Proceedings of the Standing Senate Committee on
Human Rights
Issue 18 - Evidence, November 5, 2012
OTTAWA, Monday, November 5, 2012
The Standing Senate Committee on Human Rights met this day at 6:02 p.m. to study issues pertaining to the human rights of First Nations band members who reside off-reserve, with an emphasis on the current federal policy framework.
Senator Mobina S. B. Jaffer (Chair) in the chair.
[English]
The Chair: Honourable senators, this is the twenty-fourth meeting of the Forty-first Parliament of the Standing Senate Committee on Human Rights. We have been entrusted by the Senate with a mandate to study issues respecting human rights in Canada and elsewhere in the world.
[Translation]
The committee has been set up by the Senate to create a forum for discussing human rights, both at the federal and provincial levels, and to monitor and guarantee equal treatment for members of minority communities.
Over the years, the committee has tabled reports pertaining to Canadians, the United Nations Human Rights Council, children, real estate and matrimonial property on reserves, and employment equity in the public service.
[English]
My name is Mobina Jaffer, and I am the chair of this committee. I have with me the deputy chair of the committee. We will start with his introducing himself and then have everyone else introduce themselves. I would like to take this opportunity to welcome Senator Patterson to our committee. It is a real pleasure to have you here.
Senator Brazeau: Senator Brazeau, from the province of Quebec.
Senator Ngo: Senator Ngo, from Ontario.
Senator Patterson: Senator Dennis Patterson, from Nunavut.
Senator Hubley: Senator Hubley, Prince Edward Island.
The Chair: On March 20, 2012, the Standing Senate Committee on Human Rights was authorized to examine and report on issues pertaining to human rights of First Nations band members who reside off-reserve, placing an emphasis on the current federal policy framework. In particular, the committee will examine rights relating to residency, access to rights, participation in community-based decision-making processes and the portability of rights, as well as existing remedies.
According to census data collected in 2006, it is estimated that Aboriginal people represent 3.8 per cent of the Canadian population. In the 1940s, nearly all Aboriginal people lived on-reserve in rural areas. However, this is no longer the case. In fact, in 2006, 54 per cent of Aboriginal people lived in cities off-reserve. This number continues to grow today. There are currently more Aboriginal and First Nations people living off-reserve in urban areas than on-reserve. With more and more Aboriginal and First Nations people living off-reserve, there is a growing need to ensure that all First Nations people, regardless of whether or not they live on- or off-reserve, have access to the same human rights and protections.
I would like to welcome Professor Ian Peach, Dean of the Faculty of Law at the University of New Brunswick. He specializes in constitutional law, Aboriginal law, federalism and intergovernmental relations and Aboriginal policy and self-government negotiations. Dean Peach has worked on two parliamentary committees on constitutional reform and has acted as the negotiator for the Government of Yukon in the Charlottetown Accord negotiations.
In 1997, Dean Peach became a senior policy advisor to the Premier of Saskatchewan and the Saskatchewan Cabinet Committee on Planning and Priorities, where he worked on a wide variety of legal and policy issues across government, including Aboriginal self-government negotiations and a number of federal-provincial and First Nations provincial negotiations. In 2004, Dean Peach wrote a paper called The Charter of Rights and Off-Reserve First Nations People: A Way to Fill the Public Policy Vacuum? for the Saskatchewan Institute of Public Policy.
Dean Peach, we are very appreciative that, at very short notice, you made yourself available. I can assure you that all members of this committee are very much looking forward to hearing from you. We know that what you will say to us will help us in our deliberations as we proceed with this study. We welcome you to the committee, and we would now like to hear from you.
Ian Peach, Dean, Faculty of Law, University of New Brunswick: Thank you, Madam Chair. Good evening, senators.
In administering the Indian Act and providing programs and services to Aboriginal peoples, the federal government has created numerous distinctions between those who qualify for access and those who do not. The distinctions made on the basis of residency and racial background have been roundly criticized for discriminating against First Nations women and Aboriginal peoples who are now recognized as being ``Indian'' by federal legislation. Aboriginal individuals and groups have sought to bring an end to these distinctions in both domestic courts and international fora. One must therefore ask whether these divisions can be sustained and equally whether the divisions should be sustained, given their disruptive impact on Aboriginal communities and the sense of identity of Aboriginal individuals, even if they could be sustained legally.
Section 15 of the Canadian Charter of Rights and Freedoms — the equality rights section — has been one means by which Aboriginal peoples have challenged these federal distinctions. Stripped bare, the principle of section 15 of the Charter, as it applies to the provision of benefits by governments, is that, while governments may extend a benefit to a limited number of persons, they may not do so in a discriminatory fashion and, in particular, not on a ground prohibited under section 15 of the Charter.
While there is not yet a large body of jurisprudence using this principle to challenge distinctions made by governments amongst Aboriginal peoples in providing benefits, there have been a number of cases. For example, the courts have consistently found any residency-based restrictions on participation in band politics to be a violation of equality rights under the Charter. This consistent pattern of victories for claimants leads one to wonder whether any restriction on the basis of residency could withstand Charter scrutiny.
As well, non-status Indian, Metis and First Nations people have all turned to the courts in attempts to bring an end to distinctions among Aboriginal peoples on the basis of status. In the most recent case decided by the Supreme Court of Canada, Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, former members of the Peavine Métis Settlement, who had been removed from the settlement's membership list because they had registered as status Indians, challenged their exclusion on equality grounds.
The Supreme Court of Canada reversed the decision of the Alberta Court of Appeal and ruled that the Metis Settlements Act is an ameliorative program aimed at helping a disadvantaged group and is, therefore, allowable under section 15(2) of the charter. This decision extends the use of section 15(2) by the Supreme Court of Canada, originally seen in R. v. Kapp. Kapp takes the ameliorative purpose analysis, originally articulated in the Law case, to an extreme, breaking with jurisprudence that assigns section 15(2) of the Charter as simply an interpretive aid for section 15(1). The result in Kapp was to uphold the federal Aboriginal fisheries strategy in the face of a challenge from mainly non-Aboriginal commercial fishers, a group generally more disadvantaged than Aboriginal fishers. The court achieved this result by deciding that section 15(2) could be used to justify any distinction made by government that was designed to ameliorate the conditions of a disadvantaged group. This allows government legislation and government programs to take advantage of a blanket exclusion from the analytical rigour that the Supreme Court of Canada attempted to develop in the Law case, as long as the legislation or program is rationally designed to aid some disadvantaged group. This is true even if the means chosen perpetuates or reinforces discrimination and stereotyping of another group.
A reliance on section 15(2) to protect distinctions that reinforce the stereotyping of some Aboriginal peoples as ``less genuine,'' shall we say, than others on the basis of administrative categories would not advance substantive equality. The mere fact that a program ameliorates the condition of someone who suffers disadvantage is, on a careful reading of the Law case, inadequate to ground a finding that there is no discrimination at work. Rather, there must be a finding that the program ameliorates the condition of someone or some group worse off in a relevant way than the claimant group.
The use of the ameliorative purpose factor has been confusing and, in some cases, seems fundamentally inconsistent with the Supreme Court of Canada's judgment in Law, the decision which the court first articulated this factor. This leaves open the question at root of our exploration: Can or should the federal government continue to rely on notions of status defined by the federal government itself to determine who is eligible to partake of programs, services, and benefits provided or funded by the federal government?
If the use of the Indian Act status and residency is the subject of such strong and consistent criticism for its damaging effects on Aboriginal communities and the sense of identity of Aboriginal individuals, and the rules have been subject to several successful equality rights challenges, one must reasonably ask if it is time for the federal government to put an end to defining and thereby dividing up Aboriginal people through the Indian Act. The first distinctions that ought to go in a new approach such as this would be those that distinguish between people on the basis of residency. As I noted, they have consistently been overturned by the courts. While not as clear-cut as the case of off-reserve members, the criticism of the Indian Act status rules suggests that the federal government would be wise to stop the practice of defining who is an Indian entirely. If every change to status rules in the Indian Act simply breeds further lengthy and expensive litigation, one can reasonably ask whether using the Indian Act to define who is an Indian is really in the public interest. It may be necessary for the federal government to abandon this task of defining status.
The alternative approach would be for the federal government to accept that it is up to Aboriginal communities themselves to determine who their members or their citizens are. The most practical solution is to replace the process of defining status with a rule of recognition for community-based membership or citizenship rules. A rule of recognition could include some conditions, such as the rules need to treat men and women equally and the rules must be adopted by a democratically legitimate process, but it would be premised on the policy position that Aboriginal communities themselves should determine who their members or citizens are. If the federal government also wished to avoid litigation from Aboriginal communities seeking recognition and equality with First Nations ``Indian bands'' recognized under the Indian Act, it would need to establish a policy on the recognition of non-status communities as First Nations. Still, a commitment to treat on- and off-reserve First Nations members equally and recognize First Nations' membership or citizenship rules would eliminate the vast majority of the equality rights litigation against the federal government that it is currently involved in. This is not to suggest that rules established by First Nations would never be challenged by individuals excluded from membership. Individuals could still find protection from discriminatory actions of First Nations governments in the Canadian Human Rights Act and through the Charter. However, in an environment in which First Nations themselves developed all membership or citizenship rules that applied to them, those challenges from individuals would be internal disputes within First Nations, rather than challenges to the acts of the colonial power in the form of the federal government. Maybe then it is time for the federal government to relinquish its role in deciding who is an Indian and therefore who can be a beneficiary of programs and situations delivered or funded by the federal government, in favour of community self-determination of community membership.
Thank you. I am open to your questions.
The Chair: Thank you very much, Dean Peach. I will start with the questions. Last week I asked the senior assistant deputy minister why the Office of the Federal Interlocutor had been closed. If I understood her explanation, the department felt that reorganizing was a better use of resources. What is your reaction to the closure of the Office of the Federal Interlocutor? Do you expect the closure and reorganization to affect First Nations people living off-reserve?
Mr. Peach: The short answer is that it depends. The change of the department's name to Aboriginal Affairs and Northern Development Canada suggests to me recognition that a bright distinction between First Nations, or ``Indians'' to use the terminology in the federal legislation, and other Aboriginal peoples is probably not sustainable, so the name change reflects certain humility on the part of the federal government. If closing the interlocutor's office is designed to integrate that thinking about off-reserve First Nations members and other Aboriginal peoples into the policy process of the department throughout the piece, then that will be a good thing. My view is that would be more consistent with where the Canadian Charter of Rights and Freedoms and equality rights jurisprudence is taking us. If the bureaucratic environment serves instead to merely vary internal criticism of on-reserve First Nations' priority that the old Indian Affairs and Northern Development Canada was notorious for, then I think it risks moving the Government of Canada further away from good Charter-compliant public policy rather than closer to it.
To my mind, it is still too early to tell. One must watch which direction this change takes the department and the Government of Canada in.
The Chair: Thank you, Mr. Peach. We will now go on to Senator Brazeau.
Senator Brazeau: Thank you, Mr. Peach, for your presentation. It was quite interesting, obviously. You said perhaps it may be time for the federal government to get out of the business of defining who is and who is not an Indian. I could not agree more. We are in 2012, and we still have government that decides who is Indian and who is not and, therefore, who has access to certain rights, certain programs, certain benefits, and who does not.
Let us take as an example the voting system for those First Nations communities that conduct their voting through custom. We talk about putting more power in the hands of First Nations communities to develop their citizenship or membership, but at the same time there are some communities now that are excluding their off-reserve band members from the right to vote because they live off-reserve.
One could argue why one would choose to do that, but if we take the fact that in most First Nations communities, most of the population resides off-reserve, obviously if all those members were allowed to vote, perhaps we would have some different leadership across this country in Aboriginal communities. Do you have any further thoughts on that?
Mr. Peach: I would say there have been a couple of cases in which band custom election codes that serve to completely disenfranchise off-reserve members have been overturned. I believe there are only two; I would have to check my article to know for sure. I believe there are only two. In both cases, the band custom codes have been overturned. It suggests that there is a sensitivity on the part of the courts, and a recourse for off-reserve members.
In the Corbiere case, which is the big Supreme Court of Canada case in this matter, it was suggested that there may be circumstances in which band governments make decisions specifically about reserve lands that maybe one could design a model of band governance that distinguishes between council members whose represent the reserve population and council members who represent the off-reserve population. On those matters specifically about reserve lands, there may be a differential set of voting rights. However, the complete exclusion of off-reserve membership from a right to vote or a right to participate in council governance has consistently been declared inconsistent with equality rights.
Senator Brazeau: The current system obviously has flaws because of past federal policies defining and bringing the distinctions. One might say we have the Charter to protect those off-reserve band members from different issues and recourses, but it is the same Charter that does not provide for other things. For example, we do not see residency in section 15 of the Charter. I would like to know if that should be included in the Charter, to bring a safeguard.
Second, if a First Nations community were to develop a code that would be Charter-compliant and would be inclusive of all their members on the right to vote, how do we do that in a way that gives flexibility for a First Nations community to develop their own codes while at the same time providing the safeguards for individuals in the future not to be discriminated against because of where they choose to live?
Mr. Peach: The first thing I would note is that since the Corbiere case in the Supreme Court of Canada, not all residency is in section 15 of the Charter. However, limitations on Aboriginality residence, which is in essence the right to participate in the life of one's First Nation community even if one is an off-reserve member, have been included as discrimination. Aboriginality residence is seen as an analogous ground of discrimination to those that are listed in section 15. It is there, thanks to the courts.
As to how different First Nations can be responsive to the needs and aspirations of their membership and design election codes that are distinctive and responsive while still being Charter-compliant, I would just note that the Charter applies to federal, provincial and territorial governments in this country, as well. There are distinctions among different provinces and territories over some of the details of electoral systems, but in all cases, they are Charter-compliant.
There is still scope to innovate and to respond to the governed population's interests without running afoul of the Charter. There is some room in public policy terms.
Senator Hubley: I just have a short question: When you recommended that the federal government should turn the responsibility of establishing status over to the communities, does that mean the bands, as well?
Mr. Peach: Yes.
Senator Hubley: My question then is this: Would each of these communities or bands have the responsibility of establishing the criteria for that status, or would there be a possibility that one might differ from other communities?
Mr. Peach: Indeed, bands could set their own codes. However, bands in a tribal council, for instance, could decide that they are all prepared to accept the same rules as the tribal council and therefore create a unified system across the tribal council. They have freedom to do that now, frankly. They would have the authority under this law to adopt whatever codes they see fit, subject of course to such fundamental rules as treating men and women equally, and I suggested ensuring that the actual system is established itself through a democratically legitimate process.
Senator Patterson: Thank you, Mr. Peach. I wanted to pursue your comments about section 15 as a way of challenging these invidious distinctions amongst Aboriginal people that you say have been created by the federal government. I got the impression from your evidence, sir, that you feel that the original section 15 test in the Law case has been eroded in recent decisions. Could you please elaborate on that and perhaps explain your understanding of the current state of the section 15 test?
Mr. Peach: Sure. My particular concern is that with the Kapp case, which was a challenge to the Aboriginal fisheries strategy by a number of non-Aboriginal fishers, the Supreme Court of Canada declared that an ameliorative program essentially gets something of a — to be blunt — ``free ride'' from the analytical wringer that has come to be associated with discrimination litigation.
If you have a program that is designed to help a disadvantaged group and actually address a disadvantage, then the government can say that we are working to ameliorate a disadvantage. That is legitimate under section 15(2) of the Charter. The courts are no longer in a place, since the Kapp case and the Cunningham case which I mentioned, to have the right to judge whether how the government seeks to ameliorate the disadvantage is legitimate or serves to further disadvantage another group. Essentially, once it is declared an ameliorative program, how the government decides to ameliorate is not subject to Charter scrutiny anymore.
That, I would say, as a policy scholar, as a constitutional law scholar, disappoints me somewhat because the old way of treating ameliorative programs, treating 15(2) of the Charter, was as a way of helping us understand what non-discrimination means, that non-discrimination is not simply treating likes alike. Occasionally it is treating those that are not alike in a way that makes them equal without harming the equality interests of others, which was a more rigorous approach and, as such, demanded better of government policy-makers than what the recent section 15(2) jurisprudence in cases like Kapp and Cunningham leaves us with. They make it, to my mind, too easy on governments to just do what they feel like without asking themselves hard questions.
Senator Patterson: Thank you very much for that. Connected with that, the Supreme Court has had views on what I think are called comparator groups, by which equality claimants were supposed to compare themselves to establish disadvantage.
Has the court's view on this business of comparator groups also shifted or evolved? Would this impact equality claims brought by First Nations people living off-reserve?
Mr. Peach: To answer your questions in reverse order, I think the evolution would affect the success of equality rights claims. This may be somewhat ungenerous, but I think there has been some confusion about comparator groups of late.
As I understand it from the early equality rights jurisprudence, up to and including Law, comparator groups were chosen by the litigant, and the court would only replace the litigant's choice of comparator group, who the litigants saw themselves in comparison to, in the most serious cases of misunderstanding of a comparator group. In circumstances where replacing the litigant's selected comparator group with another comparator group would work to the advantage of the litigant, the courts, to my mind, recently are much more willing than I would have thought the Supreme Court jurisprudence gave them direction to be to replace comparator groups somewhat, shall we say, holus-bolus, without the court asking itself whether this replacement serves to benefit the litigant or undermines the litigant's claim. If the former, fine; if the latter, I always understood the jurisprudence was to then not replace.
Senator Andreychuk: Mr. Peach, it is good to see you in your new capacity, knowing you from Saskatchewan and the institute that we were both associated with.
I want to go back to this. You are saying that the court should have been more liberal in its interpretation rather than a more strict interpretation of the law. Is that what I am hearing from you?
Mr. Peach: No, actually. I think the courts at their best in Charter litigation are in fact stricter and demand stricter consideration by government in adopting or amending legislation, policies and programs. If there is anything about recent jurisprudence that disappoints me, it is that the courts have allowed governments to become less strict and less analytical in their thinking. They have made it, to my mind, too easy on governments.
Senator Andreychuk: I am trying to figure out how you come to the conclusion that it is too easy on governments. It seems to me neither course is easy on government. You are dealing with people with long-standing issues and you are trying to find some balance in a situation through an interpretation of the Indian Act that would be helpful to these people, as opposed to closing one issue and reopening three or four others.
Mr. Peach: The section 15(2) ameliorative purpose analysis of late is a classic example. Governments in that circumstance are not asked to justify what they do by demonstrating that their policy choices are helping those most in need. If they are helping someone, as the recent jurisprudence under section 15(2) would suggest, then that is good enough. That was not always how we approached equality rights jurisprudence in this country. Our approach to equality rights was once theoretically more satisfying. There was a period in time in which the courts told government if you are going to give a benefit to a group, you need to think seriously about whether there are those who are worse off in a similar, relevant way and do not address those that are best off when there are those worse off who demand your attention. I happen to like that.
Senator Andreychuk: I would ponder whether governments or the courts are the right people to determine who is more or less in need when you are looking at two aggrieved parties. You can take a snapshot of today and determine that, but you have to look at in historic context and project to the future. I would submit that unless you have the concurrence of the people involved who have to live side by side in many cases, or at least live with their histories whether on-reserve or off-reserve, is that really the role of the courts and the federal government? Is there not a role for the constituency of the Aboriginal peoples to be involved in those determinations?
Mr. Peach: Yes, indeed. What you suggest is one of the fundamental issues of constitutional law and the kind of thing I like to teach my students to think hard about. Are the courts best situated? Are democratically elected governments best situated? That is a legitimate debate.
Aboriginal and First Nations communities should play a role in determining how they move forward. I would say that those communities should play that role themselves and that there is an important place for community self-determination, but within the community decision-making structure, all those who see themselves as community members have a role to play, have something they should say, or should have the right to say. If there was concurrence on these matters there would not be litigation because there would not be litigants. The fact that there is litigation suggests that the best, most honourable effort to seek community concurrence has failed somewhere along the line. Governments, whether they are federal, provincial, territorial or First Nation, need to stop and reconsider whether what they are doing is really the best thing for the community.
Senator Andreychuk: Mr. Peach, I have one more question. Certainly when I started studying the Indian Act many years ago I came to the obvious conclusion that we should do away with it. That was a simple conclusion and it seems that it is a conclusion other people come to all the time. The question is what to replace it with. While we may stop some kind of judicial applications, we will get a whole host of other ones if the government unilaterally disbands the Indian Act. I have heard Aboriginal leaders and others say of course we should get rid of the Indian Act, but what do you replace it with? How do you get to a point of some other governance structure? That is where the rubber hits the road. Everyone has an opinion, but not quite the same one, as to what is in the best interests of the constituents, let alone the issue of who the constituents are.
The first part of your presentation talked about removing the Indian Act and that the federal government should act. Would it not be more advisable that at some point a federal government will have to act, but it must be in such a way that the Indian community is consulted and that the ramifications are taken into account? It almost leads me to believe that a unilateral act is not the way to go but some consensus of some leadership on both sides before you can move forward.
Mr. Peach: Ultimately, I think you are right about that. A unilateral act is not the way to go. When I was in Saskatchewan in the old days in my previous life, I spent seven years sitting on a self-government negotiation. It was a very long process, but I think we made some significant strides in reconceptualizing how we relate to one another — indigenous and non-indigenous — in Saskatchewan. I believe that replacing the Indian Act with self-government agreements, provisions similar to the opt-in provisions in the First Nations Land Management Act, is a good process. Will it transform the world overnight and allow for the absolute repeal of the Indian Act in short order? It is highly unlikely that it would happen before my term as dean is over. Nonetheless, it is a worthy process to work through and to provide communities with the authority to decide for themselves, albeit in a legitimate way, what they want their future governance systems to look like.
Senator Andreychuk: Thank you, Mr. Peach.
Senator Harb: Thank you for your presentation. I have a 2006 Statistics Canada report with me, and I am pretty sure you had a chance to look at it. It is absolutely appalling that Natives have three times the rate of diabetes than the average Canadian. They have almost one and a half times what Canadians have in terms of the ratio of asthma and high blood pressure and almost twice the rate of arthritis. The conditions of 41 per cent of dwellings on-reserve are in need of major repairs. Unemployment is 31 per cent, and for those with university degrees it is 60 per cent. It goes on and on, with one statistic after another; it is unbelievable. Even certain parts of Africa seem to do better than our Natives are doing in Canada, which is a developed country.
The very same statistic shows that once a Native gets off the reserve and gets a university education his chance of getting a job is pretty well almost in line with the average Canadian's. It does not take a rocket scientist to conclude that a Native child and an average Canadian are the same, given the same opportunities. Obviously, our Natives are not being given the same opportunities.
Are you aware of best practices — a country for example — we could look up to and see what they have done? What would you specifically recommend we do as a committee in terms of our report to Parliament?
Mr. Peach: For indigenous communities, probably one of the best practices in the world is New Zealand and the way in which the Maori have been integrated into New Zealand governance and society and intergovernmental relations in a very serious way. My experience of Maori colleagues suggests to me that the Maori have greatly benefited over the last several decades from a better approach to Maori-Crown relations then we have to First Nations-Crown relations in Canada.
I could suggest one thing as someone who was formerly a policy person; and you point to something very important. We need to break down the dichotomy that the federal distinctions create that an individual gets to be a real, meaningful, everyday member of his or her community and be seen by the world as being truly First Nations if they continue to reside on a reserve. However, too often they become economically marginalized and socially harmed as a consequence of that. Whereas, when they have the ambition to find an opportunity and go off-reserve to make their lives and the lives of their family members better, they effectively have been denied their First Nations identity. They are cut off, in a very meaningful way, from the community that gives their identity meaning.
If we are to do one thing to create real, meaningful opportunities to advance the equality of First Nations members, it would be to bring an end to that incredibly difficult choice: become an economic participant and gain the power that comes from being part of an economy or be recognized and accepted as a First Nations person — but not be able to do both. That is the circumstance we have now; and we have to bring that to an end.
The Chair: I have two questions, Dean Peach. In your 2004 publication, The Charter of Rights and Off-Reserve First Nations People: A Way to Fill the Public Policy Vacuum?, you proposed an option that the federal government provide all services to First Nations people equally without regard to residence and to offset the cost with the equivalent reduction in Canada Health and Social Transfer payments.
What should the respective roles of the federal and provincial governments be in relation to First Nations people? Could you elaborate on the proposal you made in that paper?
Mr. Peach: I would still abide by it because sections 91 and 92 of the Constitution provide that the federal government is responsible for ``Indians.'' Since 1867, we have become more nuanced in how we speak of Aboriginal peoples. I would say first and foremost that First Nations people, whatever their place of residence, should be treated equally by the federal government in federal legislation.
Frankly, one could go further and argue that ``Indians'' for the purposes of federal jurisdiction, in a modern society, should be understood as Aboriginal. As I noted in 2004, the provinces currently get Canada Health Transfer and Canada Social Transfer monies for all provincial residents, including Aboriginal residents of the province — those are not recognized as being ``Indians'' for federal purposes. If the federal government were to change how services to Aboriginal peoples were funded and take on more of a role in direct service provision, it would be only fair that the provinces not be allowed to double dip, in essence, by not having responsibility for delivering services to Aboriginal people but still receiving Canada Health and Social Transfer monies for those individuals.
The Chair: You also have written quite a bit on the Misquadis case. I tried to get the justice department last week to elaborate on what they thought. Unfortunately, they were not able to but will be providing us with information. Are you aware of any significant decisions in which claimants relied on the Aboriginal residence ground outside the voting context?
Mr. Peach: To my knowledge, that has not happened yet, although I think it is logical that one of these days someone will make the argument that if you are allowed to vote for a government, then your government should provide you with services equal to how it provides services to other voters — to your colleagues. An off-reserve resident in that circumstance should have as much access to programs and services designed by their First Nation government, even if they are off-reserve residents, as on-reserve residents have. To my knowledge, it has not yet come through the court system, but I would imagine, should the federal government not change its policy, that day will come.
The Chair: I have a most uncomfortable feeling when I think that non-status Aboriginal people have to go to court to enforce their rights. Do you think this is a viable means for off-reserve First Nations people to obtain programs and services that they need? Should they need to go to court to enforce their rights?
Mr. Peach: I wish it were not so. If I may quote from an article that I wrote earlier this year, my colleague Bradford Morse has described the process of using the courts to advance these issues as very slow. He said:
The ongoing judicial consideration of the Indian Act from the perspective of section 15 rights raises many uncertainties about the future of the Act. The litigation to date suggests that the Indian Act will not be struck down entirely; however, many provisions will likely be invalidated or eviscerated over time on a case-by-case basis.
That is not, to my mind, the best approach for us to take in establishing the equality of off-reserve residents. Regrettably, to date it seems to be the only approach that advances their claims.
The Chair: Dean Peach, you quoted Mr. Morse in your paper with exactly the same quote you just read. I would like you to share with my colleagues and me what you go on to say about that not being the way to proceed for people with non-status rights. Could you please elaborate on that?
Mr. Peach: I think we all know that the litigation route is slow. One starts in a lower level court, goes up through a Court of Appeal and goes up, ultimately, to the Supreme Court of Canada, if one has money, because the other factor is that all of this litigation is very expensive. The combination of those two is frustrating, that to secure equality rights, to secure one's equality, one has to become a litigant and spend potentially many years going through the court system as a whole, and in doing so, spend many, many dollars.
As a former government policy person, I always preferred that bureaucrats recognize that the Charter imposes obligations of fairness on them, even if the courts do not tell them that in a specific case, in a specific circumstance, they have to act in a particular way. It sets a tone for how we approach questions as governments. I would much prefer that than dragging everything through the courts.
The Chair: Dean Peach, we have certainly appreciated your testimony today. You have enlightened us as to what we should be looking at. I imagine we will probably be coming back to you with some further questions as we go along with this study.
On behalf of the committee, I want to thank you for making yourself available today. We look forward to working with you in the future.
Mr. Peach: Thank you.
The Chair: We normally do not have applause in our committees, so you must have been an exceptional witness. We really appreciated your presence here today.
Mr. Peach: Thank you very much. Should you ever wish anything else from me, please feel free to ask. I very much appreciated the chance to speak with you.
The Chair: Thank you very much. We will take a few minutes' break and begin an in camera meeting on cyberbullying.
(The committee continued in camera.)