Indigenous and Northern Affairs Committee on May 17th, 2007

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Thanks, Mr. Chair.

I want to thank you both for coming before the committee today.

This bill has been touted as being very simple, and we should just get on with it. Speaking for myself, certainly I support the repeal of section 67 of the Canadian Human Rights Act. Most of the witnesses who have come before the committee also support it. The problem is the process.

Ms. Cornet, we already know from your paper--Mr. Chartrand touched on this as well--that there already are a number of other ways in which people raise human rights issues; you mentioned 2001. Currently, for example, the Assembly of First Nations has filed a human rights complaint based on underfunding for child protection. There have been other human rights complaints filed around denial of education services, which is one of the cases mentioned in this paper.

You also stated in your paper, Ms. Cornet, that a simple repeal of section 67 does not address the other equality issues—the inequality issues—that are already entrenched in the Indian Act. It seems there's much more we need to do around protecting human rights rather than section 67.

I wonder if you could comment, both of you, on the broader human rights violations that exist and that we need to address in a more coherent, comprehensive fashion.

[Larry Chartrand]

That's a good question relating to the broader human rights issues.

It stems from taking seriously, I think, the need to understand the relationship between aboriginal peoples and the Canadian government. It's a relationship of equality.

At the level of peoples...and we are talking about the level of peoples as opposed to individuals. Equality between individuals is a western, Canadian, liberal, and democratic fundamental principle, but so is the equality between peoples, the right of peoples to govern themselves based on the principle of self-determination. That is an equally fundamental human right. It's a human right enjoyed by a collectivity, and oftentimes they're pitted against one another.

In Canada the collective human right of aboriginal peoples has been ignored for the last couple of centuries. The means to try to recognize it has started to develop. Section 35 is an important aspect of that long-term development. But we have a long ways to go until we get to that stage where first nations peoples are treated as equal in their governance capacity, recognizing their sovereignty and the fact that their treaties are international treaties, not domestic contractual things.

If we want to recognize human rights for aboriginal peoples, then we have to recognize that those treaties are international treaties in the true sense of the word, and that aboriginal peoples have sovereignty, with treaties negotiated based on that notion. Anything else is a violation of human rights in the fundamental relationship.

[Wendy Cornet]

In response, as I had written in that paper, there are some outstanding human rights issues, some of which are being pursued in the courts as we speak, such as the legal rules used under the Indian Act to determine Indian status and band membership where first nations have not assumed that responsibility. There are also human rights issues with respect, probably, to some of the first nations codes on membership.

Bringing charter litigation to try to resolve those issues is a pretty expensive exercise, and some of the cases have been sitting there for quite some period of time. So connecting to some of my comments about the need for conflict management and conflict resolution strategies, I think there is a need to start thinking about that to take on some of these hard policy issues, be they how to develop a consultation policy and protocols or how to finally come to grips with the issues relating to Indian status--and there are some pretty serious issues there. I don't think our constitutional understandings of the word “Indian” and “aboriginal peoples” in the constitutional provisions present human rights difficulties, and I've written articles about that issue as well.

I think there are some problems with the way the Indian Act defines the word “Indian”. There are still some remnants of racialized thinking in the Indian Act in the way that it defines “Indians”. That doesn't mean that it's impossible to come up with a legal definition that references indigenous peoples in Canada in a respectful way and that doesn't racialize them. I just don't think the Indian Act achieves that. Our constitution, I think, does. There may be people who disagree with me. I think we don't have that problem in our constitution. We do have a problem in the Indian Act.

[The Chair, Conservative, Colin Mayes]

You have less than a minute.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Thanks, Mr. Chair.

I actually just wanted to close by quoting Mr. Chartrand. It's a summary submitted in terms of the Indian Act exemptions, options for reforming the Canadian Human Rights Act. I just think this statement in your summary summarizes where we need to go. It says:

The decision of whether the CHRA should apply should be one left to the negotiating parties. From the Aboriginal nation's perspective, only it knows how and to what degree the imposition of “western” norms of individual human rights protection will adversely affect their collectivist cultural traditions and values.

I think that's a powerful statement, and I think it would be incumbent on the committee to pay attention to that.

[The Chair, Conservative, Colin Mayes]

On the government side, who would like to speak?

Mr. Bruinooge.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Thank you, Mr. Chair.

I appreciate the testimony that you've given today.

Perhaps I'll just go back to some of the comments that you brought forward, Mr. Chartrand. You are, of course, an individual who comes from my home city. I believe you teach at the University of Winnipeg as well as the University of Manitoba. Is that correct?

[Larry Chartrand]

Just the University of Winnipeg right now, and a little bit for Athabasca University.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Okay, right.

You were speaking in relation to the bona fide justification clause that the Canadian Human Rights Act currently employs on occasion. You said that an interpretive clause may water down this bona fide justification clause. I assume that's in relation to section 35 rights being an overarching principle, but perhaps you could clarify that for me.

[Larry Chartrand]

Often they're interpreted as a way of taking a substantive principle where there's a conflict with another principle, so you get a collective interest in maintaining the culture, for example, pitted against a claim of discrimination based on sex. An interpretive clause may try to come up with a balance between those two competing rights, that can generate harmony to the extent that's possible, because the interpretative clause is giving importance to the idea of the collective interests they have in the community.

The bona fide justification test is actually a substantive principle that if the community meets the criteria of what is a bona fide justification, it can continue with its discriminatory action because the tribunal or the court has been satisfied that the priority ought to be given to the collective interest of the community. Whether it's manifest in some cultural, spiritual, or linguistic activity, they have that right to have that prevail over a breach of an individual's right under the human rights. That's what the bona fide justification can do, if it's allowed to do that, and the courts and tribunals have already done that in the past.

On the interpretive clause, the reason I say it might water it down is that it might try to compromise rather than give the full effect of that defence—that's all.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Do you believe a repeal of section 67 then requires an interpretive clause in light of what you've said, how the Canadian Human Rights Commission likely would continue to use their bona fide exemption in reference to section 35?

[Larry Chartrand]

Even though I say the bona fide justification might be an alternative, I do think we need to think carefully about an interpretive clause. I know the proposed wording of past interpretive clauses has not been very satisfactory. There have been a lot of complaints and criticism about the overly broad nature of it, or the uncertainty of it, or who it's going to apply to. That's something that really would benefit from fairly significant consultation at the aboriginal community level and with aboriginal political organizations as to how that wording ought to be drafted.

When the Charlottetown Accord was proposed, there was interpretive clause wording that was actually pretty detailed and pretty significant. That's maybe a place to start looking, but the communities will need their input on that, because there are things that are important to aboriginal communities other than just culture, language, and spiritual things. A lot of communities want alcohol to be prohibited on reserves because of the past experience with alcohol and the effects of colonialism, residential schools, and how alcohol became a way of addressing those pains. So a lot of communities want to ban alcohol from reserves. They can't justify that necessarily on cultural, language, or spiritual grounds, so there's a real need to take seriously an interpretive clause and think about it very carefully as to what it should encompass, and that will require extensive consultation.

[The Chair, Conservative, Colin Mayes]

You have a minute and a half.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Continuing with that line of thinking, wouldn't section 35 rights, though, come into consideration if the Canadian Human Rights Commission were making a ruling?

Perhaps I'll direct this to Ms. Cornet. Would they not influence the commission, and wouldn't those be considered? I think, based on what we've seen from the commission before, there's no reason to believe that collectivism wouldn't be incorporated into any rulings. Do you agree with that thought?

[Wendy Cornet]

I think that's true. The issue has been raised about the expertise of the commission in section 35 rights. I think that's an interesting question in terms of how to address it. Proposals have been made to consider striking panels with specific expertise, not only in human rights but also in section 35 questions.

I think section 35 issues will inevitably come up, as I said in my presentation. Apparently tribunals have jurisdiction to consider them, but their jurisdiction can also be challenged, and the matter can be referred to a superior court. That doesn't sound like a very streamlined, efficient way of dealing with a human rights complaint. If we can anticipate some discussion on the relationship between collective rights and human rights protected by the Canadian Human Rights Act, perhaps it would be wise to turn our attention to the kind of expertise that's going to be needed by Canadian Human Rights Act tribunals to deal with those issues.

[The Chair, Conservative, Colin Mayes]

Thank you.

We're moving into the five-minute round.

Mr. Russell.

[Todd Russell, Liberal, Labrador, NL]

Thank you, Mr. Chair.

Good morning, Wendy and Larry. It's good to see you again. Thank you for your very clear and concise testimony. I think it brings a new perspective and raises some questions that the committee hasn't been delving into for some time.

I want to go back to the issue of consultation. The government has asked virtually every single aboriginal witness representative group before us what they consider to be consultation. How much time should it take, and what should the process look like? I'm not sure the obligation rests on the aboriginal people to determine that. I believe the court has been very clear that the legal obligation to consult rests with the crown--in this case the federal government.

Do you think the legal duty to consult applies prior to a bill like this coming forward? We had no consultation prior to this bill coming forward. There's no anticipated consultation after this bill has been tabled. This is it. From the committee it moves on to the House. Then we pass it or we don't pass it.

In this scenario, has the government already breached the law, so to speak--the legal duty to consult?

[Wendy Cornet]

There can always be different opinions on that question. So one question might be whether the government has done a section 35 analysis prior to proposing the bill. I don't know.

That's one of the reasons why the issue was raised in my presentation that although there is a very formal process to assure parliamentarians that prior to consideration of a bill there has been consideration by the Department of Justice and a certification that each bill passed muster and the Department of Justice is satisfied there's not a charter issue problem with a bill before it's presented, if there is such a process, it isn't public. I don't know, maybe there is such an exercise, but there hasn't been a public statement of commitment to say that's what we do every single time. So we don't actually know, number one, whether that analysis has been undertaken in any given case that I'm aware of with a particular bill, and number two, if it has been done, then what need the government saw, perhaps, to engage with aboriginal peoples on their opinion.

I do empathize with the government, because the whole managing of the consultation obligation is a highly complex one and involves, as I outlined in my presentation, a whole series of legal steps to hopefully get to the right answer. Part of getting to the right answer involves listening to aboriginal perspectives.

I just followed through the logic of that in my presentation. If the Supreme Court is directing reconciliation as a means of implementing section 35, and explaining that reconciliation means consultation and accommodation where there is an existing aboriginal and treaty right, then in order to understand whether there is an existing or potential aboriginal and treaty right, you probably need a conversation with the aboriginal peoples concerned. Right?

In order to finally come to an informed decision, is there the likelihood of any potential infringement with my anticipated legislative activity, and if there is, do I need to do something about that?

So it's part of the larger process of working out the direction received so far from the Supreme Court of Canada and what parts the executive has to do and get done before matters come before people like you in Parliament, and what your role is in checking that work.

Again, in my presentation, just based on sheer logic--not case law or anything else--I'm saying to myself that even if the federal government has done a fantabulous job in analyzing the consultation issue before presenting a bill to Parliament, Parliament then of course is free to change it. Well, what then? Don't you need to continue tracking that section 35 issue, if it's there, throughout the whole process? And what assistance do you need to get that job done? How can you engage in a conversation with first nations people or other aboriginal peoples about that?

[Todd Russell, Liberal, Labrador, NL]

I would just say that the complexity doesn't give one an out for not upholding the law or fulfilling the duty to consult.

[Wendy Cornet]

Absolutely. The one option that's not available to the crown is to say “I don't know”. You need to have an opinion; you need to come to a conclusion based on good information, good legal analysis, and then--whatever--defend it, explain it, communicate it. But you can't say “It's too complicated. I can't figure it out.”

[Todd Russell, Liberal, Labrador, NL]

Thank you.

[The Chair, Conservative, Colin Mayes]

Thank you.

I'll go on to the government side. Mr. Bruinooge.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Mr. Chair, I will be splitting my time with Mr. Blaney.

I'm just going to continue with Mr. Russell's logic here for a moment. He posed the question of whether the government has broken the law. Of course I have an opinion on that.

I perhaps would like you, Ms. Cornet, to pursue, theoretically, what would happen if the government has broken the law. In this case, on Bill C-44, what would the process be for dealing with the fact that the government had broken the law? What would it look like? If Bill C-44 were passed, what would happen after that?

[Wendy Cornet]

Whether or not there has been consultation and adequate consultation goes to an analysis of whether or not there's a justifiable infringement, which assumes an infringement, which assumes an aboriginal right. Unfortunately, this is what you end up with. Everything is interdependent with everything else, and perhaps the logic of that is the earlier you begin to engage on those issues, probably the better off you are toward the end of the legislation process.

So if there is a problem--and I don't know, because I'm not aware of the facts of what happened or didn't happen before this bill was introduced--then there's a potential remedy in terms of the legislative process itself to identify whether there are existing aboriginal treaty rights at play, whether they are at risk of infringement, and whether that infringement can be minimized or completely avoided.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Would the repeal be undone, in your opinion, in that theoretical scenario?