Good evening.
I would like to begin by acknowledging that we are meeting on the traditional territory of the Algonquin people.
Thank you for inviting the Canadian Human Rights Commission to take part in your study into Bill C-262. I'm joined today by Valerie Phillips, the commission's general counsel.
Allow me to briefly tell you about the Canadian Human Rights Commission. Internationally, we are recognized as Canada's human rights watchdog. Domestically, we promote and protect human rights in Canada.
As part of our protection mandate, we receive and assess human rights complaints that relate to federal jurisdiction, and once we assess them, we determine if a complaint is referred to a separate body, the Canadian Human Rights Tribunal, for adjudication.
The commission embraces the declaration and supports this bill as an effort towards ensuring that human rights justice is available to all indigenous peoples in Canada. Implementation of the declaration moves us all towards greater reconciliation.
Testimony you have heard or will hear from indigenous peoples is of capital importance. The commission would like to offer a unique perspective—a perspective nourished by our experience and our work with indigenous people.
As an early adopter, the commission has integrated the declaration in all aspects of its work, such as its training of employees, its pleadings, its public statements, its publications and its work in policy development.
Integrating the declaration in our work is done in an effort to further the goals of this important human rights instrument. More specifically, it's a matter of normalizing its use in Canadian law and society.
Over the past 10 years, since the repeal of section 67 of our act, 9% of the commission's complaints have involved indigenous people or issues. The declaration deals with the principles of equality and non-discrimination that parallel the Canadian Human Rights Act.
As a result, numerous litigations have been impacted by the declaration, most notably the First Nations Child and Family Caring Society v. Attorney General of Canada (Representing the Minister of Indian Affairs and Northern Development Canada).
Based on this experience, we have two questions for your consideration. First, who will have access to these rights when the bill is passed? Second, how are these rights given life?
First, when this bill is passed, will it be clear who has access to these rights? At first glance, the answer may appear obvious—first nations, Métis, and Inuit peoples—yet issues surrounding indigenous identity are a source of continuous, lengthy, and costly litigation.
Over the course of the last 10 years, the commission has dealt with approximately 160 complaints that touched upon indigenous identity issues, engaging matters such as band membership, legislative benefits or rights, and status. These complaints can be lengthy and oftentimes very complex.
This is also evidenced by the numerous challenges to the Indian Act, the Daniels case, and an older Supreme Court decision about whether Inuit people fell under federal jurisdiction. What distinctions, if any, are to be made regarding first nations, Inuit, or Métis peoples? Clarification of this issue should be made a mandatory requirement in the national action plan or in the framework on the recognition and implementation of rights announced by the federal government in February 2018.
A second question we have relates to how the rights embedded in the declaration will be made available to the rights holders. If the UN declaration informs the content of section 35 of the Constitution, then rights holders will be able to assert these rights through a variety of court processes and administrative tribunals. However, our experience has been that proving these rights under section 35 has been an uphill battle for indigenous peoples.
We are concerned that this high onus will create a barrier for those seeking to exercise their rights as articulated in the declaration. If the goal is to ensure broad access to these rights, then clear language should be added to the legislation specifying how rights holders can access their rights.
It is our position that these rights should be made broadly and proactively available to all indigenous peoples and should be easy to access, and that there should be clarity to the scope of these rights and how they will apply in Canadian law. Greater and easier access to justice is a key component of human rights justice and, one could argue, of reconciliation as well.
These two questions—who is covered by these rights and how—may strike you as more theoretical in nature, yet our experience has clearly shown that organizations like the commission continue to struggle with them.
Article 1 of the declaration speaks of both collective and individual rights protection. From our perspective, concrete guidance is needed to relieve the tensions between collective and individual rights. This includes the universality of human rights protection as it relates to indigenous self-determination and self-government.
The clearer Parliament can make the application of rights, the more likely these rights will be accessed. We know this because easy access to justice has not always been the case.
In 2008 a significant barrier was lifted, giving indigenous people the ability to make a discrimination complaint under the Canadian Human Rights Act when it relates to the Indian Act. Up until then, there had been a 30-year ban on these kinds of complaints.
Yet since these changes to the act were made, there has been ongoing litigation about the scope of these rights as they apply both to the federal government and to indigenous governments. This past year, the commission argued the Matson and Andrews case before the Supreme Court of Canada, which touched upon all of these issues. We are awaiting this important decision, because it will address the question of Parliament's intent regarding the commission's ability to accept complaints related to a person's Indian status.
In conclusion, one thing we know after 40 years of human rights experience is that people living in vulnerable circumstances will often abandon their complaints rather than fight these lengthy legal battles. Time, cost, access, and lack of clarity all serve as barriers and may prove to be counterproductive to the ultimate goals of the bill.
The commission is eager to see the full potential of the UN declaration realized. Our experience in integrating it into the core principles of human rights justice has been positive and will continue to guide our work.
Madam Phillips and I are happy to take any questions you may have. Thank you very much.