Proceedings of the Standing Senate Committee on
Human Rights
Issue 6 - Evidence
OTTAWA, Monday, May 11, 2009
The Standing Senate Committee on Human Rights met this day at 6:35 p.m. to monitor issues relating to human rights and, inter alia, to review the machinery of government dealing with Canada's international and national human rights obligations (topic: United Nations Human Rights Council — Universal Periodic Review).
Senator A. Raynell Andreychuk (Chair) in the chair.
[English]
The Chair: Honourable senators, before we go to our first panel, this is the day that one of our members celebrated his birthday and is no longer a member of our committee, namely, Senator Goldstein. I want to put on the record our appreciation for his commitment to this committee and particularly his support for the first item that we will be working on here, the Human Rights Council. We do have this age discrimination in the Senate, and it has caught Senator Goldstein. I trust that I can, on behalf of all members, convey to him our appreciation for his commitment to human rights and to this committee. We look forward to continuing some activity with him on issues. I know that he is very interested and will continue to supply us with information and support. I, in turn, wanted to wish him well in whatever ventures, as he said last week. I would like that to form part of the record.
We can now turn to our first panel. We are here to monitor issues relating to human rights and, inter alia, to review the machinery of government dealing with Canada's international and national human rights obligations. The particular topic that we have been zeroing in on is the change from the Human Rights Commission to the Human Rights Council and the new activity that is the centre of the Human Rights Council, that being the Universal Periodic Review. We have had a series of witnesses, and we intend to hear from others before we do a more complete report.
This evening we have, representing the Assembly of First Nations, AFN, Mr. Wilton Littlechild, AFN Regional Chief, Treaties 6, 7 and 8, near my area. It is good to have representation from across Canada in the AFN before this table. Mr. Littlechild and I go back many years in the Human Rights Commission. He gained that expertise when he was a member of Parliament. We welcome you in that capacity, as a former parliamentarian, here this evening.
With Mr. Littlechild is Ms. Gina Cosentino, Senior Advisor, Government Relations and International Affairs, National Chief's Office. You are also welcome here.
I do not know if there are separate presentations or one presentation. If so, I ask you to keep it crisp that so we can get to questions and be on time. Welcome to the Human Rights Committee of the Senate. Mr. Littlechild, please proceed.
Wilton Littlechild, AFN Regional Chief (Treaties 6, 7, 8), Assembly of First Nations: Thank you very much. Honourable senators, I, too, want to join your thanks to your previous colleague for his important work in this area. I also bring you greetings from the Muskwachees Cree in Treaty 6 territory.
It is a great honour to be here on behalf of the International Organization of Indigenous Resource Development, IOIRD, a non-governmental organization with Economic and Social Council, ECOSOC, status since 1989. As the chair has indicated, I am the AFN regional chief for Treaties 6, 7 and 8, in Alberta. I am accompanied by our in-house AFN expert in international affairs who has already been introduced as well. I wanted to acknowledge her. She will be assisting me in answering technical questions as they come up.
Let me begin with a quick introduction of the International Organization of Indigenous Resource Development. In the mid-1970s, our elders, after much deliberation and some spiritual ceremonies, decided to counsel our leadership to return to the international arena to seek justice and respect. They were very concerned about ongoing violations to our Treaty 6 and also treaty rights in general. Our delegations have been actively involved at numerous fora. It is unfortunate that we have had to go to outside international mechanisms to have our treaty relationship honoured. It is even more regrettable for me to be here today to call on your assistance to focus on our treaty partnership.
Over more than 30 years of our activities, we have followed the wise counsel of our elders on four fundamental principles. We have respectfully presented our case, we have expressed our concerns, but honourable senators, we have always proposed positive alternatives. You see, for us, these sacred agreements called ``treaty'' are a solution.
Madam Chair, as you have indicated, your review of issues relating to human rights and, inter alia, to review the machinery of government dealings with Canada's international and national human rights obligations is indeed a unique and very important opportunity. I understand the order of reference to this Standing Senate Committee on Human Rights authorizes you to examine and monitor issues relating to human rights. As you all know, treaty rights are human rights, and they are also both international and national obligations. We view these as mutual rights and obligations.
Our delegation was present and participating throughout the UN reform process, including the establishment of the new Human Rights Council. It is on this background that we participate this evening, recalling also two objectives of the Universal Periodic Review, UPR: first, the improvement of the human rights situation on the ground and, second, support for cooperation in the promotion and protection of human rights.
You have already heard from previous witnesses about the UPR process, Canada's review, the resulting report and recommendations. We added our voice to the critical analysis and expressed concerns about the process and content. Our view at the time was the first real test for the UPR, as a new mechanism for indigenous peoples. I say that because up until then there were only four references to indigenous peoples in all the previous state reviews. We saw this as an important time to step forward, to champion and lead the way in the improvement, promotion and protection of human rights.
Our focus is, of course, from the indigenous peoples' human rights perspective. As we had submitted a brief to the Human Rights Council working group on the UPR in Canada, you will note it was from the treaty perspective, and we are submitting that for your review tonight. The collective challenge we now have is to have Canada respond to the Human Rights Council plenary at the upcoming June session in a way that gives us a new impetus to work together in trust and good faith as treaty partners.
Prior to the UPR on Canada, while addressing a session at the UN in Geneva, I used the hockey analogy, which I will now repeat. In ice hockey, what you do on the ice when you have the puck is important, but what you do when you do not have the puck is more important. In the UPR, what you say during the review is important, but what you do during the four years when you are not under review is more important. That is why I believe your Senate mandate to monitor issues relating to human rights is so critical to our success.
In conclusion, we respectfully make the following submissions.
First, call on Canada to begin a domestic process to review its position on the UN Declaration on the Rights of Indigenous Peoples with full and effective participation of our leaders and experts. For us, the UN Declaration on the Rights of Indigenous Peoples is also a UN declaration on treaties and treaty rights, as it is all about the original spirit and intent of our numbered treaties. Unfortunately, honourable senators, it has been badly mischaracterized. It is actually a framework for better relations and partnerships. Note also there is a substantial amount of agreement on the UN declaration; indeed at the UPR Canada stated only three elements they have difficulties with, on which we could work together to develop a common understanding so Canada could indeed support the UN declaration.
In my view, too much focus is on the disagreement on the declaration. When that happens, probably 98 per cent of agreement on the declaration is being left out. If we were to look at it from that way, a joint working relationship on the difficult areas that have been identified at the UPR, we could come up with a solution, I believe. Both the UN declaration and the treaty are solutions.
Second, call on Canada to establish a permanent domestic mechanism of consultation, participation and consent on international matters that affect indigenous peoples. There is precedence for that. We had an indigenous working group during the amendment process for the United Nations International Labour Organisation Convention 169. Also, Canada should include international norms and standards in the current development of a federal policy on the Crown's duty to consult and accommodate. A good practice we indicated during the UPR was the Joint Task Force on the Specific Claims Tribunal Act.
It is my view that if we are to develop a federal policy on consultation, we cannot ignore international norms and standards; otherwise, we will be again starting on a difficult path.
We were also positive in the UPR because we highlighted where we thought Canada utilizes a good practice. One of those good practices was, indeed, the Joint Task Force where we, as indigenous representatives, the Prime Minister's Office, the Department of Justice Canada and Indian and Northern Affairs Canada — INAC— were all working together on legislation, so that model ought to be looked at in the future when we do not have the puck.
A permanent domestic mechanism would allow us to continue to work together between periodic reviews, and, indeed, that was recommended by Portugal, I believe, in the recommendations at the UPR.
Third, we would respectfully restate our first UPR recommendations on Canada for your consideration for follow- up. It is interesting, and I am happy to be here tonight, because the first recommendation we made to the UPR was to establish a House of Commons or Senate committee in the Parliament of Canada on the international affairs of indigenous peoples. Indeed, we suggested a joint Senate and house committee because, as you know, over the 30 years that we have worked in the international arena, many advances have been made. However, at a meeting with parliamentarians in Geneva recently, they mentioned that there was no permanent place in parliaments — not just Canada but in other parliaments — where members of Parliament or senators or both can be informed about what is happening internationally as it happens. Therefore, we felt, at the time we submitted it as a recommendation, that it would be a good process to look into for our future work, and we still feel that way. The second recommendation was to utilize the UN declaration as principles and minimum standards in the interpretation of treaties to ensure better relations and peaceful coexistence. The third recommendation was to introduce a curriculum of studies on indigenous treaties and agreements based on indigenous oral traditions and perspectives for all schools across Canada to promote human rights education.
I know, Madam Chair, that, through your participation, such an initiative exists in Saskatchewan that is very successful. We have seen concrete results where students, both indigenous and non-indigenous, can be informed about treaties. Better relations within the schools are apparent, and, of course, that translates into the larger community.
Last, call on Canada to make commitments to the Human Rights Council that take into account the input by indigenous peoples during this review and also in the preparatory process. For example, we would suggest that Canada look into the Committee on the Rights of the Child's general comment on indigenous children just recently released.
All of the above would put, in my view, real meaning behind Prime Minister Harper's apology on June 11 last year and put us all on a path of reconciliation together.
The Chair: Thank you, Mr. Littlechild. You have given us your perspectives and recommendations, which is very helpful.
We may issue a short interim report on a particular issue, but the committee still needs to discuss it. We will continue studying. This is an alert in case there is any further information or reflections you want to add. We want to issue a more complete report on the Human Rights Council and our recommendations in the coming months.
I want to ask you a question that has been put to me since we started to study this. We had worked, perhaps not well in Canada, on resolving treaty issues for Aboriginal and non-Aboriginal Canadians' benefit. We then put in section 35 of the Charter, and that led to a whole case analysis and judgments that are still ongoing about the issue of existing treaty rights and what we mean by existing treaty rights. Then the indigenous declaration came along, and so the question to me was the following: Would the UN declaration, in your opinion, from the Aboriginal point of view and the constituency that you are representing, expand the term ``treaty rights and existing treaty rights'' into different rights than those that are already the subject of section 35?
I say section 35 of the Charter because it does not enumerate those. They may be ones we have yet to deal with and to identify, but they are somehow in the ambit of section 35, and we are beginning to understand what we mean by existing treaty rights there. Would the declaration broaden that, or would it be in the same area or same perspective as section 35? I am asking that perhaps a little unfairly, but I know your legal background might serve you well at this time.
Mr. Littlechild: I will answer it from two perspectives. First, we have the pre-confederation treaties, the numbered treaties, the so-called modern treaties, and some that are currently being negotiated. I believe that section 35, when it affirms existing treaty rights, captures all of those until today. By that, I mean treaties are still under negotiation. As those are concluded, those might expand the view a bit because of current circumstances.
Second, there is a view that the so-called historic treaties or the numbered treaties can and should be interpreted in a contemporary context, and I believe that is from the Supreme Court of Canada's advice. If you interpret historic agreements in contemporary circumstances, it might mean that you are actually modernizing the agreement in a way that takes into account current circumstances. From that perspective, it may expand what we mean by existing treaties.
Having said that, when we study the UN declaration from the treaty perspective, except one, every single article of the UN declarations is about treaty rights. It is actually, from that perspective, a very helpful clarification or explanation of what treaty rights mean from 14 or 15 years of work at an international level to try to clarify what those rights are through the UN declaration. Yes, it may be expansive in a way, but in the current context it helps us clarify what those existing treaty rights are. For example, when you look at the articles of the declaration on health or education, they help us understand what that current treaty right is on health or education, so it is a helpful interpretive document as well.
The Chair: A long time ago, I was involved somewhat in the international arena leading up to this declaration. It was difficult to engage many countries, other than those who had acknowledged Aboriginals in their population. That led us naturally to Canada, Australia, somewhat New Zealand, and some of the South African countries. However, many of the countries indicated they had no Aboriginal peoples and, therefore, the declaration did not affect them. I understand that even up to the last vote that confirmed the declaration through the UN process, countries were still saying, ``The treaty does not apply to us. It may apply to Canada. It may apply to someone else.''
I am seeking the benefit of your expertise and thoughtfulness in your area. Do you believe that that declaration has resonance throughout all of the nations of the United Nations?
Mr. Littlechild: Yes, I do. We know, for example, that 70 countries have indigenous peoples within the territories or indigenous peoples identified as citizens in the various countries, so that would leave out another substantial number of countries. However, when a declaration is adopted at the United Nations General Assembly, then it applies globally. That is one point.
The second point is that those who do not have indigenous peoples or identified indigenous peoples in their territories but still supported the declaration went with a view that they had a basic understanding of what the declaration was about. Taking that into account, the declaration indeed applies globally because you cannot take a declaration that is adopted by the UN General Assembly and say that it only applies in certain areas. As I understand it, it applies globally.
The Chair: Thank you. That is one of the other challenges to ponder. Some countries have identified Aboriginal groups and have taken steps to at least acknowledge Aboriginal groups, whether they are, in fact, dealing with the issues or not. Others still have not said, ``We do not have Aboriginal peoples,'' and they may have, and the declaration may be a useful instrument to get those people their rights and acknowledgments.
Mr. Littlechild: Very much so. We know that some states deny the existence of indigenous peoples within their borders. The way the declaration states who indigenous peoples are would be very helpful for them, indeed. With the others that still do not have the membership or the citizenship, their support is still very important.
Gina Cosentino, Senior Advisor, Government Relations and International Affairs, National Chief's Office, Assembly of First Nations: I wanted to clarify something. You mentioned that the declaration was a treaty. It is a not. It is a declaration. It is not a convention. In that respect, it is a different instrument.
The Chair: Yes.
Ms. Cosentino: If I may add, I would agree with Regional Chief Littlechild in this respect that the declaration allows for a framework of international global governance on ways of dealing with other groups in society. It really does add or uplift human rights standards globally. Generally speaking, when you look at some of the provisions in the declaration, it comes from internationally accepted principles and rights and standards from other conventions and covenants as well, so it is part of the international human rights framework that it is drawing from. It is not separate but part of that broader compendium of international human rights documents and mechanisms.
Senator Poy: Thank you very much, Chief Littlechild. You said that you would like to see a committee established between the House of Commons and the Senate on international affairs of indigenous people. Has it been tried before in any country, to your knowledge?
Mr. Littlechild: We recently had a meeting in Geneva with the Inter-Parliamentary Union where members of Parliament came together from around the world to discuss experiences relating to your question. Based on those discussions and the recommendations that came from that meeting, I would say, no. I do not believe it has been tried; otherwise, we would have heard about it at the meeting of parliamentarians.
It may have been discussed more in a different arena. There is an organization of indigenous parliamentarians for the Americas. That particular assembly of the Indigenous Parliament of the Americas is involved in an ongoing discussion about the UN declaration and how to best use it in the different parliaments. As you know, members of Parliament such as yourself, as senators, can introduce bills in the house that would assist the implementation, for example, of either various articles of the declaration or of the declaration as a whole.
For example, in Bolivia — and I am sure you are aware of this — it has become a national law. In the United States, notwithstanding that the United States of America has also voted against the declaration, the State of Arizona has adopted legislation to endorse the declaration. The State of Maine has also done so. In Canada, the Northwest Territories, as a government, has endorsed it. Those are some examples of where, in a federated state, opportunities exist to go ahead and support it.
To answer your question again directly, I am not aware of where it has been tried. However, we should do it. I encourage us to do so. This is a real opportunity for us to take a champion's role in promoting human rights. One of the ways we can do it is by ensuring that members of Parliament and senators are aware of the declaration and that it is a useful instrument to promote better relations.
If you look back 30 years, for example, the UN declaration is only one development. We have the International Labour Organisation, or ILO, Convention; the Organization of American States, or OAS, proposed declaration; the ongoing work on biodiversity; and ongoing work at the World Intellectual Property Organization, WIPO. The work that is ongoing in different international arenas is a growing body of international law and instruments that legislators ought to be aware of — not only legislators, us as well in the indigenous community. That will force us to work together to develop joint solutions. However, we are not aware of any presently.
Senator Poy: You said that the Northwest Territories has endorsed the declaration, as have certain states in the United States. I think that your proposal is great. Would it be a federal committee that would work against INAC or with it — that is, if it were to be formed?
Mr. Littlechild: If you look at your mandate, it is to monitor human rights issues. From this Senate committee's perspective, a monitoring role on human rights issues will, in some cases, mean working together; in other cases, it might mean that you have to disagree and encourage a different path of future work, in a sense.
It depends on the issue, but monitoring, to me, means that you can do either/or.
Senator Poy: How do you define ``indigenous peoples?'' How long would a group have to be living on the same land to be indigenous?
Mr. Littlechild: That is both a good question and a difficult one. When it came up at the UN, the UN commissioned a study on the definition of ``indigenous peoples.'' Quite a lengthy research study was conducted by a special rapporteur, Erica Dias. She did a report on who are indigenous peoples, and she established certain criteria that you must meet to be an indigenous person.
In our view, the body of work at the UN answers the question of who are indigenous peoples. If you do not meet those criteria, then you are not. In fact, I have been at meetings at the UN where delegations have been ruled out of order because, according to the chairperson, they were not indigenous persons, but they were trying to self-identify for their own purpose as indigenous people. They did not meet the criteria established at the UN.
In terms of numbers of years, it does not have that, but a linkage to the land is a critical criterion. For example, in our own languages, Inuit are people of the land, and that has been taken into account in the definition at the UN.
Senator Nancy Ruth: Chief Littlechild, you obviously have tremendous experience. I am curious, in particular, about what value you see in the Universal Periodic Review process for Canada and those who live here?
Mr. Littlechild: What value?
Senator Nancy Ruth: Yes.
Mr. Littlechild: It is an important opportunity not only for indigenous peoples in Canada but also for indigenous peoples globally that this mechanism has been established. The chair is familiar with the criticism before that, with the Human Rights Commission and the subcommission, it became a political instrument in a way. It became concerned more about politics than about actual human rights. This new mechanism is supposed to avoid that previous scenario and focus on human rights. The UPR has about six objectives.
When a state volunteers to be reviewed or is put into the calendar of the review mechanism, it gives, for example in this case, Canada, a new opportunity to look at ourselves and to evaluate ourselves as to how we are doing from the state colleagues in terms of respecting human rights. If we are not meeting the standard in that regard, then it gives us a reason to self-analyze and to decide to improve our behaviour or to improve our compliance with human rights standards.
Senator Nancy Ruth: When you say that it is a new opportunity for us to evaluate ourselves, are you talking about ``ourselves'' as Canada or as the AFN? Who is ``ourselves''?
Mr. Littlechild: I was talking about ``ourselves'' as Canada.
Senator Nancy Ruth: Therefore, the states would be the global states rather than Canada as a state?
Mr. Littlechild: That is right. Right now, the mechanism is a state mechanism; the UPR is a state-only mechanism. That is one of the difficulties and challenges we have as indigenous peoples and, indeed, a challenge for civil society, as well.
We cannot participate at the UPR by way of taking the floor when a state is being reviewed. We have to do that through our submission before the review, and then we wait. We will wait now until after Canada responds in June. I believe, as NGOs, we get five minutes to make a statement. Collectively, it might mean 20 minutes for NGOs to make a statement, but it is all after the response by Canada.
That is why we felt it was important to work together on the response Canada will present in June.
Senator Nancy Ruth: I can only assume it is frustrating for you and every other group we have had before us. By that I mean the waiting and having maybe five minutes of input before Canada goes back.
In what ways would you change the process here in Canada? Can I assume that, if you cannot change it here, you will try to change it there? If so, what will you do?
Mr. Littlechild: We have to use the existing mechanism the way it is right now. I know it is evolving. As has been pointed out, I believe, by yourselves in your own review, it is not a perfect mechanism, and it is an evolving mechanism. Given that scenario, there are opportunities for change and improvement. As a result of Canada stepping down from the Human Rights Council — I understand they are not running again for a seat on the council — it gives us an opportunity on the way out to suggest to the council how to improve it, to make it better for everyone.
I know Canada was very instrumental in its establishment. In fact, I asked them to be the first volunteer to be reviewed because of its importance to us as a country and also to the world.
I think it could stand a lot of improvement process-wise. Yes, it is frustrating because we cannot take the floor: We have to wait and listen to our rights being talked about by someone else. We have an opportunity, of course, to dialogue with states and to lobby states before the UPR itself happens; that is one way of doing it to influence it. If we do not feel happy about the response that comes back, we will return to the international arena because that is the only mechanism we have.
Senator Nancy Ruth: Can you tell me a bit more about lobbying other states? How do you pick them? Which ones do you go to? How do groups such as yours use that capacity to get them to ask the questions of Canada that, perhaps, you want asked or to write in the report what you would like to see?
This must be a huge piece of what is said to Canada; all the NGOs and groups using these other countries to help them. How does it work for the AFN? How do you make those decisions?
Mr. Littlechild: That is one of the challenges. It depends on our own resources and our capacity. For example, when we were there, there were only two of us lobbying all of the state members. We lobbied because we saw Canada's report; we looked at our own submissions and wanted the Human Rights Council UPR process to receive balanced information. Canada gave one view, and it gave us an opportunity to give our view. However, it is only by way of talking to other states that we can do that.
Therefore, we literally looked at the report of Canada and suggested a draft question that they could use and a draft recommendation that they could pursue. That is part of the lobbying process that we employed.
Senator Nancy Ruth: How did you pick those states with which you wanted to do that?
Mr. Littlechild: In our view, in our delegation, we did not have any favourites. We had to approach as many as we could. We did it two ways: through individual contact, and also by calling for panel presentations where we asked state members to come in. Then we could present something that they could question us on and so on.
Therefore, there are two opportunities: One-on-one, which takes much more time and effort; and group meetings, which is a little bit easier. However, in terms of whether we just go to supporters, no, we did not pick any favourites in that way, which makes our work much more intensive.
Senator Nancy Ruth: Were you able to work with any other Aboriginal groups or any of the other groups that were there? Did you sit down, divide up the sectors and groups and then spread everyone's message at the same time? How can you build a multiplier effect into this lobbying effort?
Mr. Littlechild: We have done that in other instances where we had a meeting as an indigenous caucus. We had a grid of all the state's names showing who was responsible for what region and for which states. At the end of the day, we came together to inform each other of what happened when we discussed it with what state, such as the nature of the questions they had for us and whether they seem supportive or lukewarm, as we said, or were opposed to supporting us. Therefore, we had to gauge from state to state and region to region.
Opportunities such as that are not always there. It really depends on the numbers that come. As I said, by the time Canada responded in the UPR at the end when the report was released, only two of us were there. Therefore, it is not only labour-intensive but resource-intensive.
Senator Nancy Ruth: Did you have a sense that anyone from Canada was tracking what you were doing or what any of the other groups were doing?
Mr. Littlechild: I do not understand.
Senator Nancy Ruth: Was anyone in government — Foreign Affairs and International Trade Canada or any of our people sitting over there in Geneva — keeping a watchful eye as to what groups were seeing which countries and for what reasons?
Mr. Littlechild: I do not know, but if it happened, both sides likely did it. We actually had meetings with the Canadian delegation. For example, I gave the recommendations that our delegation was proposing. I am trying to remember if it happened that way, but I do not think so.
Senator Nancy Ruth: This is all the underside of how the report happened and who pushes what. The undercurrents of it all are what I am interested in. This would be a great night over a cup of coffee or something.
Senator Brazeau: Welcome, Chief Littlechild, to our committee. Before I ask my question, I would like to commend you for the work that you have done and that you continue to do on human rights. Having worked with you a little bit in the past, I know you are well respected in the international fora with respect to human rights.
My question is pretty broad in nature. I have asked this of several witnesses in the past. How would you describe or rate Canada in its engagement of the indigenous populations in the UN process — dealing with the UN declaration, for example, the Organization of American States declaration, as well as other issues, including the United Nations Permanent Forum on Indigenous Issues — in terms of the level of participation that indigenous peoples here have? Also, how would you describe the situation of indigenous peoples in Canada with respect to access to human rights as compared to indigenous peoples from other countries? Conversely, how would you rate the lack of access, which happens far too often in my opinion?
Mr. Littlechild: Thank you very much, senator. Thank you for your complimentary words, as well.
In terms of the opportunity with the Canadian government compared to other states, when we look back at certain times there seems to be a very welcome process of working together. However, then there are certain times when it becomes a bit more difficult.
I will give you an example. On the declaration itself, we work together with Canadian government representatives, and we work along in a partnership way in some cases. That is not to say that it is always a friendly discussion because there are tough issues where we debate seriously. However, that opportunity is an important opportunity, as I believe you are alluding to, where it may not be present in other countries. From that perspective, while it is not necessarily a unique opportunity, we may have a better opportunity here than others have.
I will give a specific comparison. I said, in one meeting, that I stopped counting the number of friends, indigenous leaders, who I worked with over the years who have been assassinated because of what they said in the UN in Geneva. When they went back to their homes they were actually killed. I quit counting at eight because I just wanted to stop counting, but that in itself shows the difference. I am able to meet with the Canadian delegation, I am able to argue fully with the Canadian delegation, but that stops at a certain point in some different circumstances.
For example, on the declaration, I had written to the Prime Minister, I had written to the ministers, and I had met with members of Parliament. It took a meeting in Geneva, to call on the body in Geneva, to request the Canadian government to meet with us. It took 18 months to get a meeting with two ministers. What I am saying might appear to be contradictory. Sometimes it is very good, and other times it is not so good to get the working relationship together.
Yes, it is much more difficult in some cases for indigenous peoples. That is why it is so important for Canada to continue to lead and play a strong role in promoting human rights for all indigenous peoples. We have unique opportunities and should not hesitate to lead.
Senator Brazeau: The reason I ask is, as a committee, we are looking for the same solutions you are, and that is to improve the system, improve engagement and participation so that the participation can really be fruitful participation.
Having said that, at the same time, where I take issue — and you mentioned it a while ago with the UN declaration — is that you believe the government should focus on the positive, and jointly you should focus on the positive. We as indigenous peoples in Canada should also focus on the positive. We can all agree that the process is not perfect.
Issues exist with Canada not having adopted the declaration. However, the issue is when I see indigenous peoples from Canada who are funded by the Government of Canada to go to different fora internationally, and unfortunately — and again, this is my opinion — many negative comments are made toward Canada. At the same time, I believe that the situation here in Canada for indigenous peoples is much better than probably every other single country in the universe. That is why, in my first question, I asked about the comparison. As a committee, we are looking for solutions on how to improve upon that system.
Mr. Littlechild: Yes, if the senator can recall my second point, namely, to have a permanent body domestically where we can have these discussions, that would go a long way toward helping us. I use the ILO Convention because it worked very well in that process. We did not agree on everything, but we did work together and then met with the state representatives where we worked together on that. What we agreed on was very significant. However, because we could not agree on everything, we agreed to disagree on this but requested that when Canada reported, they state the area on which we disagreed as an annex to their report, and they did that. Canada went forward and stated what we had agreed on and that we had not agreed on everything, and indigenous peoples in Canada said this. They attached it to their report. I thought that was a very good procedure.
To go back to your main question, we should not have to go internationally all the time. Yes, negative comments will be made in that arena, but if we had an internal process, a domestic process, where we could sit down and work these differences out before going to the international arena, it would go a long way to again make an impact collectively.
On the financial aspect, for example in my own community, we have been going to the UN as a community for 32 years and have never received government funding. That is an important observation to make. Yes, some delegations do receive government funding, but as an organization, for example, AFN does not receive any funding for international matters.
There are differences maybe by circumstance, organizations, whatever, but not everyone gets funded. As I understood it, for example, criteria must be met when receiving funding and one of the criteria says that when funding is received, no criticism of Canada is permitted.
Ms. Cosentino: If I may, to follow up on your question in terms of the lens you used when comparing the experience of human rights for First Nations in Canada versus other countries, it also depends on who we are asking. When we look at development, such as conditions in First Nations communities where poverty is so dire, where there is lack of parity in funding for education, access to clean water remains a serious problem, amongst a whole host of other socio- economic issues, health issues especially, we are looking at the lived experience of human rights amongst many First Nations in Canada. Their vantage point would be very different from other countries. In many cases they do look similar to conditions found in developing nations rather than in a supposedly developed nation such as Canada. That is really is a dark stain on Canada's human rights record.
I want to echo Regional Chief Littlechild's remarks in terms of funding and accessing the international system. Much of the work we do at the Assembly of First Nations is largely unfunded in terms of international work. With funding pressures and less organizational funding year after year, it is seriously hampering our ability to participate in that arena. It is an important arena to participate in; it is an expression of self-determination; and, thanks to the work of Regional Chief Littlechild and others, some of us can go to Geneva or New York to do some of this work. However, it is very ad hoc at times, and it is quite difficult to maintain those important networks and alliances and dialogue with states and other human rights NGOs and indigenous people's organizations globally. It is work that we do, but it is not easy work in that respect because of our funding pressures.
Senator Brazeau: I would ask for a clarification. I am aware that at least the national Aboriginal organizations in the past have received funding to participate in the meetings held in Geneva prior to the adoption of the UN Declaration on the Rights of Indigenous Peoples, as well as the OAS draft declaration. I am also aware that the Assembly of First Nations has received funding in the last couple of years or for the last two indigenous summits held on indigenous peoples. Am I correct in that regard?
Mr. Littlechild: Yes, I am not denying those. I am just talking about my community; the International Organization of Indigenous Resource Development is an NGO at the UN with ECOSOC status. We have funded that organization ourselves. It is different from the national organizations.
The Chair: The clarification is that some national Aboriginal associations, groupings, could have received funding and do receive funding from the Canadian government. Your organization, which is international and has ECOSOC recognition, does not receive funding. That is the point you are making. The clarification is there. Do you want to follow up with that?
Senator Brazeau: On the agenda, you are identified as Regional Chief of the Assembly of First Nations for Treaties 6, 7 and 8. I wanted clarification of your capacity here this evening.
Mr. Littlechild: I am here in two different capacities.
The original invitation had me listed as the international organization, but being a regional chief allows me to speak for both.
Ms. Cosentino: I should also mention that it depends on which international meeting. For example, for the United Nations Permanent Forum on Indigenous Issues, we did not receive specific funding to attend. For the OAS processes, the application was through the Canadian International Development Agency, CIDA, and we received some grant monies to participate. It is ad hoc. Many international bodies and much international work are not funded.
The Chair: If it becomes necessary, we might turn to you again to ask for more specifics on funding and who receives it. At this time, you are making the point that some receive funding and others do not. If we need to follow up, we will get in touch with you.
Senator Jaffer: I am concerned about what funding has to do with it? In a democracy, we have to fund the most vulnerable groups. It is not the only group that is receiving funding, and the strength of a democracy is ensuring that the most vulnerable groups receive funding so that their voices can be heard. I do not know where this is headed and whether this is part of the UPR process. I am very uncomfortable with this line of questioning. The strength of Canada is that we fund vulnerable groups internationally so their voices can be heard. The AFN is not the only group.
The Chair: That may be, and you have stated it. However, we are a diverse group and every senator can express his or her point of view and ask questions. When we come together and make a statement in our committee report, then we can have this discussion on what is relevant to the committee and what is not relevant. We have not suppressed lines of questioning.
These questions pertain to our study because the subject has been an issue in the international forum. As we found out, not every group has equal access from countries, although it has not been a Canadian issue. Finance has a role, and we will see what relevance it has to our committee on UPR at a later date.
Senator Jaffer: We are looking at the Universal Periodic Review and how the government followed it. Many groups have appeared before the committee. We have not asked them about funding. I put this on the table because I am very uncomfortable with this line of questioning.
My question is on duty to consult and accommodate. We have run out of time and may have to ask you to respond to the question in writing.
The Chair: No, you waited patiently, so you can put your question, and they have time to answer it.
Senator Jaffer: Chief Littlechild, you of all people understand and can tell us about the duty to accommodate and consult as stated in the Delgamuukw decision, which specified that if rights affect Aboriginal people adversely, there is a duty to consult. You said that it took 18 months before you could even meet with the two ministers. Were you consulted on the declaration? What type of consultation took place? Are you continuing to be consulted on this?
Mr. Littlechild: Do you mean on the declaration?
Senator Jaffer: Yes, on indigenous rights.
Mr. Littlechild: Actually, the work on the declaration goes back to 1982.
Senator Jaffer: That is right.
Mr. Littlechild: We have had an opportunity to work together in drafting the declaration as it stands, but not completely as in previous versions, I guess I would say. The criticism for the lack of consultation or no consultation was after the declaration was adopted with respect to preparing for the UPR report. We have attended only one meeting, which was last month, to try with our best effort to assist in Canada's response to the UPR.
Of course, you all know that there is a difference with indigenous peoples: there is a legal duty to consult. It is not simply a duty for public consultation but a legal duty to consult, and that did not happen. That is one of the complaints. Of course, we are still working on the definition of ``consultation.'' That is why I suggested, in our presentation earlier, that when Canada is developing its Crown's duty to consult, in our view, it must now incorporate the international norms and standards. The work done at the ILO Convention stage is important. The UN Permanent Forum on Indigenous Issues has had a special session on the duty to consult and free, prior and informed consent. Two working sessions have been held by the previous working group on indigenous peoples, including a legal commentary. A good body of knowledge is available that will assist us in bringing about a good policy on the duty to consult and accommodate. As well, as you mentioned, we have the Supreme Court of Canada decision on that.
However, it should be underscored that not only is there a duty to consult and accommodate but also a principle of consent. For example, it is a treaty principle. There has to be mutual consent such that both parties to the treaty are given the opportunity to consent.
The spectrum goes from the duty to consult with low impact all the way to deep impact that requires consent. That is why it is important when Canada works on this that they consult international norms and standards that will identify what constitutes a good legal duty.
Senator Jaffer: This is a fairly far-reaching declaration. If I heard you clearly, you said that there was not a consultation. Am I correct?
Mr. Littlechild: Yes.
Senator Jaffer: Would you go so far as to say that there needs to be consent by Aboriginal people on this?
Mr. Littlechild: Article 19 of the United Nations Declaration on the Rights of Indigenous Peoples calls for free, prior and informed consent before decisions are made. If you look at it that way, some people cast it as a veto. In my opinion, that is a mischaracterization. It is instructing us to work together. That is one thing.
To say that it is far-reaching, yes, it is. When I looked at the history of the Universal Declaration of Human Rights, in 1948 Canada also voted against that. However, two days later they changed their position. In that case, they raised the argument that it would impact provincial jurisdiction; and they raise the same argument today. Why would they not change their position today as they changed it back then on such a significant instrument as the Universal Declaration of Human Rights?
Back then, indigenous peoples and their human rights were left out. That is why the declaration was necessary, not to create new rights but to ensure that the existing international human rights that everyone else enjoys could be enjoyed by indigenous peoples. How you interpret that is where the declaration helps us. I worked for more than 30 years on it, including drafting and co-chairing many of the discussions on the declaration. For example, I co-chaired discussions with Canada on a treaty article.
I see this as a great opportunity. I cannot overemphasize that. We should not hesitate to endorse this. It will bring about better relations.
Senator Jaffer: I have so many questions, but I am sure we will be speaking to you again. I have not had the privilege, as the chair has, of working with you, but it is a great privilege to have both of you here today. Thank you very much.
Mr. Littlechild: Thank you very much.
The Chair: My deputy chair has helped me out by thanking you for your testimony this evening.
We look for ways to constructively move the agenda ahead. This committee is very much concerned with human rights. As I have said before, many people watch emerging human rights issues on television. It takes consistency and persistence by committees such as ours to look at the machinery because that can preclude you from or assist you in receiving your rights. That is why we embarked on this study. We found an area that Canadians had not been systemically scrutinizing.
We seriously wish to follow up on the information and recommendations that you have given us today. We may call on you to elaborate on them.
Criticism is good in a free and open society. Constructive criticism moves the agenda forward, and you have done that for us tonight. Thank you.
Senators, our next panel is here to testify with respect to our order of reference adopted by the Senate on Thursday, March 12, 2009. The committee is beginning its examination of the elements contained in Bill C-10, the Budget Implementation Act, 2009, dealing with equitable compensation, which is Part 11.
The Senate referred, to various committees, a study of the subject matter of several parts of Bill C-10. We are here to look at the equitable compensation portion and will report back to the Senate on that. We are looking at the subject matter of the act, which has already passed.
Before us this evening we have, from the Canadian Human Rights Commission, Mr. Ian Fine, Director General and Senior General Counsel, Dispute Resolution Branch. With Mr. Fine is Ms. Fiona Keith, Counsel, Dispute Resolution Branch. We have had a moving target on witnesses because when this reference came to us, we reached out to get witnesses. Some can come on certain days and then they cannot, so we have a moving target. We thank you for coming here and for participating this evening.
Who will begin?
Ian Fine, Director General and Senior General Counsel, Dispute Resolution Branch, Canadian Human Rights Commission: I will, Madam Chair.
The Chair: After your opening statement, we will then go to questions. We have run over our time, so we will try to catch up as we go so that we will all be efficient.
[Translation]
Mr. Fine: We wish to thank the committee for inviting the Canadian Human Rights Commission to discuss how pay equity matters have been handled in the past and how they will be handled under the new regime.
I am Ian Fine, the commission's Senior General Counsel and the Director General of the Dispute Resolution Branch, which is responsible for processing human rights complaints submitted under the Canadian Human Rights Act. With me is Ms. Fiona Keith, Counsel with the commission, who has considerable experience in dealing with pay equity matters. I understand that this committee is not examining the underlying principles of pay equity, but rather comparing and contrasting the former and new systems to ensure that the fundamental principles of pay equity will continue to be respected.
Our comments here today are made on the basis of our experience with section 11 of the Canadian Human Rights Act and publicly available information regarding the Public Sector Equitable Compensation Act. The commission's role in the transitional period between the two regimes is a limited one and ultimately, the commission has no role or responsibility vis-à-vis the Public Sector Equitable Compensation Act when it comes into force. What this means is that my ability to comprehensively address any questions you have regarding the new regime may be limited; however, I would be happy to respond to the extent I can.
The pay equity provisions of the Canadian Human Rights Act are found in section 11 of that act. The Commission has administered section 11 of the act since 1978. In 1986, the commission adopted guidelines known as the Equal Wages Guidelines regarding the application of section 11, as it is permitted to do under the legislation. These guidelines are akin to regulations and they bind the commission and the Canadian Human Rights Tribunal with respect to how section 11 is applied.
[English]
The Canadian Human Rights Act provides for a complaint-based system. Over the years, the commission has garnered considerable experience in dealing with pay equity complaints in both the public and private sectors. Pay equity tends to be a complex area. Tribunals and courts have noted that it subsumes many areas of expertise, including job evaluation, classification and statistics. This is one of the challenges in dealing with these complaints and has contributed to some of the lengthy processing times that you may have heard about. The fact that many of these complaints also have the potential to lead to sizable financial remedies has also resulted in the process being very litigious.
The commission has, in the past, described the challenges in dealing with pay equity complaints, including in its special report to Parliament in 2001. To some extent, the development of jurisprudence has made dealing with pay equity complaints easier. For example, we now have helpful guidance from the Supreme Court of Canada about the scope of permissible comparisons under section 11.
Other concepts remain unclear, however. This means that we still deal with preliminary challenges over jurisdiction when it comes to defining occupational groups, for example. It goes without saying that dealing with preliminary issues tends to delay obtaining a final resolution. It tends to lead to litigation; it tends to prolong matters and to make them costlier.
In recent years, the commission has made significant changes to its complaints-processing system and these changes have been applied to pay equity complaints where possible. As a result, processing times have been improved for all complaints. We are processing complaints, including pay equity complaints, in less time. We recognize, however, that pay equity complaints continue to take more time than other files, and these time frames do not include litigation.
I would like to turn now to the legislation that you are considering, the proposed public sector equitable compensation act, which, as you know, has not yet come into force. We are in a transitional period during which the commission continues to have certain responsibilities with respect to pay equity complaints filed by public sector employees. The transitional provisions require the commission to continue to receive those complaints and send them to the Public Service Labour Relations Board without delay. Under these provisions, the commission has already transferred six existing complaints to the board. We have developed a working protocol with the board, and as we continue to receive complaints during this transitional period, they will be immediately transferred to the board.
I note that during the transitional period, complaints from federal public sector employees will continue to be filed under section 11 of the Canadian Human Rights Act. However, the commission no longer has jurisdiction to treat or deal with the complaints.
During this period, the board has jurisdiction to interpret and apply the pay equity provisions of the Canadian Human Rights Act with the exception of the Equal Wages Guidelines, 1986. Once the public sector equitable compensation act comes into force and the complaints filed during that period have been resolved, the board will deal with equitable compensation matters under the public sector equitable compensation act. It will no longer have jurisdiction with respect to the pay equity provisions of the Canadian Human Rights Act.
Similarly, once the public sector equitable compensation act comes into force, public sector employees will no longer be able to file complaints under the Canadian Human Rights Act. The act will no longer apply to those employees. There will be two regimes within federal jurisdiction: Section 11 of the Canadian Human Rights Act will apply to employees in the private sector and the public sector equitable compensation act will apply to employees in the public sector.
Under the new legislation, the Public Service Labour Relations Board will have jurisdiction to deal with complaints filed by public sector employees about equitable compensation. The commission currently has no information about the machinery that the board intends to put into place to deal with those complaints.
Those are my opening remarks, and I would be pleased to try to answer any questions you may have.
The Chair: Do you have a separate comment to make, Ms. Keith?
Fiona Keith, Counsel, Dispute Resolution Branch, Canadian Human Rights Commission: I have no opening statement, thank you.
Senator Jaffer: Thank you very much for being here. I wish to put on the record that I understand an individual can bring a complaint forward to the Human Rights Commission if they feel that they are not being compensated on an individual basis.
Mr. Fine: That is correct, senator.
Senator Jaffer: Through this individual, you can look at a larger group, but you are entitled to look at just this individual that is in front of you; is that correct?
Mr. Fine: As long as the Human Rights Commission has jurisdiction to deal with the matter, we would. As you know, for public sector employees, it will now be the Public Service Labour Relations Board that will be dealing with pay equity complaints.
Senator Jaffer: We are looking at what the system was before, the modality before. I know that the legislation has gone through, but we have been asked to look at the system, what you were doing before and what will be in the future. That is why I want to get on the record what you were doing before, how it worked.
May I please ask you to put on the record an answer to the following. If an individual brought a complaint, provided they thought it was a discriminatory practice that was occurring — whether it was in the public sector or private sector — could this person come to you and have you look at it to see if some type of discrimination was happening against one particular employee?
Mr. Fine: Yes. We would take the complaint and, depending on whether any preliminary issues were raised, we would then investigate the complaint to determine whether or not there was enough evidence to warrant further inquiry by the Canadian Human Rights Tribunal. If not, then the commission could dismiss the complaint.
Senator Jaffer: Can you give us an idea of what percentage of complaints that came before the commission from the Public Service Commission or public service were pay equity related prior to this act coming into force?
Mr. Fine: I am sorry, senator; is that the percentage of all of our complaints?
Senator Jaffer: Yes, from the public service. How many were on pay equity?
Mr. Fine: I am not sure that I can give that you information tonight, but I would be happy to obtain it and provide it to you.
Senator Jaffer: Between the time the new act comes into play and what you are doing, are there many complaints in front of you? If so, how are you handling those?
Mr. Fine: Those complaints that were filed, which were either new complaints or in the process of being investigated, have now been transferred to the Public Service Labour Relations Board as is required under the legislation.
Senator Jaffer: You are no longer able to adjudicate on those complaints that were before you?
Mr. Fine: We are no longer able to deal with those complaints from the public sector; that is correct.
Senator Jaffer: I had already asked you this, but I want to get it clear: The complaints that would come to you from the public service are individually based, with the lens that they had been discriminated in the public service?
Mr. Fine: Absolutely.
The Chair: If you will be providing the statistics and are capable of doing so, could you give us another breakdown?
The Canadian Human Rights Commission, CHRC, looked into the complaints, and if you found them to be warranted, according to the process, they would go to the tribunal. How many of the cases from the Public Service Commission that were on pay equity issues went to the tribunal, and how many were dismissed or whatever term you use when you do not proceed to the tribunal? Is it 10 per cent of the cases that go to tribunal or 50 per cent, for example?
Perhaps you can tell me a bit about the process. Is there some sort of dispute resolving mechanism before complaints go to the tribunal?
Mr. Fine: That is correct, under the legislation.
The Chair: That is why it is important for me to know how many cases might have been resolved at the commission stage without going to the tribunal.
Mr. Fine: To be clear, we are dealing specifically with pay equity complaints from the public service.
The Chair: Right.
Mr. Fine: We will obtain that information. I am sorry, but I cannot give you that information tonight.
The Chair: That is all right. If you can follow up, it would be helpful.
Mr. Fine: Absolutely.
The Chair: With respect to the statistics part of it, I am wondering how many cases turn into more of a generic issue — which I understand you have the power to do, and that was what Senator Jaffer was asking about. If you found in your investigations that a personal complaint was not just an alleged discrimination against one employee but against a group, how do you turn that into a more generic issue? Was that a significant number of your caseload or not?
Mr. Fine: From the public service, as you could appreciate, most of the complaints coming to us in this area are group complaints. They are not generally complaints by an individual with respect to pay equity. That may happen more in the private sector, but in the public sector, in our experience, most of the complaints have been group complaints. I am not sure if that answers your question.
The Chair: Did any individual complaints turn into group complaints?
Mr. Fine: Honestly, Madam Chair, not many that were individual complaints actually come to mind. Certainly, in the broader context, this happens all the time, where individuals will come to us with a complaint of discrimination where a systemic, larger issue is at play. That is something we can investigate.
Pay equity, as you can appreciate, is a systemic issue typically, and it does involve looking at the workplace at large. That is what makes it systemic.
However, I cannot think of many situations — I have been with the commission for 10 years now — where we have had any individual complaints in this area from the public sector.
Senator Nancy Ruth: Thanks for appearing. Was your commission involved in the 2004 task force that came up with the model?
Mr. Fine: We did make submissions to that task force. I can indicate to you that my colleague, Ms. Keith, was the director of research for the task force and was intimately involved in that task force.
We did make submissions to the task force. Following the release of the report, we did indicate that we supported the overall recommendation for the move to a new proactive model for dealing with pay equity.
Senator Nancy Ruth: The model was described in the act. Was it the proactive model you had hoped for, according to your recommendations?
Mr. Fine: I do not know that I would be able to say that it is the model that was the one referred to by the task force report, in their recommendation. I suppose one could say that it is proactive in the sense that it does require employers and bargaining units to sit down and proactively deal with the issue of, as it is referred to, equitable compensation under the new legislation.
The models that are used in the Ontario system — and in Quebec and Manitoba, I believe — would involve statutory timelines and statutory pay-equity exercises. They are different in that sense.
Senator Nancy Ruth: You have talked about a body of jurisdiction, a body of case law that has been built up as these cases have gone on. Would one of the principles of that be equal pay for work of equal value?
Mr. Fine: That is correct.
Senator Nancy Ruth: That does not exist in this act. Is that of concern to you? It is only stated in the preamble; it is not stated in the act and has no legal enforcement.
Mr. Fine: You are right; it is referred to in the preamble. From our review of the legislation, it is not referred to elsewhere.
I note, however, that I read the testimony of the representative of Treasury Board before the Finance Committee, and I believe that the witness did say that it is contemplated that equal pay for work of equal value is part of the exercise contemplated under the legislation. You are correct, however; it is not referred to within the act.
Senator Nancy Ruth: Do you believe that because of the build-up of case law, or is there any other reason to believe that? It seems to me that if the government left it out, they had reason to do so. I do not know what that reason is. It is very curious to me.
Mr. Fine: Unanswered questions remain, and that may be one of them. As you know, under the legislation, there are a number of ways in which regulations can be passed in a number of different areas related to the exercise. From our perspective, it will be necessary to wait and see what regulations are passed in order to know whether or not issues such as the one you just raised will be dealt with.
The Chair: Can I just be clear: You are following case law; equal pay for equal work is not embedded in your regulations? Is that correct?
Mr. Fine: There is case law that refers to it.
The Chair: Case law?
Mr. Fine: Yes.
The Chair: You will continue with that case law for private complaints, non-Public Service Commission; is that correct?
Mr. Fine: We will be applying, putting it another way, section 11 of our legislation, which is the pay equity provision. I should point out as well the Equal Wages Guidelines that I referred to in my opening comments, which give more definition, if you will, to the provisions in section 11.
Yes, we will continue to deal with complaints from the private sector. That will remain, and we will continue to apply section 11 and the Equal Wages Guidelines. We will refer to case law where necessary, but, more importantly, we will be applying our legislation.
The Chair: Is your policy, then, to continue to use the case law — whether it came from the Public Service Commission side or the private side — and apply equal weight to those cases? In other words, is your precedent separated according to where you work?
Mr. Fine: If I understand your question correctly, Madam Chair, we apply the same law, as it were, to the public sector as we do to the private sector. When our commissioners make their decisions they are not so much guided by the case law as by the provisions in our legislation and the Equal Wages Guidelines. Ultimately, as I have said earlier, the Canadian Human Rights Tribunal determines — in this case, for example — whether a breach of section 11 of our legislation occured. Our commissioners determine whether there is enough evidence upon which to base a further inquiry.
The law is the same for the private sector as it is for the public sector.
Senator Poy: Mr. Fine, can you clarify what changes are happening with female public service employees with the passage of Bill C-10? How are they impacted?
Mr. Fine: The most fundamental change, senator, is that now it will be the Public Service Labour Relations Board that will be making any determinations of a quasi-judicial nature. It will not be the Canadian Human Rights Tribunal for any complaints coming from the public sector.
As you have heard, the board will continue, at least for this transition period, to apply section 11 of our legislation. After that transition period passes then they will apply the provisions of the new legislation.
I cannot tell you at this point what all of that means: in part because it is new; in part — as I said earlier — because a number of regulations will come into force that will give definition to the new law. We know under the new process that employers and bargaining agents, unions, will be negotiating, will be discussing equitable compensation at the time that they are negotiating the collective agreements. We do not know what that process will be.
Senator Poy: Public and private?
Mr. Fine: No, only public. We do not know what will happen during that process. We do not know what that will look like, procedurally. That remains an unknown for us. Frankly, we do not know what the Public Service Labour Relations Board will do, what processes they will put in place to deal with these complaints, both now, when applying section 11 of the Canadian Human Rights Act, and subsequently when applying the new legislation.
Senator Poy: When do you think the new legislation will come into force so that you will no longer be dealing with the public service complaints?
Mr. Fine: I am told that it will be during the next round of collective bargaining, which we believe will be in about three years.
Senator Poy: That long?
Mr. Fine: That is the best information I have at this point.
Senator Poy: Will the change impact male employees as well as female, or will it have more impact on female employees?
Mr. Fine: I cannot really answer that question; I really do not know. Typically, we have complaints filed by female- dominated groups, and then they compare to the male-dominated groups.
Ms. Keith is reminding me that it is important for you to know that within female-dominated groups, there are males. The fact that a group may be female dominated and the complaint may come does not mean that no males are in those groups.
Senator Poy: These are all done in groups, not by individuals?
Mr. Fine: Typically, yes. For public service, that is correct.
Senator Jaffer: I asked you in this transitional period what is happening to the cases you have in front of you, and you said that those already transferred are now under the new system. Then I heard you to say that the act will not come into force or effect for three years. What happens to those cases?
Mr. Fine: I am sorry; perhaps I miscommunicated that information, senator. What I meant to say is that for now, for the next three years approximately, all of the complaints that come to the Canadian Human Rights Commission — pay equity complaints — will go to the Public Service Labour Relations Board. They will continue to apply section 11 of the Canadian Human Rights Act for that period of time. It is only when the new law comes into force that they will then be applying the public sector equitable compensation act.
Senator Jaffer: You have a process, and I am not familiar with the process that will be in place. If I understand correctly the complaints come to the commission, and if they proceed, they go to the tribunal. What will happen?
Mr. Fine: Let me ask Ms. Keith to respond to your question.
Ms. Keith: During the transitional period, senator, our role as the Canadian Human Rights Commission is to refer the complaints directly to the board. The transitional provisions of the legislation provide that the board will conduct a preliminary review of the complaints and deal with any jurisdictional matters. Then they will notify the parties that they have received the complaint, and the parties will have six months to resolve the matter between them, to address the issues.
During that time, according to the legislation, they will be able to access mediation services through the board. If the parties are unable to resolve the complaint between themselves, the complaint will go back to the board for a hearing, and the parties will be called upon to present evidence and make arguments. At that point the board has jurisdiction under the remedial provisions of the Canadian Human Rights Act — which are currently exercised by the Canadian Human Rights Tribunal — to make whatever remedies it sees fit.
Senator Jaffer: When you talk about the board, you mean your board?
Ms. Keith: No, I am referring to the Public Service Labour Relations Board.
The Chair: I do not know if that satisfies. I am still confused. The old act had you hearing the complaints and referring it to the tribunal. Then there is a transition period. How long does the transition period last? I have a complaint. I go to whom, to you?
Ms. Keith: Correct.
The Chair: How does someone in public service know where to go? That is the point, now that we say that we have a new system in place, and we are all talking about a new system and old system. If I have a complaint, where do I go today?
Ms. Keith: You would call the Canadian Human Rights Commission. It would be just as you would have expected before the bill was passed.
The Chair: You would then turn it over to the Public Service Labour Relations Board?
Ms. Keith: Correct.
The Chair: You have some cases ongoing that have not gone to the tribunal. They are with you and will be transferred over to the board.
Ms. Keith: Correct.
The Chair: When is your involvement over?
Ms. Keith: Our involvement is over as soon as we transfer the case.
The Chair: When do you stop receiving complaints?
Ms. Keith: We expect that will be within the next two to three years.
The Chair: What is the trigger to stop you receiving the complaints and the complaints going somewhere else? Is it regulations? Is it enactment? What is the trigger to stop the existing complaint mechanism?
That is what Senator Jaffer and I are looking to understand.
Ms. Keith: The transitional period will end once the public sector equitable compensation act comes into force.
The Chair: How will it come into force?
Ms. Keith: It will come into force through order of the Governor-in-Council. It is useful to think of it as being legislation that will coordinate with the next round of collective bargaining in the public sector. That is its purpose.
The Chair: However, it will be the government that will trigger the order-in-council. Do they have up to three years to do it? I should know this. I have to review the bill again.
We pass bills, and then they are subject to enactment, and sometimes they are never enacted; sometimes they are enacted by a time specific, and sometimes they are done immediately. I want to know who controls the trigger on the enactment. Is it the government through an order-in-council?
Ms. Keith: It is the government through an order-in-council. However, you will not find a date prescribed in the legislation.
The Chair: I am correct then that the government will choose a time frame, and obviously it is a transition. They are ready to move when the other side is geared up. Is that basically what we are saying?
Ms. Keith: That is how it appears to us. We are learning this on the basis of publicly available information. This was information we learned about by reading the transcripts of the Treasury Board witness before your colleagues in the Finance Committee.
The Chair: You are quite right; we should put these questions to the Treasury Board when they come here.
Senator Nancy Ruth: Right now you are sort of the middleman between the group and the people hearing the case. Should the government change within three years and the order-in-council never comes, who knows what will happen to those cases that have been sitting around for three years, because the government will have to give a directive. Am I right?
Mr. Fine: I am not sure what the answer to that question is. As you know, we have already sent the six cases we have to the Public Service Labour Relations Board.
Senator Nancy Ruth: Will they just sit there? Is no one working on them?
Mr. Fine: I am assuming that the Public Service Labour Relations Board would be working on them.
Senator Nancy Ruth: Without an order-in-council?
The Chair: Was your previous testimony not that the cases you turn over go to the board, and they will utilize section 11 of the Canadian Human Rights Act in the interim?
Ms. Keith: Yes, as we discussed earlier. This is stipulated in the legislation in the transitional provisions. The parties have six months to resolve the matter between them. During that period of time, they can utilize mediation services that are available through the Public Service Labour Relations Board. If, at the end of those six months, they have not resolved the matter, it will go to the board for a hearing and the board will make an order.
In point of fact, the legislation does not permit the cases to sit. There is a timeline and a process for them to be dealt with during the transitional period.
The Chair: I think I was clear on that. That is sort of an interim measure; you are still transferring over and the board takes jurisdiction. At some point, your role of taking the complaints will end, and that is by the order-in-council.
Senator Jaffer: An individual from the Public Service Commission, or a group, do they have to come to you and then you transfer the file, or can they go directly to the board?
Mr. Fine: For now, they come to us, and then we transfer the file.
Senator Jaffer: Do you tell them that?
Mr. Fine: Yes.
Senator Jaffer: How would they know?
Mr. Fine: When they contact us, we would tell them. If they want to pursue an issue, we would have them file the complaint with us, if there is a complaint to be filed. We would notify them, as well as the employer, that the matter is to be referred to the Public Service Labour Relations Board.
Senator Jaffer: I do not mean to belabour this point, but with the new legislation, how will the public service employee know that they still come to you? Are you letting them know?
Mr. Fine: I do not know that we have any new notice on our website about this, because people have always come to us and will continue to come to us. I am told by Ms. Keith that there is a notice on the Public Service Labour Relations Board website talking about the new process. I have not seen it personally. However, the notice is on that site.
The Chair: We will ask the Treasury Board these questions about how they are providing information to the employees of the Public Service Commission.
Senator Brazeau: Thank you for being with us this evening.
With respect to the former complaints-based regime, in your opinion, do you believe that the act improves upon the complaints regime?
Mr. Fine: That is a good question. I am not sure how to respond to that. Let me go back to something I said in the introduction. We have been mindful of the fact that issues exist with the system under the regime, under the Canadian Human Rights Act. Anyone who has been involved in a pay equity complaint has experienced some of the concerns that we wrote about when we prepared the special report to Parliament back in 2001. Certainly, submissions were made to the Bilson Task Force dealing with the issue of pay equity. Clearly, a number of concerns exist with the system under the Canadian Human Rights Act.
That being said, we have concerns with the new legislation as well. The question for us is the extent to which the regulations to which I referred earlier will address some of our concerns; whether the process that will unfold as between employers and unions will help to address any of our concerns. Finally, the processes followed by the Public Service Labour Relations Board, what will they do? How will they interpret the legislation? How will they deal with complaints? What processes will be put in place?
Many unknowns exist for us at this point. Some issues have already been identified by some of your colleagues, but it is early days for us. We do not know what will come with this legislation over time. To say to you that the act is an improvement, to answer that question directly, I do not know whether I can say that at this point, and I do not feel that I should be providing you with a view at this point.
We have always said that it is a good idea, and we referred to it in our 2001 report, that employers and unions sit down together to deal with these types of issues. That cannot be a bad thing. That is a good thing.
When you are looking at wage rates, why not put your mind to issues that may impact on any pay inequity? That makes sense. Coming from that, there are other issues. Safeguards and checks and balances need to be put in place.
Again, I come back to what I said earlier. We are unclear at this point whether or not the regulations and the processes to which I have referred will provide those necessary checks and balances. In a year from now I might be able to answer your question, but right now it is early days.
Senator Brazeau: Who will be involved in developing those regulations?
Mr. Fine: I assume it will be Treasury Board and the Department of Justice Canada. That is my understanding. We certainly are willing to provide whatever assistance we can provide if called upon. That is an open invitation.
The Chair: Those are all good questions that we will have to repeat when the Treasury Board people come before us because they are responsible for that area.
Senator Jaffer: I have a supplementary on your statement that you encourage employers and employees to resolve issues. That is normal, before an issue of dispute comes before you. I think that is good practice. That does not mean that you have not had complaints because obviously systemic discrimination issues are before you.
When you say that you encourage that behaviour, that is just par for the course. You still get complaints before you, and have had them. Am I right?
Mr. Fine: That is absolutely the case, senator, although I was referring to the issue in the new legislation that requires employers and bargaining agents to sit down and deal with the issue of equitable compensation. Senator Brazeau asked me the question of whether or not the new legislation was an improvement, and I am simply saying that the notion that the parties would sit down and be discussing these issues, and hopefully remedying these issues, is a good thing. In and of itself, it is not a bad thing.
Senator Jaffer: I feel that you look at issues from a different lens than the new process will be looking at them. Am I correct in thinking that your lens is from the point of view of systemic discrimination, from a discriminatory point of view, and you look at the target group? Are your point of view and the lens that you look through different from the new process?
Mr. Fine: At this point, we are not sure what lens will be used.
Senator Jaffer: Just talk about your lens.
Mr. Fine: We will take a complaint from an individual or a group. As I said earlier, subject to any jurisdictional issues or other matters that we have to deal with on a preliminary basis, we will investigate that complaint. We will determine whether or not, based on objective criteria, there is arguably a breach of section 11 of our legislation, to know whether or not there is pay inequity and whether or not the case should be referred to the Canadian Human Rights Tribunal. That is the process that we would look to during our investigation. It is, in most cases, a systemic issue.
The Chair: We are running out of time, but you have pointed out that the difficulty with the existing system was the length of time it took and the cost to go to the tribunal. What was the most positive aspect about the modality with which you were involved? You pointed out the negative, but what is the most positive aspect about the existing system? It is no longer an existing system, so the previous system, technically.
Mr. Fine: From our perspective, we have dealt with a number of complaints in both the public and the private sector where individuals and groups came to us alleging discrimination, alleging a breach of section 11, feeling as though, in the case of women, predominantly female groups, they were underpaid or that their male comparators were receiving higher pay for work of equal value. We feel that we have, in many cases, been able to remedy that situation. In other situations, for example, we felt that the evidence was not sufficient enough to warrant an inquiry. As you know, a number of cases have gone forward to the Canadian Human Rights Tribunal where findings have been made by that body that discrimination, in fact, was occurring.
We feel as though, in a number of cases, we have been able to remedy an issue in the workplace. It has affected thousands of individuals, both in the private and public sector, in this country. Pay equity is a good thing, so we feel good about that.
The Chair: Mr. Fine and Ms. Keith, thank you for coming this evening and giving us some insights into the operation of the previous system. We did put some questions to you that we will again re-address to Treasury Board and officials, and perhaps we will shed more light on the transition period and the new model. Thank you for sharing your experiences with us this evening.
Honourable senators, continuing our examination of the elements contained in Bill C-10, the Budget Implementation Act, 2009, and more particularly the elements dealing equitable compensation, which is Part 11, we will now hear a panel from the Federally Regulated Employers — Transportation and Communications, Mr. John Farrell, Executive Director and Mr. David Olsen, Assistant General Counsel, Legal Affairs, Canada Post Corporation. Welcome, gentlemen. Please proceed with your opening statement. I think you know our procedures. You open, and then we ask questions.
John Farrell, Executive Director, Federally Regulated Employers — Transportation and Communications (FETCO): Thank you, Madam Chair. It is a pleasure for us to be here. David Olsen is here as a member of FETCO. Mr. Olsen has been involved in numerous disputes and proceedings with respect to the current issues involving the collective bargaining process and the application of the Canadian Human Rights Act in the private sector. We can comment on the public and private sectors' views of this proposed legislation.
FETCO represents most of the major employers in the private sector under federal jurisdiction, covering railroads, trucking companies, broadcasters, telephone companies, the operation of the ports and airlines, among others. Approximately 586,000 employees are employed by companies that are members of FETCO. In our brief, at Appendix A, you will find the names of the companies that participate in this organization.
I commend you to read our brief, if you can. As well, we commend you to read a paper that is part and parcel of our brief, which was prepared by Professor Paul Weiler, who was then at Harvard Law School, but he had been a chairman of the British Columbia Labour Relations Board, and is an expert in labour relations.
Senator Jaffer: May I ask a point of clarification? Did you provide these to us beforehand?
Mr. Farrell: Yes, we did. I should say that we were invited on very short notice, so we were working with the clerk.
The Chair: Perhaps the clerk can clarify. Did all of the members receive the material?
Adam Thompson, Clerk of the Committee: The material was distributed electronically today.
Senator Nancy Ruth: Which means I did not get it because I was travelling.
The Chair: Thank you, Senator Nancy Ruth, for the clarification. We understand that you had too little time, and so did we. We are under a time constraint to report back to the Senate. We appreciate that, and we can look at the material.
If we have dialogue tonight that results in some questions, we can put them in written form to you and you can respond. We will all do the best we can under the circumstances.
Senator Jaffer: May I please ask you, Mr. Farrell, not to assume that we know what is in the briefs.
Mr. Farrell: That is fine.
Based on the conversations earlier this evening, particularly with the last presenters, we will be able to take you through the essence of our brief, which we think you will find quite helpful in your deliberations.
I did want to point out the fact that, if you read our brief, it will be very helpful. Part and parcel of that brief is a paper that was written on behalf of FETCO and delivered to the Pay Equity Task Force in 2002. This particular paper clearly outlines some of the complex issues that exist between labour relations issues and human rights issues.
First, I must advise you that the members of FETCO and the employers in the federally regulated companies are committed to pay equity. They are committed to equal pay for work of equal value. Dealing with the complexities that are brought about by the interplay between the labour relations act and the Canadian Human Rights Act has been creating problems.
We think that the Treasury Board, and this legislation that has been proposed, is going a long way to resolve some of those complex issues. It is trying to create an environment in which disputes can be resolved in a much more expeditious manner, where the rights of people to have equal pay for work of equal value and the complexities of collective bargaining will be able to work hand in glove.
I would describe the problem that this act is trying to resolve as one where if you take the situation where there are indeed pay inequities, where you may have a male-dominated group that has a wage level that is here and a female- dominated group that has a wage level that is here, that is fine. The object of the exercise is to try to bring those two together so that we can remove those inequities. However, in the collective bargaining process, employers are the ones that have responsibility for performing under the Canadian Human Rights Act, whereas the unions do not have any responsibility to ensure that this gap is resolved.
In collective bargaining, if you have a male-dominated group and a female-dominated group, and the parties engage in collective bargaining and the wages for the male-dominated group are ratcheted up and they negotiate agreements with a female-dominated group, they may be ratcheted up as well, but it does not necessarily remove the gap. This legislation is trying to create a situation where unions will have responsibility as well for the outcome of reducing the gap that has been created over time as a result of, usually, systemic discrimination. In essence, what is important to us here is that the legislation proposed creates a situation where the unions will be equally responsible for closing the gap that exists between men and women.
David Olsen is fully familiar with all of this and is eminently qualified to take you through some of the complexities that we have been dealing with in the private sector.
David Olsen, Assistant General Counsel, Legal Affairs, Canada Post Corporation, Federally Regulated Employers — Transportation and Communication (FETCO): As Mr. Farrell said, our members unequivocally support the principle of equal pay for work of equal value performed by men and women. Our members have extensive experience with section 11 of the present Canadian Human Rights Act. A number of us have been deeply involved in these issues for many years. In the case of my company, the Canada Post Corporation, it is almost 26 years that we have been involved in complex litigation under section 11 of the Canadian Human Rights Act.
Certain flaws exist in the legislation under the Canadian Human Rights Act that have been unhelpful to the parties in addressing and resolving equal pay complaints. The public sector equitable compensation act, while it does not apply to the federal private sector, contains important new principles and sound operative provisions that will improve the ability of employers and unions in the public sector of Canada to assess and implement equitable compensation for men and women. This legislation makes sense to FETCO because, first, it integrates equitable compensation or pay equity into the collective bargaining process. I will elaborate on that in a minute.
Unlike section 11 of the Canadian Human Rights Act, and unlike all other obligations with respect to discrimination in the Canadian Human Rights Act, unions are not responsible for the outcome. This act requires both employers and unions to share responsibility for implementing equal pay for work of equal value. The big improvement is that it provides a more efficient, effective and equitable problem-solving and dispute-resolution procedure. Cases between the Public Service Alliance of Canada and Canada Post Corporation would not be allowed, under this legislation, to go on for a quarter of a century.
The heart of the issue for FETCO has always been the fact that equal pay for work of equal value must be integrated into the collective bargaining process. We really do commend to you the paper and thoughtful advice of Professor Weiler. That is really what his thesis is all about and that is what he advocated to the Bilson Task Force.
As with equal pay, freedom of association for employees is accorded the status of being a fundamental human right. Just because both are considered to be sacrosanct does not mean, in our view, that they cannot be addressed together. If anything, they must be addressed together in order for both to be balanced and to be achieved.
We have heard various comments that pay equity is not negotiable. I really do not think that is the point. This legislation does not make pay equity negotiable. It recognizes the principle and provides a mechanism — we say the appropriate mechanism for unionized employees — in the collective bargaining process for it to be achieved and implemented.
Section 11 of the Canadian Human Rights Act, which activates the general principle that one cannot discriminate on the grounds of sex and embodies the equal-pay-for-work-of-equal-value provision, does not distinguish between the unionized employee and the non-unionized employee. We say that that has been strategically leveraged by trade unions as a means by which to effectively reopen collective agreements that the unions have negotiated. It has allowed them to negotiate a collective agreement in good faith and then resile from that agreement and file a complaint to the Canadian Human Rights Commission, complaining that the wages agreed to in that collective agreement are discriminatory. It is a second kick at the can, which flies in the face of the fundamental sanctity of collective bargaining.
In the non-unionized sector, where it is the employer that makes the unilateral decision about compensation and benefits, a complaint is perfectly appropriate as no bargaining agent is involved. It is the employer that should be solely responsible for the outcomes. If it is discriminatory, then a complaint should lie.
In the unionized environment — and this is, again, the thesis of Professor Weiler — it is the employer and the union acting together that make a bilateral decision about compensation and benefits for employees in the bargaining unit.
Professor Weiler says that it is the trade union that plays the major role in the allocation of the total compensation package in most circumstances. In my experience, the employer has a particular wage package on which it is prepared to settle with the trade union. It is usually the trade union that decides how they will spend the money. The trade union may decide to spend it on child care or steel-toed work boots for its male employees.
This is the reality that section 11 of the Canadian Human Rights Act does not recognize. Both pay equity and collective bargaining cover the same activity — the level, structure, nature and amount of compensation.
These activities have to be integrated in a unionized environment. The alternative is to destabilize collective bargaining by allowing a complaint against the employer by the very union that negotiated the wage package in an attempt to leverage the gains reached at the bargaining table.
As indicated, it was at our request that Paul Weiler prepared his paper in 2002. His conclusions, which we commend to you, are that where disputes arise in employment relationships governed by both the Canadian Human Rights Act and the Canada Labour Code, the bodies responsible for applying the law must read the two statutes together in a fashion that best accommodates these important federal legal policies. This principle also applies to the public service regime.
I would like to spend a few minutes discussing our review of the act. I have heard criticism that the act militates against the concept of equal pay for work of equal value. It is referred to expressly in the preamble. I do not see why that could not be used as an aid of interpretation for the substantive provisions of the act if there is any doubt.
The present Canadian Human Rights Act is a complaint-based system. It is not a proactive piece of legislation. This proposed public service act is a proactive piece of legislation for the public service. The act makes it mandatory for the Treasury Board and separate employers and bargaining agents to take measures to provide employees with equitable compensation. In our view, that is a significant improvement over the complaint-based system set out in the Canadian Human Rights Act. This was one of the recommendations from the Bilson Task Force.
The proposed act requires joint responsibility for the union and Treasury Board to achieve pay equity in a balanced and planned way through the collective bargaining process. In advance of bargaining, each side must communicate to the other its plans and proposals with respect to achieving equal pay. That must be addressed at the bargaining table. If the parties cannot agree, a dispute resolution mechanism is built in for those public servants who opt for the binding arbitration route, which must be addressed through binding arbitration. For those who choose the conciliation strike route — it used to be called a conciliation board — it has to be raised in that venue. There is no way to avoid dealing with the issue.
This will serve to sharply focus all parties on the issue as part of their ongoing discussions. The idea that redress would be overseen by the Public Service Labour Relations Board is sound. They deal with issues of pay, compensation and benefits in the federal public service. They are familiar with it and have expertise that serves them well.
There is no objective reason why members of that board cannot address these issues in the same manner that, as a result of a Supreme Court of Canada decision, rights arbitrators under collective agreements routinely deal with human rights issues. For example, duty to accommodate is dealt with almost exclusively by rights arbitrators in our environment. Few of those cases go to the Canadian Human Rights Commission. A trend toward the labour community resolving not only employment-related cases but also human rights-based cases has taken place. The proposed legislation still provides for a complaint-based process for non-unionized employees and for unionized employees.
FETCO's response is positive overall. We support the legislation because it is a process integrated with collective bargaining and a process that requires joint responsibility on the part of employers and unions. Hopefully, it is a better mechanism to resolve complex complaints without experiencing the delays previously experienced under section 11 for both employers and unions.
If there is a case to be made on the balance of probabilities, let us get on with it and deal with it under the federal, private sector. However, let us not continue for 20 years or more.
Senator Jaffer: I want clarification on a point I did not understand. You said that in a case, a bargaining process would arrive at an amount and then the union would file a complaint. Do you have any examples of how many times has that happened?
Mr. Olsen: Let us take the case of Canada Post as an example. That is probably also consistent with cases in the public service.
We were a government department and became a Crown corporation and moved from the public service collective bargaining regime to the Canada Labour Code regime. In 1982, Canada Post signed a collective agreement for a number of years with the Public Service Alliance of Canada. The following summer, they filed a complaint that the collective agreement discriminated against certain of its members.
Senator Jaffer: Has there been other cases since 1982?
Mr. Olsen: That is the only one involving Canada Post. I believe virtually all cases are similar to that, but perhaps I should not generalize.
I believe a number of major cases in the public service are complaints about terms and conditions in existing collective agreements that various bargaining agents have signed.
Senator Jaffer: You use the term ``pay equity,'' but the new legislation does not use pay equity. It talks about ``equitable compensation.''
Mr. Olsen: That is true.
Senator Jaffer: What difference do you see between the two terms?
Mr. Olsen: The preamble to Part 11 states:
Whereas Parliament affirms that women in the public sector of Canada should receive equal pay for work of equal value;
Whereas Parliament affirms that it is desirable to accomplish that goal through proactive means; . . . .
It then continues and instead of using the word ``equal pay for work of equal value,'' they use the term ``equitable compensation.'' I do not see any difference between the two terms.
Senator Jaffer: For clarification, do you see the words ``equal pay for work of equal value'' meaning ``equitable compensation''?
Mr. Olsen: That would be my interpretation. I do not think there is any mischief in here. That is not for me to answer; that is for the Treasury Board to answer.
Senator Jaffer: It has not been mentioned anywhere else in the act.
Mr. Olsen: It is in the preamble, I believe. All sorts of Supreme Court of Canada cases say, especially in human rights legislation, that you look to the preamble if there is any doubt about the meaning. It is a large, liberal interpretation.
Senator Jaffer: In proposed section 36 of the new act, it says that the employers and bargaining agents must refrain from encouraging or assisting any employee in filing or proceeding with a complaint under the act. Therefore, a union is not able to assist an employee to bring forward a complaint.
Mr. Olsen: Yes.
Senator Jaffer: I am curious about the protection and guidance available to employees under this new regime when the employee cannot even get help from the union under proposed section 36.
Mr. Olsen: This legislation makes both the employer — the Treasury Board — and the trade union responsible for achieving equal pay for work of equal value or equitable compensation. Therefore, I would expect that complaints would be brought against both the employer and the trade union together if they have the obligation to meet and resolve these issues.
One would not ordinarily conceive of the union filing a complaint against itself.
Senator Jaffer: That is the issue of this legislation.
Mr. Olsen: It is a curious provision, and I would suggest that you ask the Treasury Board about it. Labour legislation usually contemplates that if an employee is not happy with its trade union, it can file a duty of fair representation complaint as well. Of course, in that situation you would not expect the trade union to be assisting, but I am not quite certain what the mischief is here.
Senator Jaffer: I am not talking about mischief; I am just talking about what the legislation says.
Mr. Olsen: By the word ``mischief,'' I meant the intent of the provision.
Senator Jaffer: You have both been representing employers for a long time. Are the majority of employers in the groups you represent not men?
Mr. Olsen: Do you mean the senior executive of the employer?
Senator Jaffer: Yes, at FETCO.
Mr. Farrell: It is fair to say that the majority of senior executives in these major companies are men.
Senator Jaffer: Also, are the majority of senior executives in unions men?
Mr. Olsen: The majority of senior executives at Canada Post Corporation are women, including the Chief Executive Officer.
Senator Nancy Ruth: Of management?
Mr. Olsen: Yes.
Senator Jaffer: I am talking about unions.
Mr. Olsen: I do not know. Certainly not the Public Service Alliance of Canada at Canada Post, nor the Canadian Union of Postal Workers. Most of these unions are run by women.
Senator Jaffer: However, are the majority of the unions that you deal with at FETCO male-dominated?
Mr. Farrell: I would say that the majority of unions of the companies that make up FETCO are male-dominated.
Senator Jaffer: Are men?
Mr. Farrell: Yes.
Senator Nancy Ruth: Thanks for coming. This is fun.
Senator Jaffer's line of questioning is of interest to me because in the 25-odd years we have had pay equity, what has happened? Most of your corporations are still male-dominated. The point of my comment is that the employer has not seen to change the inequity and nor have the unions, in some instances.
In the past five or ten years it has improved a little at Canada Post, but probably become worse everywhere else.
Mr. Olsen: I will give you an example at Canada Post. The complaint that is outstanding is retroactive only. Actually, the parties gave up.
Senator Nancy Ruth: As an employer you corrected it; is that correct?
Mr. Olsen: We did exactly what this legislation contemplates, although we were not under an obligation to do it. For the groups represented by the Public Service Alliance of Canada in 2000, the company and the alliance agreed on a job evaluation plan. We ensured that it was gender-neutral. We agreed on the weightings and everything else. We looked at skill, effort, responsibility and working conditions, which both these pieces of legislation direct that you look at. We agreed on a plan.
After coming up with a value for all the jobs in the bargaining unit, we sat down at the bargaining table and negotiated wages for those jobs, respecting that hierarchy of value. That resolved any issues going forward that had arisen in the original complaint.
We have done that for all of our bargaining units by working out a job evaluation plan and negotiating the compensation and the benefits at the end of it. We have done that for all our trade unions, with the exception of the Canadian Union of Postal Workers, who believe and, because of their bargaining militancy, have been able to achieve having all jobs in their bargaining union paid relatively the same amount irrespective of value.
Senator Nancy Ruth: We hear about it at the door.
Mr. Farrell, my point is that without any legislation at all, employers can change equity issues. They can make conditions more equitable. Given the statistics, situations have not changed. The percentage of women in executive positions may have changed a little, but it is nowhere near 50-50.
Why is legislation important to you, and do you think it will drive it? How do your executives and the members of your unions, both unionized and non-unionized employees, feel about this act? Do they think it will be any better when they know their employers have not fixed it already?
Mr. Farrell: I am not sure whether that is a question.
Senator Nancy Ruth: I want to know what the employees and executives are thinking. Is this new act a hopeful thing for them?
Mr. Farrell: First, employers do take pay equity seriously. They work at improving the situation, and we think that this act will go a long way to assist in the reduction in the wage gaps that currently exist. We do recognize that there are gaps that currently exist, and they have to be addressed. Important in this legislation is that they are trying to create a situation where both the unions and the employers are equally responsible for addressing the gap. In a unionized environment, the employer is the only one that has to deal with the problem of the inequity because the unions are not compelled to play ball in the bargaining process. We need to get the unions to have joint responsibility with the employers for the outcome. We need to get them to meet in advance of collective bargaining, define the problem and identify the inequities and the reasons they have existed. We need to develop a game plan to correct this problem over time together.
Can we get there overnight?
Well, maybe not because that might mean that we will have to reduce the wages for the men and raise the wages for the women and bring them immediately to an equal status. That is, to a certain extent, impractical and something that unions could never accept. However, let us find a way to define the problem, work out a game plan, identify some targets, put in a good, solid job-evaluation system together, union and management, agree we will work together on this and, over time, genuinely fix the problem.
In essence, that is what we find helpful in this legislation, and we believe that this legislation that has been proposed in the public service will go a long way to resolve the inequities that exist.
It will take time. As you know, people have fixed budgets, and you cannot correct these problems overnight. However, this creates a mechanism where the employers and the unions have to work together, hand in glove, to solve a problem.
Senator Nancy Ruth: Are most of the corporations in your group unionized, or 50 per cent of them unionized?
Mr. Farrell: I would say that 80 per cent of the companies are unionized that are members. There are 586,000 employees in total among the FETCO companies, 212,000 of which are unionized.
Senator Nancy Ruth: You certainly put the problem in a nutshell, which was if men would reduce their wages so that women could bring their wages up, it would be solved, and that has been suggested for decades; and for decades, men have resisted sharing any power with women. I do hope this act does something to it.
My final comment to you, Mr. Olsen is, having followed Charter cases since 1985, particularly around women's rights, an aid for interpretation is not the same as being in the act; it never was, and no case law exists on what is described as ``equitable compensation.''
Mr. Olsen: I cannot put my finger on them, but there are a number of pay equity cases, especially the government ones, arising under section 11 of the Canadian Human Rights Act. I agree with you that it would be better if it was embedded in the legislation.
Senator Nancy Ruth: There has to be a reason it is not.
Mr. Olsen: I agree with your basic thesis. However, I do know that the courts have used words in the preamble to breathe meaning into the substantive provisions of the act.
I do not know why the Treasury Board, or whoever drafted it, did it this way. I do not know what else it could mean, other than equal pay for work of equal value. Ask them, perhaps. I think it could be used as an aid to interpretation.
Senator Poy: I have a question either of you can answer. When you talk about bargaining, it would be the employer and the union.
You have not included the non-unionized members of FETCO, so I do not know how that works. The unions get a package at the end of the bargaining.
Who will enforce equal pay for work of equal value to the unions, or is that entirely up to the unions to solve that?
Mr. Olsen: Do you mean under this new legislation?
Senator Poy: Yes.
Mr. Olsen: First, there is a positive obligation on both the employer and the union to investigate this matter. Proposed section 3 of the new act imposes the obligation on both the employer and the trade unions to take measures to provide those employees with equitable compensation. Then they tell you how to do it.
It tells you that, before the expiry under proposed section 12, they each have to advise each other of their views and whether they have female-predominant groups or male-predominant groups and what the issues are with respect to key equitable compensation.
They must do preparatory work and then give each other notice about the issues they want to deal with. If they cannot agree, it can be referred to the arbitration tribunal under the Public Service Labour Relations Act, which has two mechanisms to resolve disputes; namely, binding arbitration and a conciliation strike route. Those types of questions can be raised to the arbitration tribunal and the other to the conciliation mechanism. Unionized employees can complain if they are not satisfied with the steps that either the union or the employer has taken.
Senator Poy: Where would these employees go?
Mr. Olsen: I believe they would go to the Public Service Labour Relations Board with the complaints that either the employer or the trade union has not followed the mandatory steps to address these complaints.
Senator Poy: The bargaining is in two steps. First, the employer and the unions would bargain for a package, for a certain amount. I understand the unions then will make the decision of how their members are to be paid. That is what I have understood with your presentation.
Mr. Olsen: It is not unusual — not under this new legislation — but under the current regime, namely, the Canadian Human Rights Act, that equal pay for work of equal value is not proactive legislation. It is only complaint-based legislation. Historically — certainly with FETCO members that I am aware of — the union will negotiate a collective agreement and make the majority of the decisions about how that wage pot will be divided up.
We are saying that the trade union has leveraged the complaint process, so it signed a collective agreement. Let us say for argument's sake, hypothetically, it has decided to give all the money to its male-dominated employees. It signed off the collective agreement and exhausted all the monies the employer had in its pot for resolving that particular dispute. Then, in theory, it could turn around the next day and file a complaint about its female-dominated employees who have been shortchanged under the collective agreement that they just reached and say to the employer, ``Okay, now get another pot of money out and make up the difference.''
Under this legislation, that could not happen.
Senator Poy: I see.
Mr. Olsen: They would have to address it up front in advance of collective bargaining or as part of collective bargaining. They could not decide to favour one group over the other and then file a complaint.
Senator Poy: What happens to the non-unionized members of FETCO? How would that work?
Mr. Farrell: First, this new legislation that we are talking about does not apply to the private sector. This legislation will apply only to the public sector. We are still operating under the existing regime, which still exists in the private sector.
Senator Brazeau: Let me be the first to share how privileged I am to be part of a minority among a female- dominated cast here this evening. There is a model for others to follow.
Thank you for being here this evening. I have a very simple question that deals with pay equity. If we take that as a principle for both the unions and the employer to deal with, in terms of when they get to the bargaining table, in your opinion would you not characterize that as protection or promotion of, first, the employee's rights of trying to achieve fair compensation, but more importantly, women's rights to try to achieve fair compensation?
Mr. Farrell: I am not sure I understand your question.
Senator Brazeau: I posed this earlier. If you look at the new act, is it bettering the current process that we have in place in terms of trying to achieve pay equity?
Mr. Farrell: Yes, we believe it will because this new act, which will apply in the public sector but not the private sector, will provide an arrangement where both the unions and the employers will be compelled to be equally responsible for delivering equal pay for work of equal value, jointly developing a process to get there and, in fact, getting there.
Individual employees still have an opportunity to file complaints and deal with what they consider to be inequities; there is still due process.
This whole issue of pay equity is a combination of an employment-related issue and a human rights issue. We are trying to find solutions within the context of the reality of collective bargaining in the way that wages are set and dealt with in the collective bargaining process. In this new legislation, we are simply taking an approach that makes the employer and the unions equally responsible for ensuring that good things happen.
Senator Brazeau: Have the members that you represent raised any concerns with the act?
Mr. Farrell: Are you talking about the new act that has been drafted?
Senator Brazeau: That is correct.
Mr. Farrell: They have not raised any concerns.
Mr. Olsen: I think our members, overall, support the provisions. In 2002, Professor Weiler appeared before the Bilson Task Force — he was still well enough to do that — and presented this paper to the task force. We had asked Professor Weiler to come and present his views to FETCO. This act follows in large measure some of the basic tenets that Professor Weiler articulated to the task force at that time. I think that is why we are here to support this bill.
The Chair: Thank you, gentlemen, for coming. I am sorry the night is so late, but this is the time slot we have. We appreciate your perspectives on the bill and, again, we put some questions to you that we will be putting to the Treasury Board. However, in light of the time frame to try to meet our deadline, we very much appreciate that you have responded quickly. It helps our task and our time frame.
I should take a moment to say that we are also on a different reference looking at the issues of visible minorities, gender, Aboriginal and disabled within the Public Service Commission. I recently came across an article about the Canada Post Corporation, which I found almost shocking in the changes that have been made positively. I am sure you know which article I am talking about.
Mr. Olsen: Yes.
The Chair: If you could provide our clerk with it, it will help us become updated on the work that you have done, and, perhaps, we will take an opportunity to call you in another study, at another time. I wanted to probe some of the comments there to see whether they are correct and to verify the achievements you have made, which perhaps many Canadians, me included, were not particularly aware of. They would be instructive.
Mr. Olsen: Thank you. I will be happy to leave the particulars of how you can reach me, and I will be happy to provide that material to you. Are you referring to the article about the Aboriginal awards and so on?
The Chair: Yes.
Mr. Olsen: Thank you.
The Chair: Thank you, gentlemen. Senators, we will take a few minutes on business.
The steering committee has been meeting regularly, and we have been trying to deal with our mandates as efficiently as we can. The steering committee put two priorities: the UPR and in the council. While we do not feel we could do all of the report and all of the witnesses and submit it in time, we thought it would be important to put a short report in.
Senator Jaffer: Do you want to be in camera now?
The Chair: I do not think so. Do you? If you want to go in camera, we could take a moment to go in camera.
Senator Jaffer: I think we should. This is business.
Senator Nancy Ruth: My comment is for clerk the Library of Parliament.
The Chair: Could we wait? We have had an agreement to go in camera, so with have to go in camera. How long does it take us? Two minutes? Tell us two seconds, and we will not move from the chairs.
(The committee continued in camera.)