Indigenous and Northern Affairs committee  This proposal went to the Department of Justice. I was not there when it was discussed with Justice. I was there when it was discussed with Monsieur Ricard at INAC, and that was last summer. So it had already gone to Justice first and then it was discussed with INAC, with no result.

Indigenous and Northern Affairs committee  No.

Indigenous and Northern Affairs committee  No.

Indigenous and Northern Affairs committee  There is a huge imbalance in the impact it will have. INAC has a large litigation capacity because it has its lawyers and also access to Department of Justice and external counsel, if necessary. And the budget of INAC.... We found it significant that in speaking to the La Forest commission, INAC itself said that litigation against INAC under this amended Human Rights Act would divert resources to litigation from programs.

Indigenous and Northern Affairs committee  Well, when you put it that baldly, I would say the repeal of section 67 is necessary, but it is not sufficient, as the scientists would say.

Indigenous and Northern Affairs committee  It's necessary but not sufficient, because if you simply repealed section 67, there would be pressure and chaos, and there would be a situation of disequilibrium in the aboriginal communities, because you would never know what parts of the framework would be under threat. I've been a litigator for over 30 years, and I know that when policy starts being made through litigation, you burn up a lot of resources doing the litigation and then there are no resources to develop the policy or to implement policy.

Indigenous and Northern Affairs committee  I think there are two starting points. One has been described by the ministerial representative on matrimonial real property, Wendy Grant-John. She has pointed out that the Government of Canada needs to develop an overall policy on consultations—when it will consult, what the consultations will consist of, and so on.

Indigenous and Northern Affairs committee  It certainly is not the case, as INAC has tried to tell you, that there has been a lot of consultation already on the repeal of section 67. That is not so. It's very significant that section 67 was put into the Human Rights Act because of a recognition in the 1970s that it would be improper for the federal government to change the Indian Act without consultation.

Indigenous and Northern Affairs committee  The cases that deal with the duty to consult did arise in different contexts—resource contexts, the building of roads, or what have you—but when you consider the potential impact of a piece of legislation on aboriginal rights as compared with the building of a road, you're talking about a much more serious impact in the long term.

Indigenous and Northern Affairs committee  As I said to Madam Neville, we believe that the ultimate wording of this interpretive clause should be developed in consultation with the first peoples and with aboriginal people who will be affected by it. I know from reading their presentation that the Assembly of First Nations, for example, has an interpretive clause that is different from the one provided by the commission, and the interpretive clause that was suggested by Justice La Forest in his report in 2002 is different again from what is put forth by the commission.

Indigenous and Northern Affairs committee  I can understand why you're having such a lot of difficulty with that debate. You're asking us what would be our choice, or what would be our advice to you on that question.

Indigenous and Northern Affairs committee  We are very committed to the consultation, and we have made a very detailed proposal to the government on several occasions now for the consultation and for the capacity-building, and we have been given no response whatsoever. We do not think simply repealing section 67 will work.

Indigenous and Northern Affairs committee  One of the really, really important principles that our Supreme Court has recognized about equality and anti-discrimination measures generally is that people do not have to be the same in order to be treated with equal dignity and equal respect and to have their equality promoted.

Indigenous and Northern Affairs committee  We have looked at the wording as proposed by Ms. Lynch when she came on June 7. We have a few comments, but our basic position is that the language of the interpretive clause is something that is most appropriately developed in consultation with aboriginal peoples who will be subject to the act.