Proceedings of the Standing Senate Committee on
Issue 7 - Evidence, June 16, 2008
OTTAWA, Monday, June 16, 2008
The Standing Senate Committee on Human Rights, to which was referred Bill C-21, An Act to amend the Canadian
Human Rights Act, met this day at 5:01 p.m. to give consideration to the bill.
Senator A. Raynell Andreychuk (Chair) in the chair.
The Chair: Honourable senators, we are here this evening to study Bill C-21, An Act to Amend the Canadian
Human Rights Act. I would remind senators that we have looked at the content of section 67 of the Canadian Human
Rights Act, which is the subject matter of Bill C-21, in previous studies. Therefore, the topic is not new to the senators
in this committee. We will be hearing from expert witnesses throughout the evening, starting with the Honourable
Chuck Strahl, Minister of Indian Affairs and Northern Development and Federal Interlocutor for Métis and Non-
Minister, welcome to the committee. We have asked you to be brief so we may ask questions. We want to be as
efficient as we can this evening. Perhaps I could ask you to start by introducing the officials that are with you.
Hon. Chuck Strahl, P.C., M.P., Minister of Indian Affairs and Northern Development and Federal Interlocutor for
Métis and Non-Status Indians: Thank you. I have some experts here both on human rights issues and on the
development of the bill itself: Jim Hendry, General Counsel, Human Rights Law Section, Justice Canada; Martin
Reiher, Senior Counsel, Operations and Programs, Justice Canada; and Andrew Beynon, Acting Senior Assistant
Deputy Minister, Policy and Strategic Direction, Indian and Northern Affairs Canada. When necessary, of course, I
will drop back and punt to them for their expertise as the evening goes on.
I am delighted to be here to discuss this bill with you.
Thank you for this opportunity to appear before the Standing Senate Committee on Human Rights to discuss Bill
C-21, An Act to Amend the Canadian Human Rights Act.
This legislation proposes to repeal section 67 of the Canadian Human Rights Act that grants an exemption to
decisions made pursuant to the Indian Act. Three decades ago, when the Canadian Human Rights Act was drafted and
enacted, section 67 was intended as a temporary measure. Since then, many groups have called for its repeal, including
Last year, this committee's study on the rights of children concluded that section 67 should be repealed. Similar
conclusions were drawn by other studies: a 2005 report by the House of Commons Standing Committee on Aboriginal
Affairs and Northern Development regarding on-reserve matrimonial real property and the statutory review of the
Canadian Human Rights Act completed in 2000.
The Canadian Human Rights Commission has twice issued studies calling for repeal. No fewer than eight reports by
various United Nations bodies have criticized Canada for tolerating the discrimination engendered by section 67.
Members of this committee understand better than most Canadians the issues at stake. Section 67 effectively denies
one group of citizens access to the remedies available to all other citizens. As long as section 67 remains in place,
individuals — mainly residents of First Nations communities — have limited access to legal recourse should their rights
be violated. This fundamental injustice is compounded by the fact that those denied access are already among the
country's most vulnerable and impoverished citizens. Canada can and must do better.
Bill C-21 offers a practical and sensible solution. It removes section 67 while including several protections to ensure
that repeal proceeds smoothly. For example, the application of the repeal to First Nations governments will be phased
in over three years. During this period, decisions taken by First Nations governments and other bodies operating under
the Indian Act would remain exempt from the Canadian Human Rights Act.
A comprehensive study will be undertaken during this period to identify and prepare for the impacts of repeal.
Within five years of repeal, Bill C-21 requires that the federal government, in collaboration with First Nations, launch
a review of the effects of the repeal.
The proposed legislation also includes several provisions responding to the interests and concerns of First Nations.
A non-derogation clause was added to the bill following much debate in the House of Commons. An interpretive
clause — also the subject of much debate — ensures that due consideration will be given to First Nations legal
traditions and customs when considering complaints against First Nations governments related to the Indian Act in a
manner consistent with the principle of gender equality.
Once Bill C-21 becomes law, the Canadian Human Rights Commission will become fully engaged in its
implementation. The commission has already conducted a great deal of research into the issue and has launched a
national Aboriginal initiative. No group, in my opinion, is better equipped and positioned to ensure that the repeal of
section 67 proceeds in a practical and judicious manner.
Members of this committee have a deep understanding of the issues surrounding the protection of human rights
both here in Canada and around the world. I believe you recognize that Canadian laws, along with the Human Rights
Commission and tribunal, provide most citizens of this country a remarkable level of protection.
Section 67, however, effectively assigns a reduced level of rights protection to individuals affected by provisions of
the Indian Act. This represents nothing less than legally sanctioned discrimination.
Canadians were motivated to construct a rights-protection regime because they believe in justice and equality. They
believe all citizens should be equal before the law. Section 67 has undermined those beliefs for 30 years. It was intended
as a temporary adjunct to the Canadian Human Rights Act and it has been there for far too long.
Bill C-21 proposes to phase out section 67 and restore Canadians' faith in our justice system. I encourage committee
members to lend their enthusiastic support to Bill C-21.
I will do my best to answer any questions that the committee members may have.
The Chair: Thank you, minister, for being succinct and for bringing this issue to us in the historic Aboriginal Peoples
Your officials are from both Indian and Northern Affairs Canada and the Department of Justice Canada.
Therefore, I trust they can answer questions on Aboriginal, constitutional or Charter issues.
Senator Kinsella: I was pleased when the Senate received the message from the House of Commons containing this
bill the other day. As you mentioned, it has been 30 years.
Having had a hand in the drafting of the original Canadian Human Rights Act, I had in my notes a statement from
the then Minister of Justice, Ron Basford. I would like to place on the record what he said: ``Parliament will not look
favourably on continuing this exemption forever or for very long.''
Much of the history of section 67, from the time of the enactment of the Canadian Human Rights Act, was based on
fear, misunderstanding, et cetera; however, indeed, as the Minister of Justice of the day said, this was to be a very
temporary thing. It is like the income tax laws when they were first introduced; those were supposed to be a temporary
I would like to turn to one section you have alluded to in your statement. It is clause 3 of the bill: The transitional
provision. First, I am curious about the language that is used: ``Malgré l'article 1.'' In English, that is: ``Despite section
1.'' From the old school, we are more used to ``notwithstanding.'' However, maybe the art of legal drafting has changed
and maybe a legal official could speak to that.
I am curious to find out whether you or your officials have done a careful analysis of this section, which I believe
came in at committee stage in the House, and whether it has been tested against the Charter of Rights and Freedoms,
particularly, section 15.
If I have understood this — and please correct me if I have misunderstood — this is effectively saying that the repeal
of section 67 will really not come into effect for three years, whereas subsection 15 (1) of the constitutional Canadian
Charter of Rights and Freedoms is very explicit. It says that:
Every individual is equal before and under the law and has the right to the equal protection and equal benefit of
the law without discrimination. . . .
I would like to focus on the ``equal benefit of the law.'' One of the offensive things about section 67 being in the
Canadian Human Rights Act, in my opinion, is that it statutorily denies an equal benefit of the law; namely, the service
that is provided by the non-discrimination agency, the Canadian Human Rights Commission.
Have the officials done a careful analysis, based upon that study; does clause 3 meet the test, in your opinion, of
section 15 of the Charter?
Mr. Strahl: Thank you, senator. I appreciate that. I will maybe have officials to speak to the word ``despite'' or, as
you said, ``malgré.'' I am not sure why that particular word was used, but it was not picked up earlier on. We will speak
As you may know, senator, the original bill we tabled had a shorter time period on that. The concern was and is that
the longer this serious transgression or omission continues, the worse it is. It has already been identified by the
Canadian Human Rights Commission. It has been identified by the Senate committee several times and by several UN
groups. We did have a shorter time period.
The concern that came back — and the subsequent amendments made in committee — were that the transition
period was necessary in order to allow First Nations bands and councils to be educated about it and to determine its
impacts on their business. This new 36-month figure came through the parliamentary process as an amendment. I had
hoped to have it quicker than that.
As far as the risk itself, Mr. Hendry could speak to that. We are moving more toward equality as opposed to further
away with regards to the risk overall in the bill. However, Mr. Hendry could mention the timelines.
Jim Hendry, General Counsel, Human Rights Law Section, Department of Justice Canada: It is time limited. I might
also draw the committee's attention to the fact that it does apply immediately to the federal government. At the same
time, it gives a certain period of time for the First Nations to develop the skills, the systems and so on to work the
commission and others to develop the capacity to ensure full compliance with the act.
There was a fair amount of evidence given of the need for development of the capacity to become ready. As a result,
this bill would not be before you if it had not passed the review of the government and the House of Commons.
I might mention, as well, that there was a time-lag of three years before the coming into force of most of the Charter
and section 15, with a view to enabling governments to come to terms with the requirements of the equality provisions.
This, in a way, does that for the First Nation governments and the ones that are mentioned there.
All in all, the bill is before you. It would not be before you if it had not been reviewed for these issues.
Senator Kinsella: I would have preferred to see the bill without that section. Indeed, the bill I introduced a couple of
years ago did not have that kind of a section in it.
From a human rights advocate view the point that you make, that this applies to the federal government, forthwith
on coming into force of the section, it good. From a human rights advocate's point of view, it would take at least three
years in order for a case to be taken to the Supreme Court up through the process to try to see whether an aggrieved
Canadian, or anyone, could say, ``I should have access to the benefit of the law provided by the Canadian Human
Rights Act.'' Therefore, from an advocate's point of view, this probably guarantees you will get there and the costs that
will be associated.
I thought I would put my concern on the record, from a practical point of view. I think these are the words of the
minister. This is also from a human rights advocate's point of view. We achieved the objective which we have been
struggling with for some 30 years. That is all I have to ask.
Mr. Hendry: I might add that, as the minister said, the original intent was something shorter, perhaps something
more acceptable. However, this bill does mean that section 67 will be ended. It is not something that extends it longer
than necessary for people to become ready.
Mr. Strahl: I will add, as well, that it may be a good question to put to one of your witnesses, the Canadian Human
Rights Commission, later this evening. You could ask them to talk about what they see as part of their Aboriginal
initiative — the educational component for First Nations to avoid discriminatory practices or how to educate their
band and council and so on.
As you say, it may take a while for a case to work through the system, but there is also ``an ounce of prevention is
worth a pound of cure'' in there. They could talk about the need to make people aware of their rights — that is one part
— but also how to avoid practices that might land you in hot water before a commission. That will also be part of their
initiative, as I understand it, but they can speak to that at some length.
Senator Munson: First, I would like to praise the government for what happened last week. You did the right thing
and we are all proud of what happened.
I have two questions. One has to do with Bill C-21. I have another question that has to do with Aboriginal rights
and has nothing to do with Bill C-21. It is a gentle question, so do not be too worried about it.
The matter of collective rights was a frequent topic before the House of Commons Aboriginal Affairs Committee;
discussing the interpretation clause issue without discussion of their specific content. In his appearance before the
committee, National Chief Patrick Brazeau of the Congress of Aboriginal Peoples questioned whether there are any
collective rights on reserves as opposed to the collective rights of a particular nation, such as the Algonquin Nation.
I would like to get your reaction to this observation. Also, can you give the committee examples of collective rights
on Indian Act reserves?
Mr. Strahl: My understanding of Chief Brazeau's interpretation of what would be best for First Nations people in
the country is that he believes we should address First Nations issues in envelopes. We should, for example, address the
entire Algonquin or Cree Nation, or in my riding, the Sto:lo Nation — and not deal with 20 or 30 different bands. He
thinks that the government you get from that is asked to do too many things with too few people. He would rather see
government of a broader nature. He would rather have the Government of Canada — and I hate to put words in his
mouth, but it is my understanding — deal with the Mohawk, the Algonquin, the Cree or whatever it is as a group writ
large, as opposed to individual bands and councils.
We are always delighted to do that. We have tentative treaty negotiations with the Maa-Nulth, for example. If it is
four or five bands and councils involved, they will have all voted on it, but the treaty will cover more than one reserve
or more than one band and council, and more than one of those communities. That is ideal. I would love to do that.
The reality is that many First Nations, particularly when it comes to human rights issues and matrimonial, real
property rights issues, believe their particular concerns are theirs alone and are not necessarily shared by the larger
Whenever possible, I would love to deal with larger groups. I think there is some wisdom in that from time to time.
In reality, if they want to deal as a community, as a reserve, as a band and council individually, that is what we do. I am
not sure if there was a technical question — part of that question on the interpretive clause itself.
Mr. Hendry: Perhaps I will change the scope to the way the Human Rights Act works. I believe you had
characterized the individual person who wants a particular job or a piece of land or something of that nature, as an
individual interest or an individual right, if they have a legal right to access it.
The act already contains certain specific provisions, such as the bona fide occupational requirement in matters of
employment and the bona fide justification in matters of services. They tend to represent the collective interests of the
group. What you might have is the interest of an individual in a particular job, piece of land or service, and that is
balanced, in the way in which the act works, with the interest of the collectivity and its interest in maintaining its land
or a certain amount of funds or to stay within the funding that they have. It tries to balance the interests of the whole
group with those of that one person, who is asserting a right to a particular piece of it.
Senator Munson: Thank you for that. On another issue, we are the Standing Senate Committee on Human Rights,
so I will speak about a human right for Aboriginal peoples. Last week, we had the Assembly of First Nations' Chief
Phil Fontaine here the day after the Prime Minister's apology on residential schools. It was rather unique, because we
were able to ask questions of the chief on different issues.
He put this on the plate, and I think it is important to put on the plate here. We talked about languages. He said that
three languages — Cree, Inuit and Ojibwa — are still strong languages, but there are 52 other languages in a precarious
Under a previous government, he said, we undertook a major study to carefully examine this issue and a task force
was put together. They were able to secure a commitment of $172 million over 10 years to enhance, preserve and
revitalize indigenous languages. However, Chief Fontaine said:
Unfortunately, we were informed by the current government that this commitment was, by the stroke of a pen,
to be deleted from the fiscal framework. Today, we are in an even more serious crisis than we were last year and
the year before when we were able to convince the government that something needed to be done on an urgent
He said to Senator Joyal that he is absolutely right that Canada will be less today if a single language disappears.
We heard the Prime Minister's apology, and that was the right thing. Then we heard so many people talk about the
follow-up and what has to be done. This is a concrete measure; and from my perspective, sitting on the Standing Senate
Committee on Human Rights, this is a human right.
Would you, with the stroke of a pen, minister, reverse that decision?
Mr. Strahl: It is not just a matter of a stroke of a pen, of course. It may well be a budgetary item of that size. Part of
this is funded through INAC, but there are other funds expended through Canadian Heritage as well that deal with
preservation of languages as a heritage issue. Not all of the funds come through my department for that.
However, I do not have the numbers either. I did not prepare for that for this meeting, but I can provide the
numbers to let you know what Canadian Heritage is spending as well, which is significant and ongoing. I do not have
those numbers with me, but I will get them for you.
Senator Munson: Minister, upon reflection, do you believe that federal monies should be used to save these
languages? We have spent hundreds of millions of dollars protecting our two official languages. I would like to hear
from you today whether, when you take a look at it from a human rights perspective, perhaps real money should be
put into saving these languages. Would you be prepared to revisit this?
Mr. Strahl: I am prepared to say the federal money should be and is being used to help preserve indigenous
languages, and that is a good thing. I will use an example in my own riding. One lady spoke to me about some of the
money that has been spent. She had a couple of significant grants to help put together a particular dialect in the
northern part of my riding and had done some very good work to get to a certain stage.
One of the problems was that there was not enough money. She mentioned what she felt were cutbacks on spending
on languages. What she really wanted was to publish a book. The problem was that publishing the book about the
language was fully 50 per cent of the entire amount of money that she felt was necessary for language preservation.
Many people in this business tell me that if your funds are limited — and they are always going to be limited
somewhat — publishing a book may be the last thing you need to do, and may even be unnecessary. With computers
and Internet sites and different ways to preserve the knowledge, publishing the book, if it is 50 per cent of the entire
budget, may not be the best use of the funds.
Yes, we should spend money and we do spend money. I will get you the details of that, but you have to spend it
wisely. There will always be budget pressures to make sure money is spent wisely. Any minister will tell you it is not a
matter of a stroke of a pen; it is a matter of fitting it in as one of many priorities, ensuring that money is spent most
effectively and on the priority areas.
Senator Munson: In closing, because other senators do have questions, I feel that what we heard last week with the
apology — and many people said it — is that what the residential schools did was take the Indian out of the child.
From my perspective, not only did it take the Indian out of the child, but also the language out of the child. When
you take the language out of the child, it moves to succeeding generations. They become a lost generation that has a
difficult time defending who they are inside their souls and hearts. I would like to put that on the record. As I said
before, minister, you did the right thing with the apology. It was long overdue and I believe that you can do the right
thing again in respect of languages.
Mr. Strahl: Thank you. Language is important but other elements are also important. When we signed the James
Bay Cree settlement, I was up in that territory. On the edge of town, they had put together an interpretive centre to
teach language, traditional medicines, how to survive a minus 40 Celsius winter with nothing but the clothes on your
back. They had programs for children and for the community at large. Elders were involved in everything from making
snowshoes to teaching how to tan a different type of reindeer hide. Not only has language been lost but also many
other things, in part due to residential schools and in part due to other factors. In my experience travelling the country,
when communities make that a priority, good things happen. People take pride in where they came from. They begin to
relearn the language and other aspects of culture, which are extremely important for individual self-esteem and the
good work that the community does as a whole. It is almost always beneficial so I want to agree with you about
language and take it one step further by including areas of culture.
Senator Oliver: Welcome minister, and thank you for your remarks. I would like to follow along the questions raised
by Senator Munson about language and customs. When Bill C-21 was first introduced in the House of Commons, it
did not have a non-derogation clause. The Canadian Bar Association and the Assembly of First Nations and others
said we should have something like that in the bill. After hearing evidence, the Commons committee put in their own
language. Then the government said it preferred its own language because it is consistent with what we is used in other
pieces of legislation and is the language most often used in selected federal legislation.
The House of Commons language referred to the kinds of things that you and Senator Munson were talking about
— language and customs. Their language said, ``to the repeal of section 67 and also provided more broadly for the non-
derogation from any rights or freedoms recognized under the customary laws or traditions of the First Nations
They talked about customary laws or traditions. When you look at C-21 as it is before us, it talks about:
. . . repeal of section 67 of the Canadian Human Rights Act shall not be construed so as to abrogate or derogate
from the protection provided for the existing aboriginal or treaty rights of the aboriginal peoples of Canada by
the recognition and affirmation of those rights in section 35 of the Constitution Act, 1982.
Nothing is said there about customary laws or traditions.
As you know, the Standing Senate Committee on Legal and Constitutional Affairs did a major study on non-
derogation of rights. One of its conclusions was that to bring consistency to all federal statutes, this should be put in
the Interpretation Act so that every Canadian statute that is interpreted can refer to the Interpretation Act. That has
not been done yet.
My main question is: Do you feel that the language in Bill C-21 under clause 1.1 is stronger than the language
suggested by the House of Commons, which referred to customary laws or traditions of the First Nations people?
Mr. Strahl: That was quite a point of debate as we dealt with the amendment brought in at the committee stage; and
we had concerns with it. Speaking first to the non-derogation clause that was passed by the House. It used similar
language to that found in the Indian Oil and Gas Act. It is not boilerplate but it is pretty much so, and is used in seven
or eight different acts. It is an attempt to reassure First Nations and Aboriginal people that their existing Aboriginal
rights in the Constitution will be respected and that this does not trump those rights. It provides that reassurance.
I am not a constitutional lawyer. I did, however, receive legal advice that because the Constitution is always there, it
will be interpreted with the Constitution in mind. It is not necessary on the one level because the Constitution is not
only the law of the land but it is also the lens through which any court would interpret any bills that we might pass.
That being said, it became clear that it added to the comfort level for First Nations to have it in there. In the end, it was
put in and we asked only that it be consistent with the other non-derogation clauses in other acts.
The problem that I foresaw with the concept of customary laws and traditions is that you would be asking courts to
interpret based on something quite local. For example, an individual band could argue that their customs were to do
something quite unusual by Canadian constitutional standards. They might say that it has always been their tradition
or custom to hire people based on their relationship to the chief. Perhaps so, but the whole purpose of this bill is to
make it Charter compliant while recognizing Aboriginal rights and title and things that are held done communally and
held in common. None of that is in dispute. However, the concern is what would result if you brought in the customary
laws and traditions of each of the 630 or 640 First Nations across the country. You could end up with a hodgepodge of
rights and freedoms that are not consistent. An individual First Nation might argue before the Human Rights
Commission or a court that ``this was our custom.'' It would not be just a tradition, because it would now be customary
law. That brings it to another level.
We agreed to add a non-derogation clause that is consistent with such clauses in other statutes. I will respond to the
committee's suggestion to put the non-derogation clause in the Interpretation Act. I am preparing a response that
should be ready for you shortly. There was such concern from First Nations and Aboriginal people that a non-
derogation clause go in this bill that I am not sure what would have happened if we had said that we would pull all
non-derogation clauses out of these acts and put them in an Interpretation Act. That might cause concern that we
would be weakening the bill.
I know how hard they fight to put these in particular bills. That being said, we ended up with one that is consistent
with the rest of the non-derogations clauses. That is the evolution to this stage.
Senator Oliver: If there were six or seven that had similar language, there were six or seven others that had different
language. The advantage of giving it something common would be that they would all be the same. Certainly, the
Supreme Court and other courts use the Interpretation Act as their base, and that would bring consistency.
Mr. Strahl: In my experience, sometimes those clauses are brought in because of the desires of a particular group. In
this case it is germane to the group affected, which is First Nations. A group says, ``We will not be satisfied unless you
put that in the act.'' Then you can say it is already covered. They will say, ``Do not give me that, I want to see it in this
That is what happened here. We did not feel it was necessary. Constitutional lawyers tell me that it will be
interpreted through that lens anyway. In the end, it brought a certain comfort level to see it in there to ensure that
someone can pick up this act — it is a short bill now — and read it. If you do not have the interpretive act hanging on
the corner of your desk, you can look at it and say notwithstanding all of that, this will be interpreted consistently with
Aboriginal rights and titles.
Senator Oliver: I appreciate that.
Senator Dallaire: Thank you for joining us, Minister, for this meeting of the Standing Senate Committee on Human
I am looking at the resource base exercise behind all this. We know that there has been a request for the three years
on the side of the Aboriginal communities and organizations because they are not sure how they will handle it. There is
an education process and an evolving information exercise on prevention and so on.
There seems to be, once again, a sort of passing-of-the-buck on the financial side of the house. We know that the
person putting in a complaint does not need a lawyer, but I would suspect it would be difficult to move without legal
counsel. There is no money in the system anymore because all that was crashed, and there does not seem to be any
money in this to support — as you have said — the poorest of the poor of the country to be able to use what has been
given to them.
Second, is your organization able to absorb this, whatever it is? Do you have the extra lawyers and the resources? Is
that in your funding line or will we absorb this with the rest of it and maybe — not to be nasty — not build another
school because we have to handle this?
The resource exercise seems to be passé, or ``we will sort it out in three years.'' I think the way it is presented it may
Mr. Strahl: I will admit there is some uncertainty as to how many cases may be brought forward. You will get some
people arguing that this will be tumultuous and it will turn the whole system on its head. Other chiefs and councils tell
me they already adhere to this and already run a clean ship and do not expect anything to happen, other than it will
apply more fully.
We also have some track record in that the self-governing First Nations in the country right now are already covered
under the Canadian Human Rights Act. They lose the exemption of section 67 when they become a self-governing
entity. They are already covered. We can already see what has happened. My observation is that when the section 67
exemption no longer applies to them, not a whole lot happens. It is not tumultuous. It is not chaos. It is quite orderly.
There have not been a huge number of cases.
That being said, we will have to see what resources are necessary. It was not been put into the bill because it is
uncertain what the up-take on it will be. That was partly why the bill includes a review; this ensures we can review that
with First Nations to see how it is going and whether they have sufficient resources.
Resources will be necessary for the Canadian Human Rights Commission to do an educational component and the
work they have in their Aboriginal initiative. You may want to talk to them about the resources they consider
necessary for that. They would be best able to gauge what that might be. Over all, my sense is we will have to examine
it as we go forward.
The government will do whatever it takes, and it will be covered immediately upon Royal Assent. The others will be
phased in. There is a three-year period before it starts to apply. We will have to monitor as we go forward to ensure
there are enough resources.
Senator Dallaire: You come from a department that has already been squeezed. It has no resources and we are
throwing this on. There is data out there. There could have been some provision made, a funding line could have been
established. Then you would have a warm fuzzy feeling that it is not yet another thing added on that we do not have
enough money for and will squeeze something else.
It is the same thing with the commission. You are sponsoring this bill. Now the Human Rights Commission has to
go screaming for money as well. Maybe that bill should have come with the resources. It is another exercise in trying to
sort it out by absorbing it and fiddling with it over the next number of years. In the meantime, other things will not be
covered. That is a significant deficiency.
In regards to the individual First Nations person — the poorest of the poor of the country — there is no provision to
assist them, should they need financial support to be able to bring this forward. I know it is not an issue for the rest of
the Canadian population but we have a particular scenario here. Was that ever introduced?
Mr. Strahl: To finish off, funding has been earmarked for the commission's education component and the
engagement process as First Nations get involved over this three-year gap between Royal Assent and when that goes
forward. There is some funding. They may identify early on that something more is required, and we will entertain that
and ensure it will work.
As far as the individuals, one of the beauties of the Canadian human rights system is that it is not restricted to
people who can afford a lawyer. You cannot right now, but in the future you will be able to bring a complaint, free of
charge for the applicant. The commission takes up your case or cause and pushes it through to conclusion.
It is not based on whether you have access to a high-priced lawyer or not. If it is a bona fide case and you bring it
and it is accepted, then away they go and look after that part of it.
Senator Dallaire: To the gentlemen from the Ministry of Justice. This thing did not come up yesterday, it has been a
long time in coming and moving.
What has been the process within the departments in getting this forward? Has this been pulled forward for political
reasons or have you moved it forward? Would it not be useful to have someone reviewing all human rights scenarios
that could move these things without having to depend on individual ministers from individual departments trying to
sort out a problem that comes into their department?
Mr. Strahl: It may be that officials would have difficulty answering the question in the sense that this was something
that was politically driven. It was a campaign promise from our party.
Senator Dallaire: I am going back to the fact that the provision has existed for many years. It was supposed to be
temporary. There is no minister that handles human rights. It depends on this minister or that minister. Would it not,
from the government official side of the House, be more useful if we had someone with overarching responsibility,
monitoring and moving this human rights dimension? As opposed to hoping an individual minister would pick up the
problems that hit them between the eyes?
Mr. Strahl: I do not know that it is entirely fair to the officials to ask whether we should change the ministerial
makeup of a government or not. My sense is that this is a glaring gap in the human rights application in Canada. It is
hard to identify other gaps when every other Canadian is covered. When this exemption goes away, we will have not
only common application, but the Canadian Human Rights Commission will be the body you describe that looks after,
reports on and advocates for human rights for every single Canadian.
With respect to the machinery of government, it is not fair to ask officials to see whether they think we need a
different or another minister in order to make it all work.
Senator Dallaire: Maybe we will ask you when there is no minister there.
Mr. Strahl: I will leave that with you.
Senator Di Nino: Welcome, Minister Strahl. It is nice to see you.
You made a comment during your speech that struck a chord with me. You talked about section 67, and I think I
can quote ou correctly by calling it legally sanctioned discrimination. Any attempt to repeal that section is welcomed,
appropriate and should have been done sooner and quicker, as Senator Dallaire has said.
Understanding the reality of a minority government and of the different stakeholders, I think I heard you say, not in
these words, that this is the best you could do at this time and let us go forth with it. Many of us are not happy with it
and do not like the 36-month transition period.
With that said, I would like to ask you a question on a touchy issue dealing with this, and it is the issue of
retroactivity. Many decisions have been taken under the Indian Act over the last number of years on issues such as
reserve land allotment, housing, et cetera.
Was any thought given to some retroactivity of this bill, or does it mean that those positions taken and dealt with
over the years, in effect, stand as they are, and the folks affected by this, particularly women, have no right to any
Mr. Strahl: To be fair, our initial bill originally had a six-month proposal. In other words, you will get notice of this
and we want fast action. The committee and other witnesses said there needed to be time. In all the collective wisdom
of the House of Commons, this is what we ended up with. It does end the exemption as of a certain moment in time,
which is a good thing. I am satisfied to bring it forward the way it has been put together.
To be fair, for those who say give me a chance to learn if I am practicing something discriminatory or I would like to
ask the commission's opinion; this is our hiring manual at our particular band council, would it pass muster? They
might say this and this and the other thing is out of line, and you will have to change it because that language will never
pass muster once that exemption is gone, or, I urge you to change your hiring practices in order for them to come in
I think most Canadians have no idea that this exemption exists. They think every Canadian is covered. In reality,
they are not. There needs to be an educational component in this. There needs to be education for citizens at large or
citizens that live on reserves, but also an educational component and help for First Nations that want to be in
compliance but perhaps never gave it a moment's thought.
I would say the sooner the better. I am sure that many First Nations bands will say I am not waiting 36 months. We
will get this done in a hurry, but at least there is an end date in sight. That is a great thing.
With respect to the retroactivity, I do not think there was consideration given to that, for that very reason. It would
be hard to say, for example, to a band and council, you never knew about this and this law never applied, but now we
will make it retroactive: you did something 10 years ago, we will take you to the cleaners and that guy will get a big
settlement. I do not think that would be fair. I do not think there was any consideration for that. My officials tell me
there was not.
Andrew Beynon, Acting Senior Assistant Deputy Minister, Policy and Strategic Direction, Indian and Northern Affairs
Canada: The only other thing I would add with respect to retroactivity is that it would potentially catch current First
Nations governments in respect of activities undertaken by their predecessors, people who were elected many years
Senator Di Nino: We just went through an incredible exercise last week that dealt with actions taken by many
governments many years ago, so that is a fair enough answer.
Let me ask you one very brief question: There is a consultation period between now and three years and then five
years, et cetera. Can you assure us that the Senate will play a role in it? We have an active and very effective committee
on Aboriginal affairs that I think would have an important role to play.
To the degree that you can, would you consider making sure that the Senate plays a role in these ongoing
consultations and eventually recommendations after the three- and five-year periods?
Mr. Strahl: I am always reluctant to give advice to the Senate on what business they might want to conduct, but I
am sure given the history of this committee, they will keep a close eye on it.
The bill itself talks about the fact that the review of certain subsections must be reported to both Houses of
Parliament within a prescribed period of time. You will get the reports and the reviews that take place as quickly as the
House of Commons, and that will allow you to review the work that has been done.
As I say, given the interest of this committee, my guess is there will be other monitoring that you may want to
initiate on your own. Certainly, within the bill itself, there is a requirement for us to report to you in the Senate at the
same time we do to the House.
Senator Di Nino: I appreciate that.
Is it appropriate to have the Senate involved in the consultations?
Mr. Strahl: Yes.
Senator Jaffer: Thank you, Minister Strahl, for appearing, and congratulations on the very good work you did last
week. You made all Canadians feel part of the reconciliation process, and I thank you for that.
As for the 36 months, I have a quick comment. When the Charter came into place, governments were given three
years, so why would we treat any other government differently?
With respect to Legal Aid, I understood from the way you responded to Senator Dallaire that there is at the moment
no provision made for an individual who requires Legal Aid. I know Legal Aid is not normally given to any other
claimant under the Canadian human rights, and I take it the same thing applies under this act. Will they not be
providing Legal Aid to claimants?
Mr. Strahl: No. They will be given the same rights as any other citizen. Normally, if a case is taken to the Canadian
Human Rights Commission and the commission says they will take it up, then the full weight of the commission is
thrown behind that.
It may be a question you might want to pose to the commission later on. I have no intention to set up a system
different for First Nations than for any other Canadian.
Senator Jaffer: I urge you to consider this. The Canadian Human Rights Commission can speak for itself but it has
a big load. When people come on board to a new process, sometimes they treat people equally but — you know this
better than anyone else — sometimes they do not treat people equally. During the review process, is there a way to
keep statistics of how many people asked for Legal Aid and the results therefrom?
My second question is what really concerns me, and that is in regard to the legal traditions and customary laws,
where it says the principle of gender equality will be taken into consideration. This is what preoccupies me. Will
specifying gender mean it will be taken that Parliament meant just gender and all of the other equality issues, like race
and national/ethnic origin, colour, religion and age are not to be taken into consideration, as well as all the others set
out in the Canadian Human Rights Act?
It may be taken by the decision makers that because Parliament just put gender equality, it does not apply to any of
the other discriminations when it comes to customary law.
Mr. Strahl: The full weight of the Canadian human rights code will apply. That was includes because a series of
high-profile cases have been brought forward, almost all of them by First Nations and Aboriginal women, concerning
their recognition as citizens on the reserve, the right to vote, the right to be full members of their community based on
their marital status and so on. There is quite a pattern there that is all based on gender. There is a significant concern
among Aboriginal women about how they did not want this interpreted. It was almost a reverse of your valid concern.
They were saying, ``Please assure me that no matter what else you are talking about you will not discriminate based on
gender. No one will interpret this to say that our custom is women are treated different and that is just the way it is.''
They wanted to ensure that was in there. There were quite a number of historic cases brought forward, and it was felt
to be important that we specifically name gender. The others are not excluded.
Mr. Hendry: I could add that with respect to clause 1.1 we are talking about a non-derogation clause. It specifies
Aboriginal treaty rights. As you know, they are constitutionally recognized in section 35 of the Constitution Act.
Section 35(4) does deal with the issue of gender equality. Clause 1.2, however, is somewhat different because it deals
with the Canadian Human Rights Act. The Supreme Court has said that it is more than the ordinary statute; in fact it
has referred to the act as quasi-constitutional.
In that sense, this clause 1.2 essentially echoes the interpretive provision of the Charter. We have section 15, which
deals with discrimination, and then you have section 28, which is an interpretive division dealing with sexual equality.
In a sense, you are echoing on the quasi-constitutional stage the same kind of protections you have in the
constitutional stage. You do not have that concern with the Charter, that section 28 means that there will be a definite
focus only on gender discrimination, but it is there as a supplement, just as it is in section 35(4), which deals specifically
with Aboriginal and treaty rights.
The Chair: I have a quick question to one of the officials, perhaps Mr. Hendry. Going back to clause 3, ``despite
section 1,'' ``notwithstanding section 1'' would have a pretty clear meaning for people. It is a clear intent to do
something in spite of section 1. Recognizing section 1, you still move to act in a certain way.
I read the use of the word ``despite'' to mean transitional, something different in this case. Despite section 1 — I will
not read all the rest of the grace period. It recognizes that it is a slight intrusion into section 1 for a transitory phase.
Am I correct that ``despite'' is probably not used in any other acts?
Mr. Hendry: We do not have legislative drafters here that could answer that question. It may be that it was a plain-
language approach. I believe this language was part of the addition of the committee. This is a transitional provision,
so it does carry the sense that you thought it did, so it obviously has communicated its meaning to you. Whether or not
the drafters have chosen ``despite section 1'' or ``notwithstanding,'' it probably means the same thing.
The Chair: Clearly, the emphasis is on the transitory period.
Mr. Hendry: Yes. It appears right under the heading transitional provisions, and it is meant to be simply that.
The Chair: Mr. Minister, I would like to thank your officials, both from the Department of Justice and Indian and
Northern Affairs Canada, for coming this evening and answering questions and putting forth your views on Bill C-21
and also acknowledging the work this committee has done in the past on section 67.
As other members of the committee have, I would thank you for the work you undertook in ensuring the apology
was placed in Parliament along with the acknowledgment that the Prime Minister undertook personally. Thank you
and your officials for that moment and for coming this evening.
Continuing our study of Bill C-21, An Act to Amend the Canadian Human Rights Act, our next panel is the
Canadian Human Rights Commission. We have before us Ms. Jennifer Lynch, the chief commissioner, along with
officials from the commission. We are trying to work expeditiously, but we are running late, and we apologize for that.
If you have a brief opening statement, I would encourage you to proceed, and then we will turn quickly to questions
and answers. Welcome.
Jennifer Lynch, Chief Commissioner, Canadian Human Rights Commission: Thank you very much. I can summarize
my presentation quickly.
We welcome the legislative change envisaged within Bill C-21. In fact, Senator Kinsella reminded me when he was
speaking earlier about the history of this that some six or eight weeks ago, I received a handwritten letter from the first
Chief Commissioner of the Canadian Human Rights Commission. I would like to read you the postscript, where Mr.
Fairweather said, ``The repeal of section 67 is long overdue. When the Justice Committee was considering the
Canadian Human Rights bill in 1976-77, the Justice Minister urged us not to drop section 67 because the government
had asked the Aboriginal peoples to give its suggestions for amending the Indian Act, and they should be given time to
do so. That was 31 years ago.''
The impacts of this denial have been felt by individuals and communities for decades, and they involve a host of
issues important to the basic concerns of daily life, such as Indian Act status, housing and education.
The CHRC position on section 67 has been comprehensively detailed in our October 2005 report A Matter of
Rights, and ur follow-up report Still A Matter of Rights released in January 2008.
A number of Aboriginal and other equality seeking organizations have supported repeal. Their input assisted the
crafting of amendments to the bill to enhance its meaning and effect for First Nations, which led to the unanimous
passage of the bill.
Today, I will share the commission's view on the bill. My first summary comment is that the commission can
support the bill as drafted.
With regard to clause 1.1, the non-derogation clause, it has been our view that a non-derogation clause was not
necessary in the repeal legislation. Rather, we encouraged the adoption of the recommendation of the Standing Senate
Committee on Legal and Constitutional Affairs to include a non-derogation clause in the Interpretation Act so as to
apply to all legislation. Having said this, we are not opposed to the inclusion of a non-derogation clause in this bill.
Clause 1.2, the interpretive clause, provides that in dealing with a complaint against a First Nation government, due
regard is to be given to First Nation's legal traditions and customary laws, particularly the balancing of individual
rights and interests against collective rights and interests, to the extent that they are consistent with the principle of
gender equality. We have called for an interpretive mechanism, and this section does accomplish that objective. In
short, we support clause 1.2 as drafted, and how it will be interpreted and applied to individual cases will be worked
out on a case-by-case basis in the coming years.
We support clause 2, the review and report after five years, and clause 3, the transition period
Clause 4, the resources study, is the area where I would like to make my most comprehensive comments. In our
view, clause 4 is critical. It represents a vast and vastly important undertaking.
Section 4 notes that the Government of Canada, together with the appropriate organizations representing the First
Nations Peoples of Canada, shall undertake a study to identify the extent of the preparation, capacity and social and
human resources that will be required in order for First Nations communities and organizations to comply with the
Canadian Human Rights Act.
The commission has always expressed that sufficient resources will be required — by the commission, by First
Nations, and by their representative organizations — to support the effective and meaningful extension of human
rights protection to First Nations communities.
We support as essential the legislative commitment on government to consider what capacity may be needed for
First Nations to comply with our act. The sufficiency of resources will define the success of implementation, and an
insufficiency of resources is its greatest risk.
As for how we implement, the commission will seek guidance from Aboriginal organizations to ensure that the
repeal of section 67 is brought about in a way that is relevant and accessible.
The values underpinning First Nations cultures support a fundamental respect for human rights, and many
communities have their own ways of ensuring that rights are protected. Indeed, we have much to learn from the rich
history of traditional methods of dispute resolution and decision making such as healing circles or systems of elder led
or assisted processes.
We believe that human rights issues can best be resolved in the communities where they occur, provided appropriate
processes, resources and capacity are in place to do so. Filing a formal complaint with the commission should be
resorted to only when other means of resolution have not succeeded, and this really does link to my comments around
an imperative for resources. There is some perception that our mandate is restricted to complaint processing, and we
do have a history of that. One of the key aspects of our implementation strategy is to work with First Nations to build
community-level redress systems and strengthen existing ones. As I mentioned in my June 7, 2007, submission to the
House of Commons Committee on Aboriginal Affairs and Northern Development, in modern conflict management
approaches, strong complaint processes are important yet should be a remedy of last resort. Our vision is for much
more than an internal complaints system. There is enormous potential here to develop a whole system that starts with a
dispute resolution structure and is supported by other processes and practices that will shift the emphasis towards the
front end prevention of discrimination and education.
The core principles to be developed should have as their goal the fostering of a culture that treats conflict resolution
as a building block to creating inclusive and productive communities and workplaces. In short, the building of this
culture takes time and resources, as well, developing our dispute resolution structure.
Human rights, in the final analysis, are universal. They apply to us not because of our particular nationality,
religion, colour or sex, but because we are all human beings. Repeal of section 67 is a crucial step. I thank you and look
forward to your questions.
The Chair: Thank you.
Senator Jaffer: Thank you very much for being here. It was good to hear Mr. Fairweather's message.
I am interested in the consultation process you mentioned. Does that mean that you would consider a process with
the rich tradition of resolving conflicts, for example, healing circles and other processes that already exist?
Ms. Lynch: We honour them, and I would consider it an imperative to maintain them and expand their use. We
avoid the language of consultation, which is a government responsibility. We work in collaboration. We have had
dozens of meetings with groups and organizations and we are working in close collaboration with key stakeholders.
We would encourage substantial dialogue systems within every community, and a complaint process as a last resort.
Senator Jaffer: You had said that you were not concerned about gender equality being included. I have a concern. I
do not know if you were in the room when I asked about this earlier. You talked about the non-derogation clause,
gender equality and the decision makers. Would they then take, for example, mental or physical disability, including
previous or present drug or alcohol dependencies, as not given the kind of backing that gender equality?
I understand there is a history and there are all kinds of challenges that women have faced, but I am concerned that
the other discriminations in the act may not be given the same consideration.
Ms. Lynch: You have my assurance that they will be.
Senator Jaffer: That is good enough. Thank you.
Senator Di Nino: Welcome, Madam Commissioner. I wish to follow up on Senator Jaffer's comments. One of the
more important components of this will be what happens in the transition period. The commission will have a key role
and certain powers and authority under the act. I understand that you have already begun to work on these issues and
I understand, as an example, that you have set up a national Aboriginal initiative headquartered in Winnipeg.
Could you let us know what your plans are to work with the Aboriginal communities and all the other stakeholders
in bringing this to a final conclusion three years from now, when, as the minister says, those legally sanctioned
discriminations will end?
Ms. Lynch: Absolutely. To begin with, I define ``stakeholder'' as he or she who must not be surprised. Statistically,
we are informed that we have something in the neighbourhood of 600 communities and 500,000 people.
Senator Di Nino: Good luck. You need the three years.
Ms. Lynch: Yes. This is a matter of process design. That is, how do we engage those people who care about what we
will do in giving us the best information possible? How do we engage them in dialogue so that they help us to build the
system that will apply to them?
We have had some preliminary meetings, engaging key stakeholders in developing a business plan and looking
ahead at some kind of strategic process. That is, how will we engage each other in the dialogue? We are working on
process right now.
The Aboriginal initiative, as soon as we have funding — and we have had zero funding — will become a permanent
program, at which point we will be able to launch even more activities than we have right now.
I neglected to introduce my colleagues. I must apologize for that. Linda Dabros is the Director General of our
Knowledge Centre, where our Aboriginal initiative is housed. Commissioner Yvonne Boyer is a recently appointed
commissioner with a particular interest in this portfolio and dynamic expertise in it. Ian Fine is our Director General
and Senior General Counsel for dispute resolution. With Ms. Dabros, you have the policy and development of the
Aboriginal initiative; with Mr. Fine, you have the development of that dispute resolution structure, the complaint
process. I would invite either to contribute further information if you would like more on what we will do, or have I
answered your question?
Senator Di Nino: It was just to put it on record and the fact that you have started and you are going through a
process. Hopefully, it will be totally complete in three years.
Ms. Lynch: Would you like more specific information?
Senator Di Nino: You may send us something in writing.
Ms. Lynch: I would be happy to do so.
Senator Munson: I have a couple of quick questions. You just mentioned, commissioner, that you have zero funding.
Do you have any idea what you do need? Would you need more personnel to deal with it? What is your expectation?
Do you expect a flood of complaints? I know you talked about the last resolution, but I think things will move fast
enough over a 36-month period.
Ms. Lynch: Yes, we do know what we need on a start-up basis.
Senator Munson: How much is that?
Ms. Lynch: It totals just over $5 million over three years. It includes an education component, and $1.7 million per
year in ongoing funding. We will have to hire people. When I say ``zero money,'' that means our application for
funding was held back until the bill goes through. We have had zero funding.
In terms of FTEs, we will add a few. We then need to look at our aid-based resource funding. That envelope of
funds would be sunsetted after three years, but our activity will not be sunsetted.
Senator Munson: Do you have a backlog now of dealing with complaints?
Ms. Lynch: We do not know what the volume of complaints will be. I expect that there will be some highly complex
cases brought forward that may address issues, almost what you would call class actions; that is, a case or a group of
people coming forward on a big issue to test it. One complaint will not necessarily equal the same volume or
complexity of work that we would have in a normal complaint.
We do not have a backlog. The commission had one in the late 1990s. We had 1,500 cases with an average life of 25
months in the system. When we closed our year-end December 31, 2007, we had some 600 complaints in the system,
and the average age was about nine months. We do not have a backlog. However, we cannot gauge whether the
floodgates will open or not.
Senator Munson: I am sure it is all there, because it was there before. What kind of sanctions do you have? If there is
a major complaint that comes to you, a class action or whatever it may be called, and you come up with a statement or
a judgment, is it shame? Is it more than that? Could you give me an idea what could happen in the Aboriginal
community if a complaint is received and successfully presented to your commission and you come up with a decision?
Ms. Lynch: Thank you for giving me an opportunity to clarify that. In that part of our mandate, the complaint
processing part, we are more of a screening body. We receive formal complaints. We try to work at the front-end with
dialogue and mediation. If this does not work or it is not utilized, we would then determine whether the complaint
should be dismissed or forwarded to the tribunal. There is a separate independent agency, the Canadian Human Rights
Tribunal that actually holds the hearings. It gets its work from us. They can provide various remedies.
Mr. Fine will give you the list of them. Essentially, when we can mediate a case, we will look to that list, of course.
Ian Fine, Director General and Senior General Counsel, Canadian Human Rights Commission: There are certain
remedies provided for under the Canadian Human Rights Act. There is a remedy for general damages. There is almost
a punitive remedy for wilful and reckless behaviour. The damages are limited. I believe they are $20,000 under each
head. Of course, in a class action scenario, it would depend on the number of victims of the discrimination, if the
discrimination were found to have taken place.
Policy remedies can be issued by the tribunal. It is commonplace that the tribunal will order a respondent to develop
a policy in concert with the Canadian Human Rights Commission in many cases, on a particular issue such as
harassment or the accommodation of individuals with a disability. The remedies are broad — in essence, anything to
remedy the discrimination.
Senator Dallaire: You have regional offices across the country. We are talking about persons with a different
cultural background, languages and in isolation. The problems could be unique, as they are not mainstream, southern
Canadian. Do you have a means by which you will educate your people on how to handle that? Will you put regional
offices on reserves? Is there a training plan? My concern, more specifically, is that your department is very tightly
funded. You have not got a penny yet. We have three years. Can you build the capacity to handle these complex
problems in that time without a penny?
Ms. Lynch: Without a penny we cannot, but we expect to be funded. I appreciate your making this point with
employment equity, as well as alluding to it earlier today. What suffers when a new activity is taken on by the
Canadian Human Rights Commission without additional funding? We are conscious of our legislative mandate, and
we do our best to fulfill it, but something has to give. If we have no funding and I tell you here that we can meet this
mandate, it will mean we will have to do a lesser job on another mandate that is equally important to us and is
legislated. It is very hard for us.
Senator Dallaire: You need to train people and build up a capacity. That brings us to the point of whether we want
to raise an observation to this bill in regard to the funding exercise and coming forward with that capacity. The
department run by Minister Strahl, who has already been harassed, has a few bucks. You have no flexibility
whatsoever. There should have been a provision in there. We may want to come back to that.
The minister also responded to this, but you are the person who receives the complaint. If I am an Aboriginal
woman who has been living with absolutely no rights on a reserve God knows where in this country, and you do not
have to go far to be isolated. If I want to bring forward a complaint, without any outside help or methodologies, would
I even get to first base? In all honesty, I would be concerned about trying to write it up. I must say I did it for my sister-
in-law, and we took a long time to write up a complaint, and we went through many hoops. Should there not be a
provision of support in there?
Ms. Lynch: That is a fair comment. Let us not lose sight of the fact that there are many organizations, including
some key Aboriginal organizations, that do try to provide support for potential complainants. For example, the Native
Women's Association would try to provide that support, but for them to do it, they also need resources.
Senator Dallaire: That is it.
Ms. Lynch: We are an impartial body. We represent neither the complainant nor the respondent. Our practice is not
to help complainants develop their complaints, but to provide them with templates and with as much guidance as we
can, if you understand the distinction, because we need to maintain our impartiality. You have hit the nail on the head.
Senator Dallaire: Therefore these people have to depend on NGOs and not on any government structure whatsoever
to be able to get to first base in regards to a complaint.
Ms. Lynch: Right. We try to be innovative. We are very open-minded. If there is a way to receive a complaint, if we
can develop an innovation that applies equally to all, we certainly would do it.
Senator Oliver: I am prepared to make you very happy, Madam Chair. I had many questions, but you are out of
time already. I will pass and not ask one question.
The Chair: I am not sure whether I am that threatening or you are that accommodating. I will lean on the side of
your accommodation for the committee.
Ms. Lynch, I thank you for coming and putting your point of view forward. We have had the benefit of
commissioners in the past encourage us to see the deletion of section 67. We thank you for pointing out what you will
do in the future to assist with this transition.
Honourable senators, we now have before us Patrick Brazeau, National Chief, Congress of Aboriginal Peoples; and
Ellen Gabriel, President, Quebec Native Women Inc., Native Women's Association of Canada.
Welcome to you both. I understand, Mr. Brazeau, you will go first.
Patrick Brazeau, National Chief, Congress of Aboriginal Peoples: Thank you, honourable senators, for the
Honourable senators, thank you for allowing me to speak to you on Bill C-21.
On some level, I am offended that I need to speak to the question of whether the Canadian Human Rights Act
should apply fully to Canada's First Nations citizens who live both on- and off-reserve. However, given the importance
of this issue, I must speak for those who cannot, or who are afraid to speak for themselves.
In 2007, the United Nations passed a declaration on the rights of indigenous peoples. Sadly, Canada was not a
signatory to this important document. However, the declaration provides guidance on Bill C-21. Article 1 states that
indigenous peoples have the right to the full enjoyment as a collective or as individuals of all human rights and
fundamental freedoms recognized in the charter of the United Nations, the Universal Declaration of Human Rights,
and international human rights law.
Article 2 provides further clarification that indigenous peoples have the right to be free from any form of
Canada's Indian Act represents state sanctioned and administered systemic discrimination. Its registration
provisions create a hierarchy of Aboriginality and a subsequent system of entitlement or disentitlement that is
discriminatory. We are 6.1s and 6.2s, Bill C-31, status or non-status. The only thing worse than being in this system is
being excluded from it entirely, such as is the case for non-status Indians and Metis peoples.
In 1977, the Government of Canada passed the Canadian Human Rights Act to provide all Canadians with an
opportunity to seek redress when federal institutions were discriminating against them. That law applies right now,
today, to Indian Act bands.
This is an important nuance that must be stated because there is enormous misinformation on this point. Many
band councils do not believe they have human rights obligations to their own people.
I want to quote a Grand Chief that represents almost half of the First Nations reserves in Manitoba. The Grand
MKO does not accept that the Canadian Human Rights Act should apply to a review of the acts and decisions of
the First Nations governments, our officials or our employees. MKO also rejects the principle that the Canadian
Human Rights Commission or the Canadian Human Rights Tribunal should have jurisdiction over the actions
and decisions of the elected leadership of First Nations governments.
The National Chief of the Assembly of First Nations stated in the red chamber last week in the presence of
honourable members and senators that First Nations support Bill C-21 and the application of the Canadian Human
Rights Act to Canada's Indian reserves. Clearly, it is not the case that chiefs across Canada are prepared to embrace
human rights for their own people. Let us face it; some chiefs themselves are the perpetrators of the discrimination that
is experienced by First Nations citizens.
Because section 67 has only shielded the Indian Act and not Indian Act bands, we have some knowledge of what
discrimination on Canada's Indian reserves looks like.
I have attached five tribunal case summaries for your information. These cases demonstrate discrimination beyond
a shadow of a doubt by band councils who seek to deny employment, permits, housing, education and welfare to
reserve residents because they are not, in the band's opinion, the right kind of Indian.
I travelled across the country last fall talking to off-reserve band members, and I can tell you that one of the
recurring themes is that people live off-reserve precisely because they have no hope of fairness or justice in their own
I bring these cases to the attention of the committee, not to denigrate the on-reserve leadership, but to demonstrate
that the poison which flows from the Indian Act affects us all — on-reserve and off-reserve.
The Indian Act destroys the dignity of individuals and, ultimately, weakens the collective. I understand that band
councils are administering policies and programs as prescribed by a department that refuses to accept the fullness of its
responsibility for Aboriginal people. I accept that sometimes band councils are the agents of discrimination for a
broader system that has permitted, tolerated and promoted this sort of conduct.
It has to stop. If we want to restore justice and dignity to Canada's First Nations peoples, we have to begin to
question all of the racist assumptions that are built into the Indian Act. We must do so diligently, transparently and
with the conviction that the only way our nations will survive is when each of us can thrive within our own
It is time for everyone to accept their responsibilities and their duty to ensure that the human dignity of Canada's
First Nations citizens is respected, restored, protected and, when necessary, enforced by human rights legislation.
Honourable senators, your duty is to complete the work that needs to be done on Bill C-21. As leaders, we have
important work that will follow from this piece of legislation. The reality today is that Inuit and Metis people enjoy full
access to Canadian human rights. It is time for us to move beyond partisan politics on the issue of human rights and
bring justice to me, my children and the hundreds of thousands of First Nations peoples across Canada who are still
being denied their basic fundamental human rights.
Let us get on with it; let us make it right; and, let us restore the pride in the hearts of the Canada's First Nations
people by according us the same rights that every other Canadian citizen enjoys in this country today.
The Chair: Thank you, Mr. Brazeau. We will now turn to Ms. Gabriel.
Ellen Gabriel, President, Quebec Native Women Inc., Native Women's Association of Canada:
[Editor's Note: The witness spoke in her native language]
Greetings, I am from the community of Kanehsatà:ke and I am turtle clan. Today, I am representing the Native
Women's Association of Canada, of which Quebec Native Women is part. The Native Women's Association of
Canada is a nationally representative political organization, comprised of 11 provincial, territorial member
NWAC engages in national strategies aimed at legislative and policy reforms with the aim of ensuring that the
unique needs of Aboriginal women are addressed by facilitating their participation in legislative and policy reforms.
This promotes equal opportunity and ensures that the use of culturally relevant, gender-based approaches result in a
more balanced, holistic approach to the issues under consideration.
NWAC has supported and continues to support a repeal of section 67 of the Canadian Human Rights Act,
contingent upon such repeal being supported by several key factors.
These are: first, there must be an appropriate and adequate implementation plan in place before repeal occurs; the
plan must contain clear time frames, identifying principles, criteria and standards, include definitions and roles and
responsibilities for all actors in the process; and the plan should specify how the unique needs of individuals who speak
an Aboriginal language or who live in a rural or remote area will be met. There should also be means identified by
which those First Nations who are currently using the alternative dispute resolution or other traditional or customary
criteria or approaches to dispute resolution to manage human rights complaints are facilitated to retain these
approaches and engage them prior to individuals entering the formal Canadian human rights complaint process.
Secondly, there must be adequate funding resources and capacity in place to respond prior to the repeal taking
effect. Resources will be necessary before and after the repeal, including means of providing redress for complaints.
Resources will also be needed to evaluate the implementation plan, analyze outcomes and identify best practices or
concerns both during implementation and after repeal takes effect.
NWAC has concerns about section 6 of the Indian Act, the impacts of Bill C-31 regarding status, programs and
services within the community, child welfare service, detention facilities, housing and housing allocations, the need to
protect complainants from retaliation and the lack of funding to deal with repeal and readiness. The passage of
legislation raises expectations, but without non-legislative supports, appropriate planning, resource capacity and
funding, we believe that Aboriginal women will find that there are no real improvements in their circumstances. We
also are concerned about how the interpretive guidelines will be established, and we believe that individual equality
rights and collective rights to customary laws can be realized in an integrated manner that recognizes their
There is a need for recognition of indigenous legal systems, treaty rights and customary laws and traditions that
carefully balances individual and collective rights to maximize the positive impact of repeal legislation and
concomitant policy and program solutions in our communities.
We believe it is possible that the negative impacts of a poorly planned or funded repeal process will
disproportionately affect Aboriginal women. A culturally-relative gender-based analysis must be explored within
any guidelines issued by the Canadian Human Rights Commission. The importance of communications and education
so that individuals know what their rights are, what has changed with the repeal of section 67 and what the complaint
process consists of, is critical to the repeal. We are concerned with the lack of information available about the measures
associated with planning and analysis underlying the response to the repeal. The lack of information from Indian and
Northern Affairs is exacerbating our concerns.
Resulting questions include: What is the definition of equality that the Canadian Human Rights Commission
proposes to use when responding to complaints? What will be the impact of this definition where there are both
individual and collective rights to be considered and balanced? How will intersectionality analysis involving cases
brought forward by Aboriginal women be conducted? How will findings be applied to the repeal? How is the work of
the commission linked to recognition of Aboriginal legal traditions, traditional or cultural practices? What data and
analysis can the Canadian Human Rights Commission provide that will enable planning to proceed based on
knowledge gathered about complaints by Aboriginal respondents in the past?
NWAC has consistently urged that all policy and program changes must respect distinct cultures, traditions and
languages of Aboriginal peoples. These traditions include equal respect for women. It is not enough to consider or
analyze the implications of policy decisions on Aboriginal women. We must include the voices of Aboriginal women
and their representatives in these processes as we move forward.
NWAC believes there is no point in the repeal of section 67 if no one can avail themselves of the protection of this
legislation. We welcome the opportunity such as this to work towards an effective repeal of section 67 and a new
approach to responding to human rights complaints that effectively recognizes Aboriginal legal traditions and
There is one more question that I would like to ask. How will this be applied to the discrimination under the Indian
Act by the federal government? Band councils are implementing policies by the Department of Indian Affairs and
Northern Development. Is this also applicable to the Minister of Indian Affairs and Northern Development himself?
Thank you very much. I am available for questions.
The Chair: Thank you.
Senator Munson: I will pose two questions to both of you, first to National Chief Brazeau. You had reservations
about the extension of this 36-month grace period. I would like you to address that.
You also had some pretty tough language dealing with those who live on reserve. You seem to leave the impression
that it is almost impossible for people who live on reserve to bring their cases forward and get them as far as the
Canadian Human Rights Commission.
Ms. Gabriel, something you can think about as Mr. Brazeau answers: You have asked more questions, the way that
we ask questions. As it stands now, do you want this bill stopped?
Mr. Brazeau: First and foremost, when we appeared before the Standing Committee on Aboriginal Affairs in the
House of Commons, we proposed to have an implementation period of 18 months because the Supreme Court's 1999
Corbière decision, which had to do with off-reserve voting rights, we believed had set a precedent in terms of
implementation. I think that the longer period that we have to implement the repeal of section 67 is just a further denial
and a further delay in affording First Nations citizens human rights. Having said that, having something is better than
the status quo.
Senator Munson: You mentioned the language. You said that these cases demonstrate discrimination beyond a
shadow of a doubt, by band councils who seek to deny employment, permits, housing, education and welfare because
they are not, in the band's opinion, the right kind of Indian.
I know you have differences with Chief Fontaine over various issues, but I saw this collaborative approach
happening with the apology. You are making serious statements about what actually happens on reserves.
Mr. Brazeau: The Congress took the leadership last fall to start a campaign to repeal section 67. We had the
opportunity to meet with grassroots First Nations citizens all across this country. They shared with me the experiences
they have gone through with respect to the discrimination that they feel they have faced based on some of the decisions
made by chiefs and councils across Canada.
They deal with not being able to access certain services, in terms of housing and education, sometimes because of the
very fact that these individuals have chosen as individuals to live off reserve. This is part of a larger report that will be
coming out in the weeks to come. This is taken specifically from grassroots people, and these are the peoples for whom
Senator Munson: We will hear from the Assembly of First Nations on whether they believe the Canadian Human
Rights Commission, if this bill is passed, can deal with the issues that you talked about.
You asked a lot of questions, Ms. Gabriel, and the clock is ticking on this bill. Are you telling us that you would like
us to further amend this bill or would you like it stopped? Do you have observations?
Ms. Gabriel: There are problems with this legislation as it stands, as well as the lack of funding and the fact that our
communities have lived in a human rights void. We have had the Indian Act applied to us since the late 1800s.
I will take my hat off of as president of Quebec Native Women because I agree and my members agree that this is an
important part. I am a citizen of the Iroquois Confederacy. We have our own constitution and human rights processes.
In 1924, when Canada outlawed the Iroquois Confederacy, they undermined the traditional governments, so we are
now in a state where the Indian Act is what applies.
I have a dilemma. I believe we do need to have some human rights mechanisms for our community members,
specifically addressing some of the problems that Mr. Brazeau has addressed. However, I choose to live in my
community because that is where my ancestors come from and because I am a stubborn-headed Mohawk woman.
I have questions. Does that mean we can also take the Department of Indian Affairs to task on their human rights
abuses? Will the Mohawk people be able to take the Government of Canada to task as well for the human rights abuses
we suffered in 1990, with which Senator Dallaire is familiar?
These are the questions I have. Is the government ready to tackle those issues with the existing legislation? Does it
know there will be repercussions upon itself at the same time? We would like to have an Aboriginal constitution and we
would like it to be based upon human rights legislation, based on human rights the way the rest of the world has done.
It is difficult for me to say yes or no.
Senator Jaffer: Thank you very much to both of you for being here. We have such little time and so many questions.
This afternoon, we have asked the minister about the issue of resources. As far as we know, resources have not been
set aside. Both of you are very experienced and it would be helpful for us to know what kind of resources you think
need to be in place to assist people in bringing complaints forward.
Mr. Brazeau: Thank you for your question, senator. Last fall, in conjunction with the campaign that we started to
repeal section 67 — you heard from the Chief Commissioner of the Canadian Human Rights Commission talk about
this — we had recommended that all stakeholders, in conjunction with the commission and the Department of Indian
Affairs and Northern Development and Department of Justice officials, get together to start discussing a plan for the
implementation period. That would and did include discussions with respect to resources.
We finally had that initial meeting last Monday. All the stakeholders got together and we had a good discussion
about how this implementation period would take shape. The bill has not received Royal Assent, and unless I am
mistaken, resources are not usually included in a piece of legislation. That comes after. I think there is general
consensus amongst all stakeholders that adequate resources need to be put into the system — in terms of the
commission, in terms of organizations — in order to build capacity to ensure that we are capable, ready and that we
have the expertise to be able to manage any potential complaints that might come after the repeal of section 67.
Ms. Gabriel: I would like to see an ombudsperson for each region to help communities deal with alternative dispute
resolutions. As I mentioned, we had the Indian Act so some communities do not have that process in place. There
needs to be training for people within the communities so that we are not always dependent on the Canadian Human
Rights Commission to settle complaints.
One of the things the minister alluded to earlier is that this affects everything. This affects everything within the
Indian Act that has held and oppressed us for so long, membership and land claims, for instance. Will this have any
impact on land claims?
There are many things we need to look at and research. We need to discover what the future impacts will be because
we also need to protect our rights from Canadian legislation. I do not mean to be disrespectful about that. We have
had so many things placed upon us without consultation.
As I said, I firmly believe in human rights. However, we need to look at what kind of impact it will have on our
communities. As indigenous people — not the ones who came over the Bering Strait, but as indigenous people — we
have rights to our land. Will this affect that?
We have many questions and, because there has been no consultation, we do not know what the answer will be.
There are a lot of resources that need to exist. I think the Canadian Human Rights Commission alluded to some of
Senator Jaffer: Chief Commissioner Lynch talked about resolving conflicts; taking into account the traditional ways
of resolving conflicts. Both of you have some challenges and I would like to hear from both of you as to how you feel
about resolving conflicts with the rich tradition that exists in the Aboriginal cultures.
Mr. Brazeau: That is very important for all of our peoples. However, when the implementation period starts, an
exercise will need to take place to highlight the best practices so that we can share some of the dispute mechanisms that
exist across Canada and bring success stories to the table.
Collectively, we all need to deal with that. We have already started talking about that among stakeholders and with
the commission as well.
Ms. Gabriel: I believe the traditional forms of that exist. When someone does have a problem with you, you are not
alone; there is an elder or someone to support you; to be able to acknowledge if you have done wrong to someone. As I
said, the Indian Act, the residential schools and everything has made our lives topsy-turvy from our identity to our
I think these traditional forms are gentler. If you have elders or people who are trained in their traditions, they can
help resolve some of these in an honest, gentle and good way with a good mind, instead of pointing a finger. You do
not dislike the person; you dislike the actions of that person. That is something that has been lacking because the
Indian Act has been imposed upon us. It is policies and not based upon human rights.
Senator Di Nino: I want to follow up on the first question that was asked by Senator Munson. This is a piece of
legislation that has gone through some interesting times in the other place. There have been many amendments and
many amendments to the amendments. It has been long in coming. There have been a number of other attempts to
repeal section 67.
It seems to be suggested here that we start the process of repealing section 67 through a transition period of three
years and then do a full review after five years. That should satisfy both of your concerns, it seems to me. I wanted to
focus a little more on that question.
We are tasked with dealing with this legislation, and we are here listening to you and others to receive your input. I
did not get a very clear answer from either one of you when Senator Munson said: Do you believe that we should pass
this legislation as that first step towards the process of the elimination of section 67, and would the transition period,
during which time all of you — as you have participated in the past — will continue to participate to ensure that the
transition respects the traditions that Ms. Gabriel is talking about and the concerns that Chief Brazeau has?
What is your answer?
Mr. Brazeau: The answer is an outright ``yes.'' The legislation should pass.
However, having said that, it is true that the bill went through its challenges in the other place, as you characterize it.
One of the problems was that many of the witnesses who did appear were mostly institutions as opposed to individuals
who have suffered the consequences of discrimination in or outside of their communities. Perhaps if more individuals
had appeared as witnesses, the transition period would not have been as long.
On the one hand, you have a transition period of three years, which is basically saying, ``It is still okay to
discriminate for another three years.'' However, at least it sets the process in motion for us to finally have the same
human rights as other Canadians in this country.
As I said earlier, having something and having that process is better than the status quo, which is why we support
the immediate passage of this bill.
Ms. Gabriel: I would agree with Mr. Brazeau, given the void of human rights that we presently have.
I would still have to say ``no'' only because, when we are talking about nation to nation — and the Prime Minister
mentioned it, and I have heard it from many ministers — you do not tell the United States what their human rights
code will be. However, you are telling indigenous nations what their human rights code should be.
I have explained to you why we are in the state we are and that I would have to sacrifice some of my principles and
beliefs to say, ``I would support this.''
I think it is a great idea for lack of any kind of other protection for individual rights. I would say ``yes.'' I am not
giving a clear answer, but this is my perspective, because I am in a dilemma. I, too, have been discriminated against and
I have no mechanism to fall back on.
This is the clearest picture I can give you. Would you tell the United States: We are passing legislation on your
behalf because you happen to be within this space known as Canada?
What we need are more treaties to be made, and within that treaty-making process, that it also include human
rights, that it be based upon human rights and gender equality. Gender equality is equality for both men and women.
Gender does not necessarily mean it is only about women. It also includes men and those young boys and girls and
how they will grow up.
I know the Native Women's Association of Canada has many questions for you. The association that I represent
from Quebec also has many questions. I know the chiefs from Quebec and Labrador do not support this bill.
That is the dilemma I am in. I want to be able to go somewhere and say ``help,'' for lack of a better term. I think this
legislation has good intentions. With the good will, I would accept it partially. However, my citizenship rests with the
Senator Dallaire: Ms. Gabriel, on the one hand, you argued that within your nation, you have a process of human
rights, that exists and that it can and should be satisfying, within your cultural, traditional, legal body, the needs of all
its membership. You suggest this legislation now opens up a Pandora's box in that regard inasmuch as someone would
want to go outside of your nation and use this system as a last recourse. One would think people would want to sort it
out internally and if it does not work, maybe, in extremis, they would go to the commission and work through the
Am I erroneous in thinking that is how it should be working, or are you saying that this is now a process that
ultimately will be used principally and that your own internal methods of conflict resolution and so on will not
function anymore because this now exists?
Ms. Gabriel: No, I think they will continue to exist. With assimilation policies, some of our people have been made
disrespectful toward our own traditions. They do not rely on the confederacy or have any respect for the ceremonies
and things like that.
It is something that I have wrestled with myself — what would be the best solution for this? For me, I see this
legislation used to make some complaints against the Department of Indian Affairs. That is where my true complaint is
and that is what I would use this for. If you are going to call me a Canadian citizen without my permission — and
because you call me a Canadian citizen, I have a right to use this legislation — then I would use this legislation against
the people who have oppressed us for so long and who have a blatant disregard for our traditional customs or political
Senator Dallaire: Unless I am mistaken, I do not see anything in the legislation that prevents you from doing that. It
is not the government setting itself up to be bushwhacked around another process. On the contrary, it is quite
conscious of the fact that human rights go both ways, if I can use the expression. I do not see a problem with that. That
is fine for the individual.
This brings me to the point: if a member of your nation decides to go this route, will your nation discriminate
against that person? Will the person suffer the stigma of going outside? Will there be pressures for that person not to
use this system?
Ms. Gabriel: I do not think we have had time to discuss this among ourselves. As a policy, yes, it would be in a sense
stepping outside that circle. However, as far as I am concerned, there is not a single person I know alive who has not
stepped outside that circle.
I would tend to support anyone who would want to use this, whether they believe they are part of the confederacy or
believe they are part of the band council system. I would tend to agree. As I have said, we have lived in a vacuum. I
have not had any of the human rights complaints answered that I made during the crisis in 1990.
I look forward to using this. I would be sacrificing some principles, but I would like to test it out myself. I am a
person who likes to explore things. I might sound like a hypocrite in this regard, but I want to be able to have that
chance to address the people who have oppressed us for so long.
We have problems within — and Mr. Brazeau is right — but I think a lot of it has been created from the outside.
For example, those kinds of discriminatory practices where fraud can be committed by a band council, but the
Department of Indian Affairs will not prosecute the band council because it is another part of the Department of
Senator Dallaire: Were you a witness in front of the committee of the House of Commons, when they were going
Ms. Gabriel: Yes, I was.
Senator Dallaire: All those significant points you raised were raised then?
Ms. Gabriel: Not as in much detail as tonight. I am, in a sense, a politician to represent members who would use this
The Chair: I thank both of our witnesses for coming today and expressing the issues in a practical way. There is
much optimism as to how this can be used if it is put in place properly. There are some concerns about how it might be
used and whether it will, in the end, be as helpful.
We are struggling with some of the same issues. However, the Human Rights Act has been with us for over 30 years.
We have been aware of it. We have been looking at section 67 for a long time. Perhaps the way out of that conundrum
— especially considering how you feel, Ms. Gabriel — would be to start testing how it will be implemented and ensure
that there is a consultation process and a support process for a proper implementation.
I thank you both, Chief Brazeau and Ms. Gabriel, for coming and expressing your views here in such an open and
Honourable senators, in this panel, we are pleased to have before us here at the committee, from the Assembly of
First Nations, Regional Chief Angus Toulouse; and Mr. Daniel Wilson, Strategic Policy Planning and Law. I
understand, Chief Toulouse, that you will be making the presentation.
The second participant on this panel will be Lisa Shaver, Chief, the AFN's Women's Council. You will also be
having an opening statement. If we can have the brief opening statements, we will then have more time to have an
exchange of questions and answers.
Welcome. Chief Toulouse, the floors is yours.
Angus Toulouse, Regional Chief, Assembly of First Nations:
[Editor's Note: Chief Toulouse spoke in his native language]
I wanted to introduce myself in my traditional name. My traditional spirit name is Talking Crow. I am from
Sagamok Anishnawbek of the crane clan.
On behalf of the Assembly of First Nations, I would like to thank the chair and the committee for the opportunity
to appear today concerning Bill C-21, An Act to Amend the Canadian Human Rights Act. At the outset, I would like
to make some general comments concerning how Bill C-21 was developed and the debates that have ensued.
The Assembly of First Nations has been consistent in its strong support for human rights for First Nations, and we
continue to protect and promote the rights of our citizens and our nations in all of our interventions in this regard. We
object to the perception that some have attempted to engender that our interventions concerning this bill are in any
way an indication of a less than fully vigorous defence of those rights. We object to the notion supported by some that
any attempt to defend the collective rights of our communities is an assault on the human rights of individuals. Our
governments have balanced these rights and interests for thousands of years. We believe that it is not only possible to
do so still but that both First Nations and the Government of Canada are legally obliged to do so.
The inherent Aboriginal and treaty rights of First Nations recognized in section 35 of the Constitution of Canada,
the rights identified in the United Nations Declaration on the Rights of Indigenous Peoples, and decisions of the
Supreme Court of Canada all affirm the need for consultation regarding any legislative initiative affecting First
The Assembly of First Nations remains opposed to any bill without that fundamental duty being met. We have
spoken publicly in this regard. We have made presentations to the House of Commons Standing Committee on
Aboriginal Affairs and Northern Development and we have worked to ensure that Bill C-21 reflects the best possible
legislation within this context.
Despite the failure of the federal government to meet its duty to First Nations, we were committed to at least
preventing additional harm being done in the implementation of the legislation. It was in that spirit that we proposed a
set of amendments to earlier drafts of Bill C-21 and its predecessor, Bill C-44.
Our intention has been and continues to be to make the best of a bad situation, to make a bad bill better. Accepting
that this bill will likely pass without the government having met its duty to consult, we have made every effort to ensure
that the final draft of the bill would enable effective and efficient implementation.
It is unfortunate that successive governments did not choose to address the need to prepare for implementation of
the Human Rights Act, for the past 30 years. That is highly regrettable. We have sought, through proposed
amendments, to ensure those preparations can still be made before it is implemented. We have also sought, through
our proposed amendments, to ensure that the unique position of First Nations within Canada is respected. A bill that
achieves any less would simply trample one set of rights in favour of another, smaller set of rights. For those reasons,
we sought and achieved a three-year transition period, providing an appropriate time to prepare for implementation of
this legislation within First Nations communities. We also sought and achieved an amendment to enable a study of the
impact of this legislation on First Nations and to identify the capacities and capacity gaps that may apply to effective
In addition, we sought amendments to reflect the need to balance the individual rights and interests that have been
at the core of the Human Rights Act with the collective rights and interests of First Nations in the Constitution of
Canada. This last issue took form in both the interpretive clause and the non-derogation clause that were present in the
draft of Bill C-21 that was reported to the House of Commons by the standing committee. The House of Commons
subsequently amended those amendments at third reading by substituting in full an alternative non-derogation clause
and by adding a phrase to the end of the interpretive clause.
In the Senate's debate on second reading, Senator Jaffer raised these same two clauses as issues of concern. With
regard to interpretive clause, Senator Jaffer remarked that the addition of a reference to gender equality is redundant
as the Constitution guarantees gender equality. If this analysis is correct, we would question the value of such a
redundancy. If that analysis is incorrect, we would ask what difference, if any, the addition of that phrase makes to the
interpretation of the bill. What does it accomplish?
If the effect is to somehow diminish the relative weight of the collective rights of First Nations as they relate to the
Human Rights Act, we would remind this committee that accepting the additional language stands in violation of the
constitutional provisions regarding First Nations' inherent and Aboriginal rights. If that is the case, we would stand
opposed to it.
If neither interpretation is correct, what, then, is its purpose?
Such uncertainty is largely the result of the failure of the Government of Canada to conduct appropriate
consultations, as noted earlier in my comments. It is also the result of the failure of the Government of Canada to
conduct a section 35 analysis of its draft legislation. Section 35 analysis should be an imperative for all federal
legislation affecting First Nations' rights and interests. The continual failure by the federal government to conduct
section 35 analyses, or to share the result of such analyses with First Nations, is what gives rise to the need for a non-
The Senate has done some very good work in studying non-derogation clauses recently and the report on this issue
made some recommendations that may help to resolve this issue in the future. This could potentially alleviate the need
for this kind of debate over every bill that comes forward.
The recommendations of that study were ignored by the Government of Canada in the preparation of this bill, just
as it ignored its duty to consult with First Nations. This kind of behaviour does not contribute to the process of
reconciliation. Nonetheless, in the interest of pragmatism, the Assembly of First Nations supported the non-
derogation clause that came from the House standing committee. We cannot support the language that has been
substituted in the bill now before you. As your own study indicates, the language supported by the Government of
Canada for non-derogation clauses may narrow the scope of their application to protecting the bill rather than
protecting inherent Aboriginal and treaty rights.
For that reason we would support the Senate reinstituting the language that came from the House committee or, at
a minimum, replacing this non-derogation clause with the kind of language identified in the Senate study as typical of
the period prior to 1998.
We have brought copies of these two versions of non-derogation clauses with us today for distribution.
I thank the committee for its time and hope that it will do everything in its power to protect all the rights contained
in Bill C-21 equally.
Lisa Shaver, Chief, AFN's Women's Council:
[Ms. Shaver spoke in her native language.]
I have greeted you in my native language, which is the Hul'qumi'num dialect of the Coast Salish peoples of British
Columbia. We are located in the Southern Gulf Islands of British Columbia. My name in my language is
Paqualtaanaut, which means White Flower. I am the regional representative of the AFN Women's Council for British
I will begin by thanking the chair and the Senate Human Rights Committee for inviting me to address Bill C-21, An
Act to amend the Canada Human Rights Act on behalf of the Assembly of First Nations Women's Council. The role
of the AFN Women's Council is to ensure First Nations women's perspectives are included in all AFN policy directives
and that the AFN is an effective advocate on behalf of all First Nations women on and off reserve regardless of status.
The AFN Women's Council has input into political decision-making through the AFN executive council, and we
also work closely with the AFN secretariat to ensure the concerns and perspectives of First Nations women inform all
work at the AFN. We have been working closely both at the political and policy level within the AFN to ensure the
concerns of First Nations women are addressed in respect to this bill.
My colleague, Regional Chief Angus Toulouse has described the evolution of Bill C-21. The AFN Women's Council
agrees with and support his analysis.
The AFN Women's Council does support the repeal of section of 67 of the Human Rights Act. However, we agree
with the regional chief's statement that we are making the best of bad legislation because First Nations were not
consulted in the drafting of this bill.
We are grateful that through the parliamentary process we have been able to address some of our concerns,
specifically the time frame for implementation and the inclusion of an impact study and analysis.
I would like to address one outstanding issue from the perspective of the AFN Women's Council.
The AFN has asked for amendments to Bill C-21 that reflect the need to balance the individual rights of the Human
Rights Act with the collective rights and interests of First Nations in the Constitution of Canada as well as our customs
The AFN asked for this to be done through an interpretive clause and a non-derogation clause. The AFN Women's
Council agrees with and supports this position. As First Nations women, we see our rights as part of a collective. First
Nations women understand equity as having equal access to our cultural, inherent and treaty rights.
First Nations women do want the Human Rights Act to apply to them, but not at the expense of our existing rights
as Aboriginal peoples or our cultural identity.
I would like to drive this point home by reading you a quote. In February 2007, the AFN Women's Council hosted a
special forum for First Nations women chiefs and councillors. Bill C-21 was included in the issues we discussed at the
forum, and the quote I will read you is from a unanimous statement by the leaders who attended.
We maintain our authority to be the law-makers and caretakers of our Nations, our families and our land.
First Nation holistic laws will continue to guide our decision making in the face of any and all federal, provincial
and territorial legislation.
Our collective Inherent and Treaty rights must not be diminished or adversely impacted in the development of
federal, provincial and territorial law and policy.
First Nation women Chiefs and Councillors are united to oppose attempts by the federal government to
unilaterally impose legislation and policy such as its initiatives currently reflected in the matrimonial real
property process, and the repeal of section 67 of the Canadian Human Rights Act. These federal initiatives that
diminish or adversely impact upon our unceded inherent authorities will be rejected.
As that statement shows, it is unacceptable to First Nations women that any legislation should encroach on our
inherent rights. First Nations want to restore the traditional balance that existed between our men and women before
the Indian Act imposed so many devastating changes that have harmed our women.
To this end, the AFN Women's Council has also been working on a culturally-relevant gender-balanced analysis,
because mainstreaming gender equality in Canada and around the world does not appear to be working as it strives to
create equality between men and women.
We believe that a First Nations gender-balanced approach may be viewed as achieving a higher standard than
current mainstream approaches.
Our gender based analysis looks at traditional and historic roles of men and women, boys, girls, elders and two-
spirited and transgendered people, and the norm of balancing roles instils value and respect for all members of society:
men and women.
Our gender based analysis was accepted unanimously by all chiefs last year. Since then we have been working with
governments and internationally to have all laws and policies that apply to First Nations people reviewed under a GBA
We believe that a culturally appropriate GBA can aid the Canadian Human Rights Commission in its efforts to
interpret and apply the Human Rights Act to First Nations interests and hope to be able to work with the commission
to make that happen. The key here is, once again, that First Nations women want to ensure the continuity of culture
and our collective rights as Aboriginal peoples. We welcome additional rights and an opportunity to appeal to the
Human Rights Commission, but not at the expense of self-determination or culture.
Due to the lack of consultation respecting the drafting of Bill C-21, the AFN Women's Council believes that the
government has not been vigilant in ensuring that this act will not affect treaty and Aboriginal rights. Therefore, a non-
derogation clause is a minimum measure that can be taken to ensure our rights and interests as First Nations peoples
are protected. It is equally important that the wording of the non-derogation clause is sufficient to express to all,
parliament's clear intention that this legislation is to be interpreted and implemented consistently with section 35.
I know that the Standing Senate Committee on Legal and Constitutional Affairs has addressed this issue in their
report, Taking Section 35 Rights Seriously.
The AFN Women's Council agrees that non-derogation clauses should not be pasted on to legislation in an ad hoc
fashion. Nevertheless, that is what we are facing with Bill C-21.
We consider the present wording of the non-derogation clause too weak. We would accept the strongly-worded non-
derogation clause that the Senate report refers to as wording from the 1986 to 1996 period.
Before closing, I apologize for not telling you a little bit more about me. I travelled from British Columbia and
brought the rain with me and am very tired. I arrived at one o'clock your time and eight o'clock my time and it is
I was elected by the people a few years ago. We go through a nomination process every two years. Many people did
not expect me to win. I was six months pregnant, single and unemployed. When my two-year term was up and they
asked whether I would run again and I said yes. When I first ran, I remember my son and I going house to house and
knocking on doors and asking people to vote for me. My main desire was to create jobs. That is really why I was there
and am there.
This has been an interesting learning experience. I have relied heavily upon my elders for their guidance and
direction, and the other counsellors who were also elected with me. I was re-elected this past January 29. This time
around I was so tired that I remember asking my brother, who lives next door, and his friend to vote for me. I was
grateful and honoured to be re-elected. We have a lot of work to do in our communities and this is quite an honour to
be before you and I wish that we would have more time to sit together and talk.
I wish that we could do that, and I especially wish that the speakers before me could have stayed because I felt that
there is a misunderstanding. I would like to extend invitations to them to meet many of the chiefs that I know in B.C.
At that, I would really like to thank you for your time.
[Ms. Shaver spoke in her native language.]
In my language, thank you very much.
The Chair: Thank you, Chief Shaver. Thank you for giving us your personal story. That is very helpful.
Senator Jaffer: Thank you very much to both of you for being here. Chief, you said you were honoured to be here
but the honour is ours to hear from you. It is very important for us.
I am the critic on this bill and I have been struggling with the issue of customary rights, collective and individual
rights. After hearing from the two of you I am even more concerned and confused. Perhaps I can ask the two of you to
educate me. I also come from a culture where collective rights are very important. Could you give me an example of
where there could be a collision between collective rights and individual rights, and say how that should be resolved?
What should the process be?
Mr. Toulouse: Let me try to answer it from my experience and this is as a Sagamok Anishnawbek person in a
Let me back up. Let me try and capture this. We just had the apology last week. The residential schools had many
impacts that have been clearly or have been correctly pointed out. Prior to the residential schools, prior to the Indian
Act, we were nations with clear responsibilities, duties and obligations, and had an understanding of what our
responsibilities were. We knew what the collective rights and collective issues needed to be discussed were. We also
recognized we each had a responsibility to fulfill what we had to fulfill. Those were things that have been lost. We say
we lost our culture; we lost our spirituality and these things. Those are some of the teaching and understandings that
we would need to get back and this is through education within ourselves, and healing ourselves and healing our
families and our communities where the elders, the women and the children take their rightful places within our
systems of governance.
I mentioned that I am part of the crane clan. We have lost some of these teachings about our responsibilities as clans
and what functions they held in relation to our three fires confederacy society.
These are things we need to rebuild so there is a clear understanding with respect to rights. For example, if there is a
suggestion that the First Nations councils are not respecting women's rights, it will clearly be understood what those
I would like to believe that we would be much more accommodating and much more reflective of some of our
societies. As an example, the Hotinonshonni are a matriarchal society. Of course, the women take a stronger presence
in terms of how governance and how leadership gets selected and how leadership continues to maintain some of those
Hopefully I have addressed some of your concerns. It will take some time to have those discussions and education at
the community level.
Ms. Shaver: Could you rephrase that question?
Senator Jaffer: If there are collective and individual rights and individual rights are breached, how should one deal
with that. It says that gender takes precedence. Do you believe that individual rights should take precedence over
Ms. Shaver: There should be a balance of both. In British Columbia, I have noticed that whenever there is some type
of proposed action related to governance, in British Columbia the chiefs want a lot of information. The communities,
not only the chiefs, want to be part of that. In terms of your question, what should weigh more? Everyone should have
equal access to opportunities and everyone should be treated fairly. There should be no difference between individual
and collective rights. We have to be fair.
I am not sure if I have satisfied your question but there are various processes in place.
Senator Jaffer: Thank you. That is very useful.
I have a question that I had asked Commissioner Lynch. The Aboriginal cultures have rich ways of resolving
conflicts like the healing circle and she said she would take that into consideration. All things take resources and you
may not have the answer now. However, there would be something definitely in the review processes we would have to
consider. What kind of resources will have to be provided to the band councils to help with resolving conflicts that
arise from the repeal of section 67? Do either of you have any comments to make on that?
Mr. Toulouse: What we have across this country are some 600 band councils. That is where the work really exists.
We also have what is called tribal councils, of which there are as many as seven for each band. Many of those are
geographically closer to one another. We have provincial-territorial organizations and they vary in size and place and
some of the work they do.
There are bodies out there right now that could certainly provide some of the coordination, some of the efficiencies
in delivering a message or working with a number of communities. It is a matter of being able to sit down with those
organizations or those First Nations communities that are willing to do certain things jointly.
The real issue is that there are no resources and it really will require resources. Otherwise we will have another three
years of nothing, just like the past 30 years. It has been mentioned that we ought to do this and everyone agrees. Let us
identify the resources so we can do it properly and to the satisfaction of all, while protecting individual rights and
understanding what those collective rights are.
Ms. Shaver: I concur with Mr. Toulouse. Capacity is always a concern. Most of the communities I know are
understaffed and have a difficult time in dealing with the current issues. I point out as well that communities are
striving to create change for themselves and to look at partnering with other entities, such as the RCMP or Health
Canada, in matters related to mitigating violence in our communities. Yes, people are always in need of money and it
would have been beneficial had it been factored a while ago.
Our community has been working on zero tolerance for violence in collaboration with the RCMP. We have asked
the government for no money for that. We have done this because it is a request from the people. We invited the
RCMP to sit with us and look at a holistic approach with our elders. The answers vary because there are so many
different native communities and issues to deal with but capacity is always an issue.
Senator Jaffer: Senator Di Nino asked the minister that, when the consultations take place, the Senate committee
should be consulted. I am speaking for all my colleagues in saying that we must not wait three years to find out what is
not working. If there are things we should know, it would be appropriate for us to hear how we can make this process
Senator Di Nino: My first question is to Ms. Shaver. Did you appear before the House of Commons committee
during its deliberation on this bill or did someone from your organization appear?
Ms. Shaver: Yes.
Senator Di Nino: Your organization appeared before that committee and your concerns were expressed similarly as
you have expressed to this committee.
Ms. Shaver: Yes.
Senator Di Nino: My second question is to Mr. Toulouse on the non-derogation clause. The original bill did not
have a non-derogation clause and because of the recommendation of the AFN and others, a non-derogation clause was
included in the bill. Is that how you understand it, Mr. Toulouse?
Mr. Toulouse: Yes, but I would ask Mr. Wilson to respond.
Daniel Wilson, Strategic Planning, Policy and Law, Assembly of First Nations: We worked hard with the committee
to ensure that an appropriate clause that addressed not only the general concerns but the more specific ones related to
this bill was included in the draft that the committee reported to the House. That was changed at third reading. I
believe that you heard the chief discuss our opinions on the variations.
Senator Di Nino: Again, as I understand it, the non-derogation clause put in by the House committee had new
untested language and that concerns were expressed by a variety of First Nations. The final wording was language that
has been used generally in non-derogation provisions and legislation for the past 10 or more years. Is that your
Mr. Wilson: No. Certainly, we would agree that the language was somewhat unusual and there was untested
language in what the committee reported to the House. We felt this was appropriate to the specific bill, which is itself
untested and was not discussed with us prior to its tabling. There were no concerns expressed by First Nations about
We bring forward the voice of the chiefs in our work. There was a resolution on the matter at our special chiefs
assembly in December that was consistent with what we did. I do not think you will find a record of a single First
Nation objecting to the language in the non-derogation clause that the committee reported to the House.
On the third point, this is the usual language used by the government in the latter period. The Standing Senate
Committee on Legal and Constitutional Affairs did a thorough study in which they identified two distinct periods:
First, an earlier one where seven pieces of legislation used language that is close to that of section 25 of the
Constitution; and second, a latter one where six pieces of legislation used language that more closely resembled the
language that appears here.
That study and our own review of the issue would suggest that this is an attempt by the government to water down
the protections of section 35 and section 25, and of the application of non-derogation clauses, which they consider, to
quote the minister, ``to be unnecessary.'' We disagree. We would prefer the language that the committee reported to the
House. Failing that, we would prefer the language of the early period that resembles the seven pieces of legislation that
resemble section 25 of the Constitution. We do not prefer the language currently being used. We do not prefer it in the
six pieces of legislation in which it has been used.
Senator Di Nino: I understand, Mr. Toulouse, that you were one of the organizations principally responsible for
including the three-year transitional period and the five-year review. I suspect it was done for the purposes of ensuring
that during this period of time, your concerns were addressed and that the review would see the impact it would have
on First Nations across this country. Do you intend to participate in this review as we go forward?
Mr. Toulouse: Absolutely. We will participate in the review.
Senator Di Nino: Ms. Shaver, we would love to see you back. Are you interested in making sure that the voices of
your organizations are heard?
Ms. Shaver: Most definitely. I will be receiving feedback from the various individuals in B.C. — from the chiefs and
The Chair: I thank all of you for coming and putting your points of view. We closely followed the House of
Commons deliberations and I thank you for noting the Standing Senate Committee on Legal and Constitutional
Affairs' work. Senator Oliver, Senator Di Nino and Senator Jaffer were part of that. Our researcher, Mary Hurley, has
followed that issue for many years and given us guidance so that should be noted, also.
We take an interest in non-derogation and will follow up from the Standing Senate Committee on Legal and
Constitutional Affairs the way to come to consensus on the issues on non-derogation clauses.
Ms. Shaver, you referred to the First Nations gender-based analysis. Any materials that you can forward to us on
that for our future study would be extremely helpful in trying to understand the difference between gender-based
analysis in the First Nations context and how it is used on Parliament Hill. If you could also indicate the groups that
might be affected by a gender-based analysis, that would be helpful.
We thank you for coming and sharing your perspectives. Chief Toulouse, I know we had invited Grand Chief
Fontaine this evening, but he is being honoured tonight, and I know you stepped in. Thank you for doing that. Ms.
Shaver, thank you for coming all the way from B.C.
Senators, we have one more panel this evening.
It turns out that you are now carrying the weight of the entire panel. We have Ms. Wendy Cornet, Consultant and
President, Cornet Consulting & Mediation Inc. We are pleased to have you here.
Ms. Cornet, if you have an opening statement, we will go to questions afterwards.
Wendy Cornet, Consultant and President of Cornet Consulting & Mediation Inc., as an individual: Thank you very
much for the invitation to be here with you today. For those I have not met, my background includes working with a
range of First Nations, Inuit, non-status and Metis organizations since 1976. I have a law degree. I do not, however,
practice law. I have also worked for the federal government — Indian Affairs and Northern Development — and
different federal departments and agencies on issues relating to Aboriginal rights, including the Library of Parliament
research branch for a period of years.
The debate over non-derogation and interpretive clauses and the proposed repeal of section 67 of the Canadian
Human Rights Act is at least in part a product of an unresolved question under our domestic law, namely, the
relationship between Aboriginal rights and human rights.
There is a tendency to see Aboriginal rights and human rights as two separate species of rights and to assume
conflict between the two rather than a relationship of interdependence. This is in part because we have not spent much
time discussing this issue outside the constitutional reform discussions that took place in the 1980s and early 1990s.
Our Constitution is I think rather ambiguous on the point. While the Charter of Rights and Freedoms is located in
part 1 of the Constitution Act, 1982, section 35, which protects Aboriginal and treaty rights, is located in part 2.
We do have notable sections, such as section 25 of the Charter that provides a non-derogation clause for Aboriginal
and treaty rights and other rights and freedoms that pertain to the Aboriginal peoples of Canada.
In my view, while the Constitution Act does not explicitly characterize Aboriginal rights as human rights, it could be
argued that both the Constitution Act, 1982 and the manner in which it has been interpreted does not necessarily
exclude this conclusion.
Indigenous peoples generally support the application of individual human rights to their communities, governments
and citizens, as various indigenous leaders who have appeared before a number of parliamentary committees on the
issue of the Canadian Human Rights Act exemption have indicated. However, First Nations leaders also point out that
the international human rights system supports their rights to land, to self-government and to self-determination as
peoples and wish to see this fundamental aspect of human rights theory reflected in human rights legislation and
constitutional law in this country.
During the last round of constitutional reform discussions that took place over 1992 and 1993, First Nations and
Inuit leaders characterized the inherent right of self-government as an aspect of the right of peoples to self-
determination and, therefore, as a fundamental human right.
Where, under domestic law, outside governments, meaning governments outside First Nations people, wish to apply
human rights standards they have developed without the participation of First Nations, such as the Canadian Human
Rights Act, to First Nations communities, First Nations people naturally seek proper recognition of collective rights
that fall within or are aspects of the right of self-determination of peoples.
In Canada, successive federal governments have been reluctant to characterize the collective rights of indigenous
peoples as human rights, particularly under domestic law. Early attempts by indigenous peoples to characterize their
rights to land and to self-government as part of their right to self-determination, in other words as part of the
international system of human rights, were often dismissed and even ridiculed. The very hostile reaction to the 1975
Dene declaration is a case in point.
However, with the adoption of the United Nations Declaration on the Rights of Indigenous Peoples in 2007, the
viewpoint that indigenous peoples' fundamental rights to use and to benefit from their traditional lands and to govern
themselves are fundamental human rights has now been vindicated in a formal way as part of our current system of
international human rights.
The resolution of issues such as whether a non-derogation clause is needed and how it should be worded, would
likely be less difficult if we clarified our understanding of whether or not Aboriginal rights under our Constitution,
however imperfectly expressed or implemented, are a species of human rights. We would then perhaps be better able to
see the relationship and interdependence between the realization of indigenous peoples' collective right to govern
themselves and individual rights to maintain culture and other important individual human rights.
In other words, I am suggesting that we take some guidance from long-standing aspects of human rights theory and
international human rights law in this regard. For example, the 1993 Vienna declaration that was adopted by the
United Nations reaffirms the right of self-determination as a fundamental human right, as well as the usual individual
human rights already adopted by the UN. Its Article 5 reaffirms that all human rights are universal, indivisible and
interdependent and interrelated.
Likewise, John Humphrey, a leading Canadian human rights advocate who had a role in drafting the Universal
Declaration of Human Rights, stated:
The Universal Declaration of Human Rights is founded on the indivisibility and interdependence of human
rights. We cannot insist too much on this aspect as civil and political rights are doubly inseparable from
economic, social and cultural rights. Thus, there is no hierarchy in human rights. They form a whole in which no
rights can be taken to be dominant and others to be subordinate.
I do have some specific recommendations to make regarding Bill C-21 that I believe are consistent with our current
law regardless of whether one views Aboriginal rights as part of human rights.
I am not addressing all the various issues that have come before you in terms of non-derogation clauses and the
interpretive clauses. I will only address a few issues, due to the constraints of time.
I am suggesting with respect to clause 1.1 of Bill C-21 that words be added to refer to other rights or freedoms
pertaining to the Aboriginal peoples of Canada, in addition to rights that are protected or affirmed and recognized by
section 35. The reason is to include a phrase similar to that found in section 25 of the Constitution Act, 1982, to ensure
that any collective rights to land that may be protected by the Indian Act but which might not in a particular case
amount to a section 35 aboriginal title right will continue to be protected.
Various reserve lands in Canada have different histories in how they were created. It is not necessarily clear that the
rights of every single First Nation in the reserve lands will necessarily be regarded as section 35 rights. In some cases,
we know with certainty that they will. For example, in the Garon case, the Supreme Court of Canada held that the
rights of the Musqueam Indian Band over their reserve lands, that were at issue in the case, had the same character as
However, the history creating reserve lands is different in different parts of the country. Therefore, I am
recommending the addition of the terms from section 25 of the Constitutional Act, 1982 for that reason.
With respect to the interpretive clause, I have suggested the following rewording:
In relation to a complaint made under the Canadian Human Rights Act against a First Nation government,
including a band council, tribal council or governing authority operating or administering programs and services
under the Indian Act, this act shall be interpreted and applied in a manner that gives due regard to First Nations
legal traditions and customary laws. . .
Up to this point it is the same and instead of the word ``particularly,'' it would read:
. . .and the balancing of individual rights and interests with collective rights and interests in a manner consistent
with the universality and interdependence of all human rights.
Finally, on the general issue of consultation and review of proposed legislation for section 35 compliance prior to its
introduction to Parliament, I would recommend endorsing the recommendations on this matter made by the Standing
Senate Committee on Legal and Constitutional Affairs in its December 2007 report, Taking Section 35 Rights
I will end my comments there and open up for questions.
The Chair: Thank you, Ms. Cornet.
Senator Dallaire: Do you feel that as this bill was moved forward it took into account the positions of the various
Aboriginal communities and organizations in its preparation? Do you think we met the request that this section be
repealed after due consultation with the Aboriginal peoples?
Ms. Cornet: I would answer that question in two ways.
First, as the Standing Senate Committee on Legal and Constitutional Affairs pointed out, there is a larger policy
issue in not having a policy on how to have a consistent way of developing legislation intended to apply to First
Nations people. There is a need to ensure that consultation and section 35 rights are analyzed in conjunction with First
Second, you have heard from First Nations leaders themselves regarding their viewpoint on that question. They
would know better than I whether they have been properly consulted.
The reason I referenced the recommendations of the Standing Senate Committee is that I think they are extremely
important. It is long overdue that we treat section 35 compliance with the same seriousness that we treat Charter
compliance. We do not have an institutionalized mechanism where everyone knows — First Nations, parliamentarians
and the public — that there is a system for ensuring section 35 compliance and a way for people to have input into it.
Senator Munson: The end of June is one of the few times around Parliament where everyone seems to be in a hurry.
Parties on the other side want to pass this bill and get it done. You have offered some amendments and there are a lot
of questions from various Aboriginal groups.
Based upon what we have before us, when you talk about these collective and individual rights, is this bill good
enough for you as it stands now although you have said you would like to amend it or will we end up with a flood of
complaints and people concerned inside reserves that they will never get their complaints heard?
Perhaps people are grown up and want to resolve their own issues and do not want to go to this new institution. I
find it distressing that we reach this point in this Parliament at the end of June where we are told: Get this thing done.
Everyone wants it. It does not seem that way to me.
Ms. Cornet: I understand how you feel. Most of the people who are interested in this bill are certainly interested in
the fullest implementation of human rights of every kind, sort and description for indigenous peoples. They would like
to see the best possible job done. It is a serious business to get this right.
There is some comfort that included in this legislation is the opportunity for review to take a look at it again in a few
years. Whether there will be a flood of complaints, the commission representatives themselves said they did not know;
they have no idea.
I share your concerns about not having as part of this discussion why we are not recognizing or encouraging
jurisdiction and laws adopted by First Nations that would articulate their vision of human rights legislation. There is
not only one way to do it. We have provincial and territorial governments that have recognized jurisdiction to adopt
human rights legislation in their jurisdictions.
If we are truly interested in encouraging human rights compliance by First Nations governments, would we not
encourage them to adopt human rights charters and give them the respect of recognizing jurisdiction over that issue?
I have pointed out before in other sessions like this that the current inherent-right self-government policy of the
federal government does not address the issue one way or the other. It does not say whether First Nation people have
inherent jurisdiction over human rights and could pass laws like a Canadian Human Rights Act or not. The
assumption made by federal officials, I have been told informally, is that they do have that jurisdiction. I do not know
for certain whether that is the official viewpoint.
The Chair: Ms. Cornet, I think you have given some intriguing perspectives on non-derogation clauses in a different
way. I sat through many sessions of the Standing Senate Committee on Legal and Constitutional Affairs where we
grappled with this issue a first, second and third time before we finally got a report. The universality and the
interdependence was not our main focus; it was more of a national focus.
You are telling us that we have more work to do. I will speak to the chair of the Standing Senate Committee on
Legal and Constitutional Affairs to bring your perspectives forward.
I should say that this committee is not coming to section 67 for the first time. We have done intense study in this
committee and we, in fact, recommended the repeal of it. I hope that our witnesses, and those coming at the end, in
particular, understand that this is not a new issue to us; it is an issue that we have studied and are concerned about. We
are concerned about moving on he repeal but, equally, we are concerned about its proper implementation and that
those prefaces that have been put to all the comments — that there should be consultation and adequate processes put
into place, and resources to implement it — are of concern this committee. Therefore, they are not falling on deaf ears
in that sense.
Thank you for coming and for bringing some new perspectives to us. We will be continuing to study many of these
issues in the coming years. The Senate has one advantage: We are here for a lengthy time as individuals and we have
long memories about what has happened, who said what to whom and what promises were made. We will continue to
do our due diligence and track this issue beyond even this legislation.
Senators, we have come to the end of the witnesses' testimony.
Shall we, honourable senators, move to clause-by-clause consideration of Bill C-21, An Act to Amend the Canadian
Human Rights Act?
Hon. Senators: Agreed.
The Chair: Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Shall clause 1 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 1.1 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 1.2 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 2 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 3 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 4 carry?
Hon. Senators: Agreed.
The Chair: Shall the title carry?
Hon. Senators: Agreed.
The Chair: Shall the bill carry?
Hon. Senators: Agreed.
The Chair: Shall I report the bill to the Senate?
Hon. Senators: Agreed.
The Chair: Honourable senators, we could suspend for a short time and report the bill to the chamber. Then, we
could reconvene for the in camera portion of this meeting.
Senator Jaffer: Can we not continue with the report now?
The Chair: Yes. We could break and move in camera and you could chair while I present the report.
Senator Jaffer: I think that is not a wise thing to do.
The Chair: I think they are imminently awaiting my appearance. That has never happened before. We can adjourn
for ten minutes to report it.
The committee adjourned.