Indigenous and Northern Affairs Committee on June 12th, 2007

[Todd Russell, Liberal, Labrador, NL]

Thank you, Mr. Chair, and good afternoon to both of you.

Your testimony seems to be vitally important because of the way the government has tried to sell this piece of legislation, which is by saying they are the champions of native women's rights. That's what the government says: “We are the champions of native women's rights; therefore, we must get this bill to go through ASAP, as is, with no amendments. We need to have it go through.” That's the approach it has taken.

Can I ask a couple of specific questions? How long ago did you make a proposal to the federal government around effective consultations? When did you present this?

[Mary Eberts]

Two years.

[Todd Russell, Liberal, Labrador, NL]

Two years?

[Mary Eberts]

Yes.

[Todd Russell, Liberal, Labrador, NL]

Okay. And the current minister is well aware of your proposal on consultation on the repeal of Bill C-44?

[Mary Eberts]

This proposal went to the Department of Justice. I was not there when it was discussed with Justice. I was there when it was discussed with Monsieur Ricard at INAC, and that was last summer. So it had already gone to Justice first and then it was discussed with INAC, with no result. And then at a meeting with the minister, I would say maybe April, this proposal was raised again by the president and the executive director of NWAC. The history of the proposal was discussed with him, and he was reminded that it had been brought before the government, through the public service, several times. So he was aware not only of the proposal but also of the history of NWAC putting forward this proposal and not receiving any response.

[Todd Russell, Liberal, Labrador, NL]

And there has been nothing formal coming since?

[Mary Eberts]

No.

[Todd Russell, Liberal, Labrador, NL]

Nothing whatsoever?

[Mary Eberts]

No.

[Todd Russell, Liberal, Labrador, NL]

Do you believe consultation is a right in itself?

[Mary Eberts]

Yes.

She's our expert on consultation. That's why I'm looking at her.

[Yvonne Boyer]

No, I'm not an expert. There are a lot of people with expertise in the area, a lot of people who could help with this issue.

[Todd Russell, Liberal, Labrador, NL]

The legislation seems to be somewhat targeted at first nations themselves and the impact it's going to have on the first nations governments themselves.

Let's take this scenario. If somebody launches a complaint against the first nations, how many lawyers do they have to defend themselves? Because there's going to be a defence if it goes to a certain stage in the process. Compare that with a complaint lodged against INAC. How many lawyers does INAC have to defend itself against certain complaints?

There seems to be an imbalance, certainly in terms of the impact it's going to have.

How would you respond to that?

[Mary Eberts]

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.

[The Chair, Conservative, Colin Mayes]

We'll move on to the government side, please.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Thank you, Mr. Chair.

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 C-7. 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?

[Mary Eberts]

I don't think the previous interpretive clause was the result of consultation either, so you can't really rule out the possibility that consultation won't get you a stronger clause and something that has more of a consensus behind it.

One of the other things that consultation will do is show the possibility of other solutions to some of the issues that come up, and that could be very desirable, to bring, for example, the wisdom of indigenous dispute resolution mechanisms to bear on some of these issues.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

So you're fairly confident that with more extensive consultation we could come up with an interpretive clause that we could all agree on, in spite of the fact that just a few moments ago you commented that the Canadian Human Rights Commission, the Assembly of First Nations, and La Forest—all three—came with three different suggestions. I guess I'm finding it difficult to have the optimism you have in terms of coming up with an interpretive clause that would fit all of the different first nations groups across Canada.

[Mary Eberts]

We have just been through a process on matrimonial real property where, for the first time, INAC, the AFN, and NWAC sat down together to search for solutions. If you look at the ministerial representative's report, there wasn't 100% consensus, but there was a very, very broad consensus on a number of critical issues. The reason there was not 100% consensus is that the Government of Canada would not accept that the legislation should recognize the inherent jurisdiction of first nations over the legal topic of matrimonial real property.

Of course, people can thwart consensus by the positions they take at the table, but the federal government has an obligation to come to the consultation process in a way that is consistent with the honour of the Crown.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

It's difficult for me to understand, in any size of group, whether it's 10, 100, or 10,000, how you would achieve a consensus of unanimity around a clause like this. So my feeling is that we need to consult, we need to process, and we need to listen, but at the end of the day, someone, somewhere, needs to make the decision.

I think you would probably find that among first nations groups. I'm sure they consult with their people on issues that arise among their people, and yet someone or some group, at one point, is charged with the responsibility of making a decision that would apply to the entire group, even though one person, or maybe a family, might not agree with that.

I don't know if you would have a response to that.

[Mary Eberts]

In the law that has been developed by the Supreme Court of Canada on the issue of consultations, the court recognizes that there will be, in some cases, requirement of the consent of those who are consulted, so that you have a consultation process, and at the end of it, if the issue is serious enough and the rights at issue are strong enough, the only satisfactory result for the consultation is that the group consent. But there are other positions that fall short of that, and the question is just really finding the right range where you should be on any particular issue.

[The Chair, Conservative, Colin Mayes]

Thank you.

We're going to end our questions now and move on to the next presentation.

I want to thank the witnesses for their time. I apologize once again for our tardiness in beginning the meeting, but it indeed was valuable. Thank you very much.

[Mary Eberts]

Thank you very much.

[The Chair, Conservative, Colin Mayes]

We'll suspend for a few minutes.