Evidence of meeting #11 for Indigenous and Northern Affairs in the 40th Parliament, 3rd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was complaints.
A recording is available from Parliament.
Chief Commissioner, Canadian Human Rights Commission
That's right. Well, on the law, as you can see with the B.C. Court of Appeal, it struck down the law. These things can happen, but it is a very long process, and it is very onerous for the plaintiffs.
NDP
Jean Crowder NDP Nanaimo—Cowichan, BC
But we know how many years the repeal of section 67 took. It was in place for 30 years and it took a tremendous amount of effort and a lot of discussion to have that changed. We could potentially be looking at another 30 years to deal with this alleged residual discrimination.
Chief Commissioner, Canadian Human Rights Commission
Right, and this is why we're recommending that there be a complete reworking of the Indian Act. Of course, it's up to Parliament to launch such a process.
In this day and age, and especially with the culture and traditions of aboriginal peoples, dialogue and consultations can bring people together. We're making considerable progress ourselves with the implementation of section 67 because we're working through a dialogue process with all the key stakeholders.
NDP
Jean Crowder NDP Nanaimo—Cowichan, BC
On that item, I think you're probably aware that some first nations chiefs were here the other day, and grand chiefs, and they have had no knowledge of or contact with any kind of process around the repeal of section 67. So how far has that outreach gone?
I noticed in your annual report that you say, “The National Aboriginal Initiative--balancing individual and collective rights”, and I just wondered how far that process had filtered out to communities.
Chief Commissioner, Canadian Human Rights Commission
Right. Of course, with the repeal, we got more than 600 communities that came under our jurisdiction. We have begun an outreach program. As these things work, to begin with, we didn't get any funding for 12 months, so we've only had funding in the last year, and then on a fairly minimal basis. We've had about 50 outreach sessions. We've reached more than 100 chiefs with those sessions.
We have also begun a process of working to develop criteria or guiding principles for internal dispute resolution processes for communities, because, of course, we believe it's best if the communities themselves can resolve their own disputes. We'd go further, to say that we believe it would be better if they could create a culture of human rights internally where the disputes wouldn't arise in the first place, where there can be dialogues before they seek recourse in formal mechanisms.
But this is the kind of work we have been doing. I could go into more detail if you want, but we have been working with outreach. Just recently, just this past week, we had another one of these dialogues. I don't know if you'd like us to speak to this in more detail.
Chief Commissioner, Canadian Human Rights Commission
All right. Thank you for the question.
Conservative
The Chair Conservative Bruce Stanton
We can come back to that.
Thank you, Ms. Crowder and Ms. Lynch.
Now let's go to Mr. Duncan for seven minutes.
Conservative
John Duncan Conservative Vancouver Island North, BC
Thank you, Mr. Chair.
I just want to inform Monsieur Lemay that I was in Témiscamingue this past weekend and you have a very nice Legion there. I met the personalities who run--
Conservative
Conservative
John Duncan Conservative Vancouver Island North, BC
It's a very nice area--my compliments.
I want to go to Mr. Russell's comments about clause 9 of Bill C-3, because I think they were a mischaracterization almost in their entirety. It's a very narrow clause, which, when you read it, is quite clear.
It's talking only about monetary compensation from things that flow from Bill C-3, only in respect to membership, and it protects not just Her Majesty, but band councils. If band councils look at the ramifications of Bill C-3, they'll see that they're wide open, as open as the government, and this would be a huge concern.
In terms of this kind of prohibition of compensation, Bill C-31 had exactly the same thing. It was not controversial. It didn't pre-empt any of the legal challenges.
The legal challenges under the changes to the Indian Act proposed by Bill C-3 for the most part would still be eminently challengeable; it's only on this monetary compensation business, dating back essentially to 1985, that this is a question. I just wanted to clarify that.
In the same vein, I was struck by your testimony when you said, I think, that the jurisdiction of the Human Rights Commission was not really the issue here but the remedies available under the Canadian Human Rights Tribunal. Now, was that statement in respect to clause 9 or was that a general statement? What did you actually mean by that?
Chief Commissioner, Canadian Human Rights Commission
The greater issue for us is whether we will have jurisdiction. We've heard testimony before this committee that seems to suggest that individuals could complain about status to us. At the current time, they can. We receive the complaints and then we either dismiss them or send them to the tribunal.
The jurisdiction is being challenged at the tribunal level in the sense that.... The Attorney General is saying, for example, that the registration of Indian status is not a service and therefore it has no place in the Canadian Human Rights Commission complaint process, through to the tribunal.
My points on clause 9 are separate points that don't relate to jurisdiction but to what remedy the tribunal could order, because I'm sure that will be litigated. Right now, section 53 of the Canadian Human Rights Act, which sets out the remedies, states that the tribunal can order that a practice be ceased, that there be a special program adopted, or to make available the rights, opportunities, or privileges that are being denied, and the compensation.
We don't know how clause 9 will be read, but we think it will be read into negating the ability for the tribunal to order these remedies. We can't make that decision, obviously; it's one argument that we would expect to be brought forward.
Conservative
John Duncan Conservative Vancouver Island North, BC
Right, and the current challenge you anticipate coming from the federal government is one that any defendant at any time would likely invoke as well. Because this is going to be litigious, maybe it's very good to get this clarified right up front. Would that be a reasonable proposition?
Chief Commissioner, Canadian Human Rights Commission
In my view--and of course I've been a member of the bar for over 30 years--if a legal issue can be referred or dealt with or clarified in an act of Parliament, that's far better than asking the Sharon McIvors of the world to go forward to make the law.
Conservative
John Duncan Conservative Vancouver Island North, BC
Correct.
One other thing in your submission leads me to a simple technical question. There is the federal Canadian Human Rights Commission, and then there is one in each province. Is that mandated somewhere? Or did this just happen because every province decided that it was a good idea?
Chief Commissioner, Canadian Human Rights Commission
The latter, I would say. It can look like a bit of a patchwork, really, because there isn't a commission in every jurisdiction. For example, in British Columbia, there is just a tribunal, so one goes straight to the tribunal. You don't have your complaints screened by a commission per se.
Conservative
John Duncan Conservative Vancouver Island North, BC
Would it be reasonable to assume there could be things flowing from this Bill C-3 that would fall under a provincial human rights act as opposed to the federal?
Chief Commissioner, Canadian Human Rights Commission
I'm going to turn to my deputy chief commissioner, David Langtry. We have analyzed this quite closely.
There is an association called the Canadian Association of Statutory Human Rights Agencies, of which we are a member, and we are working collectively on this very point.
Would you like to give some further information, David?
David Langtry Deputy Chief Commissioner, Canadian Human Rights Commission
Yes, and really, the mandates of the various commissions--federal, provincial, and territorial--are based on the constitutional powers of each. The federal commission has those powers the federal government has, so as the chief commissioner indicated at the outset, we cover all federal departments and agencies and federally regulated employers, whereas the provinces have jurisdiction within those provinces. If it doesn't fall to the federal government, it falls to the provincial.
There are some issues that might occur on a first nations community that would fall within provincial jurisdiction--for example, employment law--but they would not also fall to us. So there is no concurrent jurisdiction, but there is sometimes uncertainty as to where it lies.
The chief commissioner referenced CASHRA. There is a working group of lawyers studying the very issue of jurisdiction in the first nations context--the aboriginal context, more broadly speaking--to know which side it would fall on.
Conservative
The Chair Conservative Bruce Stanton
Thank you, Mr. Duncan, Mr. Langtry, and Ms. Lynch.
Mr. Bagnell, for five minutes.
Liberal
Larry Bagnell Liberal Yukon, YT
Merci, monsieur le président.
I'd like to ask the lawyers a question--Ms. Lynch and Ms. Phillips and anyone else who is a lawyer. Everyone in the room, I think, understands that there will still be discrimination in place after this; this removes some of it. Could or would a law like this be challenged constitutionally in the sense that it leaves residual discrimination, as opposed to the Charter of Rights? This isn't a question for the Human Rights Commission, but for lawyers in general.
