:
Thank you very much, Mr. Chair and honourable members.
I'm very pleased to have the opportunity to contribute to the committee's review of Bill , an act to promote gender equality in the registration provisions of the Indian Act.
I would like to acknowledge that I meet you here today on the traditional territory of the Algonquin people.
You've already introduced my colleagues who are joining me here today. We've brought these particular colleagues because they are those who specialize in our aboriginal work and aboriginal initiatives.
[Translation]
Many witnesses have spoken to you concerning Bill , and there appears to be consensus that the bill is a narrow legislative response to a narrow order.
In our view, the best value that the commission can bring to you as a witness is to provide you with information on the extent to which our complaint process can be used to redress allegations of discrimination under the Indian Act.
I will begin with a brief description of our role and mandate.
The Canadian Human Rights Act is 33 years old. The act established the Canadian Human Rights Commission and provides the commission with the mandate to receive and process complaints of discrimination in employment or services. The act also directs the commission to engage in any other activities that will give effect to the purpose of the act.
[English]
The purpose of the act is found in section 2, and the drafters showed enormous insight when they wrote this clause, which reads that the purpose of the act is to give effect to the principle that every individual should have the right, equal with others, to make for themselves the lives that they are able and wish to have, free from discrimination.
The Canadian Human Rights Commission is part of the larger Canadian human rights system. Every province and territory has its own form of a commission or tribunal. Our mandate is quite specific. There are 11 grounds of discrimination under the CHRA. The grounds most relevant to Bill and our discussion today are sex, age, marital status, including common-law, and family status.
Family status is a very broad ground, so I will provide a definition. Family status refers to the interrelationship that arises from bonds of marriage, kinship, or legal adoption, including the ancestral relationship, whether legitimate, illegitimate, or by adoption. It also includes the relationships between spouses, siblings, in-laws, uncles or aunts, nephews or nieces, and cousins.
The organizations under our mandate include all federal departments and agencies, plus corporations operating in federally regulated industries such as transportation, banking, and telecommunications. This means that anyone who feels that they have experienced discrimination on one of the enumerated grounds while working as an employee, or while receiving services from one of these organizations, can file a complaint with the commission.
The commission receives, screens, and processes complaints. We do not decide complaints beyond deciding whether to dismiss them or refer them for conciliation or to the fully independent Canadian Human Rights Tribunal for further inquiry and a hearing.
[Translation]
To give effect to the principle of section 2 of the act, the commission also works to promote and advance human rights in Canada. We perform an education and outreach function. We collaborate with workplaces to help influence a shift towards a culture of human rights, integrating human rights into daily practice. We develop research, policies and tools. And we provide advice to Parliament. An example of such advice is our 2005 special report to Parliament, A Matter of Rights, where we called for the repeal of section 67.
[English]
With that background, I turn now to the commission's ability to redress allegations of discrimination under the Indian Act.
For three decades, we had no such jurisdiction. That was changed upon the repeal of section 67 of the Canadian Human Rights Act in 2008. As you are all aware, section 67 restricted the ability of people living or working in communities operating under the Indian Act to file complaints of discrimination if the discrimination they were complaining about was related to that act. This section was included as a temporary measure in an effort to not disrupt discussions on reforming the Indian Act.
The repeal finally gave more than 700,000 aboriginal persons living under the Indian Act full access to human rights protection in Canada. A three-year transition period built into the repeal legislation means that complaints against first nations governments can only be filed starting in June 2011. However, the right to file complaints against the federal government came into effect with repeal.
We are now receiving complaints related to the federal government's administration of programs and services under the Indian Act. This has provided us with some early experience in dealing with such complaints.
Some testimony heard by this committee has pointed to the commission's complaint process as an available mechanism to remedy discrimination under the Indian Act, including any possible residual discrimination not covered by Bill . My key message to you today is that this is by no means definite. The commission's ability to redress allegations of discrimination under the Indian Act remains uncertain.
Since the passage of the section 67 repeal, we have received challenges to the commission's jurisdiction in this area. For example, the commission has received several complaints related to Indian status. Three of these are similar to the McIvor case, in that they each involve Indian status and raise questions of residual discrimination following the passage of Bill C-31. We have referred all three complaints to the tribunal.
The Attorney General of Canada has given notice that it will be challenging the commission's jurisdiction, claiming that determination of status by the registrar is not a service under section 5 of the CHRA.
As l mentioned earlier, the Canadian Human Rights Act provides complaint processes only for discrimination based on employment or service. Therefore, if a court were to find that the determination of status is not a service, the commission would no longer have the authority to accept complaints related to Indian status.
By extension, this could raise similar questions as to whether or not the determination of band membership is a service. The commission is intervening in a current case before the tribunal, in the public interest, to put forward a legal analysis that indeed the determination of status is a service.
Of course, the commission cannot make the ultimate decision around what is within our jurisdiction, nor should my remarks be taken as indicating one outcome or another. It is to be expected that an issue of this complexity and importance could proceed from the tribunal to the Federal Court's trial and appeal divisions, and possibly to the Supreme Court of Canada.
In closing, I would like to make two other points.
The first is that the commission supports a comprehensive review of the Indian Act until an approach to governance that recognizes first nations' inherent right to self-government is in place, for a number of reasons.
[Translation]
The committee has already heard that the Indian Act has had discriminatory effects, including residual gender-based discrimination. A case-by-case, section-by-section approach to resolving discriminatory provisions of the Indian Act will be costly, confrontational and time-consuming.
Moreover, the act places the burden on complainants, who do not necessarily have access to legal resources.
[English]
Were it not for the courage, persistence, and resolve of people like Ms. Sharon McIvor, many of these long-standing issues would never be addressed.
This piecemeal approach has limited impact, particularly when large numbers of people are affected. The commission supports a proactive, systematic approach, one that would include full participation of aboriginal people, build upon existing knowledge, and lead to timely and effective change. The commission recognizes that this will take time.
My second and final point is that the commission is very interested in the government's announced plan for an exploratory process and looks forward to learning more about its scope and objectives. The commission is prepared to assist in any way it can within its jurisdiction and area of expertise.
I look forward to answering your questions.
:
May I put this in a bit of context to begin with?
If Bill is passed, the commission can continue to receive complaints regarding the Indian status provision. These could include the alleged residual discrimination referenced by witnesses before this committee, due to the historical preference given to men under the Indian Act.
We have a section in our act, paragraph 41(b), that allows us to refer a matter back to a process under another act of Parliament, which in this case is the Indian Act. Therefore, if the facts of the complaint suggest that a complainant could gain status as a result of Bill , the commission may require a complainant to reapply for Indian status under the new rules, as a start.
Now, if after being dealt with under the Indian Act the complainant still believes the results of the status provision are discriminatory, he or she could return to the commission. We then look... At the current time, we would expect that the Attorney General might argue that this is not a service within the meaning of the act, and if a court decides that, it would mean that complaints could not be brought to the Canadian Human Rights Commission.
Let's say that a complaint does get to the tribunal, and the tribunal is thinking of awarding a remedy. That was the lead-in part of your question--had we looked at clause 9? We do have a concern that clause 9 would likely limit persons who benefit from Bill from successfully being awarded remedies at the Canadian Human Rights Tribunal.
It would also likely limit compensation in mediated settlements, because it would be used.... You can well imagine that, wherever we can, we engage parties in dialogue to help processes of settlement. In any kind of a mediation, if there is a section such as this, no doubt the respondent would say that they're not going to agree to remedies because there's this clause 9. In law, they don't have to.
The remedies the tribunal could.... I don't know if you'd like me to tell you about the sorts of remedies the tribunal could order, but--
I want to thank you for coming before the committee.
You're absolutely right: this is a very complex issue. I'm not a lawyer, and I guess from a layperson's perspective, I find it really troubling that what we have is what I'm going to say is alleged residual discrimination, which everybody seems to be well aware of. We have any number of documented cases of alleged residual discrimination, whether it's the Canadian Bar Association talking about potential family status discrimination, which you highlighted in your presentation, or the Wabanaki and sibling discrimination. We have the problems with unstated paternity, which compound the difficulty.
From a human rights perspective, I'd like to put a question to you. We have, as I think the minister indicated, 14 cases currently winding their way through the court system around varying complaints on status. You now have a number of cases before you that you've referred to the tribunal around status. Has there been anything around citizenship as well?
A voice: No.
Ms. Jean Crowder: So it's status.
So people have two options at this point with the repeal of section 67. They can go through the court system or they can file a complaint. You indicated in your presentation that we can wait for it to unroll case by case. Let's assume they win. We can piecemeal, case by case, amend the Indian Act and potentially end up with unintended consequences, as we did with Bill .
Or, as you've suggested, we need to do a more comprehensive approach. Can you talk a little bit about specifics around that? Because the exploratory process you mentioned is not necessarily getting widespread support; it's not deemed as consultation. Is there something you can recommend? Again, it may be outside of your area of expertise. If you can't recommend something like that, can you talk a little bit about remedies? Because the remedy won't necessarily change legislation, right?
:
It's a very nice area--my compliments.
I want to go to Mr. Russell's comments about clause 9 of Bill , because I think they were a mischaracterization almost in their entirety. It's a very narrow clause, which, when you read it, is quite clear.
It's talking only about monetary compensation from things that flow from Bill C-3, only in respect to membership, and it protects not just Her Majesty, but band councils. If band councils look at the ramifications of Bill C-3, they'll see that they're wide open, as open as the government, and this would be a huge concern.
In terms of this kind of prohibition of compensation, Bill C-31 had exactly the same thing. It was not controversial. It didn't pre-empt any of the legal challenges.
The legal challenges under the changes to the Indian Act proposed by Bill for the most part would still be eminently challengeable; it's only on this monetary compensation business, dating back essentially to 1985, that this is a question. I just wanted to clarify that.
In the same vein, I was struck by your testimony when you said, I think, that the jurisdiction of the Human Rights Commission was not really the issue here but the remedies available under the Canadian Human Rights Tribunal. Now, was that statement in respect to clause 9 or was that a general statement? What did you actually mean by that?
:
I'll give an example generically and then I can move to Bill as well.
That means we do not receive complaints.... Let me put it in a positive light. We have jurisdiction over complaints if they are based on one of our 11 enumerated grounds--religion, age, sex, family status, etc.---and the alleged act of discrimination must have happened in an employment setting or a service setting.
For example, let's take the banks. If I'm a bank employee and I feel I didn't get a promotion or what have you, I could complain to the Canadian Human Rights Commission. If I'm a customer of the bank and I go to the bank and I feel that for some reason they kept me waiting too long in line because of my colour or whatever, I could complain to the Canadian Human Rights Commission.
If I am a woman working in the trucking industry and I'm experiencing what I believe to be discrimination, I can complain to the Canadian Human Rights Commission, because we have jurisdiction over employment and services being provided.
But if you own the ABC motel and refuse people of a certain group, that doesn't come to us. It's a service, but it's not under our jurisdiction. That's what a service is.
When we get to the specifics in the world of status and funding, this is where we're getting challenges from the Attorney General that these are not services. I'll give you an example for a service.
Three complaints that we've sent to the tribunal recently are McIvor-like complaints--two brothers and a sister--and the Attorney General of Canada has filed a preliminary motion to stay the tribunal proceedings until Bill has been passed. The Attorney General has given notice that it will be challenging whether the determination of Indian status is a service within the meaning of section 5 of the CHRA. That's one. Now, in these three cases, they would all receive Indian status as a result of Bill C-3, hence the request for a stay. That's one kind of service.
We have another case before the tribunal as to whether funding is a service, funding by the federal government. It relates to aboriginal children in foster care. It's known as the Child and Family Services case. It's alleged that Indian and Northern Affairs Canada discriminates against aboriginal children in the provision of a service by inadequately funding child welfare services, and that the funding formula results in underfunding of services to keep families together and over-funding of services to put children in foster care.
Again, the argument will be made that this is not a service, that funding is not a service. Actually, on this whole definition of service, the courts have been quite broad in defining government services as service; however, there could be a narrowing. This is what we are waiting to find out through the courts.