Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 19 - Evidence - October 28, 2009
OTTAWA, Wednesday, October 28, 2009
The Standing Senate Committee on Aboriginal Peoples met this day at 6:30 p.m. to study the federal government's constitutional, treaty, political and legal responsibilities to First Nations, Inuit and Metis peoples, and other matters generally relating to the Aboriginal Peoples of Canada (topic: issues pertaining to Indian Act elections).
Senator Gerry St. Germain (Chair) in the chair.
The Chair: I see a quorum. I call the meeting to order.
I would like to welcome all honourable senators, members of the public and all viewers across the country who are watching these proceedings on CPAC or on the web. I am Gerry St. Germain, from British Columbia, and I have the honour of chairing this committee.
The mandate of this committee is to examine legislation and matters relating to Aboriginal peoples of Canada generally. On April 1 of this year, the committee decided to launch a study to examine issues related to Indian Act elections.
The committee is looking at outstanding concerns related to the Indian Act election system, including the two-year term of office for chiefs and council, as currently prescribed in the Act. We, as a committee, are seeking the views of First Nations leaders, Aboriginal organizations and First Nations people, as well as experts in this area regarding whether and what changes should be made to the Indian Act elections regime in order to provide better governance for First Nations, including strengthening political accountability of the leadership to First Nations citizens.
For our viewing audience, it is important to note that 252 Indian bands, roughly 40 per cent of all Indian bands in Canada, hold elections in accordance with the Indian Act. This study on election processes focuses on those First Nations whose elections are held under the Indian Act. The other Indian bands select their leaders by way of custom or as a result of their self-government agreements.
Before beginning, I would like to introduce the members of the committee. With us tonight are: Senator Sibbeston, from the Northwest Territories, Senator Brazeau, from Quebec, Senator Lovelace Nicholas from New Brunswick, Senator Hubley from Prince Edward Island, Senator Dyck from Saskatchewan, Senator Martin from British Columbia; Senator Stewart Olsen from New Brunswick, and Senator Carstairs from Manitoba.
Senators, allow me to introduce our witness. Lynne Groulx is President of the Indigenous Law Resource Centre, located in Gatineau, Quebec. The centre is described as specializing in legal research on Aboriginal issues. Some of the areas of law include constitutional, human rights, criminal and international law, as it applies to Aboriginal people.
Ms. Groulx is a Metis woman of Algonquin and French descent. She graduated from the University of Ottawa with a civil law degree specializing in Aboriginal law, and has recently completed her Master of Laws thesis entitled: Striking a Human Rights Balance: A Study of the Canadian Human Rights Act vis-à-vis Aboriginal Peoples, 2009. She is working on her PhD in law, which will address the following question: Mental Illness under Canadian Law: A Study of the Criminalization of the Mentally Ill from a Human Rights Perspective.
Ms. Groulx has previously undertaken research on behalf of the Congress of Aboriginal Peoples. This research work contributed to the development of CAP's April 2008 report, entitled Justice is Equality.
Ms. Groulx has requested to appear before the committee to discuss the impact of section 74 elections in the Federal Court and at the Canadian Human Rights Commission, and intends to highlight a series of specific decisions and the impact of those decisions.
Members of the committee will recall that in June 2008, the Senate adopted Bill C-21, An Act to amend the Canadian Human Rights Act. This legislation repealed section 67 of the Canadian Human Rights Act, which had restricted access to the commission's redress mechanisms with respect to ``any provisions of the Indian Act.''
As a result of Bill C-21, the commission can now accept complaints against the federal government dealing with the Indian Act that were previously exempted because of section 67. The bill provides for a three-year transition period before complaints can be received against First Nations governing authorities.
Ms. Groulx, the committee looks forward to hearing from you with respect to the impact of section 74 elections. Do you have a presentation?
Lynne Groulx, President, Indigenous Law Resource Center Inc., as an individual: Yes, it is being translated. I have quite a detailed document that will be ready on Friday in both official languages. I will speak in English, but I would be happy to answer any of your questions in French as well.
The Chair: Senators would like to ask you questions, so if you would keep your presentation as tight as possible, it will give the senators ample time to do so.
Ms. Groulx: Is 10 minutes all right?
The Chair: That is fine. You have the floor.
Ms. Groulx: Mr. Chair and members of the Standing Senate Committee on Aboriginal Peoples, I am honoured to present to you the findings of some recent legal research I undertook as part of a Master of Laws degree in 2008 and 2009. It deals in part with the issue of elections held by bands through ministerial order of section 74 of the Indian Act. I will present the findings of a bulk analysis of a number of Federal Court cases dealing with custom election disputes.
The Indian Act provides that election of band councils may be governed either by provisions of the act and its associated regulations or according to band custom, pursuant to sections 2 and 74. In order to revert from Indian Act elections to custom elections, INAC requests, as a matter of policy, that the band submit custom electoral law in writing that conforms to the Canadian Charter of Rights and Freedoms. There are no further administrative or procedural requirements with respect to the reversion process.
While INAC may not interfere directly in custom disputes after the reversion process is complete, it does retain the ultimate control and may take the step, once again via ministerial order, of forcing a band to return to Indian Act elections. However, this measure has very rarely been used.
A typical situation where a band approaches the process of reversion to custom elections begins with the undertaking of consultation with their community members in order to ensure a broad consensus. This requires proper notice to be sent out to members for upcoming meetings and discussions and sufficient time allocated for the process.
Some communities decide to adapt a form of ancestral tradition to their leadership selection codes. Others prefer a modern approach, using a written code that resembles a modern municipal electoral law. Finally, a third group decides for what we call a ``hybrid combination,'' including elements of old law and new law. The large majority of the codes appear to be in the last category.
Unfortunately, at the present moment, there are many misunderstandings as to the nature and meaning of electoral customs. In fact, one of the first problems to arise in custom election disputes is an explosive one. It is the question of the legitimacy of the custom itself.
The leading court case for determining legitimacy of a contested custom is Bigstone v. Big Eagle. In that case, the Federal Court decided that a custom must include three elements: Practices for the choice of council, which are generally acceptable to members of the band, upon which there is broad consensus. Although this definition seems quite simple, this passage has been used over and over again and quoted in many decisions.
In order to resolve the disputes, the courts have basically placed them in a box and labelled them ``contemporary customs.'' This is the vocabulary used by the courts themselves. They are not calling them ancestral customs; they are calling them contemporary customs.
In fact, ancestral customs are those usually referred to in case law such as R. v. Van der Peet, or section 35 of the Constitution Act or section 25 of the Charter.
A key to understanding the nature of an electoral custom is that the custom itself is not to be understood as an ``ancestral custom.'' In the context of custom band elections, there is necessarily a different dichotomy to be used apart from that used to determine Aboriginal rights. For example, if a judge was to consider an electoral custom of selecting council as an ancestral custom, he or she would examine how the band in question selected their chief and council when the Europeans made contact.
That is not the case. The Federal Courts are taking a contemporary approach and they are examining how the custom has changed in the very recent period of time and whether there is broad consensus of the community.
In some cases, it is argued that the actual voting practices written in a custom code do not match the ancestral customs or the oral traditions. In that case, once again, the courts will examine the will of the community and will not undertake an in-depth examination of ancestral custom.
Another important question that has developed is whether the customs are an inherent power or a power under and pursuant to the Indian Act, despite the fact that they are custom codes or custom elections. In Bone v. Sioux Valley Indian Band, the judge confirmed that the power of a band to choose its custom is not drawn from the Indian Act itself. Rather, he characterized it as an inherent power. The bands, according to the judge, have always had this power. Justice Drayer in Wood Mountain First Nation v. Canada (Attorney General) maintained the opinion in Bone that stated:
. . . this Court has held that the reference to band custom elections in the definition of ``council of the band'' in section 2 of the Act does not create the authority for custom elections but simply defines them for its own purposes.
In a Canadian Human Rights Tribunal decision, Jacobs v. Kahnawake, the tribunal reasoned that the Mohawk custom elections were being held ``under and pursuant to the Indian Act.'' Now, there is a controversy here because we have the Federal Court saying it is an inherent power and we have the tribunal which has stated that it is not an inherent power, but it is held under and pursuant to the Indian Act and all the decisions are under and pursuant to the Indian Act. They reasoned that way because they said section 74 is a ministerial order. Therefore, all decisions are ``under and pursuant'' to the act. There is some confusion.
In light of Bill C-21, and the repeal of section 67, it is important to understand that, independent of the position taken by the tribunal in the Jacobs case, interested stakeholders could consider filing a complaint against both Indian and Northern Affairs Canada and First Nations governments. The Government of Canada has a fiduciary duty to act in the best interest of Aboriginal people and ensure that any and all laws approved by the Crown — in this case custom election laws — should not be in breach of fundamental human rights. First Nations governments, also, must ensure compliance with the Charter and anti-discrimination federal laws.
Applicants have generally challenged decisions made by band election appeal committees, band councils, council of elders and electoral supervisors. All sorts of challenges are being made. The decisions are often made either before, during or after the elections, but there are many challenges happening.
The case law indicates that there are significant problems with the decisions being made by these different boards. For example, we might have an appeal board that is judging its own conduct or misconduct. The code, for example, could make the Chief Electoral Officer part of the appeal board and yet there might be a complaint against him. Obviously, there is conflict of interest there.
In conclusion, while it is preferable for each First Nation to develop their own band custom and conduct their own elections and appeals, it is understood that some disputes will only be resolved in Federal Court. However, the reality is that the courts are a blunt instrument and should only be used as a very last report. Unfortunately, they are called upon all too often to intercede and put out the ``raging fire.''
In many cases, the process from the beginning is flawed. The custom code contains errors in the form of procedural deficiencies, and inconsistencies or even Charter violations. The code is rubber-stamped without sufficient detailed review by the band and the Government of Canada. Furthermore, the codes may be amended any number of times without INAC ever knowing or being informed.
Sometimes problems appear larger than life and they can be prevented without reinventing the wheel. There is a system in place at this moment to revert to custom code elections and the condition for that is compliance with the Charter. Those reverting to custom have agreed to this condition. First Nations have gone a step further and they fought vigorously to have Article 34 included in the UN Declaration on the Rights of Indigenous Rights. It states:
Indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive juridical customs, spirituality, traditions, procedures, practices and, in the cases where they exist, juridical systems or customs, in accordance with international human rights standards.
An ounce of prevention could go a long way in keeping the peace in the world of section 74 custom election disputes.
The Chair: Thank you, Ms. Groulx. We have a list of questioners and, if you are prepared, I will lead off with Senator Sibbeston, the deputy chair. By the way, I would like to introduce Senator Patterson from Nunavut, who has joined us on my left.
Senator Sibbeston: Thank you, Ms. Groulx, for your presence here tonight. Obviously, you have studied the matter in a very legal way. On the other hand, our Senate committee has been to a number of places in the country and have had witnesses before us dealing with the very practical question of elections and the present two-year term.
There seems to be a general feeling that two years is not quite enough, and it ought to be lengthened. We are also aware that there are many First Nations that have taken advantage of the provisions of the Indian Act to provide for their own system. Having a system they designed is certainly one way of dealing with the issue of not being so restricted under the Indian Act. We, of course, will be making recommendations for changes.
How likely do you think it is that the Charter, particularly section 35, would be invoked by First Nations, in the event we make amendments to the Indian Act? Do you feel that First Nations have a basis for challenging the amendments of the Indian Act that we would recommend?
Ms. Groulx: I believe they do have a legal basis. They certainly do under section 35. However, with respect to custom elections, the courts have really been all on the same side. They do not consider them ancestral practices. You have a group of judges saying, ``Yes, they are inherent rights'' and these judges are saying they were ancestral customs, broken by the Indian Act, and now they are custom again.
However, you have an entire jurisprudence taking a different position. There are many cases where judges are saying these are not ancestral and not under section 35, and they would not accept that argument. They are basically saying it is a modern, hybrid form, so the ancestral custom no longer exists, basically.
There would be a handful of communities or First Nations that really have maintained those ancestral customs. I believe there are 10 to 15 in all of Canada. The rest have been relabelled and put into a new category of contemporary or hybrid.
If you look at a large number of those codes individually, you will see they are really hybrid in the sense they have taken some of their old traditions and incorporated them, but the bulk of it is more modern and what you would see in a Canadian municipal electoral law. That is basically what it is. You can find some of the codes on the Internet and there are all sorts of excerpts from them in the court decisions. That is part of the difficulty. When they are drafted, sometimes they are drafted in legal terms, and the community needs to approve this code on a broad consensus. How can you approve or vote for something that you cannot even read because it is so complex? Sometimes they are just inserting these clauses without plain language.
Senator Sibbeston: Would it be your advice then, in terms of the amendments we are considering, to make them optional? As an example, the two year provisions under the act are considered too restrictive. Instead of making it definitely three or four years, do you feel it would be better to give the discretion of having a term up to four years? Would that assist in First Nations not challenging any amendments we might recommend?
Ms. Groulx: Most definitely.
Senator Sibbeston: Is the area of elections and government particularly sensitive or such that they are more likely to have section 35 invoked? Is that particular aspect of governance particularly sensitive? Would it be the same with other factors, such as economic development or housing or education?
Ms. Groulx: I would call it explosive. If you read the beginning of many of these custom codes, in the introduction they say this is our inherent right and the creator has given us this right to self-government. We have Article 33 in the UN declaration. It is definitely a very strong question where section 35 could be invoked. That does not mean it would be necessarily successful, but it definitely could be.
Senator Stewart Olsen: Thank you for your presentation. This goes into a very confusing discussion. The ordinary person or layperson would not have a clue what was going on here.
In your opinion, are the custom codes better? Which system, in your opinion, works better?
Ms. Groulx: That is a really difficult question.
Senator Stewart Olsen: I know.
Ms. Groulx: There are many problems with the custom election system, but they are not necessarily problems that could not be fixed easily. There seems to be a lot of procedural problems with those codes. They seem to be slipping through. They are supposed to be conforming with the Charter, but when they get to the Federal Court, the judge says, ``Wait a minute. What is this clause here? It is ambiguous. It is not conforming to the Charter.'' There are all these problems. The safety net, which may be INAC's rubber-stamping or approval, does not seem to be working. If that could be improved, I am certain there is not a First Nation that would not say it would prefer to have their own system. Sometimes those difficulties could be rectified quite easily.
Senator Stewart Olsen: How many of these challenges are there at the present time?
Ms. Groulx: There are hundreds logged into the Federal Court of Appeal. They last longer than two years in many cases. It goes to appeal, and there are motions and cross motions and tens of thousands of dollars being spent in litigation.
Senator Stewart Olsen: It is their own band members?
Ms. Groulx: Band members are contesting their own customs. There is controversy because it is not clear. Sometimes the written code says this is the way we are supposed to proceed during our elections. For example, the code might say the Chief Electoral Officer has to close the poll at six o'clock, but in reality, in the past ten years, the Chief Electoral Officer has been closing at 6:15, 6:30, 6:40. That has become the real custom or real practice. When a problem erupts and a candidate loses, he says, ``I lost because you left the poll open too long.'' Then it gets into the court, and the judge says, ``What is the custom? Is it this written law, or is it this oral practice?'' An oral practice can amend a written code, and the judges say there is no priority for that written code. Just because it is in writing does not mean it will take precedence over an oral tradition that has changed it in reality without actually amending the written code. It is very confusing.
Senator Stewart Olsen: These court cases and hundreds of challenges will cost Canadian taxpayers huge amounts of money. It would probably eat up enormous amounts of funds that could be better utilized for health care or education. Is there some point to having two systems in place?
Ms. Groulx: There are also challenges under the Indian Act elections as well. That is happening, too. It is my understanding that the Government of Canada is a party in those court cases and will be paying the bill. In the custom elections, because they have pulled out of the Indian Act, the government is no longer footing the bill. The band has to find those funds within their existing budgets.
Senator Brazeau: Welcome, Ms. Groulx, to our committee, and thank you for your presentation.
This committee is looking at section 74 of the Indian Act in terms of the elections under that system. I personally find it very difficult to talk about this issue without talking about custom codes, because the reality is that right now we are just looking at potentially recommending to the Government of Canada to increase the term of office from two up to four years. The reality is also that any First Nations community can now revert back to what they call a custom election system, and they can develop their own election codes that would increase that term of office.
Given your expertise and the research you have conducted, do you think that it is indeed a viable option, especially when you look at giving more legitimacy and credibility to the election system, for First Nations now to revert back to custom and have these terms of office up to four years?
Ms. Groulx: I believe that a longer term is necessary. In fact, when you look at the custom codes, most of them have already implemented more than a two-year term.
I believe that the custom election system can be improved. As it is right now, the problem is that the safety net seems to be failing. When the code is presented for approval, there are already flaws in it. There are already ambiguities and problems in it. We are dealing with a very difficult area of law because they are using a hybrid system. They are bringing in Canadian law and indigenous legal traditions. Basically, you almost need an expert in two fields of law. It might slip past a lawyer trained in Canadian law. They will see all of the necessary elements, but they might slip on the other side.
There seems to be some difficulty or some deficiency when the code is presented. There seem to be errors that are not being picked up, for whatever reason. I am not sure if there is a committee at INAC or it is just simply some policy people in the office, but there seems to be a problem there.
I saw a recent code, as recent as a year ago, prepared by a law firm, that had been submitted and approved, and yet it had no appeal. If you had a problem with the election, there was no appeal committee. You had to go to the Chief Electoral Officer. If your complaint is against the Chief Electoral Officer himself, how are you going to have any sort of justice?
Senator Brazeau: Having said that, would you be in a position to give an opinion comparing the two systems? Over 50 per cent of First Nations communities in Canada are under custom. It is my belief that many of these First Nations reverted to custom after the 1999 Corbiere v. Canada decision because that was a way in which they could deny off- reserve band members the right to vote because the court had not talked about custom codes and the right of off- reserve members to vote. Would you be in a position to give an opinion as to which system is better or which one is given greater legitimacy?
Ms. Groulx: I do not think I can answer that question directly because there is no doubt that Aboriginal people have the right under international law to have their own systems in place. There is no doubt. In my view, there are procedural problems and the system is failing. The initial process of submitting the code and having it compliant with the Charter, presents a problem. It is not because the indigenous legal traditions do not comply with the Charter. Rather, it is the way in which these complex documents are drafted. There seem to be many errors that cause huge numbers of disputes. Likely more than half of those cases should never have gone to court but the custom code was passed without being properly drafted. That seems to be one of the biggest problems.
Whether one system is better than the other, I have not done an analysis to know how many Indian Affairs election disputes have gone to court as opposed to how many custom code disputes there have been.
Certainly, it causes a large rift in the communities and costs thousands of dollars. Is it not only the money but also the disputes it creates. At times, the police have to become involved. It gets really, really bad. There is no question that something is wrong. Aboriginal people have a right to have their own systems, and that is almost established under international law.
If the custom system is failing at this point, and it has deficiencies, it might be simply a matter of changing some of the procedures that are in place or that are not sufficiently in place. There is something wrong with the safety net.
Once the code is approved, they could turn around and amend it 20 times. No one is looking at it. Even if it is compliant when it goes through the door it can be amended. For example, if someone had included the right for off- reserve to vote just to get their code through because now INAC is requiring compliance with that, technically they could turn around and amend it in the reverse. Currently, there is nothing stopping that from happening. It is definitely a problem.
Senator Brazeau: In terms of your research and analysis, have you looked into First Nations that are under custom and have increased their terms of office? Have you been able to conclude that there is more stability with those who have reverted to custom and increased their terms of office?
Ms. Groulx: No. Basic common sense and reason would dictate that because most of the codes have terms of more than two years, communities find that two years is too short.
Senator Brazeau: If this committee were to recommend increasing a term of office up to four years, perhaps an analysis of the current custom codes, which have increased their term of office, would be beneficial to determine that stability.
Ms. Groulx: I would love to do that study for you.
Senator Brazeau: Thank you.
The Chair: Do you think that an independent body to help First Nations draft legally sound custom codes that are consistent with Canadian law and indigenous law would help?
Ms. Groulx: That would save a lot of money, time and heartache. At a conference recently, I heard Professor Sakej Henderson, who is a leading Aboriginal expert in our country. He was speaking about the difficulty of harmonizing laws and learning each other's laws. Canadian lawyers are not trained in indigenous legal tradition and vice versa. Definitely, that would be worthwhile.
Senator Hubley: You mentioned that the process was flawed and that custom codes can be changed without INAC's approval. In your experience, how long does it take, or is it too varied, for a band to move from the election under the Indian Act to a custom code?
Ms. Groulx: A proper process would probably take a little over one year because of community consultation. In order to properly do a custom code, there would be many community meetings to see which indigenous legal traditions they want to adopt into their new system. Sometimes the community simply decides to do something really modern and hires a lawyer to create a modern system, just like any other municipality. In other cases, they reach far back into their ancestral traditions and modernize them for their new system. The latter process would take a little over one year to complete. The time it takes would depend on what they decide to do.
Senator Hubley: As long as they do not run into difficulties along the way, it can be done in that period of time.
Ms. Groulx: Yes.
Senator Lovelace Nicholas: I am sorry that taxpayers are paying so much money for this, but we did not create these problems. I think the government created them and so did Indian and Northern Affairs.
I am working with a person who has proof that there has been a fraudulent election. Does INAC have the right to refuse to look into the matter or does the RCMP look into that?
Ms. Groulx: I would not want to answer for INAC. I know that their policy is hands off because it is custom and not really their area. If it gets really bad in a community under custom, INAC has the power to bring them back. The department has done that on only two or three occasions. The matter went to court and it was quite a process. Certainly, where there is fraud, the police or the RCMP could get involved.
Senator Lovelace Nicholas: This case will go to court eventually. What is the best way for these people to approach this problem?
Ms. Groulx: They could try INAC but I do not think INAC will help. More than likely, they will have to go through the court system. There are probably cases similar to that one documented already.
Senator Lovelace Nicholas: I thought you might be able to suggest an easier way.
Senator Carstairs: I would like to know a little bit more about the Indigenous Law Resource Centre. You are extremely well educated and currently working on your PhD in law. How many are you and where is your funding coming from?
Ms. Groulx: I am independent. I am my own funding. I worked very hard and bought my own three-storey building. I do government contracts. According to the contracts, I work with the University of Ottawa. I am trying to recruit as many students in their third year of law who are interested in indigenous issues, Aboriginal students if I can, for research projects. That is what I have been doing.
Senator Carstairs: I would like to build on Senator Lovelace Nicholas's case. You have a situation in which a band has not been going through custom election. They decide they will go through this process and are granted the right by INAC, essentially, to work on custom code. Then, INAC wipes their hands of them. Is this not a dereliction of duty?
Ms. Groulx: That is where I brought up the point on fiduciary duty, and, yes, this point has been brought up. It was brought up at the Canadian Human Rights Tribunal case of Jacobs. The chairperson said exactly what you said and reprimanded the Government of Canada. In the document I will distribute on Friday, I have a quotation exactly on the point that you have made. They said it is a breach of fiduciary duty just to wash your hands of these issues.
Senator Carstairs: I was interested in your testimony in which you said that you can get this custom code but then you can, after you have gotten it, change it.
Ms. Groulx: Yes.
Senator Carstairs: Surely, built into the right to go to custom should be some set of rules and regulations by INAC to say, ``If you wish to change your custom code in any way, you need further approval,'' but I gather that does not exist.
Ms. Groulx: That is the safety net that I was talking about that is non-existent. The safety net is not there. Those regulations are not there.
Senator Carstairs: You indicated that international law gives them the right, you believe, to custom code.
Ms. Groulx: Yes.
Senator Carstairs: My reading of international treaties would tell me the same thing. However, it is one thing to say they have the right; it is another thing to say they can violate other international principles and our own Charter in the evolution of this new code.
Ms. Groulx: Absolutely.
Senator Carstairs: That is a clear violation.
Ms. Groulx: Correct. That is why I brought up the point of the UN Declaration on the Rights of Indigenous Peoples, which Canada voted against. However, the indigenous people themselves pushed for this. In the clauses they asked for, and I will repeat it here, it says that indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive juridical customs, traditions, procedures and practices in accordance with internationally recognized human rights standards.
They themselves have set these standards. If they have, that means their own codes and their own traditions should be conforming with the Charter. It is not the Government of Canada that dictated that. They themselves put that in there. That is a pretty high bar.
Senator Carstairs: Let us be very clear that the rejection was done by the executive branch of government and not by government in its broadest sense.
My final question has to do with drafting errors. How large, to your knowledge, is the group of individuals in INAC that actually develop and accept these new custom code elections, and is it adequate?
Ms. Groulx: I believe that it is one or two designated people. I believe they are not necessarily lawyers. They could be policy people. It is by far insufficient. These custom electoral laws have anywhere from 10 to 80 pages. That is a lot of legal drafting. Each and every one of those clauses should be complying with the Charter. In order to determine if that clause is complying with the Charter, you need to know all the articles of the Charter and the jurisprudence or the case law that is attached to each and every one of those as well. It has to be someone who is deeply involved in both areas of law. It is constitutional law and also indigenous legal traditions. Canadian laws go through all the drafting processes and go to the Department of Justice. Where do these laws go? They need a special place or a really particular expertise.
Senator Carstairs: Thank you, Mr. Chair, but it should be on record that the Government of Canada cannot introduce a piece of legislation unless it is certified by the Department of Justice to be Charter-compliant.
The Chair: I could be wrong on this, but I believe that all legislation goes to the Department of Justice for constitutional compliancy.
Senator Carstairs: It has to be ruled to be Charter-compliant, but it does not appear that when you hand off on a custom code that it needs to be Charter-compliant.
Ms. Groulx: It is a policy that INAC has. In section 74, it says the minister ``may,'' and what they have said is that the minister will, providing that it is Charter-compliant.
Senator Dyck: Welcome, Ms. Groulx, and congratulations on doing your PhD, especially in your field of law and the mentally unwell.
Ms. Groulx: Thank you.
Senator Dyck: This election code information gets more and more confusing as we go on. To follow up on the issue that once you have got your custom code, a particular First Nation may decide to amend it. There are probably two camps. One is that it is really not such a bad thing if under section 35 you believe you have the inherent right to self- government, then you should have the right to change the code. It is based on the assumption that you have good intentions and you have the knowledge and so on.
You gave the example that, let us say a particular band decided that they were going to remove the off-reserve membership from voting. If that were to occur, presumably those off-reserve members then could launch some kind of court challenge, so it would not be a permanent decision.
Ms. Groulx: Certainly. Everything can be challenged.
Senator Dyck: That is as they are now already with the custom code.
Ms. Groulx: Yes.
Senator Dyck: What is confusing me is that from what we had learned from Indian and Northern Affairs, it sounded to me, that if a particular band wants to go to custom code, they could download a copy of a model custom code, or get it mailed to them and they go through it. I believe we got a copy of the model. Would you not think that there should be a bare minimum in there that indicates bare minimums that cannot be changed, like the mechanism of an appeal board?
Ms. Groulx: From the perspective of a First Nations person, they would then feel that Canada was imposing. That would be a lot of imposition. They could just fill in the blanks, is what you mean, to have a basic document that is compliant, and they could fill in the sections that they want.
Senator Dyck: It sounds as if that is what is happening right now. It really is. Fill in the blanks or fill in the paragraph.
Ms. Groulx: There is not one code that resembles another. I have looked at over 80, and so many different cases, and there is not one that resembles another. Some of them resemble an INAC code, such as the one you are talking about. They can go anywhere from 10 pages to 80 pages. Some of them have entire sections missing, appeal sections, main sections. It is not out of bad faith. You brought up a good point. It is really not out of bad faith. It is from the fact that the community drafted it, with no legal counsel. It is obvious when you read it that the safety net was not there. It is definitely not out of bad faith. It is just a question that you are drafting a law.
Senator Dyck: You brought up the point that people are trying to meld lawyers that are trained in jurisprudence by the western model with those who are familiar with the traditional or ancestral law. However, in a community, it would be the same sort of thing where they are probably going by their community practices but they do not speak the same language as the language that came to them through the model that they got from Indian and Northern Affairs.
Ms. Groulx: Many times the expert on indigenous law is somebody from the community. It is an elder from the community. That is the expert I am referring to, not necessarily a graduate from the university, because they are the experts in their own laws.
Senator Dyck: We then, in a sense, still are imposing upon that community the standard that goes with the North American or the European model. Can the traditional hereditary knowledge ever really fit the North American model? They are two different things.
Ms. Groulx: For most indigenous legal traditions, I do not think I have found one recently that does not comply with fundamental human rights. They are all based on respect. When they are true indigenous legal traditions, they do comply with international norms. Sometimes they get twisted.
Senator Dyck: We are trying to make apples and oranges fit together. Maybe, if we are to sanction a community's own legal system, then we cannot apply standards that do not measure how the community's laws actually work.
Ms. Groulx: There are codes that are very traditional in the way you talked about. They do not necessarily have problems as long as they are drafted clearly. For example, a community with no appeal mechanism simply does not comply with natural justice. Most indigenous legal traditions would have an appeal mechanism, whether it was a senate committee or a committee of elders. It does not matter what name they give it.
Senator Dyck: What would be the solution?
Ms. Groulx: The hybrid solution is good. Communities that want to take some of the modern law and insert their own codes have no problem as long as there is a safety net.
They are not drafted in bad faith with the exception of the problem regarding off-reserve members. That is definitely a problem that still exists in the custom codes. The Corbiere decision came down, but many communities are not accepting this. They still have in their codes that you must reside on-reserve.
That is being dealt with by the courts case by case. At this point, the courts have not said they will impose this on all custom codes. It remains to be seen what will happen.
Senator Patterson: I am new to this committee. I will ask a simple question. If I understand your presentation correctly, you have examined many court cases. You have been somewhat critical of the courts in that they do not always fully recognize ancestral customs. You mentioned a conflict between the Federal Court and the Canadian Human Rights Tribunal. I do not think you talked about the expense, but I believe it is often staggering. I have heard of cases involving millions of dollars and many years.
Have you any advice about an alternative to the expensive and, perhaps, alien court process to deal with the kinds of problems you have studied?
Ms. Groulx: Yes, there is definitely a solution. It is really easy. It is the appeal and dispute resolution mechanism. All communities under custom codes need to have a committee or board to deal with a problem with an election or a challenge. It is a board of elders, which they call a senate. That dispute committee should be the one deciding whether it is a custom and what happened. They should be the ultimate authority.
It should not have to go to the Federal Court of Canada. They are still going to the Federal Court because often that appeal board has deficiencies in the way the mechanism is set up. Again, this goes back to drafting of the codes.
For example, the committee might have too broad discretion. They have full discretion on the way they will hear complaints. Sometimes that does not give the person the opportunity to be heard. If you have been challenged, you want to be heard by the appeal committee, but a committee may make a rule saying, ``send us a letter; we will not hear you.'' If they then say they are not deciding for you, it goes to the Federal Court. This is not necessary.
Again, sometimes the appeal boards are not aware of all the court cases where judges have ruled that they are an appeal body that must hear the parties. It is a right to be heard. It is fundamental justice.
If we can fix the safety net, a lot of those problems would be fixed, including the costs.
Senator Patterson: Would you suggest that this committee recommend appropriate amendments to create such a community-based appeal mechanism? Is that the way to do it?
Ms. Groulx: Senator St. Germain suggested the independent body. That to me is the key. If the code has a proper appeal mechanism, there is no reason why anyone has to interfere. The community will solve their own problems through the appeal and dispute resolution as long as the dispute resolution committee and appeal board is complying with the rules.
Again, we do not want to impose a lot of rules, but these are basic rules of natural justice. People have a right to be heard.
Senator Martin: This was one of the topics this committee was discussing a few months ago. It is an interesting perspective for me to come in, perhaps, as an outsider. I do not understand this issue as intimately as other senators around the table.
I want to go back to the last point. In the discussion today, I heard a proactive idea that Senator St. Germain put on the table. You wholeheartedly said that would save a lot of money and this is the key solution. You feel that way.
It seems like a good suggestion. I will relate it to the reunification issue between north and south in Korea where I was born. There are many players: a huge ministry employing thousands of people, a world community and the six parties. However, the two Koreas were once one country.
The Aboriginal community and our country are all in this together. Senator St. Germain has suggested a very proactive solution tonight. How viable is that? How do Aboriginal communities feel about that? Is that something you have heard consistently? Would they be receptive to it?
Ms. Groulx: I am certain they would be very receptive. They have already agreed that their codes will be compliant to the Canadian Charter of Rights and Freedoms. Basically, the committee would ensure that. At this moment, the Government of Canada does it.
The safety net in place currently is not in place. Instead of a government policy person looking at this document and saying whether it is compliant, you will have another group of two or three experts. One could be an expert in indigenous legal traditions. Basically, you are not changing the system in place now. You are simply tightening it up a little.
They would provide recommendations on the code. They may suggest the community could look at section three of its code because there is possibly a problem in it and give them the court references. It would be up to the community which way they want to change it, but they better look at what the courts have done. If they do not, these would be the consequences.
Senator Martin: As we were discussing this, I felt like I was in, I do not want to say quicksand, but something very thick and immovable. However, as soon as Senator St. Germain mentioned an independent body, you responded. Senator Patterson mentioned, and you agreed, that an appeal board mechanism would also be a good solution. It feels like a rope is pulling us out of that. Thank you.
The Chair: We are now at our second round of questions honourable senators. Keep in mind that we have a little business to conduct later.
Senator Stewart Olsen: I am confused as to this independent third body. On one hand, it seems you have this higher up body that looks over the submission and says, okay, it is not compliant. You have this one. Then, I think you were suggesting, instead of going to court, having another body such as a group of elders or arbitrators. Is that what you are saying?
Ms. Groulx: Both bodies exist already. Under custom code there is usually some sort of appeal mechanism. However, there are sometimes problems in structuring and drafting the roles and responsibilities of the appeal bodies, and disputes end up in court because the body has not been able to resolve them, mostly due to the way the mandate was written.
As well, someone in the Government of Canada is approving, rubber-stamping, the codes.
Senator Stewart Olsen: I understand that. In essence you are suggesting two independent bodies, not just the one?
Ms. Groulx: Yes.
Senator Stewart Olsen: When bands do have to resort to going to court to sort these differences out, is it not a problem for the courts and lawyers? I assume there are not many people who are specialists in this kind of law. That lack of support must cost the band a lot of money.
Ms. Groulx: Yes, it does.
Senator Brazeau: Such an institution was proposed in the First Nations Governance Act, which was rejected by the chiefs at the time. In response to Senator Martin, this is something that grassroots Aboriginal people would like to see, because such an institution would give them a place to go in case of contentious elections.
Just north of my home community, in Barriere Lake, there is huge infighting between the section 74 troop and the custom elections people. They conducted custom elections, the minister ordered a proper section 74 election, and a new chief was elected. It is a mess and it is costing a lot of money.
It is also true that many communities that have custom elections do not extend the right to vote to off-reserve members. You mentioned that there are many cases before the courts. Having lived off-reserve most of my life, I do not understand why I would have to go to court to have my band chief and council grant me my basic fundamental human right, that is, the right to vote. This is happening. Although I agree that court is an option, it is not the Department of Indian Affairs that is excluding off-reserve band members from the right to vote. It is the band chief and council themselves.
Do you have any commentary on that?
Ms. Groulx: Yes. The Canadian Human Rights Act has 11 enumerated grounds, and Aboriginal residency is not one of them. The Supreme Court of Canada has declared that you cannot discriminate based on residency. In my opinion, that ground should be added to the Human Rights Act.
That act should mirror the Charter. It is an analogous ground. It is not in the Canadian Human Rights Act, and it should be. That would give off-reserve members who are being discriminated against a much easier way to solve the problem than going to court, the Canadian Human Rights Commission or tribunals.
Unfortunately, it is not currently an enumerated ground. Some people are slipping through the back door. If they are Bill C-31, they are categorizing that as race or some other ground, but it is not really off-reserve residency. That is a big issue that I hope will be added to the enumerated grounds.
The Chair: Ms. Groulx, we thank you for taking time to be here. I think all senators were impressed with your expertise. I hope you fill that three-storey building and become the richest business person in town. I am looking forward to seeing you drive by in your Bentley, Rolls-Royce or whatever you choose.
Senators, we will proceed in camera to deal with future business of the committee.
Senator Carstairs: I move that staff be allowed to remain in the room.
The Chair: Is that agreed?
Hon. Senators: Agreed.
(The committee continued in camera.)