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

[Jim Hendry]

I believe it was a law that was accepted by the band, so it presumably would become the custom for that particular purpose. The result was that they did not receive some services because he was adopted and the rules prohibited those who are adopted from being members. She was a member of the band and was not married. She married Mr. Jacobs, and then lost her membership, and the two of them lost some services based on the particular membership law in question.

But then there was a bona fide justification defence in which evidence was given by experts on the nature of the community, the community's needs and practices, and so on. It was given due consideration, but they held in that particular case that, at least for a time, there was discrimination resulting.

[Chris Warkentin, Conservative, Peace River, AB]

Okay. So then in that situation a recognized customary law or tradition, if it had been upheld, would have in fact created a discrimination.

[Jim Hendry]

Well, if a tribunal read this to mean that this protected all customary laws or traditions, that might possibly be the effect. But once again, this area is largely unexplored and we're just at this point trying to develop the thinking that would go into this consideration.

[Chris Warkentin, Conservative, Peace River, AB]

I guess that's my fear. As I say, I'm certain that it wouldn't be anybody's intention around this table to create a loophole, nor would it be the vast desire of any community to create a loophole in which discrimination could occur. I'm seeing that there's a possibility within the way it's written.

Mr. Chair, I would like to make a motion to strike proposed paragraph 1.1 (c) from this amendment, if that would be considered at this point.

[The Chair, Conservative, Barry Devolin]

Yes.

Mr. Warkentin has proposed a subamendment to NDP-3 that would strike or remove proposed paragraph 1.1 (c). Obviously now our discussion is more specifically focused on that subamendment.

[Tina Keeper, Liberal, Churchill, MB]

Can we continue our discussion on the—

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

Are we on Mr. Warkentin's subamendment?

[The Chair, Conservative, Barry Devolin]

Yes, he has moved a subamendment.

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

Very well. I would like to speak.

[The Chair, Conservative, Barry Devolin]

I have a list of speakers who had come forward to deal with the amendment itself. At this point, Ms. Keeper, Mr. Albrecht, and Ms. Crowder were on that list. Now that a subamendment is on the floor, I'll set that list aside and strike a new list for the subamendment.

Monsieur Lemay, you're quickest out of the box.

[Tina Keeper, Liberal, Churchill, MB]

I'm on the list.

[The Chair, Conservative, Barry Devolin]

On the amendment. We're dealing with the subamendment now.

[Tina Keeper, Liberal, Churchill, MB]

Can't I stay on the list? Don't you just continue down and then we get the choice to—

[The Chair, Conservative, Barry Devolin]

No, sorry. The list for dealing with the amendment will be set aside for a moment. You're right, you are next on that, but we are actually now dealing with the subamendment.

[Tina Keeper, Liberal, Churchill, MB]

Okay. I'll be after Mr. Lemay.

[The Chair, Conservative, Barry Devolin]

Okay, Ms. Keeper.

Monsieur Lemay.

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

Mr. Chairman, with all due respect for my colleague, we are going to vote against the subamendment moved by Mr. Warkentin, and I hope all of my colleagues will do the same. Once again, I will provide an explanation, slowly but with certainty.

When a land claim is made pursuant to the Canadian Human Rights Act, the commission reviewing the matter must determine if the Canadian Human Rights Act, was, could have been, or may be undermined, based on very specific points.

A non-derogation clause has been asked for. I know that my colleague was not present when all of the groups came to testify before us. Everyone from representatives of the Human Rights Commission to several aboriginal groups, including the Assembly of First Nations, and the government's greatest supporter, Mr. Brazeau, all admitted that a non-derogation clause with regard to aboriginal peoples' rights would be necessary in order to interpret section 67 and the Canadian Human Rights Act, and that any court reviewing an application would have to consider the following points.

Firstly, is this a right or freedom that has been recognized by the Royal Proclamation of October 17, 1763? If the answer to this question is yes, it will then be approved by the court. If the answer is no, the court must ask the following question.

Does the claim stem from any rights or freedoms that now exist by way of land claim agreements or may be so acquired? The court may then determine if it stems from a treaty. Take for example Treaty No. 9. Does the claim stem from another treaty? Is anything provided for under that? If the answer to the second question is no, the court must then ask the third and final question.

Is this a right or freedom recognized under the customary laws or traditions of first nations peoples of Canada? The finest example of this is the right to fish beyond the dates authorized by a province and the right to hunt for subsistence purposes, as confirmed by the Supreme Court in several of its rulings.

We cannot and we must not vote in favour of my colleague's subamendment, because if we are to accept it, we would be effectively removing an essential element on which the court could establish grounds to make a ruling pursuant to the Canadian Human Rights Act.

The amendment represents a whole. The three paragraphs proposed by my colleague, impacting Ms. Crowder's amendment, make up one single entity. They cannot be divided up. Mr. Chairman, if we are to do so, and I say this with all due respect to my colleague, we would be taking away an entire part of the customary laws or traditions of certain first nations groups.

I can cite several Algonquin nations living in northeastern Ontario, northwestern Ontario, and Abitibi-Témiscamingue, and elsewhere in Canada that do not fall under any treaty. These groups do not have any established land claims, nor any rights recognized by the Royal Proclamation of October 7, 1763. One very good example is the Naskapis, who appeared before us last Tuesday.

Mr. Chairman, I urge my colleagues to defeat the subamendment, because my colleague Ms. Crowder's amendment must be passed as a whole. All groups that appeared before us, without any exception, asked for a non-derogation clause.

As such, we will be voting against my colleague's subamendment.

[The Chair, Conservative, Barry Devolin]

Thank you, Mr. Lemay.

Ms. Keeper.

[Tina Keeper, Liberal, Churchill, MB]

Thank you, Mr. Chair.

I am in agreement with my colleague from the Bloc on his position on this subamendment.

I have to say that I think the concerns of first nations have been very clearly articulated to this committee in terms of the impacts and in terms of how they want to proceed. It has been said repeatedly that nobody is against the repeal of section 67, but that it clearly has to move forward in a way that respects aboriginal and treaty rights, the inherent rights, and customary laws.

I would like to read a couple of quotes that I think are pertinent. One is from Chief Balfour of Norway House Cree Nation, who was here yesterday. As we all know, there was unanimous consent to support Jordan's principle. Jordan is from Norway House Cree Nation.

Chief Balfour of Norway House Cree Nation said clearly that:

...the extension of equality rights under the CHRA to apply to the Indian Act is a laudable goal. At the same time, I doubt that blindly extending these rights without providing for protection of collective human rights of First Nations peoples, including 17 inherent Aboriginal Rights and treaty rights of First Nations, will serve the best interests of Canada's First Nations people living under the Indian Act.

Now, one could argue that any concerns that Bill C-44 does not adequately take into account First Nations collective rights as protected under the Charter could, of course, be addressed by litigation. My response to such arguments is simple. Part of the purpose of the CHRA is to provide simplified, cost-effective administrative remedies to Canadians. Why should First Nations be required to undergo costly Charter litigation to have these issues resolved when their concerns could be addressed by actually consulting First Nations and providing draft legislation that takes into account legitimate First Nations concerns for applying the CHRA to the Indian Act right from the start?

Further to that, the Manitoba Keewatinook Ininew Okimowin, also in my riding, have stated that:

Bill C-44 will impose a review of customary laws, beliefs, values, and principles of first nations by the Canadian Human Rights Tribunal without a statutory requirement to take into account how the MKIO first nations perceive individual and collective human rights as well as concepts of transparency, access, and accountability.

Bill C-44 also fails to recognize that a source of many human rights issues of importance to first nations arise directly from federal government policies, including the significant and persistent underfunding of social services, housing, and infrastructure that are administered under the authority of first nations governments and are beyond the capacity of first nations governments to remedy.

We saw that quite clearly and we heard it quite clearly through our discussions on Jordan's principle. Health services that are available to every other Canadian are not available to first nations children residing on reserve.

I would like to add that the Assembly of Manitoba Chiefs made a recommendation, which they presented to this committee, that Bill C-44 be amended to include an interpretive clause so that the Human Rights Commission tribunal and courts will be guided in their application of the Canadian Human Rights Act to the unique collective inherent rights, interests, and values of first nations peoples and communities. They said an interpretative provision is necessary to more specifically guide adjudicative analyses in order to strike an appropriate balance between individual and collective rights.

The repeal legislation should include provisions--

[Brian Storseth, Conservative, Westlock—St. Paul, AB]

On a point of order, I would just like that we keep it to relevance. I understand that you have amendments on the interpretive provision coming up—

[Tina Keeper, Liberal, Churchill, MB]

It is relevant. It's absolutely relevant to the—

[Brian Storseth, Conservative, Westlock—St. Paul, AB]

But if we could keep it to the non-derogation clause....

[The Chair, Conservative, Barry Devolin]

Thank you, Mr. Storseth.

I rule that Ms. Keeper is within the bounds of relevance. Please continue, Ms. Keeper.

[Tina Keeper, Liberal, Churchill, MB]

Thank you very much, Mr. Chair.

The repeal legislation should include provisions to enable the development and enactment, in full consultation with first nations, of an interpretive provision that will take into consideration the rights and interests—

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Mr. Chair, on a point of order, she's clearly referring to an interpretive clause. My understanding is that we've moved beyond that. We're on the non-derogation clause.