Indigenous and Northern Affairs Committee on June 12th, 2007

[Mary Eberts]

One of the really, really important principles that our Supreme Court has recognized about equality and anti-discrimination measures generally is that people do not have to be the same in order to be treated with equal dignity and equal respect and to have their equality promoted. It has been mentioned many times, right from the first decision in 1989 under the equality guarantees of the charter. Aboriginal people are not the same in all respects as other Canadians, and if this government is saying that the only way aboriginal Canadians can get the same rights as other Canadians under the Human Rights Act is really to be stripped of their community roots and identity, that is not acceptable.

It is important—it is essential—that the community ties and the identity of aboriginal Canadians be respected. That's the essence of human rights. So we think it's necessary to take a sophisticated approach to this. And, luckily, our Supreme Court has laid down these very basic principles that will guide us here.

[The Chair, Conservative, Colin Mayes]

Thank you.

Mr. Lemay, please.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Good morning.

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 C-44 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.

[Mary Eberts]

I can understand why you're having such a lot of difficulty with that debate. You're asking us what would be our choice, or what would be our advice to you on that question.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

I am sorry. I do not feel that what I am asking you qualifies as a consultation, but I am asking for your opinion. How do the native women in Canada—whom you represent here today—respond to the question I have just asked?

[Mary Eberts]

We are very committed to the consultation, and we have made a very detailed proposal to the government on several occasions now for the consultation and for the capacity-building, and we have been given no response whatsoever. We do not think simply repealing section 67 will work.

As for your other possibility—that there be a repeal of section of 67, with some very precise amendments accompanying that appeal—we take the position that the provisions of the interpretive clause, for example, really cannot be settled without consultation. There must be an involvement of the aboriginal community to settle the wording of the interpretive clause before it can be inserted into the legislation.

So we do not see how the amendments can be made without the consultation if they are to be good amendments.

[Yvonne Boyer]

I would also like to add that the Supreme Court has been very clear in that before aboriginal rights are infringed upon, the consultation must occur, and the consultation must occur with the holders of the rights. If the Supreme Court has guided us in any way, this is what the Supreme Court says.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

I have read the Supreme Court of Canada decisions.

If an amendment to the bill says that Bill C-44, 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.

[Mary Eberts]

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.

[The Chair, Conservative, Colin Mayes]

Thank you.

Madam Crowder is next, please.

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

Thanks, Mr. Chair.

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?

[Yvonne Boyer]

This is why a policy on consultation is really important. These issues need to be really sorted out and clarified so that everybody's working from the same page.

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

It seems to me, though, that when we have a piece of legislation that could potentially impact on rights—well, we know it'll impact on rights—it would seem important, even with a transition period, and I can imagine this transition period if we're talking about an interpretive clause, we're talking about resources, we're talking about capacity, and we're possibly talking about non-derogation. It would seem to me that consultation should happen prior to the legislation. I know that in the absence of a consultation policy it may be difficult, but it's beyond me why we wouldn't consult first.

[Mary Eberts]

It certainly is not the case, as INAC has tried to tell you, that there has been a lot of consultation already on the repeal of section 67. That is not so. It's very significant that section 67 was put into the Human Rights Act because of a recognition in the 1970s that it would be improper for the federal government to change the Indian Act without consultation. The reason they put section 67 in there was to prevent the piecemeal change of the Indian Act through human rights complaints. If there was going to be a change to the Indian Act, they wanted it to be in consultation.

In this context especially the federal government has an historical recognition that this is an issue that requires consultation. I actually like the way you describe the two phases of consultation, because even after the law has been enacted with a satisfactory interpretation clause in it, there would still have to be a lot of implementation activity and capacity-building, but if there is a choice, I think it is better for there to be consultation first on the content of the law.

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

Part of the argument we've heard around the duty to consult has been either that there was no requirement for the government to consult prior to developing legislation or that the duty to consult only applies in cases of resources, yet when I looked at the language that justices have come forward on, they talk about the potential existence of aboriginal right or title. It seems to me that the duty to consult should apply to rights, not just resources.

Do you have anything you could add to that?

[Yvonne Boyer]

If we're looking at section 35 of the Constitution, we're looking at aboriginal rights and we're looking at treaty rights. And in terms of any sort of infringement upon either one of those bundles of rights involved within section 35, this is crucial. This is the key point right here. Of course, the issue we're looking at with human rights falls within, obviously, aboriginal rights, treaty rights.

So these are the rights that are protected.

Mary, do you want to carry on?

[Mary Eberts]

The cases that deal with the duty to consult did arise in different contexts—resource contexts, the building of roads, or what have you—but when you consider the potential impact of a piece of legislation on aboriginal rights as compared with the building of a road, you're talking about a much more serious impact in the long term. It does not seem logical for there to be an obligation to consult about the building of a road when there is no obligation to consult about a piece of legislation that will affect millions of people.

The other thing I'd like to mention is that one concept that is very important to the obligation to consult is the concept of the honour of the Crown. There is case law that says the courts will not interfere with the legislative process. Once a bill has been put into the House, the courts won't interfere. But that does not prevent the application of the duty to consult to the government's decision to introduce legislation in the first place. That is still the Crown that is acting, and in making its decision about whether to introduce legislation, the Crown must act in accordance with the honour of the Crown and must consult.

[The Chair, Conservative, Colin Mayes]

Thank you.

We'll move on to the government side. Who's going to speak?

Mr. Bruinooge, go ahead.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Thank you, Mr. Chair.

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?

[Mary Eberts]

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.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Ms. Eberts, when you look back at the last 30 years, I think when it comes right down to it, you would agree that the repeal of section 67 is necessary. I think that's your perspective, is it not?

[Mary Eberts]

Well, when you put it that baldly, I would say the repeal of section 67 is necessary, but it is not sufficient, as the scientists would say.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

So perhaps with some—

[Mary Eberts]

It's necessary but not sufficient, because if you simply repealed section 67, there would be pressure and chaos, and there would be a situation of disequilibrium in the aboriginal communities, because you would never know what parts of the framework would be under threat.

I've been a litigator for over 30 years, and I know that when policy starts being made through litigation, you burn up a lot of resources doing the litigation and then there are no resources to develop the policy or to implement policy. So that's not a desirable situation.

[The Chair, Conservative, Colin Mayes]

Thank you.

We're going to move into the second round.

I've just been advised by the clerk that National Chief Phil Fontaine can be here at 12:45, so he'll be arriving at that time.

Moving to the five-minute round, Mr. Russell, go ahead, please.