[Greetings in Innu]
Firstly, I would like to mark the death of Ms. Bertha Wilson who, as a member of the Royal Commission on Aboriginal Peoples, was a champion of issues that are dear to our heart. We were obviously deeply saddened to learn of her death, which was announced this morning.
I am going to begin with a quotation:
No longer will we in Ottawa develop policies first and discuss them with you later. The principle of collaboration will be the cornerstone of our new partnership.
Cooperation will be a cornerstone for partnership between Canada and First Nations. This requires honourable processes of negotiations and respect for requirements for consultation, accommodation, justification and First Nations' consent as may be appropriate to the circumstances. Upholding the honour of the Crown is always at stake in the Crown's dealings with First Nations peoples.
The aboriginal peoples have the right to directly participate in... decision-making processes that are likely to affect them or their rights. When the status, rights or territories of aboriginal peoples are directly affected, any change to the political... framework of Canada requires the free and informed consent of the First Nations concerned.
Thank you for the opportunity to present to you on this important bill.
My comments today will be brief.
The quotes I read a moment ago are attributable to, in the order that I read them, the former Prime Minister, speaking on behalf of the federal government in 2004; the First Nations - Federal Crown Political Accord on the Recognition and Implementation of First Nation Governments, May 31, 2005, and the Assembly of First Nations of Quebec and Labrador principle No. 16 from a set of 26 principles adopted by Chiefs in 1998.
I started with those quotes because Bill was not developed jointly with first nations, at least not so with the members of the AFNQL. Despite its virtuous intent, it is another example of imposition on first nations without our consent, despite the fine promises of the Crown to the contrary. The AFNQL is not aware of any facts that would support the minister's claims and those of his officials that this provision has been debated on many occasions over the years.
I will read another one in the set of the AFNQL's 26 principles. Significantly, it is the first principle on the list.
The aboriginal peoples of Quebec have the right to the full enjoyment, as a collective or as individuals, of all human rights and fundamental freedoms, with no obstruction of discrimination, as recognized under international and internal law.
There is no doubt, therefore, that the AFNQL supports the full range of fundamental human rights of our peoples. Indeed, our very raison d'être is to advance our human rights as first nations peoples.
Ideally, Bill C-44 or a revised version should pass only being fully discussed with and receive the consent of first nations. The protection of individual human rights of first nations people should be a subject of discussion, negotiation and agreement between the first nations and Canada. The interrelationship of individual and collective rights requires a comprehensive approach. Bill C-44 is just one more piecemeal good intention that has as much chance to go bad for first nations as it has to be good for us.
[English]
The commissioner of the Canadian Human Rights Commission presented before you a couple of weeks ago a suggestion that a statement of principles to act as a set of guidelines could be produced through its discussions with the first nations after the bill comes into force. Presumably, the principles and guidelines will ensure the CHRC's good intentions to respect aboriginal and treaty rights while they pursue the protection of individual rights.
Excuse my cynicism, but first nations are still trying to heal from decades of paternalistic good intentions. Negotiating principles and guidelines of dubious legal force or legitimacy after the horse has left the barn does not seem like the best approach.
I know that all the parliamentary caucuses have already declared their intent to support the passage of , albeit with the possibility of amendment. I would have liked to confirm to you today the FNQL's full support of an approach that was jointly developed, or to say that our first nations members had been consulted or accommodated. Alas, I cannot say that because the federal government shirked its constitutional obligation and political commitment in that regard.
One option that the FNQL member nations might have considered, had the time been taken to consult us, would be to amend the bill to recognize the power of first nation governments, the band councils, to allow the CHRA to apply or not. There could have been a sort of notwithstanding clause, similar to the one in Canada's Constitution, that allows legislatures to suspend application of their charter of rights for five years on specific legislation.
I could have been further backed up by the ultimate power of the people to decide by referendum within six months if they want the CHRA to apply. The referendum provision could have been mandatory on band councils that would opt to enact the notwithstanding clause. It might have been an interim step in the journey toward proper recognition and implementation of the first nations' inherent right to self-government.
It seems to me that this committee has at least a couple of options to do the right thing, to do what the federal government failed to do. Indeed, if you believe like I and many others do that Parliament shares with the federal government the discharge of the Crown's legal obligations to first nations, you will adopt either one.
First, you can either suspend further progress on the bill until the federal government and the first nations report back that full consultations have been conducted, the consent of the first nations has been obtained, and consequently specific amendments, a new bill, or a new approach are required. Alternatively, this committee can recommend to Parliament that it conduct such full consultations and seek the conditions for first nations' consent.
[Translation]
By adopting either approach, you will be assuring first nations that nothing is being shoved down their throats, even if you think it might be good for us. You will be signaling to first nations that Parliament is taking a non-partisan and thoughtful approach that respects the highest law in the land, the Constitution. It will give adequate time for first nations to analyze and debate amongst ourselves if our collective rights are threatened by the application of the CHRA and if so, how that might be mitigated.
There is no compelling reason or urgent situation demanding that this bill be passed at this time. Let us jointly take the time to do it properly.
I must make two final important points. First, the AFNQL has not been, is not and will very likely never show favour to any federal political party. We're non-partisan. The first nations government to government, nation to nation relationship to Canada is primarily realized through its government, not by political parties. The danger of being sidelined for years if we were to favour one party over another is too great. My earlier references to the former Prime Minister's commitment to first nations in 2004 and to the accord his Minister of Indian Affairs signed on behalf of Canada with the Assembly of First Nations in 2005 have nothing to do with their political party allegiances. Rather, they are recent high water marks in our relations that must be honoured as solemn commitments of the Crown to the first nations.
I conclude by noting the need for adequate resources to first nations to manage any impacts of the bill. History again shows us that no federal bill directed broadly to first nations has ever been adequately resourced, which is another plank in the federal long-term assimilation strategy. The study of possible impacts and the guarantee of adequate resources must be determined jointly with first nations prior to the bill becoming law.
I would be pleased to answer questions. Thank you very much.
[Brief closing in Innu]
I'd like to thank the committee for this opportunity, albeit brief, to make a presentation on the important matter of Bill . My comments today are based on a more comprehensive written brief, which I would urge the committee members to review. It should be in the clerk's hands within the next day or so; it's in translation, so hopefully it will get here in the next day or two.
As the Ontario regional chief, I work closely with the Chiefs of Ontario Secretariat, which is a coordinating body for the 134 first nation communities located within the boundaries of the province of Ontario. Ontario has the largest status Indian population of any province or territory in Canada. Therefore the position taken by the Chiefs of Ontario in relation to Bill should be given significant weight by the committee and the federal government.
The position taken by the Chiefs of Ontario with regard to the bill is a general one: the inherent right to self-government and other constitutional rights attached to individual first nations and not to the Chiefs of Ontario organization. Therefore, individual first nations may come before the committee and take different positions based on their particular right and history.
Before dealing with the specific issue of Bill , I'd like to take this opportunity to share with the committee the priority concerns of Ontario first nations. These concerns have been identified through an ongoing strategic exercise. In summary form only, the priority concerns are as follows: 1. Rebuild our nations; 2. Negotiate respect and recognition of first nations jurisdiction; 3. New jointly developed federal land claims policies; 4. Respect first nations treaties, lands, and resources. Each priority is described in the written brief.
With these Ontario first nation priorities in mind, I'd now like to turn to the specific issue of Bill . Subject to the following six conditions, Chiefs of Ontario, in principle, can endorse repeal of section 67 of the Canadian Human Rights Act.
Condition one is consultation and accommodation. Bill should not proceed without a thorough consultation process, open to all interested first nations. The federal government has admitted that there was no specific consultation leading up to Bill C-44. Careful consultation and accommodation are a legal and a moral requirement. There is no urgency to Bill C-44, as the section 67 of the Canadian Human Rights Act issue has been pending for 30 years and first nation actions not directly connected to the Indian Act are already exposed to the Canadian Human Rights Act.
In the context of the consultation, the federal government should be required to provide a detailed legislative policy and fiscal impact assessment of Bill . This is a matter of basic due diligence, which the federal government has refused to do to date.
The second condition is the interpretive provision. The bill must include an interpretive provision to balance the tension between individual and collective rights. There is a serious risk that the individual rights of the Canadian Human Rights Act will have a serious negative impact on the collective rights and traditions of first nation governments. The interpretive provision must also protect the Indian Act from the real risk of wholesale gutting because of exposure to the Canadian Human Rights Act. All serious legislative and policy proposals on the repeal of section 67 since 2000 have included an interpretive provision. That is the bright line in this policy area.
I'm referring in particular to the following: first, the Canadian Human Rights review panel, “Promoting Equality: A New Vision”--2000; second, joint ministerial advisory committee report on governance legislation--JMAC 2002; third, Bill, First Nations Governance Act, FNGA, 2003; fourth, the Canadian Human Rights Commission, “A Matter of Rights” - 2005.
Without an interpretive provision, repeal of section 67 is like throwing a grenade into collective rights, and also into the Indian Act.
Condition three is the realistic transition period. The transition period for implementation of the bill should be changed from the proposed six months to three years. Again, the bright line from all serious proposals since 2000 is that a transition period of approximately 18 to 36 months is required. First nations are entitled to a reasonable opportunity to adjust programs, practices, and legislation.
The predictable result of will be administrative chaos. I acknowledge the standing offer of the Human Rights Commission to assist first nations with the transition process. However, the reality is that the commission will be preoccupied with its own transition and will not have the capacity to assist the 600-and-so first nations in just six months.
I note that the six-month transition process of is doubly flawed. Section 3 refers to transition in connection with undefined aboriginal authorities. It is unknown if such authorities include first nations governments and related entities.
The fourth condition is regarding adequate financial resources. The federal government must provide first nations governments with adequate new financial resources to deal with all aspects of implementation. The new open-ended liabilities that flow from Bill C-44 include the following: training and capacity; legal costs defending complaints; and the costs of settlements and awards. These liabilities may be staggering in the long term. First nations governments are not in a position to assume new, unfunded liabilities. The growth of the first nations funding envelope has been capped by the federal government at approximately 2% since 1996. As a result, many first nations, especially in the north, are near or past the point of bankruptcy.
The fifth condition is the non-derogation clause. There should be a non-derogation clause protecting aboriginal and treaty rights.
And the sixth condition is first nations human rights jurisdiction. There must be a binding recognition by the federal government that first nations governments have the independent jurisdiction to develop their own human rights regimes, including regional and national human rights institutions. Long before Canada existed, first nations governments enjoyed a rich heritage of protecting collective and individual rights. The regime under the Canadian Human Rights Act may be treated as a fallback for first nations that choose not to exercise their jurisdiction in relation to human rights.
These six conditions are all critical. Most of them reflect the bright line of serious policy development since 2000. In its current form, is a radical and unexplained departure from that bright line.
In landmark decisions such as Guerin, Sparrow, Delgamuukw, and Taku and Haida, the Supreme Court of Canada has made it crystal clear that the federal government is subject to a constitutional fiduciary obligation to consult and accommodate first nations when a federal proposal is likely to have a negative impact on asserted or established first nations rights.
The extent of the duty depends on the significance of the underlying right and the significance of the likely negative impact. is very likely to have a very significant impact on significant first nations collective rights. The likelihood of significant impact is magnified many times by the absence of an interpretive provision. It is likely that unmitigated application of the Canadian Human Rights Act will directly interfere with the action of first nations governments on first nations territory. It is also likely the Canadian Human Rights Act will lead to the disabling of significant portions of the Indian Act. One scenario is that the protective land provisions of the Indian Act will be eliminated, opening the way for fee-simple mortgaging and the loss of reserve land.
In view of the likely significant effect on important rights, the Supreme Court of Canada jurisprudence is clear. At a minimum, a very significant and careful consultation and accommodation exercise with first nations is constitutionally required.
As represents a radical departure from the bright line of policy discussion since 2000, the federal government cannot rely on past discussions to justify the bill. Most past discussions contradict the approach of the bill.
While I'm respectful of the work of the commission and while I understand the pressure to endorse Bill C-44, I cannot agree with the last-minute revision contained in the presentation to the committee. A statement of general principles will not protect the rights of first nations. There is no guarantee that later unspecified guidelines would make any difference in the face of the black and white terms of the Canadian Human Rights Act.
What is required is a binding interpretive provision developed in consultation with first nations. Before the passage of the bill, anything less would be a foolish act of faith in a federal government that has already shown its true colours by reneging on the 2005 Kelowna accord and scuttling the draft declaration on the rights of indigenous people.
In conclusion, is a punitive and ham-fisted approach to the sensitive and complex issue of the repeal of section 67 of the Canadian Human Rights Act. The federal government has ignored the bright line of serious policy work since 2000 and proposes to implement the Canadian Human Rights Act without reasonable protection for the collective rights of first nations and the fiscal crisis of first nations.
Bill C-44 is consistent with a negative agenda towards first nations that is aimed at levelling collective rights and destroying whole parts of the Indian Act. The federal government position that there will be no extensive consultation on Bill C-44 is untenable as a matter of Canadian constitutional law and reflects dishonour on the Crown and all Canadians.
As described in detail in our written brief, the repeal of section 67 can only be contemplated if six key conditions apply. I respectfully urge the committee to do the right and lawful thing, which is to reject the punitive and to adopt amendments and a timetable consistent with the six conditions. In doing that, it will be an incremental step towards rebuilding the relationship with first nations.
The adoption of Bill C-44 as is will be another nail in the coffin. The results are predictable: embittered relations with first nations; possible litigation based on the failure to consult and other grounds; administrative chaos; and an ever-deepening financial crisis for first nations.
That's the presentation I have for you this morning.
Thank you.
:
I would like to thank you for being here this morning.
I listened carefully to the representatives of the Assembly of First Nations of Quebec and Labrador and I have been through his brief with a fine-tooth comb.
Rest assured, Mr. Toulouse, I will read your brief carefully once it has been translated and sent to us. You have my word.
I have a concern. In about 10 minutes, when members on the government side have the opportunity to ask questions, they will probably ask the same question, but from a different perspective.
We have been told that Bill is the fruit of 30 years of discussions. I was not here 30 years ago. I imagine that neither of you were either, but you have been chief and grand chief of your respective first nations for a number of years.
My question is very simple. We have been told that extensive consultations were undertaken, as a result of which, it was decided to review the act and repeal section 67, which is a symbol of discrimination against aboriginal peoples.
My question is for both of you, it does not matter who answers first. In what way were the Quebec and Ontario Assemblies of First Nations consulted? Were you consulted? What shape did the consultations take? Aside from the Assembly of First Nations and the grand chiefs, were there any other consultations? Were the so-called—and I do not like the term—isolated communities in Northern Ontario consulted? Kashechewan, in Ontario, springs to mind. We could take the example of Winneway or Kitcisakik in Quebec.
Have there been, to your knowledge, any consultations on repealing the infamous section 67 since 1977? If yes, what shape did they take?
Good morning to each of you.
You know what they say: The bill is “good intentioned”, but we know where the road paved with good intentions goes, and we see some of that reflected, I guess, in the comments. Virtually every single aboriginal leader who has come before us has said that this bill is deeply flawed. There's not only the matter of physically acting. I would say to my colleagues, you must act in the right and proper way. You can act to assimilate. You can act to undermine communal rights. You can act to undermine the inherent right of self-government of aboriginal communities.
As I understand it, there is a right to consultation. It is not necessarily that nebulous. The court has ruled that when something is affecting the aboriginal people or communities, they have to be consulted.
I wanted to ask this question. There seems to be a little difference in the two positions. Of course, everybody has the right to have their own position. I would say to Mr. Toulouse, you say there are six conditions that should be met for this to go forward. If all of those conditions were to be met by some amendment through this committee, if that were even possible, would you feel adequately consulted? Would that then satisfy the communities that you represent? I'm just surmising. If we could meet all those six conditions through an amendment in the bill, would that be satisfactory to you?
Mr. Picard, your situation seems a little different. You're saying we haven't met the basics in terms of consultation, and therefore we need to go back and start from a right-relationship perspective, understanding the bigger picture around collectives and inherent rights and things of that nature.
So could you just comment on that?
:
Thank you, Mr. Chairman.
Mr. Toulouse, I just want to reassure you, members of the committee are aware of the significant needs of first nations, namely when it comes to housing in Quebec. At the moment, we are considering Bill , and to date, we have heard from a number of groups. I'd also like to extend a welcome to Chief Picard who is also concerned with these matters; I know this because I was at the First Nations Socio-Economic Forum.
We are hearing from groups and hearing concrete recommendations on Bill C-44. This is, after all, a consultative process and the bill has not yet been passed, we should remember that. The committee will be issuing recommendations, reviewing clauses and referring the bill to the House. Although it may not be perfect, there is a process in place, one that is established under our parliamentary system.
The Native Women's Association of Canada, in its brief, suggested that section 67, which was at the time added as an interim measure, has in a way stopped the most vulnerable from filing human rights complaints when they involved a provision of the Indian Act. Thirty years have gone by and we now have to deal with this problem.
I heard what you had to say this morning, and I am conscious that the consultative process may not be perfect, but as Mr. Lemay mentioned earlier, efforts have been made over the last 30 years to correct the human rights gaps. I am wondering whether we should continue to wait or rather take this opportunity to improve the rights and living conditions of first nations. We are not talking about taking a giant step here, but rather a small step to move in that direction.
We know that first nations are doing important work when it comes to collective rights, but I would be curious to know whether steps have been taken to promote the individual rights of aboriginal people in their communities.
:
What I have indicated is that we are not against Canadian human rights. We appreciate and respect the need for Canadian human rights. What we're saying is not that we believe there should be no Canadian human rights. Absolutely, there have to be.
What we're saying, as far as the consultation is concerned, is what member Jean Crowder was just referring to. What we're talking about are these six points: one, ensuring first nations have relevant information on the issues for decision in a timely manner; two, providing an opportunity for first nations to express their concerns and views on potential impacts of the legislative proposals and issues relating to the existence of a duty to consult; three, listening to, analyzing, and seriously considering the representations and concerns of first nations in the context of relevant legal and policy principles, including their relationship to other constitutional and human rights principles; four, ensuring proper analysis by the Department of Justice of section 35 issues relating to any proposed legislative initiative, so that they are thoroughly canvassed before, during, and after consultations; five, seriously considering proposals for mitigating potentially negative impacts on aboriginal and treaty rights or other rights and interests of first nations, and making necessary accommodations by changing the government's proposal; six, establishing in consultation with first nations a protocol for the development of legislative proposals.
Talking about it is a process that talks about how we're going to respectfully share the jurisdictions here in Canada. As a society, first nations people will be contributing members to the economic prosperity of this country. What we're talking about is ensuring that our rights are the same as pretty much anybody else's, other than at the community level, which allows us to develop our own first nations human rights act, if you will.
:
Thank you, Mr. Chairman.
I want to thank you, Chief Toulouse, for pointing out something in the communities that is important to say again, that there is not anarchy out there; the communities are functioning.
I'm fortunate to represent some of the best communities in Canada, and I have some that have a lot of challenges. Things can always be improved, but it's not anarchy out there, and we don't want to portray that right now.
We all want to make sure we can protect all Canadians. We have heard from you that there are options open for this.
My question is where the real damage is being done in this matter. Is it that this government is not willing to consult? Mr. Picard mentioned that we all have to work together. That's one thing we notice. We as the opposition have to work with the government, or nothing is going to happen; we're not going to accomplish anything for Canada or for our constituents.
I think one of the real failures of this government is that they haven't realized they have to work with anybody. I can tell you that sooner or later, they are going to be back on the opposition side and are going to have to work with others. They need to learn that lesson.
I ask my question to both of you. Where is the real damage being done here? Is it by not allowing for proper consultation? Is it not allowing your voices to be heard? Is it the damage to government-to-government relationships for everything that comes forward? Is it the hesitation about what they are going to do next?
Do you have an opinion on that?
:
We've attempted to communicate with the government to talk about our priorities in Ontario, as an example. There are obviously priorities we see that can improve the lives and protect the human rights of individual first nations in all our communities without having to rush into something like this.
As you've indicated, Mr. Valley, it is not anarchy in our first nation communities; there are laws that are being observed and enforced as we speak. To me, if there's a will by the government to sit down and talk about some of the conditions that we're raising, then we see that there could be progress to be made.
We're willing to look at this in a manner that's consistent with a timeframe...and I just threw out the three years, only because rushing into something isn't going to provide the kind of outcome....
First nations, a lot of times, aren't equipped financially to have the analysis and to provide input immediately, so there's a need to allow the first nations to get some resources to deal with this issue.
There are human rights in first nations communities. Again, I just want to stress that section 67 exempts only the implementation of the Indian Act. First nations didn't create the Indian Act, as you all well know. What we're saying is to take the time to do this together, in terms of creating a mood that is more conducive to good planning, and not create a huge jackpot and a whole bunch of chaos by saying that this is the way it's going to be without taking the time to have an appreciation as to how we're going to implement many of the sections.
Why would the government force first nations to go to court, especially on an issue that can be addressed and is as broad-based as this kind of a dialogue can be? I don't think it's necessary for us to be pushed into the corner of having the courts as the only alternative to deal with this matter.
:
It was a question I asked the witnesses from the Canadian Human Rights Commission when they were in attendance.
On some of the issues around human rights for aboriginals, Mr. Picard, you talked about adequate housing. But what is adequate housing and how is it going to be determined? On reasonable access to education and appropriate health care, how are they going to be determined?
Those things are unknowns. As we move forward, how are they going to be determined? Will it be in a court of law? Can we really negotiate what they would be? The unknowns are the challenge.
Mr. Toulouse, you mentioned the concern you have about those unknowns and about moving forward without more consultation. For instance, when aboriginal communities were given the right to collect taxes for improvements on leased land, there was no provision for the communities providing service within those municipalities to be paid for the service they were delivering to those lands.
The former government went ahead with the legislation, with those unknowns out there. There were court cases. Our community was involved in one to determine what a proper servicing agreement was for those properties, because the aboriginal community was collecting the improvement tax or property tax on those leasehold properties.
Do you really think there can be enough consultation to give a definite understanding or legal framework around these issues?