Evidence of meeting #141 for Public Safety and National Security in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was chair.
A recording is available from Parliament.
Liberal
The Chair Liberal John McKay
Okay, half an hour is too late, so we're not ordering anything. You're going to have to survive.
We will suspend for five minutes.
Liberal
The Chair Liberal John McKay
We are back in session.
Amendment NDP-15 is on the table.
Go ahead, Ms. Damoff.
Liberal
Pam Damoff Liberal Oakville North—Burlington, ON
Thank you, Chair, and thank you for your indulgence.
We have a definition that's been put forward by the NDP—and Mr. Motz put one forward that was similar—which came through a number of organizations. I really would like to get clarity on this wording of “Indigenous community”.
I know that when we were drafting the bill.... I've had a number of discussions with the department as well to come up with wording that will allow organizations to be able to enter into agreements with the government while also respecting that we want these to be indigenous organizations. We don't want someone to hang up a shingle, throw their name on it and be able to run a healing lodge, for example. It needs to truly be an indigenous organization, and it's a challenge.
Because there are ramifications with regard to other bills and to other things the government is doing that we may or may not be aware of, what are the implications of changing the wording that we have in the bill now to “indigenous community”?
Counsel, Legal Services, Department of Justice
Thank you. I'm going to talk a bit about what was done in Bill C-83 with respect to the definitions.
Subsection 81(1) of the act is amended by replacing the term “aboriginal community” with “Indigenous governing body” and “or any Indigenous organization”. The reason is that when a contract is entered into with an indigenous community, it can't be with the “community”; that's not an entity you can actually enter into an agreement with contractually. In fact, it's the “indigenous governing body” and an “indigenous organization”, so that is the change that we made in the act.
Liberal
Pam Damoff Liberal Oakville North—Burlington, ON
If we were to change it to “indigenous community”, it would actually not allow the government to enter into contracts even though it's been defined underneath?
Counsel, Legal Services, Department of Justice
It would not allow the specificity that we believe Bill C-83 clarifies, which is that when the CSC is entering into an agreement with a community, what they're actually entering into is an agreement with the indigenous organization or indigenous governing body. It wouldn't give us the clarity that we believe the bill has at this point.
Liberal
Pam Damoff Liberal Oakville North—Burlington, ON
The “governing body” would encompass the band, tribal council and nation. Is that correct?
Liberal
Pam Damoff Liberal Oakville North—Burlington, ON
The “organization”, then, would encompass the other groups: obviously “organization”, which is already here, and “community” would also probably fall under “organization”—would it? That one I would have trouble with.
Counsel, Legal Services, Department of Justice
Yes, the idea is that we're just clarifying who is actually entering into the agreement. An agreement or a contract must be linked to the appropriate authority. The “community” is not who enters into the agreement for the community, on behalf of the community; it's the indigenous organization or indigenous governing body.
Liberal
Pam Damoff Liberal Oakville North—Burlington, ON
Okay. In your opinion, would the wording we have now, “governing body” or “organization”, encompass the intent of what has been put forward here in the amendment? You're adding new wording that isn't anywhere else, right? We don't have “indigenous community” anywhere else.
Counsel, Legal Services, Department of Justice
We do have “indigenous community” in other sections, so that doesn't change. We're not removing “indigenous community” from other sections. Specifically, proposed section 84 states:
If an inmate expresses an interest in being released into an Indigenous community,
That doesn't change. We have changed the word “aboriginal” to “indigenous”, but that will still remain, and that does not necessarily encompass what is proposed here. It is for my policy colleagues to speak to the policy, but from a strictly legal standpoint, you still have “community”, so I'd have to turn to my colleagues as to whether that would reflect the policy.
Director General, Crime Prevention, Corrections and Criminal Justice Directorate, Department of Public Safety and Emergency Preparedness
Well, when you think of the provision that someone would be released into an “indigenous community” and we look at the definition being proposed here, you would then be saying that someone would be released into a tribal council, for instance. It would create some awkwardness in other parts of the act to use this definition.
Liberal
Pam Damoff Liberal Oakville North—Burlington, ON
Okay.
In the second part of this amendment, it says, “predominantly Indigenous leadership” and then that is defined. When we get to the amendment I put forward, we've left it at just “predominantly Indigenous leadership”. Can you comment on any negative consequences of providing such an explicit definition?
Counsel, Legal Services, Department of Justice
Currently in the CCRA right now, “aboriginal community” is defined, and that includes an organization or other group with “predominantly aboriginal leadership”. There is no qualification on what “predominantly aboriginal leadership” is. It's unqualified beyond the words, and if we were to adopt that, it would take on a different legal interpretation. You would have to meet the strict factors that are set out here.
Of course, it's a policy determination whether you wish to do so, but it will change the legal meaning of an indigenous—
Liberal
Pam Damoff Liberal Oakville North—Burlington, ON
It would mean that someone couldn't.... Unless they had an official board of directors, it would also limit it that way, right?
Counsel, Legal Services, Department of Justice
That's correct. In my legal opinion, it's more restrictive than what currently exists now.
NDP
Rachel Blaney NDP North Island—Powell River, BC
I have a couple of the questions. It seems to me that the minister is the individual who picks and chooses the groups. You talked about this definition sort of meaning a bigger deal than I think, because if the minister gets to pick, then why is it a problem to have the word “community”? The minister still gets to decide who they're going to create partnerships or working relationships with in this way. I'm just wondering if you could clarify that.
Counsel, Legal Services, Department of Justice
I'm just coming at it from a strictly legal standpoint, which is that this provides clarity in the act that the entity to whom those arrangements are being entered into on behalf of the community is the indigenous organization or governing body.
NDP
Rachel Blaney NDP North Island—Powell River, BC
The other question that I have, and one of the things that the former member just said, is that you want to make sure that it's not just somebody who puts up a sign that says, “I'm an indigenous organization”. By making it stricter, does that increase accountability?
Counsel, Legal Services, Department of Justice
I would have to turn to my policy colleagues for that.
Director General, Crime Prevention, Corrections and Criminal Justice Directorate, Department of Public Safety and Emergency Preparedness
In the definition of “indigenous governing body”, we do refer to the fact that an indigenous group, community or people holds rights recognized and affirmed by section 35 of the Constitution Act. It's not just wide open for someone to put forward as you're suggesting.
November 29th, 2018 / 6:35 p.m.
Liberal