Indigenous and Northern Affairs Committee on April 27th, 2010

[The Chair, Conservative, Bruce Stanton]

Yes, Mr. Lemay

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

I am sorry, Mr. Chair. I thought I needed to make an amendment, but I do not need to. To reflect the requests of several witnesses, Mr. Chair, it seems clear to us that we have to vote against clause 9. We are asking that that clause not be passed.

[The Chair, Conservative, Bruce Stanton]

Okay, that is the question. Does anyone wish to comment on Mr. Lemay's intervention in respect to clause 9?

Mr. Duncan.

[John Duncan, Conservative, Vancouver Island North, BC]

Yes, we did receive some concerns from witnesses. I do agree on the subject, but I think there was a lack of comprehension of what the clause is designed to protect. It's designed, most importantly, to protect first nations bands who have made decisions in the period since 1985 from liability from people who presumably will be eligible for registration under the terms of this bill. It's for clarity. It's in there to include the crown as well.

Rather than my spouting off about this, I would ask that the witnesses from DOJ and the other department be asked to comment on this clause.

[The Chair, Conservative, Bruce Stanton]

Certainly.

[John Duncan, Conservative, Vancouver Island North, BC]

I think it's a crucial item. Without the clause, we're sending the wrong signal to people in terms of their expectation of first nations. I think the committee may regret it in the future, if we were to do that.

[The Chair, Conservative, Bruce Stanton]

Okay, Mr. Reiher.

[Martin Reiher]

Thank you, Mr. Chair.

Clause 9 indeed protects both the crown and the council of a band from any claim for compensation, damages, or indemnity for decisions, or because of “anything done or omitted to be done”--in other words, for decisions made on the basis of the fact that certain individuals who will have an entitlement to registration after the amendments are in force were not entitled before. Obviously, the goal of this clause is to avoid reopening decisions that were made in the past, including agreements, and including specific decisions with respect to individuals who sought benefits, etc.

This is a “for greater certainty” clause, because even without this clause, it is the state of the law that normally damages are not awarded once legislation has been struck down. First of all, when a court rules on a charter challenge, for example, when what is being sought is a declaration of invalidity, the courts are generally very reluctant to award damages in addition to a declaration of invalidity. In technical words, section 52 of the Constitution Act, 1982 has the effect of rendering legislation considered contrary to the Constitution inoperative, and section 24 of the charter allows a court to issue damages. These two remedies are usually not combined.

In addition to this, there is a doctrine in the case law called limited immunity for the crown. According to this doctrine, if a decision made by the government or its officials on the basis of legislation is made in good faith, there can be no damages if legislation supporting the decision is later found to be contrary to the Constitution. This is why this clause is for greater certainty, at least from the crown's perspective.

We believe that this clause would nonetheless be useful, because it clarifies the state of the law. It sends a clear message. Madame Lynch, the president of the Human Rights Commission, indicated that this would prevent individuals from trying to get damages or compensation through litigation, if in fact there would be little hope of doing so. So this would avoid litigation by individuals, for example. It would therefore avoid raising expectations, and it would send a very clear message to the courts as well.

My last comment is that certain concerns were raised with respect to the possibility of bringing complaints before the Canadian Human Rights Commission, for example. This clause clearly doesn't prevent any complaint being brought before the commission. It will be up to the commission to determine whether the complaint is receivable. What this clause would do is simply circumscribe the remedies that may be awarded for the true complaint under the Canadian Human Rights Act.

[The Chair, Conservative, Bruce Stanton]

Thank you, Mr. Reiher.

We will move to Mr. Lemay and then to Mr. Bagnell.

Mr. Lemay, you have the floor.

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

When they appeared before us, the representatives from the Canadian Bar Association, along with Mr. Dupuis, from the Quebec Bar, expressed concern about clause 9. The following words sum up those concerns:

Section 9 is a concern, as it would remove the right of anyone to sue the federal government for not providing them with status as a result of the gender discrimination addressed by the bill. If the federal government can be presumed to have been aware that Bill C-31 was not consistent with the Charter as far back as 1985, and did not act for over twenty years until the McIvor decision reached the BC Court of Appeal, the CBA section is concerned with the justice of such a “no liability” provision. Further, we caution that including such a provision could make the bill vulnerable to further Charter challenges.

Mr. Chair, this is one of the reasons why we are going to vote against clause 9. Representatives from aboriginal communities asked us to when they appeared before us, I feel. They found that denying them the right to make claims of that kind was discriminatory.

[The Chair, Conservative, Bruce Stanton]

Thank you very much.

Now we move to Mr. Bagnell.

[Larry Bagnell, Liberal, Yukon, YT]

I want to ask about another point.

My understanding from other situations is that when something is covered, as you said, in case law, that's a universal type of principle and it is accepted, such as going back, in this particular case, retroactively on things. That's a pretty strong argument that a lot of the courts would support.

This clause may have the unintended consequences of actually weakening that case. I think what we've been told in other situations is that when you draw attention to something separate from the normal way of doing things, it actually brings the whole situation into question. It may actually work detrimentally to the purpose of this clause 9.

[The Chair, Conservative, Bruce Stanton]

Did you wish to comment, Mr. Reiher?

[Martin Reiher]

Thank you, Mr. Chair.

It seems to me a clear indication from Parliament that there can be no compensation for a lack of entitlement for individuals who are covered by these new amendments. It would actually assist and strengthen a principle that exists in the case law but would in no way weaken it.

[The Chair, Conservative, Bruce Stanton]

Thank you.

Mr. Duncan.

[John Duncan, Conservative, Vancouver Island North, BC]

Everyone's comments so far have largely been focused on the federal government. I think there's a failure to recognize that there's been a fundamental change. The fundamental change is that the Canadian Human Rights Act has been amended. The net effect of the amendments to the Canadian Human Rights Act is that remedy could be sought from the first nations and it may not even target the federal authority. I think clause 9 is important.

And I would ask the witnesses one further question. Is it not the case that Bill C-31, the 1985 amendment, contained a very similar clause, and that clause in no way pre-empted McIvor and a whole bunch of other things from coming forward? This is not eliminating the possibility of many things from occurring, but it is very specifically referring to outcomes specific to Bill C-3, remedies they might seek that would be.... I'm losing myself, but I think I've asked my question for the witness.

[The Chair, Conservative, Bruce Stanton]

Go ahead.

[Martin Reiher]

Thank you, Mr. Chair.

This is an important verification. Clause 9 is fairly precise and circumscribed. It prohibits awards of damages on the basis of the fact that the individuals who will gain entitlement further to this amendment did not have an entitlement before. It in no way prevents other charter challenges to the Indian Act, or further challenges and awards of damages for something not related to the lack of previous entitlement.

[John Duncan, Conservative, Vancouver Island North, BC]

What about Bill C-31?

[Martin Reiher]

There was a similar clause in the bill amending the Indian Act in 1985. If I recall correctly, it was clause 21, 22, or 23. There are other provisions in the statutes dealing with aboriginal issues or other issues limiting the liability of the crown as well. This is not unique.

[The Chair, Conservative, Bruce Stanton]

Thank you very much, Mr. Duncan and Mr. Reiher.

Let's go to Ms. Crowder.

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

I have a question for the department. You mentioned the wording “done or admitted to be done in good faith in the exercise of their powers”. I wonder if people are making an argument around part of this to protect first nations band councils from any complaints. If that were amended to remove “indemnity from Her Majesty in right of Canada, any employer or agent of Her Majesty”.... I'm sorry, leave in that part; take out the government. Leave in band councils so they would be liable. Is that possible?

I want to refer back to the 1988 report. The issues we're talking about of residual discrimination are well known. They were tabled in Parliament, so it might be difficult to argue that the government in good faith didn't know about them. Could that be amended to just protect band councils and leave the government out on a limb?

[Martin Reiher]

On whether decisions are made in good faith or not, it's not because provisions are litigated that we can assume what the result will be. Government officials have to apply legislation until it's struck down. So with respect, I wouldn't conclude that there is good faith simply because later on provisions are--

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

Sorry, can I ask for clarification? Are you saying that even though the government may be aware of alleged residual discrimination, until there is litigation they don't have to act?

[Martin Reiher]

Thank you for the question. What I'm trying to say is that in a democratic society like ours there are courts and tribunals to adjudicate on disagreements between individuals, as well as between individuals and the state. Further to the attempt in 1985 to remove the discrimination from the Indian Act, issues were raised and litigated. The McIvor decision was the first in this set of litigation. What I'm expressing is that the government had a different view on whether the Indian Act was still discriminatory, and it couldn't be concluded before the court rendered a decision on whether there would be a pronouncement of discrimination or not.

On the first nations, clause 9 would protect a band council, for example, where there was per capita distribution to members. It's conceivable that persons added to the Indian registry and the band list of a band would attempt to participate in past per capita distribution on the basis that they should have been members of that band before. So I believe that clause 9 would protect the council of a band.