:
I would like to convene the Standing Committee on Aboriginal Affairs and Northern Development of Tuesday, June 12, 2007.
Committee members, you have the orders of the day before you. We're continuing our study on Bill . We'll have two sets of witnesses today. The first witnesses are from the Native Women's Association of Canada. With us today we have Mary Eberts, legal adviser, and Yvonne Boyer, legal adviser. After, we will be entertaining the Assembly of First Nations, the national chief, Phil Fontaine.
I apologize to the witnesses that we were interrupted by votes. I would ask the committee if they would like to extend the meeting past the one o'clock time set, if we can.
An hon. member: I'm sorry, I have a meeting at one.
Another hon. member: So do I.
:
Here is my suggestion, Mr. Chair.
I am going to let my colleagues take their seats. I will wait until the interpretation begins, because that is certainly very important.
Mr. Chair, we have just received a message informing us that the National Chief of the Assembly of First Nations, Mr. Phil Fontaine, will not be with us today. We have only just been informed of this. He will be replaced by his executive director.
I do not know what our schedule looks like but I know that we are sitting on Thursday, unless my government colleagues tell us differently. We could perhaps hear from the native women today and take all the time that we need until 1 p.m. We could welcome National Chief Phil Fontaine on Thursday in the first hour of the meeting. That would probably take care of everyone.
I agree with you, Mr. Chair. I respect the native women too much not to grant them the time that they deserve. We could continue with them until 12:30 p.m. or 12:45 p.m. and the National Chief could join us on Thursday. That is my recommendation.
:
Thank you very much for the time considerations.
My name is Yvonne Boyer. I am one of the legal advisers to the Native Women's Association of Canada. My colleague, Mary Eberts, is with me. I will be making the opening statement, and together we can answer questions following my presentation.
President Jacobs and Ellen Gabriel were before you not that long ago and gave you a fairly detailed outline of where the Native Women's Association stands on these issues. Just to recap, I have eight points that I would like to clarify that came out of their presentations. I'll start with those, and then we would like to comment on the position of Indian and Northern Affairs and also the Canadian Human Rights Commission.
First of all, in relation to the repeal of section 67, we want to state that there is full agreement that this is long overdue. But there must be meaningful consultation as a strong first step in an evolving and collaborative process.
Capacity-building and education are necessary, and these are key factors in communities when they're implementing their own mechanisms of protecting human rights. What we're looking at as a timeframe is a minimum of 36 months from the repeal of section 67 to the coming into effect. This is to provide adequate consultation and to put into place capacity-building and education.
There has to be a balance between collective rights and individual human rights, without jeopardizing either set. A core of this issue is to address conflict through various forms of indigenous legal traditions that allow the communities to decide how best to address the conflicts themselves.
An interpretive mechanism is also very important to guide the application of Bill . The process for deciding what would be included in the interpretive provisions would be addressed during the 36-month period before the act came into force.
In relation to INAC's position on some of the key areas, the Native Women's Association disagrees with INAC's stance that there already has been consultation because of various initiatives in the past to repeal section 67 and respectfully disagrees with the statement that there have been significant consultations in the past 30 years.
Further, the position that INAC has taken that there has been no direction from the Supreme Court of Canada regarding a duty to consult before passing legislation is directly contrary to the recent ministerial representative's report on matrimony and real property and the legal opinions she garnered—
Do you want me to slow down? I'm getting excited.
In relation to her ministerial representative's report on the duty to consult, Wendy Grant-John garnered legal opinions on this important issue. In fact, the result of these legal opinions was that she strongly stated that Canada needs to develop a policy on consultation and hasn't done so.
In their presentation, INAC minimized the potential impact on first nations of repeal of section 67, while also admitting they had done no real analysis of that impact.
In sharp contrast with its present position, the government expressed a number of concerns to the La Forest commission. This is recorded by the commission in its year 2000 report, and it's on page 129. These included: that the lifting of section 67 might lead to retaliation against claimants and extra costs to aboriginal governments called to defend their actions; that a period of transition would allow aboriginal governments to review their practices; that new litigation against the department might have an adverse effect on resources available for aboriginal programs; and that aboriginal people, especially women, will need to be educated about asserting their rights. Those statements that were made by INAC are in direct contradiction to their present position.
The Native Women's Association has made a well thought out proposal dealing with all of these issues, including consultation, capacity-building, education, and the bridging of indigenous legal traditions as a foundation and implementation of human rights after the repeal of section 67. To date, the government has not responded to the Native Women's Association's proposal.
NWAC's opinions on submissions made by the Canadian Human Rights Commission are as follows.
The Canadian Human Rights Commission has recommended that the minimum of 18 months before the act applies to first nations should be extended to a significantly longer period. NWAC agrees with this position but prefers a minimum of at least 36 months.
The Canadian Human Rights Commission would like to see an interpretive clause, as recommended by the La Forest review in 2000. NWAC agrees that an interpretive clause is necessary.
On June 7, 2007, the Canadian Human Rights Commission suggested wording for this clause. NWAC, however, disagrees with that approach and believes the final wording should be settled during the consultation phase that NWAC has called for.
The Canadian Human Rights Commission points out that to date no new resources have been allocated to support the commission's initiatives to engage with first nations stakeholders or to plan implementation. NWAC considers the need to provide resources for capacity-building and consultation is very urgent and must be attended to promptly.
Thank you.
:
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.
That being said, let me point out that the proposal for an interpretive clause relates to just the complaints that would be brought against first nations. It's not unlikely that the need for that interpretive clause could also arise in complaints that are brought against the Government of Canada. One of the things that might usefully be considered is whether the interpretive clause should apply across the board or only in complaints brought against first nations.
The other thing we want to point out about the interpretive clause is a somewhat deeper principle, that it is always suggested the rights of individuals are in conflict with the rights of communities. When President Jacobs came to this committee the first time around, for the main presentation of the Native Women's Association, she said, no, that is not the case because individuals are individuals in nations.
So it's necessary to reconcile the two groups of interest. NWAC believes very strongly that one way of doing that is to go back to indigenous legal traditions. One of the things we notice about the interpretive clause proposed by the commission this go-round, and also that was proposed by Judge La Forest in 2000, is that there is no mention of using indigenous legal traditions to resolve some of these issues.
I also want to mention that in section 2 of the Canadian Human Rights Act, the purpose of the act is set out as being to extend the laws of Canada to give effect to the principle that all individuals should have an opportunity equal with other individuals. Then it continues: “consistent with their duties and obligations as members of society”.
We already have some recognition, even in the main Canadian Human Rights Act, that individuals exist within the context of society. It's really important that we bring that recognition home to aboriginal peoples by building in more references and more resort to indigenous traditions.
We've had no opportunity for the last 30 years to have indigenous principles brought to bear on Canadian human rights law because indigenous peoples have been shut out of the Canadian human rights mechanism. There is a lot of wisdom in those traditions and in the dispute resolution mechanisms that needs to be brought to bear on these issues. Our big disappointment with the language that has been proposed so far is that it does not recognize the indigenous legal traditions.
Good morning, ladies. I appreciate you being here.
I have listened carefully to what you said, and I have one very specific question, more or less. I will try to speak generally. The issue that concerns us today is the reason we asked you to come back to see us, and we would like to hear what you have to say. The issue is as follows. The question is a fundamental one. I assure you that we will ask the Assembly of First Nations the same thing. Several groups have come before us and have asked for consultation within the meaning of the Supreme Court decisions before Bill is passed. Perhaps I did not understand very well, I do not know, but I really want to be sure. You say that you would be ready to see the bill passed on the condition that it was amended to contain an interpretive clause, a delay in implementation, etc. We can look at the amendments again, and evaluate whether they should be included in the bill. My question is simple. We are torn at the moment. Should we interrupt our work so that another consultation can take place, or should we pass the bill—or recommend that it be passed—with very specific amendments? That is the issue at the moment. This is why I am asking for your opinion. You understand that it is very important in the context of the debate that will be taking place over the next few hours.
:
I have read the Supreme Court of Canada decisions.
If an amendment to the bill says that Bill , which repeals section 67, will come into effect after—, it is vital that there be an interpretive clause which must be defined in conjunction with the first nations. I do not have the exact words. This is why I was rereading the clause, and I am going to read it to you: “In relation to a complaint made under the Canadian Human Rights Act against an Aboriginal authority, the Act is to be interpreted and applied in a manner that balances individual rights and interests with collective rights and interests.“
This is what the Human Rights Commission suggests to us as an interpretive clause. Is this what you disagree with, the clause I have just read to you, that is?
It protects rights and interests of both types.
:
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. So we don't have a consensus.
I think it's also very important to discuss the role of this interpretive clause within the legislation itself. There are some provisions that are in the code. There are some provisions that are defences. It is not proposed that this interpretive clause be a defence to a complaint. It may be that consultation would bring forward some kinds of defences to complaints that are important to include in the legislation.
It is a complicated question, and while we certainly appreciate the motivation of the commission in bringing forward its language, we think the work is still unfinished, and we would not be prepared to see the act go forward with this clause and no consultation.
I want to thank you for coming before the committee.
I want to come back to this issue around consultation. It seems to me that in a perfect world what would happen is there would be consultation, then legislation, and then a transition period.
A number of witnesses came before the committee. In her testimony, Ms. Mandell said:
But, when precisely does a duty to consult arise? The foundation of the duty in the Crown's honour and the goal of reconciliation suggest that the duty arises when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it.
In my view, we need to be really clear about when consultation should happen. Should it happen prior to legislation, so that the legislation best represents the people it's going to directly impact and recognizes what rights may be infringed upon or not, and then be followed by a transition period, or should consultation happen after a piece of legislation is passed?
I know you've answered, but I still think people are really unclear, because they talk about transition and they talk about consultation. It seems to me there are actually two consultative processes: there's consultation prior to legislation, then the development of the legislation, and then a transition period when some additional consultation may be required.
Could you comment on that?
Thank you to the witnesses for continuing to provide your views on this important piece of legislation. I'm very much looking forward to the moment in Canada when individuals who live on first nation reserves and who feel their human rights are being violated will have an opportunity to at least express that to the Canadian Human Rights Commission. Hopefully that won't be too long into the future.
Some of my initial questioning will be, again, somewhat on the topic of consultation. I know there have been some comments made that—
Ms. Eberts, you indicated that thankfully the Supreme Court has laid down these principles of consultation for us. I think that's subject to debate. That's not the law of the land. I say this in the sense that currently many first nations people live under the Indian Act. I find it very difficult that, for instance, should the government want to fix parts of the Indian Act—many people have talked about that as being a broken piece of legislation—if we follow the logic that you're talking about, there is nothing we as legislators could do to assist first nations. For instance, for first nations people on reserve who feel their human rights are being violated and would like to have this option of being able to bring their views to the Canadian Human Rights Commission, we as legislators don't have the power to bring about legislation.
I just see that as not being the case. We have brought forward legislation. It's actually a good thing to extend this forum to first nations people on reserve. There are many people I have talked to who would like the opportunity to be able to bring their rights forward in a new forum.
As my overall question to you, going back to the description of developing a consultative policy or a process, how would that work? For instance, I'm not even sure, based on the logic you've presented, that government could even contemplate...or not even government; all the people in this room here couldn't even contemplate building that ourselves, or attempting to build a consultative process. It seems to me it would be challenging to get consensus on how that consultative process would work.
So would there even be a start point to the type of scenario you're talking about?
:
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.
I believe you have correctly identified that the government cannot develop that consultation policy unilaterally. The policy itself would have to be developed in consultation, and it is I think premature to conclude that it would not be possible to accomplish that task.
When you look at what has happened recently with the negotiation of the residential school settlement agreement, for example, it was a very large, complicated process. The self-government agreements that have been negotiated are large and complicated, and yet they do get negotiated. So that's the first thing I think. We would highly recommend to you what Chief Grant-John said in her study.
With respect to this particular issue, NWAC has also put forward a proposal on how consultation might work in the context of the human rights reforms. It has several phases.
The first phase is a discussion, the development of discussion papers, and the pulling together of a think tank. The theme of the think tank would be access to justice and reconciling individual and collective rights in aboriginal communities.
Then there would be the discussion of that think tank, followed by a third phase of regional and national consultations, education, and community engagement. Then a final phase could be, actually, the holding of several pilot projects on dispute resolution within aboriginal communities.
This proposal has been put forward to the Department of Justice, to the Department of Indian Affairs, and I believe it has also been shared with the minister himself. We have never got a response to this.
You have some good minds out here thinking about how to do these consultations. All it takes is the willingness on the part of the government to engage.
:
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.
So what is going to happen is that INAC will defend itself with first peoples' money. Money that would go for clean water, money that would go for housing, for education, for health, is going to be diverted into litigation.
As a litigator, I can tell you that in the first few years of a new piece of legislation, there is the whole issue of the test case. People don't know what the legislation is really going to mean, so the temptation is to take the litigation as high as you can, and it's very expensive.
Thank you to both of our witnesses for being here today.
I don't think I need to remind anyone around this committee of the number of attempts there have been to repeal section 67, going back to 1992. And then there was this extensive review panel of the Canadian Human Rights Act in the year 1999 and 2000. All of the groups that represented aboriginal women at that point strongly supported the repeal of section 67.
Then again in 2002 there was Bill . One of the major criticisms of Bill C-7, as I understand it, was the vagueness of the interpretive clause that was to have been included in that bill.
You mentioned, Ms. Eberts, that there is lots of wisdom in indigenous legal traditions, and I certainly agree with that. I certainly would not argue that for a moment.
But in terms of the number of first nations groups that exist across Canada, is it realistic for us to be able to achieve a one-size-fits-all interpretive clause when we're representing such a diverse group of first nations across Canada? That would be one of my concerns, when already a previous attempt was targeted with that criticism. How can we surmount that obstacle?
:
Could we reconvene, please?
Committee members, we are ready for the second portion of our witnesses today.
We have with us today National Chief Phil Fontaine. Along with him, we have Candice Metallic, who is legal counsel; Richard Jock, who is the chief of staff; and Lisa Abbott, a policy analyst.
We appreciate Chief Phil Fontaine for making time to come here.
Due to the lateness of our meeting, we're going to continue until about 1:30 or quarter to two, at the latest.
Thank you, and my thanks and appreciation to committee members for giving us another opportunity to present on a matter that we consider of vital importance to all of us. There should be absolutely no question or doubt that first nations leaders are concerned or committed to protection of human rights for all of our citizens. We are all very committed. We are all very interested. We all want to see the most appropriate protections be afforded all of our citizens: women, men, young people, and elders. We will do whatever we can as a national organization to ensure that these protections are in place for all of our citizens, on and off reserve.
I think there was some question or doubt about whether we were in fact committed. I want to underline that it's very important for us, and it's very important for you to know that we are committed. We've pushed very hard to ensure that all of the right and appropriate steps are taken so that Bill reflects all of the interests of all first nations citizens, and that whatever decision is ultimately taken on Bill C-44 it will not result in further jeopardizing the rights and interests of all of our people.
We've already made it very clear that we're very concerned about impoverished first nations communities. We're very concerned that too many of our communities can't access safe drinking water; that too many of our communities lack good schools; that there is a tremendous backlog in housing; that we can't access quality health care; that suicides are still far too high; and that there are too many children in care—27,000 now, mostly in western Canada. All of those matters are directly related to the human rights of our people.
Water, for example, is a human right. That right has been violated, not because chiefs and councils are corrupt or not sensitive or caring about all of their peoples. We didn't contaminate the water to begin with, so I don't know why people continue to blame leadership for those conditions. We didn't create the housing crisis that our communities face. We didn't insist that our people be unemployed to the levels they are. The list goes on, and it's completely unfair to keep pointing the finger at first nations chiefs and councils for being the cause of all of what challenges our communities.
So dispel the notion that we are somehow not concerned about human rights or committed to the human rights for all of our people; we are. But we need you to help us ensure that these rights are protected to the same degree that the human rights of all Canadians are protected. That shouldn't be too much to ask. In our view, it's a very straightforward and simple proposition.
That is the preamble to my speaking. I had a more detailed presentation, but I know you're pressed for time. I apologize that we arrived here late, and I know that some of you have to leave. I don't know how you want to proceed.
If you'll permit me the time, I want to make three points. These points are very important for the discussion you're having here.
I'll quickly summarize the key amendments that we advanced in our submission. I'm also tabling a list of amendments that we feel best address what we heard as a consensus of concerns raised about from the witnesses who appeared before this committee in the last little while.
The first issue that underlies this whole discussion is the duty to consult. Inherent in this is the duty to accommodate and mitigate adverse impacts on aboriginal and treaty rights or undue hardships on first nations. We note this is completely absent in this bill.
Second, there is the need to amend Bill C-44 to include safeguards for the unique collective inherent rights and interests of first nations.
Finally, the last point relates to the need for effective and appropriate transition and implementation measures.
I should note that we've been following the presentations of the various witnesses who have appeared before this committee. It's pretty clear, from our perspective, that there's agreement on the need to address the human rights of first nations, as well as the need to repeal section 67 of the Canadian Human Rights Act. There's no hesitation on our part to advocate for that. However, it's also become very clear that Bill C-44, both in process and substance, may not have been the best way to do this.
I'll leave it there.
I'm going to just presume upon the time and follow on the national chief's comments with a very brief preamble, Mr. Chair, to assert that members from this party are not opposed to human rights either, nor are we opposed to the repeal of section 67, as has been asserted several times.
Our concerns relate to process. The process, to our mind, has been far from what it should have been, but at no time have we ever indicated that we are opposed to the intent of Bill C-44, and I want that to be clear on the record.
Thank you again for coming back to talk to us, National Chief. I have a number of questions. It has been proposed by some that we should delay the passage of this bill to allow for a consultation period. The other proposals, as you well know, have indicated to put it through with all of the appropriate amendments and clauses with a very lengthy consultation process.
I'd like your comments on that and what you see to be the most effective way of dealing with this issue.
:
I'll give you the general overview and then call on my able support team to speak to the technical details of your question.
It's clear that most recognize that our communities are in a very difficult situation. In an ideal situation, these communities ought to be in a position to protect the interests of all their citizens, whether we're talking about housing, water, health, education—you name the program or the service—that these programs and services be delivered in the most appropriate and effective way possible.
Given the situation we're in, the crisis we face with housing, the fact that there are too many first nations communities operating under a boil water advisory, and the fact that we're still struggling with attaining success rates in education equivalent to the mainstream, we need to ensure that the capacity within our first nations communities is such that all of our first nations governments will be in a position to deliver effective, fair, and just government services to all of their citizens.
That should be an overriding concern on the part of this committee, and in fact the House, when they consider the effects and impacts of Bill on our communities. It's pretty clear that if it were to pass as is, it would cast our leadership in a completely unfair position and we would be judged on standards that are completely unfair. Canadians believe in fairness; Canadians are fair-minded people. If they knew the dangers inherent in this bill as it is cast, they wouldn't support it.
I want to thank you for coming before us today.
It seems to me that the best possible scenario would be consultation, legislation, and then an adequate transition period, and the legislation would actually reflect the consultation. My understanding is that a second position would be to put forward the amendments as proposed.
There are two pieces there that I wonder if you could address for me. One is that I'm assuming that all amendments would need to be passed in order for it to be suitable. The second piece is that in other cases where that kind of legislation has been passed and then there has been a transition period, the resources and the capacity have not always been there to enable nations to actually be in a position to respond. I wonder if you could comment on those two pieces.