Justice Committee on April 14th, 2016

[Colin Fraser, Liberal, West Nova, NS]

Thank you very much, gentlemen, for appearing today and for your presentation and all your work on this important file.

You mentioned in your statement that there are a number of indigenous communities across Canada. Obviously, in my understanding, each would have its own unique character. I'm wondering if you can elaborate on what differences there might be in accessing justice for some of those communities, between different parts of the indigenous community, and how the court challenges program could be tailored to ensure that those differences are taken into account in accessing justice.

[Kim Beaudin]

One of the biggest issues I thought about when coming here was indigenous people's right to access justice. I believe it should be a right. Unfortunately, what I found within the court system itself, and I'm sure it's the case all over Canada, is that it tends to be territorial. For example, they have different regions within the court system and one issue won't apply to the next. Those things should be broken down. We have the technology now, for example, to address people's issues via satellite from all the way from La Loche, for example, in Saskatchewan, to way up north, to Inuvik, or what have you. I don't know if we're taking advantage of that. Those kinds of things could save a lot of court costs. They would also provide opportunities for indigenous people to truly, I don't want to say participate, but certainly be part of the process in a fair and just manner. I think we could do a lot of things from that end, and you do make a good point.

[Colin Fraser, Liberal, West Nova, NS]

Thank you.

[The Chair, Liberal, Anthony Housefather]

You have time for one more short question.

[Colin Fraser, Liberal, West Nova, NS]

With regard to issues facing indigenous communities, things may still need clarification from the courts, and given that we're looking at reinstatement of the court challenges program, what issues do you see as still needing clarification from the courts as they relate to indigenous communities?

[Jerry Peltier]

First of all, access to the funding program is not clearly stated out there. In the past, Indian and Northern Affairs Canada, which is called Indigenous Affairs Canada now, used to have something similar to what the court challenges program had. We used to utilize that when we were dealing with our land claim challenges. But in our case, indigenous peoples who are living in isolated communities away from big cities must have a better way of accessing or understanding how this program operates. I think a report was put out by an organization called the Canadian Forum on Civil Justice, which talked about some sort of platform that could easily be accessible online so that people would understand their rights and where they could go and how they could access support to challenge the justice system and protect their rights.

[Colin Fraser, Liberal, West Nova, NS]

So one of the challenges—

[The Chair, Liberal, Anthony Housefather]

Sorry, you're out of time. We'll come back.

Mr. Rankin.

[Murray Rankin, NDP, Victoria, BC]

Thank you, and welcome to both of you. Thank you very much for coming.

I'm going to try to build a little on what Mr. Fraser asked, but first of all I wanted to say that I found your written presentation very interesting when you distinguished the nation-to-nation relationship, which you say is geared toward band councils or Indian Act band chiefs, from the problems facing you, indigenous people who are living off-reserve, Métis, and the like. Then you referenced the UN Declaration on the Rights of Indigenous Peoples. Do you perhaps see the possibility of a challenge that the court challenges program might be part of that could assist you in maybe putting meat on the bones of the UN Declaration of the Rights of Indigenous Peoples and get away from the nation-to-nation language, which seems to hobble you in some of your legal dealings?

[Jerry Peltier]

First of all, we've had discussions with the Canadian government and the ministers on this terminology of “nation-to-nation”. We support that. There is no question. That is the way to move forward. However, we cautioned the government on that.

I come from a community, a Mohawk community. We don't call ourselves the Mohawk nation community. We are a community, we are a reserve, but we belong to a Mohawk nation. That's the nation. Then we have the Algonquin nations in Quebec. There are nine communities in that Algonquin nation. In British Columbia you have the Nisga’a, and you have the Shuswap, but there are different communities, different reserves, within those nations.

We're just fearful that down the road, when history is written, the newcomers will be misled that in 2015-16 Canada entered into this new nation-to-nation relationship with the first nations or the indigenous peoples of Canada, which is not the case. The government is engaging at the community level, which is good. I think this should have happened a long time ago. However, the word “indigenous” in the declaration certainly is broad enough and supported enough for us to use without having to challenge anyone. It's the will of the Canadian government that they must use it. They must adopt it.

[Murray Rankin, NDP, Victoria, BC]

Adopt it and put it into law, you mean, if it's considered to be part of our domestic law.

[Jerry Peltier]

That's right.

[Murray Rankin, NDP, Victoria, BC]

Mr. McKinnon flagged the independence issue and the need for a court challenges program administration to be independent of the government, whose actions of course might be challenged. We've had witnesses talk about the need for separation—for example, francophone and minority English language rights being different from the equality rights that women's organizations or the like may wish, and having a separate stream.

How would you see indigenous rights being administered? Do you have any thoughts on how a court challenges program might make sure that indigenous rights are considered in an adequate way?

[Jerry Peltier]

No. For us, with regard to indigenous rights, rights are rights are rights. We'll see, at the end of the day, in about an hour from now, that definitely some other questions on rights will come out of the federal Supreme Court decision. So I'd rather discuss that at another time.

To us, rights are rights are rights. We have treaty rights and we have aboriginal rights.

[Murray Rankin, NDP, Victoria, BC]

If this committee were to accept that what I'll call linguistic rights are administered separately from equality rights, would you be content to have your interests addressed by this group through the equality channel, if you will, rather than a separate indigenous stream? We're talking about different streams, perhaps, as we administer this program, and I wondered if it made a difference to you how indigenous rights at the court challenges program administration would be addressed.

[Jerry Peltier]

No. It's both. We have our indigenous rights, which are enshrined in Canada's Constitution. We want to be treated equally, like other Canadians, but we have to make sure that the treaty rights that are enshrined in treaties are not diluted in any way.

[Murray Rankin, NDP, Victoria, BC]

Mr. Beaudin, you especially talked with Mr. Falk about incarceration rates, which are a tragedy. Do you see then that some sort of court challenges assistance would be possible to address that problem, given that we're usually talking about equality rights, not day-to-day justice issues where an individual is before the courts, but really systemic problems? That is possibly, quite properly, a systemic problem, so is this a challenge that you could see the court challenges program address?

[Kim Beaudin]

That's a really good point with respect to systemic problems, because it is. Within the system itself, when people enter the court process, particularly indigenous people, they don't have the resources to address any of the kinds of things that have been levelled against them by the police. Because of that, you have a system in which you have different programs where the government is working for the government. Legal aid, for example, is a really big one. The way it's set up, it's certainly not fair to the person who's involved in that process and, unfortunately, it usually takes a turn for the worse.

That's what I don't understand. You have legal aid defending an individual, but those in legal aid actually work for the government. It's not really separate, when you think about it. Their job is just to get people through the process. I think it could end up being a challenge at one point. It could end up being a human rights issue. It's quite concerning to me.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Mr. Bittle.

[Chris Bittle, Liberal, St. Catharines, ON]

In your opinion, do you feel that the court challenges program should be expanded to include other rights apart from section 15, which is equality rights and language rights, and if so, do you know what sections that it should be expanded to include?

[Jerry Peltier]

That's a good question. As a matter of fact, we've been discussing that with our legal counsel right now, who's championing the Daniels case. What are some of the gaps? We will be making that kind of report once we do the consultation process with Canadian Heritage.

[Chris Bittle, Liberal, St. Catharines, ON]

Regarding the previous program, as the court challenges program existed where the focus was on equality and language rights, what would you say was the percentage of indigenous applicants, if you know or if you have any information on that?

[Jerry Peltier]

We wouldn't have that information, but Canadian Heritage might be able to provide you with that data.

[Chris Bittle, Liberal, St. Catharines, ON]

You discussed the preference that a renewed court challenges program be as independent as possible. What are your thoughts if the government would endow an organization with regard to that and make it independent, with a sum of money that would then allow it independence going forward? Do you have any thoughts on that?

[Jerry Peltier]

I think that's one of the ideas that's being tossed around. Like I said, we are engaging in our own internal consultation. We're working with our front-line workers, and our regional representatives get to come up with a recommendation on the independence of the program.