly in a very different context--does appear in section 25 of the charter. I think new paragraph 1.1(c) is the one that isn't in section 25. That provision has not been interpreted, at least not authoritatively by the courts. So exactly what it means, even in the context of the charter, is not clear.

What I'm indicating here is hypothetical. They could be examples; they could colour what is intended by that umbrella term “aboriginal treaty rights and other rights and freedoms”.

[Chris Warkentin, Conservative, Peace River, AB]

I would ask whether Ms. Crowder would accept a friendly amendment to remove new paragraph 1.1(c) as she suggested.

[The Chair, Conservative, Barry Devolin]

Before I put that forward, I would like to ask the departmental officials a question for clarification.

Earlier Mr. Bruinooge raised a concern that he had with new paragraph 1.1(c). Am I to understand that you just said new paragraphs 1.1(a) and (b) are the same or very similar to what's in the charter, and paragraph (c) is something different? I'm a bit confused myself.

[Charles Pryce]

I'm just looking at section 25 of the charter. Obviously new clause 1.1 has been altered for the context, but otherwise it is quite similar to section 25. New paragraph 1.1(c) doesn't appear in section 25 of the charter.

[The Chair, Conservative, Barry Devolin]

I have Ms. Crowder and then Ms. Neville.

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

Actually, I'll defer.

[The Chair, Conservative, Barry Devolin]

Ms. Neville.

Oh, sorry, I thought you were finished.

[Chris Warkentin, Conservative, Peace River, AB]

I would make what I hope would be a friendly amendment if Ms. Crowder would agree. I'd look to strike paragraph (c) from the amendment, if the committee so wished.

[The Chair, Conservative, Barry Devolin]

Ms. Crowder, do you want to respond to that now or do you need a minute?

Mr. Warkentin has asked whether you would be prepared to consider striking paragraph (c).

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

I guess I'm not sure about the process on this, because I understand there are other members who want to speak to that.

[The Chair, Conservative, Barry Devolin]

Okay, I'll leave that.

We'll hear from Ms. Neville and then Mr. Lemay.

[Anita Neville, Liberal, Winnipeg South Centre, MB]

Thank you, Mr. Chair.

I support Ms. Crowder's amendment NDP-3. If we were to remove proposed paragraph (c), I would ask that the first paragraph of NDP-3 reflect what is in the first paragraph of LIB-1.

First, that was not my original intent. I think what I want to speak to is the purpose of a non-derogation clause and put on the record some of the comments we've heard. We criticized and others criticized the lack of consultation that's taken place on this bill, but we also have heard from many people who came before this committee and talked about the importance of a non-derogation clause.

I want to just quote a few to make the point.

Candice Metallic from the AFN commented on the purpose of a non-derogation clause:

First nations people in this country have individual rights, but they also have collective rights that are constitutionally recognized and protected. The purpose of a non-derogation clause is to ensure that whoever is adjudicating a dispute about discrimination will be able to take into consideration the distinct and unique nature of aboriginal and treaty rights of first nations people in the consideration of the dispute at hand. It's essentially what the purpose of a non-derogation clause would be.

Mr. Christopher Devlin from the national aboriginal law section of the Canadian Bar Association, made the comment, and he said:

Our primary reason for urging the extension of time and the interpretive and non-derogation provisions is that the repeal of section 67 has the potential for the inadvertent repealing of the Indian Act itself and for significant reforms to the Indian Act itself, but in a piecemeal fashion.

Chief Angus Toulouse of the Ontario Regional Chiefs of Ontario commented that there should be a non-derogation clause protecting aboriginal and treaty rights; and Chief Lawrence Paul, the co-chair of the Atlantic Policy Congress of First Nation Chiefs Secretariat, said:

In order to be consistent with various court rulings, first nations must be properly consulted on the proposed repeal of section 67 of the CHRA and, more specifically, on the development of an interpretive non-derogation clause, on the potential impacts on aboriginal and treaty rights, and on implementation issues before any legislation is tabled.

One final one, and I have many more, from Chief John Beaucage of the Anishinabek Nation, the Union of Ontario Indians. said:

We would also look at having a non-abrogation and a non-derogation clause included in Bill C-44. That would actually provide greater certainty for aboriginal and treaty rights, but then we would want an interpretive clause as well

--which, Mr. Chair, we'll come to--

on the individual and collective rights of first nations.

I could go on with more, but I think it's important that we have a non-derogation clause. I'm pleased that you have ruled this to be within the context of the bill, and we will support it.