Proceedings of the Standing Senate Committee on
Human Rights
Issue 1 - Evidence, November 22, 2004
OTTAWA, Monday, November 22, 2004
[English]
The Standing Senate Committee on Human Rights, authorized to invite the Minister of Indian and Northern Affairs to appear with his officials before the committee for the purpose of updating the members of the committee on actions taken concerning the recommendations contained in the committee's report entitled A Hard Bed to Lie In: Matrimonial Real Property on Reserve, tabled in the Senate November 4, 2003, met this day at 4:05 p.m.
Senator A. Raynell Andreychuk (Chairman) in the Chair.
The Chairman: Honourable senators, Minister Scott and other witnesses, welcome to the Standing Senate Committee on Human Rights. Today we will deal with the report, A Hard Bed to Lie In: Matrimonial Real Property on Reserve, which was tabled in the Senate November 4, 2003.
The Senate committee at that time had been authorized to examine the interplay between provincial and federal laws in addressing the division of matrimonial property, both personal and real on reserve and, in particular, the enforcement of court decisions; the practice of land allotment on reserve, in particular with respect to custom land allotment; in a case of marriage or common law relationships, the status of spouses and how real property is divided on the breakdown of the relationship; and possible solutions that would balance individual and community interests.
The committee filed its interim report — and I do stress that it was an interim report, — with recommendations, on November 4, 2003. The new committee that met this fall indicated that, in light of a new government being formed, we would invite the Minister of Indian Affairs and Northern Development to come before the committee to ascertain whether the report has been acted upon in any way. Further, because the study had been started on the understanding that the previous minister, Mr. Nault, had indicated that he wished this committee to study the reference, we would wish an indication as to whether there is any merit in the Senate committee continuing its study and if so, which parts. The first reference was extremely broad and would be time consuming. If we are to proceed, it would be more appropriate to zero in on varying aspects, so that our recommendations could be more concrete.
Minister Scott, please proceed with your opening statement.
The Honourable Andy Scott, Minister of Indian Affairs and Northern Development: Thank you, senator. It is a pleasure to be here. I would like to introduce the people from Indian and Northern Affairs Canada, INAC, who are with me today. Ms. Susan Barnes is the Parliamentary Secretary and has a long-standing interest in this subject; Ms. Sandra Ginnish is the Director General, Treaties, Research, International and Gender Equality Branch; and Ms. Wendy Cornet is the Special Advisor to Indian and Northern Affairs Canada on the issue of on-reserve matrimonial real property.
Having spent some time as Chair of the Human Rights Committee in the House of Commons, there are days when I envy you your task. I know how critically important it is, and I understand that this a new position for you. Congratulations, senator, on your election. I commend committee members for devoting their valuable time to the examination of the difficult issue of on-reserve matrimonial real property. This committee has made a valuable contribution to the government's efforts. I would like to salute the committee for its work on this issue during the previous Parliament and its interim report, A Hard Bed to Lie In: Matrimonial Real Property on Reserve, which presents an insightful examination of the critical issues. It is one important step in finding an effective and enduring solution to this complex issue.
I appreciate that many committee members have already given much thought to the problems concerning the issue of on-reserve matrimonial real property and are well versed in the topic. For those who may be less familiar with it, I would like to outline the challenge that all parliamentarians face.
I would also like to talk about how the context for our examination of the issue of matrimonial real property, and indeed all issues in respect of Aboriginal affairs, has broadened considerably. Our work as parliamentarians on this issue is rooted in the sprit of partnership, trust and respect, flowing from the Canada-Aboriginal Peoples Roundtable, jointly convened by Aboriginal leaders and the Prime Minister, which was held in April of this year.
As we move forward together in the review of on-reserve matrimonial real property, it is critical that we frame our considerations around the many issues confronting Aboriginal women. This committee will recall that my predecessor, Minister Mitchell, appeared before you in March of this year. Today, I will update committee members on the developments which have occurred since that time.
Turning first to the nature of the problem, the definition of matrimonial real property is readily understood. Matrimonial real property involves land and homes used for family purposes, whether owned by one or both spouses. Provinces have jurisdiction over property and civil rights, and have enacted laws of general application to protect spousal interests in matrimonial real property.
These laws provide important protections founded on the principles of equality between spouses when marriages break down or common law relationships dissolve. These laws do not fully apply on reserves. In addition, there are no provisions in the Indian Act which assist on-reserve residents with respect to matrimonial real property.
As a result of this legal vacuum, First Nations people do not have the same degree of security and access to real property rights enjoyed by other Canadians. Under Canadian law, courts have no authority to protect the matrimonial real property interests of spouses on reserves. Although the absence of laws regarding on-reserve matrimonial property affects all people who live on reserves, women and children are the most vulnerable, especially those women and children suffering family violence.
In recognition of these issues, we have been working with national and provincial Aboriginal groups and communities on this important matter, and we continue to discuss the issues before us. More generally, in the spirit of mutual partnership and trust, we continue to work together with Aboriginal organizations and leaders to reduce the gaps in living conditions that continue to separate First Nations, Metis and Inuit from other Canadians.
A key measure in these endeavours includes examining the issues raised by Amnesty International in its Stolen Sisters report, and dealing with similar issues raised by the Native Women's Association of Canada through its Sisters in Spirit campaign.
Members of the Native Women's Association of Canada are involved in the follow-up activities of the Canada- Aboriginal Peoples Roundtable in six key areas, including Aboriginal housing and health. They are actively participating in the round table follow-up sessions currently under way.
Obviously, efforts to address housing and matrimonial real property are inextricably linked. My department shortly will be issuing a paper called ``Housing and Matrimonial Real Property Issues on Reserves.'' This paper discusses on- reserve housing in the context of matrimonial real property, with reference to the federal on-reserve housing policy and legal arrangements for on-reserve housing.
In short, it is clear that Aboriginal women's issues are on the national policy agenda. Real efforts to deal with them are under way, working in partnership and collaboration with Aboriginal women.
As I noted at the outset of my comments, the context within which we are working has changed and broadened. Back, though, to the issue at hand.
Clearly, the current situation is unfair, unjust and unacceptable. All parliamentarians recognize this fact, but recognition of the problem is not enough. To resolve this issue we must remain engaged with key players and stakeholders, those involved in these shattered relationships, Aboriginal leaders and communities, parliamentarians and the Government of Canada.
Last fall, this committee heard poignant and insightful testimony from women affected by the lack of legal protection of their property rights, women who are determined to find a just and lasting solution. You have heard their voices and their calls to action, as have my officials. There can be no mistaking the imperative nature of our endeavours in this respect. The federal government must and will work toward resolving the issue. I can assure the committee that the Government of Canada is firmly committed to working with Aboriginal women, First Nations leaders and communities to fill the legal vacuum that exists today.
At this point, Madam Chair, I would like to respond directly to several recommendations made in the report and outline for the committee recent steps the government has taken and indicate how we intend to proceed in the near future.
Firstly, in response to the recommendations made to us by Aboriginal women, available shortly will be a plain language document called ``Information on Spousal Rights to the Family Home on Reserves.'' This document revisits and updates existing plain language material developed on matrimonial real property. We have done so to make the information even more accessible to those with a stake in this important issue.
The committee emphasized the need to address matrimonial real property in self-government negotiations and agreements. I am pleased to state that my department is well advanced in developing guidelines for federal negotiators involved in self-government negotiations. These guidelines are designed to assist negotiators in ensuring that the legislative gap with respect to matrimonial real property is not replicated in any self-government regime.
This committee also recognized that some First Nations already have measures in place regarding the division of matrimonial real property, and noted that these communities should be able to continue to follow those measures as long as the protection they afford is no less than that offered by provincial legislation. In this respect, I should point out that, through the First Nations Land Management Act, First Nations have been developing their own matrimonial real property regimes that reflect the particular values and culture of individual First Nations.
As a result of First Nations innovations, 36 First Nations are under the First Nations Land Management Act, and five matrimonial real property regimes have been developed. Another eight First Nations are ramping up to do so at this time.
As several witnesses who appeared before this committee pointed out, the adoption of the First Nations Land Management Act process represents a big step in the right direction. The testimony of these witnesses serves as a valuable resource for both parliamentarians and my officials as we consider the path we shall choose to remedy this matter.
Quite properly, this committee's report also pointed out that the rights of children living on reserves are a fundamental aspect of the issue. Currently, the Indian Act allows for dependent children of band members who reside on reserve to continue living with these members. This committee's recommendation to broaden this section of the act should be considered as we take the next steps to resolve the issue.
Finally, this committee recommended that the Indian Act be amended to recognize occupancy rights for both spouses. This change would protect a spouse whose name does not appear on a certificate of possession or when a third party holds the certificate. Because this recommendation relates to amendments to the Indian Act and the possession of reserve lands, it is imperative that stakeholders be formally consulted on any potential changes. In fact, many of the preliminary recommendations tabled in the committee report proposed that legislative options be pursued.
Let me say now that I agree with the need for a legislative solution. The research projects and the outreach activities undertaken by my department have made it increasingly apparent that a legislative framework needs to be developed with regard to matrimonial real property. However, as the committee is well aware, this cannot be accomplished overnight. Any legislative framework on this issue would have to be carefully assessed in collaboration with First Nations leaders and parliamentarians.
Since this change would significantly affect the management of reserve lands, it is vitally important that stakeholders be formally consulted on any proposal to amend the Indian Act. To enable meaningful consultations, my department has undertaken various research projects and has distributed plain language materials across Canada. By engaging stakeholders as early as possible, my department strives to raise awareness of this issue so that individuals and organizations can participate fully in consultations and make informed contributions and decisions.
This collaborative approach is in keeping with the government's commitment to work with First Nation leaders on initiatives that affect the future of Aboriginal peoples.
It is also an approach that I have pledged to follow because I, like the Prime Minister, am convinced it is the only way to achieve effective, enduring change.
In accordance with this approach, I intend to request that the House of Commons Standing Committee on Aboriginal Affairs and Northern Development undertakes the crucial consultation that any legislative change demands. The House committee will be asked to confer with stakeholders and produce a report that outlines a clear and comprehensive legislative framework to address the statutory and jurisdictional gaps regarding on-reserve matrimonial real property.
Referring this issue to the House committee is appropriate for many reasons. It will encourage the broadest possible public consultation and it will enable both First Nations leaders and members of Parliament in both Houses to be engaged early in the development of legislative approaches. Further study by the House committee and examination of stakeholders can only augment the excellent work and significant recommendations that have been made by your committee. This committee asserted that such consultations would be the first step in a larger collaborative process with First Nations governments to find permanent solutions that respect Aboriginal cultures and the Canadian Charter of Rights and Freedoms. House committee consultations will also provide Aboriginal women and other stakeholders with further opportunity to bring their views to bear on this issue.
Madam Chair, before I conclude my remarks and respond to questions — and we are all available to do that — I would like to reiterate my thanks to the committee for the excellent work it has done, for the significant accomplishments it has made, and for the thoughtful interim report it has produced. Matrimonial real property and, indeed, many issues confronting Aboriginal women are complex and multifaceted. This committee's efforts, its hearings and its report, have provided valuable insight and assistance to me and my department — indeed, to all Canadians. You have helped us achieve a better understanding of this complex issue. You have enabled us to learn of the challenges of on-reserve families. You have made a vital contribution toward resolving this issue. For that, thank you.
Senator Carstairs: I thank the minister for his presentation. I am dismayed by your statement on page 19 that you will make a reference to the House of Commons Standing Committee on Aboriginal Affairs and Northern Development but you have not indicated that you will make the same reference to the Standing Senate Committee on Aboriginal Peoples.
Mr. Scott: I had spoken with the chair of the Senate committee and there was agreement with the approach that I intended to take.
Senator Oliver: There will not even be a special joint committee.
Mr. Scott: I spoke with the chair of the Senate committee on Aboriginal Peoples and outlined what I intended to do. I am open to consideration of variations on the theme, but I did the consultation. I spoke to the chair of the committee and got concurrence on my proposal.
Senator Carstairs: I am pleased that you spoke to the chair. However, the continual dilemma that we run into is that there seems to be a lack of understanding — and I can assure you that it existed in the previous government as well — that legislation has to be passed by only one chamber when in fact it has to be passed by both chambers. Often, when we have not been included in the original process, legislation is significantly delayed while the members of the Aboriginal Committee play catch-up.
If you have had discussions with the chair, then perhaps others who sit on that committee have more information about this than I do.
You mention in the body of your text that a number of things are happening and going forward, and those are obviously particularly important for this process. You indicate a number of documents are coming down. When is it anticipated that those documents will be ready and therefore given broad distribution?
Ms. Sandra Ginnish, Director General, Treaties, Research, International and Gender Equality Branch, Department of Indian Affairs and Northern Development: The minister made reference to two documents. One was a plain language document, which we expect will be ready in the next six weeks. The drafting has been completed. It is a question of final editing and approval.
Once that document is ready, it will be sent to all First Nations communities, to all provincial, territorial and national Aboriginal organizations, including women's organizations, to First Nations shelters, to Friendship Centres, and to cultural centres. There will be broad distribution.
The second document is the housing document, which we expect to be ready within the next two months.
Mr. Scott: I should mention for the information of the committee that the round table that was established on housing speaks to this, and those meetings on housing will be beginning this week, I believe, in Ottawa.
Senator Carstairs: You have indicated your strong support for legislative action. I recognize that legislative development is not a quick process. Have you set any timeline for when you would hope that legislative materials could be put before Parliament?
Mr. Scott: The short answer is no. We have not identified any particular time. Once I have discussions with the Commons committee, we will get a stronger sense of how quickly they can do the work they are planning to do, and that will guide us in terms of how quickly we can respond. That is the best answer I can give for the moment.
Senator Pearson: Thank you, minister, for appearing. I was not on this committee when this report was designed, but I have been following the work of the committee with considerable interest because this subject was raised frequently when the Aboriginal Committee was dealing with custody and access. Here we are, five years later, and we are still lumbering along with what we perceive to be an injustice.
I appreciate that you spoke with the chair of the Aboriginal Peoples Committee. I am a member of that committee. I must admit that I have not always been attendance for the entirety of the committee's proceedings and this matter may have been raised. However, it was not signalled to the members of the committee — of whom there is another who feels quite strongly about this issue — that you had even discussed it with them. I think it is important. I may revisit this issue. However, this is not your problem, it is mine. I will revisit this with the committee.
Mr. Scott: Under the circumstances, I am not sure of the structure that would be involved with work with both Houses. Certainly, in the spirit of inclusion in which we intend to engage, the committee can address this. In the normal course, I simply checked with the chair.
Senator Pearson: The Aboriginal Peoples Committee will try to keep track of what is done in the House committee and assess what role we might play. Senator Carstairs put it fairly. If the Senate is presented with an issue after discussions have taken place in the House, we are left behind. It is better if we have an opportunity to consider issues beforehand.
I have several questions that I know cover ground already gone over in committee. Given the changes in social connections such as common law relationships, one of the recommendations we made was with respect to some research on the frequency of common law relationships and how they play out on this issue, and how property is dealt with. Is there any research being done, as we recommended, on the prevalence of common law relations on reserve and how property is divided in those cases?
Ms. Wendy Cornet, Special Advisor, Department of Indian Affairs and Northern Development: I believe figures could be drawn from Statistics Canada on the prevalence of common law relationships. Some are currently available, but the figures that we have do not give a breakdown by age. They also include children. Those figures need to be further broken down.
What was the second part of your question?
Senator Pearson: My question was about the prevalence of common law relationships. I do not know how they involved children. Children are not in common law relationships.
Ms. Cornet: The figures that Statistics Canada has about people include those who are married and those who are not married, single, and they are lumped together. Unfortunately, at this point, we do not have figures that make that distinction. We should be able to get those.
Senator Pearson: In some of the reserves I had the opportunity to visit, I was told that there are many flexible relationships.
Ms. Cornet: That is right. There is quite a bit of variation amongst provinces as to how they treat common law relationships. That is one of the issues to grapple with in this context.
Senator Pearson: Have you done anything specific on the issue of the division?
Ms. Cornet: We have looked at all the provincial and territorial laws and how they treat common law and same-sex relationships. We have a good idea of the diversity of approaches. We are also aware of the fact that the Supreme Court of Canada has rendered a decision which states that not including common law couples within matrimonial property regimes is not a charter or equality violation. Basically, it is a matter of policy for each jurisdiction to decide whether to include them or not. That is part of the larger context to consider when looking at First Nations people.
Senator Oliver: I, too, would thank the minister and Ms. Barnes for coming here this afternoon.
There are four target groups that the Government of Canada said are in need of special protection. In this case we are dealing with two of them, namely, women and Aboriginal women. The others are visible minorities and the disabled. As someone who has done a lot of work with visible minorities, one of the things we say when approaching government and speaking with ministers is, ``We hear all the representations made about resolving the key problems but: `Where's the beef?' When will some action be taken?'' I made notes of some of the language you used in your presentation and I would like to repeat some of it. You stated that, ``We are developing a paper. We are developing guidelines. We have undertaken research projects. We are referring this to the House of Commons committee only. We are getting ready for formal consultations. Your committee's recommendations should most certainly be considered.''
With all of that I ask: Where is the proposed legislation, the bill, which will finally give effect to something that will be lasting and meaningful? The four target groups repeatedly say that they have been studied enough. They want action.
On page 13 of your brief, you say that the committee also recognized that some First Nations already have measures in place regarding the division of matrimonial real property and noted that these communities should be able to continue to follow these measures as long as the protection they afford is no less than that offered by provincial legislation. What can the federal government do with respect to ensuring that they at least track provincial legislation?
Mr. Scott: The legislation we envision would, as an obvious purpose, do that. I will speak to the rather passive verbs that you are referring to in the context of our comments.
Some of the references were to the work in which the committee will be engaged. Some were to the legislation that the government would draft following the work of the committee. That would be the intent to which we were speaking. Some of the caution in my language is due to the fact that I do not like to speak too strongly about what the committee might decide or do because I think it is inconsistent with the ownership of their work. Having said that, we want this with some urgency. Therefore, I will make that point to the committee and that must be understood.
The work that we have been involved in has simply been to prepare the community for these consultations. I strongly believe that, if we are to come up with a just and enduring response, it will involve a level of engagement in the community. That will be imperative to achieve what we want. I accept that anyone who would want us to meet more quickly and aggressively would want that with the best intentions, but I fear that we will not be able to attain the level of support we require — particularly in a minority situation — to get it done. I am more interested in getting a just and enduring resolution rather than coming up with something that we cannot put into effect.
Senator Oliver: What is the relationship between the consultations that you ultimately want to have with the Aboriginal groups and the work of the committee? Does the committee have to complete its work first and, when they come up with recommendations, then, and only then, will the consultations start? What is the overlap between the two?
Mr. Scott: ``Overlap'' is a descriptive word. We are now undertaking work dealing with matrimonial property as it relates to on-reserve housing. We will have to be creative or committed to ensuring that all the elements that are going on will find their way into the final decision that the government will make. For our part, we are intending to ask the House of Commons committee to establish a framework for legislation by engaging the community, as a step. I believe there was reference to the committee's work before referring to moving forward in some fashion. They will come back with a recommendation as to how that might be done and we will be acting by introducing proposed legislation as a result.
Senator Oliver: On page 8 of your presentation you state:
Obviously, efforts to address housing and matrimonial real property are inextricably linked. My department will shortly be issuing a paper called, ``Housing and Matrimonial Real Property Issues on Reserves.''
I was surprised to hear you refer to another paper and not a bill. When this paper comes down, will it cover all of the normal provisions that would be contained in a bill, or will it be just a general think paper?
Mr. Scott: I will allow Sandra Ginnish speak more about this. It was not intended to be the principal instrument for the exercise. It is intended to be an instrument for discussion in the community around broader issues.
Senator Oliver: Will it be a white paper or a green paper? Will it have particular significance?
Ms. Ginnish: The paper will be a research paper. It will be neither a discussion paper nor a white paper. The paper will provide a view of the links between matrimonial real property issues and the manner in which housing is allocated on reserves. It will also look at housing policies that are in existence now in reserve communities. It will be, basically, an information piece to determine where matrimonial property issues and housing issues coincide.
Senator Oliver: Do we not know a lot of that now?
Ms. Ginnish: We do know a fair bit about that, but we certainly do not know everything there is to know.
Mr. Scott: I also think that part of the exercise is to engage the community. We may know, but if we are going to engage the community in finding a solution collaboratively, there is a need to engage around certain questions and, in large part, it speaks to that as well.
Senator Oliver: Minister, I previously asked a question about the Constitution and federal powers over provincial powers and what the federal government could do vis-à-vis ensuring that what happens on reserve tracks what the laws are in the province. I did not hear your answer on that.
Mr. Scott: It would be our intention to introduce legislation that, as referenced in my speech, would, at a minimum, provide the protection that is available in provincial statutes.
Ms. Cornet: In the provincial and territorial laws in the various jurisdictions there are some common elements in terms of the remedies provided. That is one thing to look at. In other areas, however, there is not that commonality, such as common law relationships. If you consider it a desirable objective, although some people would question that, that First Nations be tied to what provincial governments are doing, what does it mean if they are doing different things? The issue of common law relationships is a pretty important one and there is a fair amount of diversity among provinces in how they respond to those relationships.
Some basic things are common across jurisdictions. For example, in an off-reserve context anyone can go to court and seek exclusive interim possession of his or her matrimonial home. On reserve there is no court that is empowered, outside of a First Nations Land Management Act situation or a self-government situation, to issue such an order. Therefore, there is a point of comparison in looking at certain common things that all provinces and territories do that are not available on reserve. In other policy areas there is some diversity, and that is where you need a fair amount of dialogue with First Nations and others about what to do.
Do you leave it to First Nations to devise their own policy? How do they have a coherent relationship with provincial law if the jurisdiction is shared? There are some tough technical issues as well as some important policy issues.
The Chairman: I also was not on the committee when it studied this matter, but I was certainly involved in the dialogue before it was referred to the Human Rights Committee. Many of us felt that the issues had been studied and could continue to be studied but, in the meantime, Aboriginal women are not being afforded the protections that other women have in Canada and therefore the actions that Aboriginal women live with are incompatible with the Charter of Rights and Freedoms and probably incompatible with international law, so it was time for political will and not further study. However, the committee, at the request of the minister, undertook a study, and what clearly comes out of its report is frustration that no action has been taken.
I personally have noted the issues of Aboriginal women since 1967 when I started practising law. What is different between 1967 and now is that Aboriginal women are starting to speak out. That was not happening in 1967. Yet, sitting here today, we are still talking about the future — a future that is still about study and consultation. It seems to me the kind of engagement that might satisfy the committee members that made this report would be negotiation as opposed to engagement.
If the House of Commons is going to study it again and involve the Aboriginal community, Aboriginal women and anyone else affected, we are simply delaying again the rights and benefits that other women have, and again Aboriginal women will find themselves at a disadvantage.
I believe time limits are most important. We can study an issue and perhaps get a finite answer, but it is a complex field and at some point there has to be political will from a minister, a government, and also from Aboriginal leaders to take some steps. They may have to correct them later if we determine that they are not fitting well, but we need assurances that there are time frames and that there will not be delays. Frankly, when the minister asked that the Senate committee study the matter I said, ``No, let's get on with it.''
The Senate yielded to the minister and agreed to have one more study. How many more studies will we have? I am asking that either today or sometime very soon some time frames be put on the House committee. Will they start where we left off or are they going to start all over again consulting with the same groups, meeting and filing a report that the minister and the department will study further? I think that we will be into another election before that will happen. We need to give some hope to Aboriginal women and children.
Mr. Scott: I can tell you today that I am committed to getting this done. I believe that, in order to get an enduring solution we need the support in the community to make this work, and that is what we have to do. I am not asking the Commons committee to undertake a study. I am asking it to consult the community in order to get a leg up on the legislation. If we introduce proposed legislation first, I guarantee you that many in the community will ask why they were not consulted. We recently heard that refrain.
This is a way of engaging the community in a respectful and collaborative way in advance of preparing the bill, and it is not intended to be a delaying tactic. I believe that this is the only way that we will be able to get what we all want. One can disagree with that judgment, but I believe that is the case.
The Chairman: Can I call it a pre-pre-study to legislation? Often we pre-study legislation so that everyone is informed and can comment on it. In this instance, however, there will not be a bill to pre-study. My fear is it will go in too many directions and get trapped with all the nuances of the issues and again be lost. How will that House committee define its role? Will their mandate be narrow so that it can lead to legislation?
Mr. Scott: I will bring the advice of this committee today to my discussions with the House committee. I will also consider the earlier comments. In my negotiations with the Commons committee, I will speak to the importance of this and I will request that they do this in a timely fashion. However, I believe that it is much more likely to get the result the committee wants if we do not go to the community with legislation that is drafted before we, in some official way, engage the community. That would present a significant challenge to us in the context of the way we have approached this. I would like to avoid that problem or that complication in a field that will be fraught with complexity.
The Chairman: I take it, Mr. Minister, that you do not disagree that there are human rights inadequacies for Aboriginal women and children now. That is not in dispute. The basic mandate of this committee was to make that determination under the human rights rubric. You accept that there is an injustice that needs to be corrected.
This study seems to be on matrimonial property. The previous minister seems to have given this committee a much broader mandate to look at land allotment and other issues. What is your position on the other issues of the mandate?
Mr. Scott: I must say that we have not engaged the committee beyond the idea that they would want to entertain this as a starting point. The details are yet to be ironed out. First and foremost, I want to deal narrowly with the issue at hand. I would agree that we do not want to allow side issues to cause this to go off the rails. Having said that, I reserve the right, I guess, to conduct the negotiations with the committee. That is my own view.
The Chairman: What about the human rights?
Mr. Scott: It is stated in the text that this is unjust, unacceptable. I tried to offer some comfort, suggesting that I had done some work in this area before.
The Chairman: I presume you are not taking the questions personally. We are testing the government, through you.
Mr. Scott: I am well beyond that now, thank you.
The Chairman: It is not your personal commitment to this that we are questioning at all.
Senator Pearson: I echo what our chair has said, partly because you are new to the file and partly because we know the complexity of the issue. One task this committee is undertaking is to look at the government's response to the recommendations that are concluding observations that come back to us from human rights when we present in front of the human rights committees or the treaty body committees with respect to treaties which we have signed and ratified. The timing again comes into play.
From 1999, there is a concluding observation from the human rights committee in Geneva to the effect that the committee is concerned about ongoing discrimination against Aboriginal women. Following the adoption of the committee's views in the Lovelace case in July 1981, an amendment was introduced to the Indian Act in 1985. Although the status of women who lost status because of marriage was reinstituted, this amendment affects only the women and her children, not subsequent generations — and I recognize that you know all about this, but it is worth repeating it for the record — who may still be denied membership in the community. The committee recommends that these issues be addressed by the state party. That is April 7, 1999.
The witnesses who came here stated that one of the reasons that Aboriginal women who have children outside marriage must name the father is so that the department can assess any application to register the child on the Indian register. These practical, on-the-ground consequences of this particular problem continue to magnify some of the injustices that we find. An Aboriginal grandmother may have two grandchildren, one of whom has Aboriginal status and one who does not. It would be hard for me to think of my grandchildren having different statuses.
The sense of urgency we feel is because the committee dealing with the elimination of racial discrimination also had some concluding observations in 2002. The sense of urgency we are trying to convey is that it is a practical question. I observed the future tense in everything you are talking about. We can understand what you are saying, and we certainly appreciate that no solution will work if the community is not involved. The question is: Who is the community? We found that many said, ``The community is not speaking for me.'' I understand those challenges. I would be interested in knowing the details of consultation process you talked about earlier. I am not referring to the House of Commons committee. Are task forces being formed that are comprised of federal-provincial Aboriginal womens' groups to look at this problem concretely?
Mr. Scott: A large number of areas of consultation and research are ongoing. The chair has referred to the possible breadth of the issue. If we lose our focus, we could lose our urgency.
Senator Pearson: Is there a task force that is comprised of those components working on it now?
Mr. Scott: Not currently. The research documents referred to are in place, and questions came up at the round table in April and became part of the housing round table that is now engaged. However, that has been more general.
To respond to the complexity of the issue, I would urge the committee not to interpret a reference to the broader issues to be a distraction. We have to deal with all of these concurrently. I welcome the reference to Lovelace. Coming from New Brunswick, I am very familiar with it. I give my former premier his due in the role that Mr. Hatfield played in that particular file. I grew up with it. I am alert not only to the fact that it spoke to something, but also so the fact that it did not speak to everything. I am alert to the challenges that we face going forward. I am also aware of the demographic issues that you mentioned, but I would separate those in the interests of the level of the focused work that must be done on a specific issue. It has probably been derailed in the past because it is so complicated and it is like a magnet that draws in other issues. Those issues become attached and then difficulties arise. I am alert, and my parliamentary secretary reminds me when I lose my sense of alertness, how we must proceed with a kind of laser-like focus.
Senator Carstairs: I agree totally that the community needs to be engaged. The problem is that that is what we say in every instance we deal with Aboriginal legislation. Every time a bill comes before us, we are told by the community, ``There was no engagement with us.'' I would like to know, not today, perhaps, but in the near future, once you have these documents available, what exactly will go on in that community, whether it is The Pas reserve or whatever? What discussions will go on in that community regarding these two pieces of paper so that we can honestly say that there was an engagement with those people?
Mr. Scott: In my capacity as minister, I have already begun to advise the AFN and the MNC and other national organizations of my intentions. I will recommend to the committee, and I would have the capacity within a department concurrently, in the event the committee goes off in another direction — because they are masters of their own work — to ensure that the very reason that we are taking the approach that we are taking, which is not necessarily as directly as I might wish to go to it, is for that purpose and that purpose alone. Consequently, that is why we are doing it in the way we are doing it. There will be no mistaking this. No national or regional organization will be able say that they were not engaged, because I will make part of my responsibility to eliminate that objection. That is the only reason we are doing this in this way. I believe, based on a large amount of consultation on many files to this date, that the only way that we will get an enduring resolution to a number of issues is to consult transparently and publicly, finish consulting and act. If we were to act first, we would end up with that objection, and that would get in our way.
The Chairman: Thank you for appearing today. It has been helpful to hear your perspective. As I indicated, the report filed was an international report, and this committee will have to determine what its next steps will be, if any, and report to the Senate. Your input has been extremely helpful, and I hope we will have a continuing dialogue on other issues. I also hope that there will be some finality to this issue in the near future. Thank you for coming.
Mr. Scott: I thank you very much, and I can assure you today that some of the suggestions that have already been made will affect how we go forward. I would also be delighted to respond to any invitation to come back to bring you up to date.
The committee adjourned.