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Proceedings of the Standing Senate Committee on
Human Rights

Issue 5 - Evidence

[Editor’s Note]


At page 5:13 of the printed Issue, fourth paragraph, the phrase “National Visible Minority Council on Labour Force Development” should read “National Council of Visible Minorities”.

The html and pdf versions appearing on this site have been amended to reflect the corrected wording.

OTTAWA, Monday, April 27, 2009

The Standing Senate Committee on Human Rights met this day at 6:30 p.m. to examine issues of discrimination in the hiring and promotion practices of the Federal Public Service; to study the extent to which targets to achieve employment equity are being met; to examine labour market outcomes for minority groups in the private sector; and to monitor issues relating to human rights and, inter alia, to review the machinery of government dealing with Canada's international and national human rights obligations (topic: United Nations Human Rights Council - Universal Periodic Review).

Senator A. Raynell Andreychuk (Chair) in the chair.


The Chair: Honourable senators, we are here as the Standing Senate Committee on Human Rights turning to our first order of the day, issues of discrimination in the hiring and promotion practices of the federal public service, to study the extent to which targets to achieve employment equity are being met and to examine labour market outcomes for minority groups in the private sector.

We have before use this evening, from the Treasury Board of Canada, the Chief Human Resources Officer, Michelle d'Auray, and accompanying her is Mr. Marc O'Sullivan, the Acting Senior Vice-President of Workforce and Workplace Renewal.

The study we have conducted has taken us to the Human Rights Commission and to groups that are interested in the work of the Public Service Commission of Canada. We started with the Public Service Commission, as the majority of employees are within the Public Service Commission, but we have now understood there is a new capacity, which since our last report has taken a number of changes and has ended up in the Treasury Board in the Office of the Chief Human Resources Officer.

Ms. D'Auray, could you give us a little history of how we have gotten to this point, some information about your capacity and which employees you are responsible for, and then any other opening comments? Following that senators will have questions.

I should say to senators that this is the first committee that our principal witness today has testified before, in either the House of Commons or in the Senate, since she has assumed her new position.

Welcome both to your new position and to this committee.

Michelle d'Auray, Chief Human Resources Officer, Treasury Board of Canada — Office of the Chief Human Resources Officer: Thank you, Madam Chair.


Good evening. I'm pleased to be here and to have the opportunity to appear for the first time before your committee.


It is indeed an honour to have my first presentation before a parliamentary committee since my appointment to be this one, considering the issues that are before the committee. My brief introductory remarks will address the representation of employment equity groups in the Public Service of Canada, highlighting the progress we have made to date, underlining the key challenge that remains, and giving you a sense of the levers we are using to address that challenge.

Before doing so, as you suggest, I should like to give a quick overview of the roles and responsibilities of my new organization in the management of human resources in the federal public service. I do cover what is known as the core public administration, but we also have responsibility for a number of separate employers and organizations.


In February 2009, the Prime Minister announced changes to streamline and improve the management of human resources in the Public Service of Canada. This involved the creation of the Office of the Chief Human Resources officer, which came into being on March 2. The new Office brings together into one organization the business and policy functions of the former Canada Public Service Agency, and the sectors within the Treasury Board Secretariat responsible for pensions and benefits, as well as labour relations and compensation operations.

This initiative also responds to the February 2008 report of the Prime Minister's Advisory Committee on the Public Service, the Tellier-Mazankowski Committee chaired by those two illustrious individuals.

It also confirms that there should be no ambiguity about deputy ministers having primary responsibility and accountability for managing their employees and to build and maintain a diverse and representative workforce tailored to their business needs. They are best placed to identify the skills and knowledge their business requires, to select those most suitable to meet those needs, to see to their employees' development and to assess and manage performance.


These changes also recognize that the Office of the Chief Human Resources Officer should only undertake those roles that must be carried out on a corporate- or government-wide basis — for example, define the broad framework for people management, promote excellence in people management, track and assess overall performance and the state of the public service, establish common processes and systems, and be responsible for the compensation framework.

In a nutshell, that is the scope and mandate of my organization.

The changes did not affect the Public Service Commission, which continues to be responsible for safeguarding non- partisanship and merit in appointments, and to monitor and audit departmental staffing activities. In some ways, it can be said that the commission is responsible for recruiting Canadians to the public service, while my office's policy and framework responsibilities begin once those employees are hired. Both our organizations are mandated under the Employment Equity Act to build a public service that reflects the diversity of Canadian society.

Legislation and good business practice dictate that the federal public service must reflect the very public it serves. Indeed, employment equity is not only an integral part of public service values, it also makes good business sense. In a knowledge economy, diverse perspectives, backgrounds and approaches contribute to better and more relevant advice and service to Canadians.

Directly on the employment equity front, our latest report for 2007-08 demonstrates that we are making continuous progress. We are by no means at the extent and degree of representativeness that we should be. Even when measuring representation compared with the 2006 Census of Canada figures that became available after our report was completed, women, persons with disabilities and Aboriginal peoples all exceeded estimates of their workforce availability in the core public administration.

As of March 31, 2008, women made up 54.4 per cent of the core public administration, more than their workforce availability of 52.3 per cent.

For Aboriginal peoples, representation was 4.4 per cent, again exceeding workforce availability of 3 per cent. Persons with disabilities were at 5.9 per cent compared with the availability of 4 per cent.

However, the gap between the representation of visible minorities in the public service — as it is reported to us through voluntary self-identification — and their workforce availability continues to persist.

That said, while the representation of visible minority groups at 9.2 per cent is below the workforce availability of 12.4 per cent, it has made some progress; in fact, for the five-year period ending March 31, 2008, the visible minority population in the core public administration increased by 43 per cent. During that same period, the number of visible minority executives increased from 177 to 326. Our performance with respect to overall visible minority representation may actually be better than it is reported by our employees.

As you heard from Ms. Maria Barrados, the Public Service Commission has found that the recruitment rate for visible minorities through advertised processes was 17.3 per cent for 2007-08. The commission based its findings on the number of persons who self-identified as being in a visible minority group at the time of their application for an advertised process. However, the data collected by my organization consists of the number of persons in a visible minority group who self-identify after being hired.

We are, therefore, working with the commission and a number of departments to better understand what happens between the hiring process and once an applicant becomes an employee.


In order to meet our challenge to increase the representation of visible minorities in the Public Service, we will continue to work closely with Employment Equity Councils, Employment Equity Champions, departments and agencies.

We are also using a number of important levers to accelerate progress. These include our responsibilities for policies, our focus on integrated planning — I will come back to this — our responsibility for talent management and leadership, and our role as champion of the HR community.

For example, a success story is our leadership development programs like the Career Assignment Program, the Management Training Program and the Accelerated Executive Development Program. They all have outstanding representation of visible minorities: 34.5 per cent for the Career Assignment Program, 30.6 per cent for the Management Training Program, and 27.5 per cent for the Accelerated Executive Development Program.


I should also mention one of the Public Service Commission's initiatives, which you have heard about: 30 highly qualified, bilingual, visible minority candidates were selected to be part of an EX-1 pool and they are rapidly being hired by departments. This is an excellent example of how staffing flexibilities can be used to build and maintain a diverse and representative workforce.

These flexibilities are embedded in the Public Service Employment Act, which allows deputy heads and their managers to make merit-based appointments while establishing employment equity objectives that can be achieved through the selection process.

As part of the Clerk of the Privy Council's public service renewal initiative, deputy heads are also required to update their departments' integrated business and human resources plans to include a strategy for the recruitment, development and advancement of visible minorities, as well as Aboriginal persons and persons with disabilities, setting out how to achieve representation at all levels in ways that reflect workforce availability.

The combination of legislative flexibilities with good planning gives us all the opportunity to improve our workforce representation.

In the wider context of public service renewal, deputy heads had been tasked for 2008-09 to recruit post-secondary graduates from visible minorities in excess of workforce availability, and they were able to report that 550 of the 4,200 hired graduates had self-identified as being from a visible minority group. This is a concrete example of how staffing flexibilities and good planning can be used to build and maintain a diverse and representative workforce.

These are a few examples of how we are acting to ensure progress on employment equity representation in the public service.

We have also, in the clerk's latest report on the state of the public service, reiterated that achieving a fully representative workforce in the public service is a critical goal for us. This commitment to a representative workforce, from the highest level of our public service leadership, is an encouragement and an impetus for all of us to meet that objective. We do have as a core objective to establish and create the public service workforce that is truly representative, at all levels of the diversity of Canada's population.

With that, I will end my formal remarks and I would be happy to answer any questions to the best of my ability at this time. My colleague here has a little more background than I do in this field. If there are answers we cannot provide you tonight, we will be happy to provide them in writing at your convenience.

The Chair: Thank you for the overview. I have a few clarifications. Are the statistics you quote on page 3 or 4 your statistics or the Public Service Commission's? You go back and forth between the two and I want to be sure those are your statistics.

Ms. d'Auray: The ones that start as of March 31, 2008, are ours. I introduce the Public Service Commission's statistics only in the section that says, ``As you heard from Ms. Barrados. . . .''

The Chair: You also indicate that your data is collected from the visible minority groups who self-identify after being hired. Ms. Barrados told us how one can apply on the Internet and do the self-identification there.

How does one self-identify after being hired? Is it the same form or is there another process we should know about?

Ms. d'Auray: When a department hires a person, the supervisor or the human resource contact — the departments have different people who approach the individuals — provides a form, the contents and descriptive elements of which are the same as those that are on the Public Service Commission's application form. People are asked whether they would fill in the form to self-identify. The person who has been newly hired can choose to fill in the form or not. It is purely a voluntary mechanism.

The Chair: It is the same information and the same form.

Ms. d'Auray: Yes, it is.

The Chair: We are looking not only at those who come into the Public Service Commission and why they come in, but also at promotions, which are important. You say that your statistics focus on what happens after hiring. Where is the responsibility to look at and to ensure that visible minorities and other target groups — although visible minorities is the group that is lagging behind — are achieving within the promotion system as well as the hiring system? Are you, Ms. Barrados' shop or somewhere in the Privy Council Office tracking it?

Ms. d'Auray: Using the information included in the self-identification database, we are able to follow an individual's promotion. We can measure promotions, but only based on self-identification.

From that perspective, women had 61.6 per cent of promotions in 2007-08; Aboriginal persons had 4.3 per cent; persons with disabilities had 5.3 per cent; and visible minorities had 10.6 per cent. Again, that is based on data we have from self-identification.

The Chair: If I am correct, your role, that of the Public Service Commission and, to a certain extent, the Privy Council are all auditing roles. They are looking at what is happening and what the outcomes are. At least I am hoping they are looking at the outcomes. Therefore, responsibility to ensure that reasonable outcomes exist is in the hands of the deputy ministers or their counterparts. If we are not achieving what a reasonable person thinks we could achieve, we look to the deputy minister to say why not.

Ms. d'Auray: That is correct. The other element is reporting. When we produce our annual report, we give fairly in- depth analysis to deputy heads and heads of organizations based on the information we have. We feed that back to them so that they have a sense of the performance, if I can put it this way, not only of their own organization, but of other organizations as well. Therefore, some benchmarking also takes place.

The Chair: Your role, that of the Public Service Commission's and anyone else is enabling and facilitating to ensure they have the right tools, they understand the concepts and they are hiring and promoting in ways that will achieve these targets to the best of known knowledge in the fields.

Ms. d'Auray: That is correct. However, that also gives a level of responsibility to deputy heads and heads of organizations. They know best their business needs and requirements. We can help them and we can help facilitate the discussion among departments and organizations to ensure they can share best practices to understand and learn from each other.

We have policies and regulations that we also apply and legislative obligations upon which we report. There is a mix of tools and prescriptions as well as the sharing of information and good practices. There is a whole range of elements. I do not know whether I have missed any.

Marc O'Sullivan, A/Senior Vice-President, Workforce and Workplace Renewal, Treasury Board of Canada — Office of the Chief Human Resource Officer: Those are the main ones.

To elaborate on the notion of more detailed information, self-identification is not only a one-time deal. After individuals are hired, they are asked whether they want to self-identify. Departments and agencies are then supposed to refresh their information periodically, to have self-identification campaigns within their organization and to explain and encourage staff to self-identify. This ensures that the numbers are valid not only upon hiring. We keep ongoing tabs on how the overall public service population is represented.

As Ms. d'Auray mentioned, we pull that information together and provide details in a way particularly relevant to each department and agency so they can see the information breakdown throughout occupational groups and subgroups within their organization.

Senator Jaffer: I want clarification on the numbers you gave. For example, you said 10.4 per cent of visible minorities. That is 10.4 per cent of what?

Ms. d'Auray: Of promotions in the public service.

Senator Jaffer: Is that of all promotions? Is it any kind of promotion from one level to another or is it only going to the EX level?

Ms. d'Auray: It is any promotion.

Senator Jaffer: Are you saying that of the total number of people who are getting promotions, visible minorities are 10.4 per cent?

Ms. d'Auray: Yes, but it is 10.6 per cent, not 10.4 per cent.

Senator Jaffer: However, it could be any promotion.

Ms. d'Auray: In the same way that 61.6 per cent of promotions are women; that is at all levels for any kind of promotion.

Senator Munson: Thank you and welcome to our committee. It is great to have this information and to have both of you here.

One of your roles as Chief Human Resources Officer is to help deputy ministers and government departments hire staff efficiently in a way that reflects Canada's population of women, Aboriginal people, people with disabilities and visible minorities. What powers do you have to intervene or take action if deputy ministers are not taking steps to improve hiring practices?

Ms. d'Auray: I have a reporting power to give deputy ministers an account of where they are in relation to the objectives they have. That report is also used to feed into performance assessments of deputy ministers. It is not the only one, but it is one of the reporting elements brought forward to assess the performance of a deputy minister.

Senator Munson: Is reporting power enough? Do you have any sticks or carrots to ensure that people follow the line?

Ms. d'Auray: No. Since they are the ones responsible for managing and addressing their business needs, they are in the best position to be able to do that.

Mr. O'Sullivan: As part of the performance assessment of deputy ministers, the Treasury Board Secretariat is asked to look at their overall management track record, called the management accountability framework. They are assessed at financial, risk and human resources management, et cetera. An important part of their performance evaluation on human resource management is to look at their employment equity numbers. That is part of the assessment of the management capacity and performance of that departmental deputy head. That feeds into the assessment of deputy ministers done on an annual basis, which the Clerk of the Privy Council described in detail in his last report.

The focus on overall management responsibilities, in particular within human resources on employment equity, brings more attention and focus to this issue.

Senator Munson: Do you have any examples of departments that are stars, departments others should follow in dealing with hiring women, Aboriginal people and people with disabilities? You could say that they are out there and here is what this department is doing.

Ms. d'Auray: In terms of women, I would say most departments are doing well because we are above the average on that front. In terms of visible minorities, some departments, such as Health Canada, are doing well. The Department of Justice has had a remarkable turnaround. I would say Indian and Northern Affairs Canada has done well on many fronts. We have seen significant progress in a number of organizations. Perhaps Mr. O'Sullivan has others he would like to highlight.

Mr. O'Sullivan: To give examples, we encourage the sharing of information among departments through the various forums — the National Council of Visible Minorities, as well as the group of employment equity champions. We share the information on what they are doing in their departments and share best practices.

Veterans Affairs Canada has a program of developmental assignments — the identified assignments that could help visible minorities move forward in their careers. They have been increasing the number of assignments. This program was launched in 2007-08; they had eight assignments and they ramped up to 12 assignments in the fiscal year that just ended at the end of March. This year, they want at least another 12 assignments. Veterans Affairs Canada has an elaborate mentoring program for visible minorities.

Ms. d'Auray mentioned Health Canada. That department has developed a career counselling service for visible minorities and has been actively promoting career counselling workshops for visible minorities. In fact, the deputy minister for Health Canada, Mr. Rosenberg, is the deputy minister champion for visible minorities within the public service. He has been playing that leadership role across the public service, notably in bringing together the employment equity champions from each department, having them sit together as a forum and share best practices and best examples to give each other ideas and guide each other on how they can improve their performance.

Senator Munson: I am trying to get my head around the term ``cost recovery.'' I understand the Public Service Commission should provide recruitment and related services to federal government departments on a full cost-recovery basis with appropriate involvement by the deputy minister in the governance of these services. What does this mean? What kind of cost recovery are we talking about and how does it work?

Ms. d'Auray: Departments are able to undertake their own staffing processes. The commission can offer assessment services for the candidates, if they want an assessment of whether they are ready to achieve a certain level. The commission can also run a staffing process for a department, but it will charge them a fee to do so. That is what the cost recovery is. They will charge them depending on the nature or level of the position that the department is trying to fill.

The costs are to be set by the commission in relation to its true cost of doing and offering the service. The service has to be offered inasmuch as it meets the requirements or the needs of deputy ministers. The commission does have an advisory committee of deputy ministers, which helps it set the right fees for the services and identify whether the services being offered are still appropriate and needed. It provides the commission with a forum by which to gauge whether its services are still needed and whether the price point it is charging is related to the actual cost of the service it provides. It is not an obligation; departments therefore can use the service that the commission provides and pay the fee.

Senator Jaffer: I am a little confused and need a supplementary for clarification. You said Justice Canada is doing well. Last week, we received something that said that Justice Canada does not have one visible minority in an executive position. How do you say it is doing well?

Ms. d'Auray: It has improved.

Senator Jaffer: What does that mean?

Ms. d'Auray: It has increased the number of people of visible minorities within the department.

Senator Jaffer: At entry level.

Ms. d'Auray: At many levels. It does not mean it has met all the categories, that it has people at the executive level or in all of the positions of the organization. However, as a general statistic, it has in fact improved overall the representation of visible minorities in the department. Then we go into an assessment.

Senator Jaffer: Okay. I am sorry, you are new at this and I do not want to shoot the messenger, so I had better calm down.

I see that your role is to remove policy and legislative barriers to ensuring a diverse, flexible and adaptable workforce. I hear words from you like ``a commitment ``and ``we are looking at it.'' Everyone coming from government talks about commitment and says ``we are looking at it.''

There is no carrot and no stick. Very clearly, we are told that the deputy ministers decide what they need. For example, at Justice Canada, there is no one in an executive position.

When does it start to change? When do people see the change? For years, we have been looking at this. When do we see the change?

Ms. Barrados spoke about the unadvertised positions, the ``best fit'' positions, which really upset me. What do you have to say about those unadvertised positions, the best fit where the deputy minister decides? I have all kinds of anecdotal evidence from people saying first they appoint someone they like in the acting position and then they define the job to fit that acting position. It is unadvertised and that person gets the job. I do not know whether that anecdotal evidence is true, but I hear a lot of it. I would like to know how you will make this change.

Ms. d'Auray: I think by sticking to it and by continuing —

Senator Jaffer: What does that mean? I do not understand.

Ms. d'Auray: It means by continuing to set targets, by continuing to exert obligations and also by looking at what are the best possible approaches to encourage not just the recruitment, but also the self-identification of people who are in the public service.

There are a number of interesting and useful practices. As Mr. O'Sullivan mentioned, there are many challenges to progression. Can we help coach and support people who want to advance in their careers? Can we create, for example, the critical mass of executives?

The Public Service Commission has created a pool of 30 highly qualified visible minority people who can, in fact, be appointed. The competition was held and they can now be appointed to a number of positions across the public service without having to run another competition. Embedded in the Public Service Employment Act is the flexibility for the deputy minister to create what is known as an area of selection — to limit the candidates the deputy minister wants for this position to people of visible minorities. We can do that.

Also, depending on the selection and the process, even without putting that in, we can include a selection criterion that says, all things being equal, the deputy minister can select a person of visible minority background for that position, even with all other candidates having met the criteria as well. There are some flexibilities we can use, which are important for us to use, to create specific requirements for staffing a position.

Senator Jaffer: I can work with you on ``targeted.'' I understand that. Have you anything available to show the committee to say you have targeted something? How do you target? What do you target? Who will get how many?

It is not that easy to target. You cannot tell Justice Canada it must have three. There are all kinds of things, and I accept that.

What do you mean by target? How will you target? How do you set a target and how do you know you have arrived at that? Can we get a copy of it?

Ms. d'Auray: The targets we use are essentially predicated on the availability of the workforce in a certain area and a certain category or type of employment. Therefore, we will tell a department, based on your type of workforce, this is the number or the percentage you should be aiming for. This is the percentage you should be aiming for for executives; this is the percentage you should be aiming for for this particular group, whatever it is.

In my previous department, I had nurses on ships' crews. I had people who were on ships four weeks at a time. I had a target to meet for visible minorities, women, for those particular occupations. That is how we set them and we give them to departments.

Senator Jaffer: Is that available to us?

Ms. d'Auray: Yes, you do have that. In fact, it is in our report.

Senator Jaffer: The challenge for people is to get in, and not enough people have been able to do that to date. Ms. d'Auray, you are looking only at what is in the department. For example, in the Department of Justice, there are 33 executives, and none are visible minorities. In the PCO, there are 81 executives, and none are visible minorities. What targets do they have?

Ms. d'Auray: We can give you the specific targets because they exist in the report.

Senator Jaffer: While you look that up, I will ask my next question. Your position is Chief Human Resources Officer. I see you as the employer of all of the Public Service Commission?

Ms. d'Auray: I am. I represent the employer at a number of levels.

Senator Jaffer: When you look at a department, as you said, is that a kind of silo effect? I always understood that in the Public Service Commission you could move around. When you put the departments into silos, such that Justice Canada has a certain number as its target, should you not be looking at the entire Public Service Commission and determining what the targets should be? I think that everyone moves around. Am I wrong?

Ms. d'Auray: Not everyone moves around.

Senator Jaffer: Some people move, in particular at the executive level. You and Mr. O'Sullivan must have moved around many departments to get where you are today. By looking only at the department, are you not creating silo effects?

Ms. d'Auray: We look at both. We look at the public service as a whole. The numbers included in my presentation were the targets and whether we had met them, in some instances for the public service as a whole. We also look at departments and organizations to give them specific targets. When I was the head of an organization, I always gave my directors general and my assistant deputy ministers specific targets.

Senator Jaffer: You mentioned a number of figures for visible minorities. The Public Service Commission report has confused me because it says that the Canada Public Service Agency acknowledged that the 2006 census was expected to reveal an even wider gap between workforce availability numbers and hiring rates for visible minorities. It also says that it strongly encouraged departments and agencies to consider this factor as they prepared their employment equity or human resources plans for upcoming years. I did not hear you say that, but I heard you speak to the good things.

What precisely is in place for the recruitment of minorities and the promotion of visible minorities within departments? Can you clarify your role? I heard you say to my colleagues that you recommend and ask, but if the deputy minister does not follow your recommendation, what happens?

Ms. d'Auray: The deputy ministers know what their targets are. They know whether they are meeting them. They also know whether their colleagues are meeting their targets. As we indicated, there is a fairly rigorous performance assessment provided to the Clerk of the Privy Council when he assesses his deputy minister or my colleagues around the table. Deputy ministers have some very specific responsibilities and accountabilities.

Senator Jaffer: How are you encouraging recruitment and promotion of visible minorities within departments?

Ms. d'Auray: A specific target we set last year to get into the public service will be looked at again this year in respect of the recruitment of post-secondary graduates, from which a specific component would have to be from visible minorities. Last year, of the 4,200 people recruited, 550 were visible minorities.

Senator Jaffer: What is that percentage?

Ms. d'Auray: It would be about a third.

Mr. O'Sullivan: As we know, there is a big demographic shift in the public service. It will be facing an increasing number of retirements in the coming years. That presents an opportunity as well as a challenge and a risk on this matter because of the increased impetus for recruitment. The instructions of the Clerk of the Privy Council to deputy ministers to exceed workforce availability in doing that recruitment of visible minorities shows that we have this opportunity to make significant progress in the coming years.

Senator Jaffer: I still do not understand. To do what? Progress by doing what? Exactly what will you do?

Ms. d'Auray: I will give a few examples from my previous department.

Senator Jaffer: No. Please use your present job. What do you do to ensure that visible minorities are in executive positions, not entry level positions?

Ms. d'Auray: I give the target to deputy ministers to meet. The deputy ministers will have to take the steps to ensure that they hire and meet those targets. I am not the one who is hiring; they do the hiring. That is why I said they are the ones who are truly responsible for taking the steps to make it happen. That is why I was going to give you an example. In my previous department, I looked at an issue around recruitment of scientists, after looking at retirement patterns, that we would have to recruit. We made specific outreach activities across the country at different universities to try to bring in biologists, special research technicians. We did that through our promotion system so that they could get to the level of senior researchers and managers.

Each department has to look at the requirements of their workforce and at the specific elements that need to be put in place to ensure that their workforce is representative at all levels of the organization.

The Chair: We were told a couple of years ago that if a deputy minister does not reach the set target and does not have an acceptable reason then he would be subject to the analysis within his own assessment and might not receive the expected raise or the bonus. We were told that he would have to reach one of the essential targets if he wished to be promoted or to get his bonus. Is that still in place?

Ms. d'Auray: Yes, it is still in place.

The Chair: That is the stick, not the carrot.

Ms. d'Auray: Correct.

The Chair: Are you aware of any cases, without naming them to protect their privacy, where deputy ministers have not received their bonuses or pay increases because they did not meet their targets?

Ms. d'Auray: I would not be in a position at this time to respond because I do not have enough background.

The Chair: Who could respond to that question?

Ms. d'Auray: I can look into it and get back to the committee.

The Chair: If you could give us a response, I would appreciate it.

Ms. d'Auray: I would suspect that it is a factor but not the only factor in the assessment of a deputy minister.

Senator Nancy Ruth: How would we find out the weighting?

Ms. d'Auray: A number of the elements are provided in the clerk's report. His latest report contains a fairly good analysis of the issues that are considered in the assessment of a deputy minister's performance. Context is a component of that. As well, performance is assessed, as my colleague indicated, against a management accountability framework, which looks at a series of indicators. I do not want to mislead, but can we say that a specific element over all in balance would cause someone to not receive performance pay? It is a compendium and a weighting that is then brought forward.

The Chair: Our conundrum is the same as in our previous reports, namely that we still do not have a direct line between the person who has not met the target and those who we believe did not try, in the sense that I understand that you may not meet your targets for some legitimate reasons, but I think those can be sifted out. We almost have to say we need a reverse onus, to say, ``You will not get the bonus until you prove,'' as opposed to, ``We will assess you. It seems you had some difficulty and we will give you the benefit of the doubt.'' I think we are still struggling. Unless someone comes up with another technique, so far all the experts and non-experts before us have wished that we reached the targets and hoped that we were a diverse society. The only lever is to withhold pay, but it has been kind of soft pedaled.

If you know of any other levers we should be recommending that could encourage the integration of good practices into the psyche of the people we are dealing with, that would be the best.

Ms. d'Auray: We have more recently looked into two elements. One is the ability to do an integrated business and human resource plan, where deputy ministers have had to set out clearly not only the targets but also how they intend to meet the targets for their business needs. The biggest incentive over all is to try to have a representative workforce in order to deliver your services and business, because it is critical, as a deputy minister, to be able to meet your mandate. If you do not have a representative workforce, it is very difficult for you to be able to serve the citizens of this country. That is the biggest incentive.

There are also tools with which to demonstrate effort, for example the business plans to show how you will meet the target and to explain why you have not, because that is part of our assessment as well; we do ask that.

The Chair: How long have we had the business plan in place?

Ms. d'Auray: As specifically as I am stating it now, about two years.

The Chair: Our reports predate that. I am sorry to have intervened; we have a long list of questioners.

Senator Nancy Ruth: You gave an example of putting people on ships, women and visible minorities. You were talking about targets for them. What target do you relate to something like that? Is it to the merchant marine or to navies in other countries or is it still to the Canadian population? How do you assess a target?

Ms. d'Auray: It is to the Canadian population.

Senator Nancy Ruth: Only?

Ms. d'Auray: Yes, to workforce availability in a comparable occupation.

Senator Nancy Ruth: All the target setting is related to the population of Canada?

Ms. d'Auray: It is related to the availability in the Canadian workforce, yes. It is not the total population; it is actually the workforce.

Senator Nancy Ruth: I was interested in your visible minority numbers because I wondered how I would tell, of that number, how many would be women and how many would be disabled? Do you make that statistical analysis? Are they double counted in the other categories?

Mr. O'Sullivan: We do not change our statistics because of someone being double counted. A person can end up being within all three categories. The statistics do take that into account.

Senator Nancy Ruth: How many women would be in the visible minority category?

Mr. O'Sullivan: I do not know that offhand. We would have to verify that.

Senator Nancy Ruth: That would be nice to know, as well as how many are disabled.

If your targets are all set on the workforce availability of Canadians, are there other models in other countries that you look to when you design your strategies, evaluate your strategies, and so on? If so, what countries would those be? I am talking about federal states.

Ms. d'Auray: Our legislation requires us to do those assessments and to set those targets against workforce availability. That is embedded in the Employment Equity Act.

Senator Nancy Ruth: Nothing else?

Ms. d'Auray: No.

Senator Nancy Ruth: Do you know of other countries that are doing better than Canada?

Mr. O'Sullivan: As Ms. d'Auray said, because it is prescribed in legislation, we have been focusing on that. We have not looked recently at the models from other jurisdictions. We look at initiatives taken and best practices but not at the overall framework under which you establish workforce availability and your employment equity targets and then plans. We follow that because of the Employment Equity Act and the way it prescribes it.

Senator Nancy Ruth: Do you think there would be value in that? I am thinking of states that have taken in many refugees and immigrants, and so on, like Canada, and have a mixed population now that were once white, so to speak, like Norway.

Mr. O'Sullivan: Undeniably, comparative studies are always a useful tool, yes.

Senator Nancy Ruth: Do you even know who those people would be in those government departments in some of the Scandinavian countries?

Mr. O'Sullivan: Not offhand in terms of best examples from other jurisdictions.

Ms. d'Auray: One interesting source of information we can look to is whether the Organisation for Economic Co- operation and Development, OECD, has done any comparative analysis. That would give a good cross-section of countries that either have had a stable population or have changed the makeup of their population. We can certainly look into that to see whether different assessments or different methodologies or approaches have been put forward.

Senator Nancy Ruth: Different sticks to make it happen.

Ms. d'Auray: Yes.

Senator Poy: The questions I had wanted to ask have been asked. Department heads do not set the target, you do. Am I right?

Ms. d'Auray: That is correct.

Senator Poy: If they do not meet the target, it was mentioned earlier that then they do not get the performance bonus. Has anyone been demoted for not doing his or her job?

Ms. d'Auray: Not to my knowledge. I would prefer, as I said earlier, to indicate that, again to my knowledge, there is no direct link between the performance on employment equity and the performance pay. That is part of an assessment. It is one of many factors, and I would not be able to say specifically that someone has not met a performance target in relation to that for a deputy head; I do not think I would be in a position to establish that direct link.

I think there are opportunities or occasions in departments and agencies where the managers may have been given that as a specific performance element, exclusive of a number of others to say that this is what you should be meeting. In those contexts, you may see a direct link between the performance, the meeting of the target and the performance pay.

Senator Poy: But it is voluntary, is it not?

Ms. d'Auray: No, the targets are not voluntary; the assessment is not voluntary. It is an independent assessment made of the deputy head and his or her efforts as well. It is calculated. The numbers are provided. There is a fairly rigorous assessment that is done across a range of human resource factors. If a department is not performing well on a whole host of issues related to human resources, then it will affect the performance and the assessment of the performance of that deputy head.

Senator Poy: The assessment really does not have a stick; am I right?

Ms. d'Auray: The assessment overall in terms of human resources does have a stick. There is not a specific stick, if I can put it that way, for employment equity targets. There is a broader stick, if I can put it that way, in terms of a host of human resource issues, not just the employment equity as a target. It is one of a series of factors that is used to assess the deputy head against good people management practices or specific targets that are given to deputy heads to meet.

Senator Poy: In other words, if they do not do their jobs according to the target, they just stay where they are, right? Their jobs are not affected. Is that what you meant?

Ms. d'Auray: That is correct. Their performance is assessed and how they are remunerated as performance pay is assessed. However, I want to be clear that it is not just on the employment equity issues; it is on the whole host of indicators. About 21 objective indicators are part of the management accountability framework and are used to assess the performance of a deputy head.

Senator Poy: How long has the target that is set for visible minorities been in effect?

Mr. O'Sullivan: Since the Employment Equity Act.

Senator Poy: As Senator Jaffer mentioned, certain departments have no visible minorities at the executive level, which means it is not effective. Does it not mean that?

Ms. d'Auray: It means that on an overall target, a department can be effective, but it also means that for certain categories of activities we would tell the department or deputy head to focus on these elements. They have an overall target to meet, and they also have a specific set of targets. If they meet the specific targets, they will have deemed to have met the overall target.

Senator Poy: The way you count it, if there are 44 per cent women; whether they are disabled or a visible minority, that is all encompassed within that number, right?

Ms. d'Auray: That is correct.

Senator Poy: The deputy minister has a huge amount of flexibility, but that person does not set the target, you do; is that correct?

Ms. d'Auray: That is correct. If I may, the target is also set in relation to workforce availability.

Senator Poy: Yes, I understand that.

Ms. d'Auray: There is an objective measure that describes the workforce, the availability and our part of that for the public service.

Senator Poy: If the deputy minister wants to ignore the target, he or she can do so. Am I right?

Ms. d'Auray: No, because that is part and parcel of the requirements to meet performance as a deputy minister; it is part and parcel of the accountability that we directly give to deputy ministers.

Senator Poy: Who tells deputy ministers they are not doing a good job?

Ms. d'Auray: We tell the deputy ministers, because we provide the information and the reporting to let them know they are not meeting their targets.

Senator Poy: The deputy ministers are above you, right?

Ms. d'Auray: Yes, the deputy ministers are responsible for the management of their organization.

Senator Poy: Are you under them?

Ms. d'Auray: I am kind of parallel to them. I set the direction, I set the targets and I also feed in the report of what they have completed.

Senator Poy: Who reads these reports?

Ms. d'Auray: The deputy ministers do, as well as the clerk. The public reports of performance are actually included in the reports that our minister tables in Parliament.

Senator Poy: You mentioned something about special counselling for visible minorities. In departments where there are no visible minorities at executive levels, who counsels them?

Mr. O'Sullivan: As one example, Health Canada has put in measures to encourage the promotion of visible minorities within a department, and a lot of the focus was on career counselling to individuals within the department but also through career counselling fairs in order to help visible minorities within that department move forward and progress within their careers.

Senator Poy: These are within departments?

Mr. O'Sullivan: Yes. That is an example of an initiative taken by one department, Health Canada.

Senator Poy: The counsellors may or may not be visible minorities; is that right? I am just thinking of role models. If they are not, there are no role models.

Mr. O'Sullivan: I do not know whether the career counsellors in that department are themselves visible minorities, but the impetus is to help visible minorities in their department to progress in their careers and to move forward.

Ms. d'Auray: There are a number of examples where departments have created councils of visible minorities within their own organizations in order to help create the support and the advisory element, as well as to guide and to direct the organization and the managers in how to reach out and how to increase representation in their own workforce.

There is an element, however, which I think Ms. Barrados did indicate, and I want to bring that back: the numbers we have that we are reporting on are all predicated on self-identification. If managers and executives who are visible minorities did not choose to self-identify, we have no way of knowing that they are in the public service.

When our statistics indicate that we have no people of visible minority in these categories, that is based on the data we have; people have not self-identified in those positions. However, there may be some.

Senator Poy: Yes, I can understand that.

Ms. d'Auray: However, it is not something that we can capture or report on. This is where the information and the findings of the Public Service Commission are actually quite useful. If people self-identify as they are being recruited but not when they are being hired, then we have to try to understand why that self-identification does not carry through.

Given the information the Public Service Commission has found, we could in fact be above the workforce availability for representation of visible minorities in the public service; but our numbers are exclusively predicated on self-identification.

Can we say that that is an accurate portrayal or representation of the workforce? It is, based on self-identification.

Senator Poy: I understand. Self-identification is done when people are hired, and then how often thereafter?

Ms. d'Auray: Generally speaking, departments renew or launch a bit of a blitz on self-identification generally within a span of 12 to 18 months. That is more or less how they do their renewal of the information.

Senator Poy: It is repeated every 12 to 18 months?

Ms. d'Auray: Yes, depending on the department. Again, it is always with a view to encouraging self-identification, but since this is a voluntary process, not everyone agrees to do so.

Senator Jaffer: I have a supplementary question to that. I am sure you have heard that people do not want to self- identify because they are worried they will not get hired.

I find it interesting that people talk about self-identification, yet you say that the deputy ministers will assess the needs they has. Do the deputy ministers not know? My boss sitting there knows I am a visible minority. Why do the workers need to self-identify?

Ms. d'Auray: Yes, they do.

Senator Jaffer: I find this is going in a circle. My boss sitting there, Senator Munson, knows I am a visible minority; I do not need to self-identify.

Senator Munson: I am an invisible minority.

Senator Jaffer: You have said that the deputy minister knows who his workforce is. Surely he knows who the visible minorities are; you cannot hide that.

Ms. d'Auray: That is correct. According to the legislative framework that we operate under, we cannot count people who do not self-identify. This is where the findings of the Public Service Commission are indeed of interest to us. If people are willing to identify as they apply, once they are hired, obviously they still remain within that identification.

Senator Jaffer: You said they can self-identify afterwards.

Ms. d'Auray: That is correct, because we ask them once they become employees to identify, if they wish to identify one more time. We do not carry one from the other.

Senator Jaffer: The deputy minister cannot identify them?

Ms. d'Auray: No. This is why when we say that we have visible minority representation at 9.2 per cent with a workforce availability of 12.4 per cent, and we are under that, a number of colleagues will say that their workforce is actually a lot more representative than the numbers show. However, we cannot say that because our numbers are predicated and based only upon self-identification.

You are correct that a deputy minister, a manager, can look at his or her workforce and say it is very representative, but if those employees do not choose to self-identify, we cannot count them. We can only rely on the numbers that come from self-identification.

Senator Jaffer: So the next step is that we have to create an environment where people feel they will not be punished if they self-identify; they will get the job. We need to create that environment.

Ms. d'Auray: That is why we want to work with the Public Service Commission to understand what happens between the recruitment process and the time people become employees, what makes them change their mind about self-identification. We know we have a more representative workforce, but we cannot at this point demonstrate it using the measures and the mechanisms we currently have.

The Chair: I think I need to cut this discussion off. We did have in our previous reports the information that perhaps some people do not wish to self-identify for negative reasons, but we also found some evidence of why they did not want to self-identify for other reasons. I think we have to be clear on that.

Senator Goldstein: I have a relatively brief question. I am worried about the metrics. You identify on a percentage basis the visible minorities, the Aboriginals, the women and the disabled persons, as a percentage of the whole. That may not necessarily be a correct metric.

Would the better metric not be a horizontal one, where you are able to identify for yourselves and for us a percentage of people at various levels of the civil service, rather than as a proportion of the totality within a department or within the civil service? I have to wonder what kind of information we can gather from the vertical metric as opposed to a horizontal metric.

Ms. d'Auray: We do have both.

Senator Goldstein: I did not see that.

Ms. d'Auray: I did not go into the details, but in the report we tabled before Parliament, the metrics are there, both by occupational group as well as executive. We do have the metrics for workforce availability and where we, as a public service, happen to be for those specific elements.

Senator Goldstein: Thank you. I guess I did not see that.

Ms. d'Auray: I did not put it in my presentation notes, but it is available in the report that is tabled before Parliament.

Senator Goldstein: What would that metric show? Would it show a proportionate penetration of these various minority groups or would it show a concentration of these groups at the lower levels?

Ms. d'Auray: If I can use the executives as an example, we would show a number close to the workforce availability for women, but just under the target. For people with disabilities, we would show that we are meeting the target. For Aboriginal persons, we are close to the target. People of visible minorities is where we have the biggest gap. The general numbers are also replicated, with some variation, in the more specific numbers.

Senator Goldstein: Is anything special being done to aid or encourage the hiring of Aboriginal people in departments other than those departments that are directly involved with Aboriginal people?

Ms. d'Auray: In terms of specific support, we do have, as we do for the other councils, a group that cuts across departments and agencies and that helps develop good practices and approaches in order to create a critical mass and to create the conditions upon which people would like to join that department and stay in that department.

There is the issue of mobility. We have found that people will come into a department, but they will also go from one department to the next. That is one of the challenges for departments — to keep people in their department. We have found that some departments are better at establishing stability, and so we need to work with those departments to understand what conditions they have created, the workplace environment, what makes it more — pardon the Gallicism — convivial to people of different backgrounds to be in that department. Part of our work is to put those people in touch with each other so that they understand what good practices are.


Senator Brazeau: I thank you for your presentation and I welcome you before our committee.

Beside your power to produce a report highlighting the performance of deputy ministers or departments, do you have any specific power to ensure accountability of deputy ministers before producing your reports?

Ms. d'Auray: Not as such since the targets are established in the legislation and through the measures we apply. In terms of accountability, deputy ministers are accountable for the management of their staff and therefore for the performance of their initiatives in relation to the objectives established.

That being said, we have the power to report, to provide guidance to deputy ministers and to report not only to deputy ministers but also to the public and to the clerk.

Senator Brazeau: So, your report is your stick?

Ms. d'Auray: It is our main tool. Setting objectives and reporting on objectives are the two accountability tools we have available, with the report to Parliament. The report mandated by legislation is not only given to the deputy ministers, it is also made public. Those are the tools we have available. They are similar to a number of elements relating to human resources management for the whole of the public service.

Senator Brazeau: Looking at the statistics, it is clear that aboriginals are more or less limited to three departments: Indian affairs, the Correctional Service of Canada and Human Resources Canada. I suppose it is because those departments deal with some aspects of Aboriginal issues. Should we conclude that the other departments, which do not necessary deal with Aboriginal issues, do not make any efforts to ensure employment equity for Aboriginals and to make sure that they retain their aboriginal employees?

Ms. d'Auray: It would not be fair to say that departments do not make any efforts because they do. As far as a success is concerned, some are more successful than others. I would say that the issue is the same for individuals who have to self-identify. Some departments are beginning to be more adept at recruiting and at setting up programs not for training but for supporting and integrating new recruits.

We realized that people will feel isolated when there are only one or two members of their group and the issue then is to create a supporting environment for them. Departments are beginning to do that. Those who are not used to have contacts or to work directly with Aboriginal persons are beginning to have this experience and are learning from other departments. Indian Affairs Canada has provided lots of support to other departments in order to improve their hiring practices and it continues to do so.

My previous department, Fisheries and Oceans Canada, has also taken a number of initiatives to work with local aboriginal groups because we realized that programs that are too generic are not effective and that one should work directly with communities.

Senator Brazeau: I am pleased to hear you say that because my third question has a more ideological bent. We all want our public service to be representative of Canadian society. What concrete steps are you going to take to make sure that in a not too distant future we have a public service that is really representative of minorities, of women and of Aboriginal people? It all sounds very good but what are you going to do to reach that objective, specifically?

Ms. d'Auray: Most initiatives are the direct responsibility of departments and organizations. This may not be the answer you would like but it is up to organizations to find competent people for delivering their programs and initiatives. Each organization is responsible for setting up its own plans, making its own recruitment, implementing best practices and being creative. Even if this was under my control, I would not be able to make such changes for 250,000 people. So, it is literally up to each deputy minister or head of organization.

I can also tell you that things have definitely improved over the years with the experience gained and the knowledge learned. Of course, nothing is ever perfect.

In fact, you are asking me when the work will be finished and I will tell you that it will never be finished because Canadian society is always changing. Therefore, we will always have to set up new targets, we will always aim at being as representative as possible.

Senator Brazeau: In conclusion, we have been told that there will be an excellent opportunity over the next few years to hire more members of minorities and of Aboriginal people with the departure of the baby boom generation. I hope that you will continue to work to ensure that minorities, aboriginals, women and so on join the public service as soon as possible.

Ms. d'Auray: There will indeed be an excellent opportunity for two reasons. First, the present economic situation means that the labour market is more competitive and a career in the public service is becoming more and more attractive.

Second, as mentioned by my colleague, many public servants are indeed going to retire in the next few years and departments are already setting up many detailed succession plans. This will allow us to improve recruitment practices and to make sure that long-term career planning is being done for new entrants.


Senator Munson: I have a brief supplementary on that. I came up with this unique idea that maybe everyone on the committee could come up with. You talked about the opportunity and challenges as baby boomers depart.

The Chair: We could all leave?

Senator Munson: No. I do not see that many advertisements. You have to spend money. Everyone is talking about cutting costs, but you have to spend money. I came up with a slogan: Governments come and go, but the public service is a place to grow. What do you think of that?

The Chair: That will be the title of the next report.

Senator Munson: I just thought it might work.

Ms. d'Auray: We have another slogan we use: One employer, many opportunities.

The Chair: I believe Senator Munson still likes his, so please consider it. That is his area of expertise, not mine, so I defer to him.

Mr. O'Sullivan: To follow up on Senator Munson's suggestion for recruitment initiatives, as the clerk indicated in his report, the emphasis on university recruitment and the use of job fairs at universities where on-the-spot conditional job offers are made to graduates is an example of an initiative to go after the best and the brightest on university campuses and recruit them for the future. The public service has been a bit too shy in its previous attempts at recruitment. The recruitment fairs at universities are being pursued as a way of trying to be more dynamic and more proactive in active recruitment of top university recruits.

Senator Martin: Reports definitely are valuable in that what you publish holds a light to the various departments and the targets are there. Whether they meet them or not, we still have these public records and documents that we can examine together.

Having said that, I can sense the frustration of folks around the table, and I want to echo a few of the sentiments as well. I was listening for some information, and you did touch on it in your comments. I wanted to know the kinds of recruitment strategies you are using, because in British Columbia, where I am from, because it is geographically so far from Ottawa, there is a sense that the federal government is quite a distance away.

To attract people to the public service for federal ministries would require some creative recruitment strategies, because other places are doing that and these are bright young people who have a choice of where they go.

Senator Poy was talking about the importance of role models. I can speak for myself, but if we do not have executives that are visible minorities, or even deputy ministers that are visible minorities, then it is like that glass ceiling. Whether it is new employees coming into the public sector or potential recruits, it could be that sort of psychological barrier as well.

I wanted to ask that question about recruitment strategies. You talked about specific departments that are doing things. However, because of time I will wait for the next opportunity to hear about what strategies are actually being used for recruitment. That is very important. It is also important to have staff persons who are visible minorities present at these fairs so students can see themselves reflected.

My question then will be about the deputy ministers. We talked about their accountability. What in-service or professional development is done to encourage our deputy ministers to be willing participants? If they have the power to do the hiring, we need to make sure they understand the importance of employment equity, that they understand the targets, even though it is only one measure. What is done with the deputy ministers to help them be more culturally sensitive, to think about the atmosphere they are creating in their hiring practices, and then once they have them to create a working environment that will allow people of all backgrounds to flourish and be members of that particular department? What sort of training is done at that level?

Ms. d'Auray: We meet three times a year as deputy ministers, and at least one if not two of those discussions are on people management. We have very specific discussions about best practices and what could we do to improve our results in employment equity. In fact, during the last session we had a whole panel on that, where deputy ministers heard about what good practices could be. They also had an opportunity to find out about best practices outside the public service as well as within.

I would say, though, that my colleagues share a similar level of frustration as you feel. This goes back to a point Senator Jaffer made earlier. If deputy ministers look at their workforce, it is often more representative than the numbers actually reported would indicate. They have a frustration at that level because we do recruit, and we can visibly see the nature of the workforce, but our numbers do not translate. They do not bring forward that reality.

I would tell you quite honestly that my colleagues are very sensitized to this; they are quite committed. They take these same targets and requirements, and they put in performance measures for their own managers. They put percentages for performance. They also have many activities: they recruit, they train, they do outreach, they go talk to organizations, they go on campuses. They go many places in order to improve their ability to recruit, retain and train, but the numbers do not bear out. They, too, have a high degree of frustration because, for some reason, their numbers do not seem to translate the reality of their own workforce as they see it. They share your frustration, though perhaps not at the same level and for the same reasons.

They will demonstrate, they will put forward their plan, they will tell us the efforts they and their organizations make, and this is where the difference exists between the numbers that the Public Service Commission has shown and what we have in terms of self-identification. We are of the opinion that the numbers the Public Service Commission is coming up with are probably a truer portrait of the reality that we have in our workforce than the numbers we are dealing with right now from self-identification. That is a great source of frustration.

The Chair: Thank you. We are over time. I had on a second round Senators Munson, Jaffer and Nancy Ruth. If you have a question, perhaps you could put the question and then we can get a written response.

In that I would include two issues. First, this whole issue of self-identification is not a new one; it has come around a number of times. Have you done any studies recently? Those of us who have been on this committee a bit longer do have the background as to why people do or do not want to self-identify.

I want to know whether it is tied to the same conundrum that ethnic communities have gone through in the past, which I have studied. You want to self-identify because you want to be part of the whole of Canada. On the other hand, you do not want to keep wearing a label; you want to be a Canadian, not a hyphenated Canadian. We have not resolved that.

Is it that, or is it some fear that when you self-identify negative things happen to you? Do you believe you lose professionally in some way?

I do not know whether you have any studies. I leave that to you. We can get at that. In law, we do not force people to identify, and we certainly would not want to put labels on people that they do not wish to have, and even stronger from history, as we know. I would like your comments on that.

Senator Jaffer: I have a long question so I will not read it, but basically it is about the numbers. I may have erred, but I have looked at all the numbers of the different organizations. I am giving you a job. Will we have one method in the future? Every group presents the numbers in different ways, and that is leading to confusion.

The Chair: Can you file that with the clerk? We can circulate the question. Thank you, that is helpful.

Senator Nancy Ruth: I understand there is an act, but if you were looking for, say, XYZ scientists and the workforce average of women, Aboriginals and disabled was pretty low in this category, how do you set your targets then? That is one question, for those groups within one category.

Do you think that you would have any obligation to increase the target number beyond what the workforce availability is so that you give opportunities to women, Aboriginals and the disabled to graduate and excel in that field? How do you get at the systemic causes of the discrimination against getting into that profession? If that is not so, should we change the act to reflect that, and what other things should we change the act in?

The Chair: I leave you with all of those questions. They will be part of our record, so you can review them. If you are not clear on a question, please contact the clerk and we can then explore it.

I thank you for coming and giving us this information and some directions to think about, and perhaps you will see some of your reflections in our report. You will also see some of our recommendations. I hope we can continue the dialogue.

I hope that your first appearance before a Senate committee or any committee leads you to conclude it is valuable and that you are looking for the next opportunity to come back, because we certainly will be calling you back.

Honourable senators, we are reconvened with our next panel, and we will now carry out our work in regard to monitoring the issues relating to human rights and, inter alia, to review the machinery of government dealing with Canada's international and national human rights obligations.

This has been a long-standing order that we have had in place, and we have followed international human rights treaties, legislation and related issues. We have recently been studying the topic of the United Nations Human Rights Council as it evolved in the Commission on Human Rights, and we were looking at how it is evolving and whether it is serving the needs of the people whose rights are being denied. We are also looking at the Universal Periodic Review, UPR, which was put in place with the hope that there would be a more systematic way of looking at countries and their adherence to international human rights standards.

We have already heard from officials and several non-governmental agencies. This evening we will be hearing from Romeo Saganash, Director, Quebec Relations and International Affairs, Grand Council of the Crees (Eeyou Istchee); Ms. Beverley Jacobs, President, Native Women's Association of Canada, who has been before us many times and we welcome back; Ellen Gabriel, President, Quebec Native Women; and Jennifer Preston, Programme Coordinator, Aboriginal Affairs, Canadian Friends Service Committee (Quakers).

We will begin with Mr. Saganash.

Romeo Saganash, Director, Quebec Relations and International Affairs, Grand Council of the Crees (Eeyou Istchee): Thank you and good evening, honourable senators, indigenous leaders who are here as well and other colleagues. I will start by commending this standing Senate committee for its ongoing dedication to advancing human rights.

For the past 30 years, the Grand Council of the Crees has been actively involved in the promotion and protection of human rights at the United Nations and other international forums. I am pleased to appear before this committee and to contribute to your examination of Canada's Universal Periodic Review before the United Nations Human Rights Council.

Approximately 70 per cent of the states that participated in Canada's UPR have raised concerns relating to indigenous people. As emphasized by former UN Secretary-General Boutros Boutros-Ghali, human rights constitute the common language of humanity. In this global context, the central focus of my people, the James Bay Cree, and other indigenous peoples is the United Nations Declaration on the Rights of Indigenous Peoples. The declaration is the most comprehensive universal international human rights instrument explicitly addressing the rights of indigenous peoples. To illustrate the widespread support for the declaration and its implementation, we have tabled for this committee a document entitled ``Supportive Statements Worldwide.''

In view of its importance, the declaration was the main subject of our joint submission to the United Nations Human Rights Council in regard to the UPR concerning Canada. Indigenous and human rights organizations from various regions of the world endorsed this joint submission. That is largely because Canada's opposing position on the declaration prejudices indigenous people's rights across the globe and undermines the international human rights system as a whole.

In opposing the declaration since 2006, the Canadian government has repeatedly used the same response: It has no legal effect in Canada, and its provisions do not represent customary international law.

These statements do not reflect Canadian or international law. An in-depth legal analysis of Canada's position by lawyer Paul Joffe has been provided to this committee as well.

In their submission to Canada's UPR, many organizations raised concerns relating to Canada's positions on the UN declaration, yet the Canadian government omitted any mention of this human rights instrument in its December 2008 national report. In the preparation of the government's report, indigenous and civil society organizations were not consulted.

On April 21 and 22, 2009, follow-up meetings on Canada's UPR were convened by the government with indigenous and human rights organizations in Gatineau, Quebec. In reviewing the recommendations from states that were highlighted in the March 2009 report of the working group on the UPR, the government did not include the UN declaration under the heading, ``International Instruments.'' Instead, a separate category of foreign policy was created that included the UN declaration. Ultimately, the government permitted participants to discuss the declaration under international instruments; however, department officials refused to respond as to whether, in the government's view, the declaration was a human rights instrument.

At these meetings, the Canadian government also would not comment on whether it considered the collective rights of indigenous peoples to be human rights. Without clear indication of Canada's understanding of the term ``human rights,'' it was difficult to comment on the multitude of state recommendations. This refusal to affirm our collective rights as human rights has persisted for the past three years.

For 30 years, the practice has consistently been to address indigenous people's collective rights within international regional human rights systems. In its agenda and framework for the program of work, the UN Human Rights Council has permanently included the rights of peoples under the heading ``promotion and protection of all human rights.''

The UN declaration is increasingly being used by treaty-monitoring bodies to interpret other international human rights instruments. This serves to ensure that the application of international standards to indigenous people will be relevant and meaningful.

As increasingly emphasized by indigenous representatives, the declaration should also be used to interpret modern and other treaties between indigenous peoples and states. Such a human rights-based approach should help to reverse the systematic failure within the Canadian government to fully implement these treaties according to their spirit, letter and intent.

To address the severe problem, the Grand Council of the Crees and other indigenous signatories to the 21 modern treaties in Canada have formed a land claims agreement coalition and made a joint submission in relation to Canada's UPR. At the April meetings, Canadian officials also refused to comment on the Crown's constitutional duty to consult and accommodate indigenous peoples. Instead, a Department of Justice official indicated that the government was putting aside such constitutional issues in its UPR process and not adopting a ``narrow'' approach. The Canadian government cannot avoid its constitutional duties to indigenous peoples in situations where it contemplates conduct that might adversely affect our Aboriginal and treaty rights.

A brief summary of such duties has been tabled with this committee. Within the UPR process, every state is encouraged to prepare the information for its national report through a broad consultation process at the national level with all relevant stakeholders.

The Grand Council of the Crees fully appreciates the importance of international cooperation in the field of human rights. As a member of the Human Rights Council, Canada is required to ``uphold the highest standards in the promotion and protection of human rights.''

In regard to the indigenous peoples' human rights, we respectfully urge the standing Senate committee to fully examine the positions of the Government of Canada. It is these positions that are determining Canada's action within the UPR process and preventing Canada from playing a principal and leadership role.

Beverley Jacobs, President, Native Women's Association of Canada: Good evening, honourable senators. I want to introduce myself in my language first.

[The witness spoke in her native language.]

I said greetings of peace to all of you. My real name is Gowehgyuseh, which means ``she is visiting.'' I am a Mohawk from Six Nations of the Grand River Territory, Bear Clan, and President of the Native Women's Association of Canada, NWAC. I also want to acknowledge the traditional territory of the Algonquin Nation here in this territory for allowing us to be here on their lands.

The Native Women's Association of Canada is very thankful for the opportunity to provide some recommendations for improving this country's record specific to indigenous peoples that live in Canada. When Canada's record was reviewed recently in Geneva, the majority of the state comments and recommendations did pertain to the situation of indigenous peoples. This also confirms what the Native Women's Association of Canada has been saying for a very long time and what is apparent to many Canadians about the serious nature of human rights concerns facing indigenous peoples, and particularly indigenous women in Canada, that require concrete changes to policies and practices in Canada. We hope that the occasion of this UPR process will be a catalyst to bring about the kind of human rights protections that so many people have been seeking for such a long time.

As an organization, we have ECOSOC status within the United Nations, and we, along with other civil society organizations, other indigenous peoples, nations and organizations, made submissions in September 2008. ECOSOC is the UN Economic and Social Council.

The first main issue I want to address is the process concerns; the second is to highlight the key recommendations of states that we would like to see implemented; and the third is essential follow-up measures required for Canada to improve its tarnished reputation on human rights, particularly in relation to indigenous peoples and indigenous women specifically.

First, there is an issue about process and our concern with respect to engagement with civil society, including indigenous peoples. We feel that it was inadequate right from the beginning. Six national meetings were held in the first three weeks of January leading up to the UPR process in Canada. The UPR was just in February. We felt that these meetings were very poorly organized by Canadian Heritage in terms of timing: insufficient notice was given to participants, and the inclusion of an Aboriginal-specific session was cancelled very late. Therefore, indigenous peoples were forced to attend other meetings, and they had less notice to be able to attend those other meetings.

It is a continued frustration since we participated in good faith with the hope that the federal government would take this process seriously. Instead, the meetings were delayed for months, leading to a situation in which community members were expressing their viewpoints when Canada had already submitted its report and literally days before the large delegation arrived in Geneva to prepare for the UPR.

The engagement with civil society and indigenous peoples is supposed to be a central part of the UPR process; however, Canada made a lengthy presentation on the human rights record in Canada with little real acknowledgment of the seriousness of human rights issues in Canada and without making any commitments for change. Many of the states specifically urged Canada to rectify this problem and engage in a genuine consultation process to review and take action on the UPR recommendations. We were assured that this would happen, but this is not how things turned out.

Instead, a two-day session was held in Ottawa on April 21 and 22 with an invitation being issued April 9. Again, it was short notice. Also, it is important to note that the government chose to schedule these meetings during a time period of other international human rights activities, including the Third Indigenous Leaders' Summit of the Americas and the Fifth Summit of the Americas held during the week of April 13 to 19, as well as the Indigenous Peoples' Global Summit on Climate Change held in Alaska from April 20 to 24.

We feel these meetings held on April 21 and 22 did not provide the opportunity to engage with indigenous peoples in a meaningful way about how Canada would respond to the recommendations. The officials in attendance did not give any indication of which recommendations the Government of Canada is in favour of and which ones the government intends to reject. At the same time, it was apparent that the government had already made up its mind and was not prepared to engage in a debate about these unstated priorities.

The recommendations put forth by states at the recent review in February are instructive of what needs to occur to help restore Canada's image as a human rights champion. It calls on Canada to ensure that its engagement with the UPR is demonstrative of an inclusive, transparent and accountable process.

I will turn now to recommendations regarding violence against indigenous women. As you know, many indigenous women across Canada and around the world have had to deal with the issue of violence against indigenous women. Norway recommended that Canada institute a comprehensive reporting and statistical analysis of the scale and character of violence against indigenous women so that a national strategy can be initiated and there will be consultation with indigenous representatives to respond to the severity of the issue.

As well, there was a recommendation by the Czech Republic and Mexico with respect to adequately investigating and sanctioning those responsible for the death and disappearance of indigenous women, to adopt measures to ensure accountability of police for their proper, sensitive and effective conduct in cases of violence against women, as well as better protection of Aboriginal women against all violence, including addressing their socio-economic status and discrimination against them and better accessibility of alternative protective housing for victims of domestic violence.

As an organization, we co-chaired the National Aboriginal Women's Summit for the last two years, which has issued many recommendations. Given the high rates of violence facing indigenous women in all walks of life, including within their own communities, within their own homes, and within the larger society, there is an urgent need for the Government of Canada to work with NWAC and other indigenous women's organizations to devise appropriate responses, which could be best done through a national action plan, including prevention and education.

With respect to police actions, the Aboriginal leadership in British Columbia has already stated that there is a need for a public inquiry into the issues of the missing and murdered Aboriginal women from the Downtown Eastside in Vancouver and why there was such a long delay in the police investigation. Many lives could have been saved.

Bridget Tolley is another woman from Kitigan Zibi. Her mother was killed by the Quebec police, hit by a police car, and she is requesting an internal investigation into the death of her mother.

Many of these recommendations are regarding incarceration and discrimination with respect to the over- incarceration of Aboriginal women. New Zealand recommended that Canada strengthen its efforts to reduce the incarceration rate, and we fully support that recommendation. Again, this is something we have been working on and have been advocating for years.

Many states, including Denmark, Norway and Finland, voiced their disappointment with Canada's position on the United Nations Declaration on the Rights of Indigenous Peoples and called upon Canada to reverse its position and endorse and implement the declaration. We consider the declaration to be a vital instrument for addressing the real and pressing rights and needs of indigenous women in Canada and globally. We strongly believe that Canada should review and reverse its unfounded and unprincipled position to this human rights instrument.

Another recommendation was by India with respect to the continued discrimination in the Indian Act. With the recent Sharon McIvor appeal at the Court of Appeal, this government needs to make some concrete changes to address the continued sexual discrimination in the Indian Act system.

With respect to follow-up, we have many recommendations. We talked about many inadequacies, and Aboriginal women's human rights continue to be violated on a daily basis. In looking at recommendations and constructive solutions, one solution came from Portugal, and that was to create or reinforce a transparent, effective and accountable system that includes all levels of government and civil society, as well as looking at the credibility that an accountability mechanism has established. The accountability mechanism has to include the rights of indigenous peoples.

Jennifer Preston, Programme Coordinator, Aboriginal Affairs, Canadian Friends Service Committee (Quakers): Thank you for the opportunity to appear this evening. I am very pleased that this committee is following the Human Rights Council and the UPR and particularly Canada's engagement with the council and the UPR. As some of you know, the Quakers have been involved at the UN since the UN was founded, and we operate permanent offices in New York and Geneva. Some of you, when you were in Geneva last year, met with my colleague, Rachel Brett, our full-time human rights representative in Geneva, who works full time at the council and on the UPR.

I work for the Canadian Quakers, and so I have been following Canada's UPR. I also carry for Quakers the international file on indigenous people's human rights, and therefore our engagement on Canada's UPR specifically focused on the human rights of indigenous peoples. As part of the work that I do, in partnership with indigenous peoples and other human rights representatives, I regularly engage with states at the international level in Geneva, in New York and also in Canada, and this includes many meetings with many different states leading up to Canada's UPR.

I want to raise two points this evening. One of them is the process of the engagement with civil society that happened for Canada's UPR, and with civil society and with indigenous people's organizations, and the other is a specific comment on the recommendations that Canada received around the UN Declaration on the Rights of Indigenous Peoples.

It is important for everyone to remember that there are approximately 370 million indigenous people in over 70 countries in the world. When we are talking about Canada's behaviour on the declaration, we are not just talking about how it affects indigenous people in Canada. It is also important to remember from a human rights perspective that indigenous peoples are regarded as the most disadvantaged around the world globally, and their overall situation in many countries remains quite urgent.

The process with civil society and indigenous peoples' organizations is quite weak. I have been following this and working on the file for about a year. Last June, a small meeting was called by Foreign Affairs Canada, a very small meeting with only a handful of NGOs present. In fact, when the representative from Canadian Heritage who had the lead on the file on the UPR came, her presentation consisted of, ``I have nothing to share.'' That was the beginning. That meeting did not deal with any substance whatsoever. It dealt only with what the form of UPR looks like.

We did not have any further contact with Canadian Heritage until after the national report for Canada had already been submitted to the office of the High Commissioner. That report was submitted late, and later, in January of 2000, some regional meetings were held. In fact, the impetus for those meetings came from a small steering group of NGOs, which included the Native Women's Association, so it was not Canadian Heritage that took the lead to make those meetings happen. In those meetings, half a day was spent engaging with civil society and indigenous peoples, and for the second half of the day the representatives from the government came in.

In the meeting I attended, which was in Toronto, there was no engagement. The civil society representatives that had already spent several hours together reported on the conversations they had been having, and the federal officials took notes, which is not a dialogue and is not an engagement. That was just weeks before the review in Geneva. Then I went to Geneva for the review, and right after the review I actually had a meeting with Deputy Minister Simms who had given Canada's report, and I specifically asked him what the follow-up plans were for engagement with civil society, to which his answer was that they had not really thought about it yet. They did not know what the follow-up would be. Even though we were working on a short time frame and it had been two months before they organized the April meetings, knowing that the report was due in June, two months went by when there was not any engagement happening.

Then we had the meetings last week. The first day was intended to be a meeting with a broader agenda for civil society, and the second day was focusing specifically on rights of indigenous peoples. Four of us attended the two days, and Ms. Gabriel and I were two of the four that attended two days. Those meetings were very frustrating, because again we were in a situation where representatives of indigenous people's organizations and civil society were doing all of the talking. The federal officials were present, and there was no, ``This is where we are, and this is where you are, so let us talk about some creative space where we can be closer to each other,'' because we do not know where they were. The repeated answer was that the report has not been written yet. Surely positions were known, but they certainly were not shared with any of us.

Frankly, I believe that they are really not interested in input from civil society unless it coincides with current positions or policy, and those positions will not be changed or re-examined due to our input unless it is in an area that is a neutral space and they are good with changing it anyway. It is not a dialogue, and it was not a situation where we felt that our views were being respected.

I also have to say the second day was quite interesting because the majority of the representatives were from indigenous peoples organizations. My colleague from Amnesty International and I were there and we were the only two non-Aboriginal organizations present. However, there were an extraordinary number of federal officials there, the majority of whom did not speak the entire day.

On March 30, when this committee met with some government officials, Diane Fulford said: ``We will be listening attentively to the feedback we get. Input will be duly considered in crafting the response. UPR guidelines specifically state the obligations of the state to have full engagement by civil society.''

I think that it is a cause of great concern. I believe that officials actually have talking points to respond to issues, and I do not believe that they are allowed to stray from those talking points. I think the talking points are not always factual.

Also, at that meeting on March 30, the chair asked whether Canada should have a different approach with civil society, and that question was not really answered. However, I would say that yes, Canada does need to have a different approach with civil society. At that meeting, Canadian Heritage shared with you a chart showing how they saw the whole UPR process working. They have never shared that chart with any of us, nor was it at any of the meetings they held.

When Canada spoke in Geneva, when John Sims gave the opening statement, he said, ``We view the participation of civil society as an important aspect of the UPR process.'' I would have to say that, from my experience, I do not actually think that is the case.

One of the recommendations Canada received in the UPR was on the declaration, and about 18 states spoke about this in their statements. As well, I spoke with many states in advance, and the declaration was raised repeatedly. That is because states in every region, including many states that are Canada's partners and allies, are frustrated by Canada's behaviour internationally with the declaration and they do not accept the arguments being presented.

It is important to know that, from a human rights perspective, Canada is saying is, ``We voted `no,' so it does not apply to us.'' Quite frankly, this is not how the international system works. This is not a treaty or a convention. This is a human rights declaration. When human rights declarations are adapted by the UN General Assembly, they are considered universally applicable.

Canada has never taken such a position before and it is a concern to the human rights community. Canada's taking this position is undermining the human rights system. If every state were to say, ``We voted 'no;' it does not apply to us,'' the international system would fall apart. The international system relies on states like Canada to take a leadership role in the human rights system, and Canada spent several decades building a reputation of a leadership role. By undermining this declaration, Canada is whittling away at that.

Ellen Gabriel, President, Quebec Native Women:

[The witness spoke in her native language.]

In my culture, we introduce ourselves in our language. I am Katsi'tsakwás from the Turtle Clan, the People of the Flint, otherwise known as Mohawk. I am from the community of Kanehsatake. I have to acknowledge the Creator for all that he gives us, and that he allows us to live another day on Mother Earth, and all that she gives us, provides for us and nourishes us. She teaches us on a daily basis, because she is our mother.

I would like to state that I participated in the January session and the two sessions from last week. I have to tell you, in all honesty, I was very tired by the time Friday rolled around. Willie Littlechild and I — and we were joined by a member of NWAC for the afternoon — were there for the first day, and our frustration only grew even more the second day.

I say ``frustration'' because of what was previously mentioned: while we asked and provided a lot of information concerning the recommendations — we gave a lot of good suggestions for the bureaucrats who were there — they could never answer any of our questions. Even on the first day, I asked them to please come the next day with people who can answer our questions.

This was not an engagement session; it was not even a consultation. They were just gathering information. That is all it was. This is what taxpayers' money is paying for and they are calling consultations.

I would like to say for the record that I do not consider those consultations. I went there in good faith, even though, in January, I did not feel that we were listened to. Also, we submitted a report to the clerk last Friday. It is a written report from Quebec Native Women. However, I want to say that, on the whole, there are certain things in there that I think all of us indigenous organizations agreed to look more on the impact and do some research in particular to the suggestion of the Convention on the Rights of the Child.

We were told by the Minister of Indian Affairs and Northern Development — or someone from Indian Affairs or Justice Canada — that Canada had reserved this right according to the requests of Aboriginal organizations way back. We are looking at it now. The reservation was particularly regarding the duty to detain children separately from adults. Since we have more children now in foster care than we did who attended residential school, we do not see that this will really be a good reservation. However, we would like to examine further how this could impact us.

I agree with the previous speakers about certain things in the recommendations, but I am not so entirely enthusiastic about the land claims particular recommendations, specifically because of the criteria for land claims in that the burden of proof is upon us. There are, I think, things that are more to the advantage of the Crown rather than the indigenous nations. There is the imposition of band council systems upon our communities, which undermines the traditional government's authority and sovereignty.

I think there needs to be more discussion. In our so-called consultations, we were promised that there would be more dialogue in the next four years since Canada will come up again for another review. Therefore, I am hoping this will be important. It is important to stress — and you have heard this all before but I will say it again — that the impact of colonization and the existence in 2009 of the Indian Act and the fact that the federal government appealed Sharon McIvor's case is proof that our rights are not being respected and that there is no initiative, no process and no mechanism in existence within the Canadian government to undo colonization and its effects. All this is in spite of the June 11 residential school apology by the Prime Minister last year; the status quo remains.

We are still treated as children in the eyes of the law because of the Indian Act. I had suggested to the members, or the functionaries, at these consultations that, if you are looking for a mechanism to replace the Indian Act, here it is: the United Nations Declaration on the Rights of Indigenous Peoples. As an indigenous person, and as a person who grew up and knew people who lived in the late 1800s — I am not that old, but I knew elders from that time when I was a little girl — there were debates about whether we should accept electricity and all these things because people thought we would be assimilated more.

However, these are the people who taught me that we are here. This is our land, and we are supposed to look after it. We are supposed to look after it also for the ones who do not have voices, like the animals, the plants and the trees. That is our philosophy as indigenous people. I know I might be veering off topic, but people have not understood what indigenous people here in North America stand for and represent. You only see the colonized version of us; you do not see our true identity as indigenous people.

It is really sad that Canada continues its archaic process in its relationship with indigenous people. I have yet to hear of any true consultations. We talk about the honour of the Crown. Where is the honour of the Crown in this process for our human rights? Where is the honour of the Crown when it comes to the violence that felt by indigenous women? Five hundred and thirteen indigenous women have been murdered and gone missing. What has the Crown done?

Because the Indian Act has devalued and taken away our role in the decision-making process of our people and nations, after 1985 and the passage of Bill C-31, there are communities that are so colonized they will not allow indigenous women and their children even to be buried in their communities. This is how deep the impact of colonization has been.

I agree that we have to look at the root causes. There are recommendations in here. We cannot look superficially at the root causes of what is happening to indigenous women and children. We cannot look superficially at why there is no equality in land claims or at what journalists do. The federal government is just as guilty in creating racism and promoting hate against Aboriginal people. They always use dollars and cents when it comes to telling taxpayers how much Aboriginal people cost. It is time to get them off the dependency relationship that we have.

We were asked by the Department of Justice and Canadian Heritage to front load which international instruments we would prefer to see. At the beginning of the document, we are asked which of the international instruments we prefer as a priority. We were all in agreement that we could not choose. We knew there were members of civil society who are just as marginalized as indigenous people. All kinds of work needs to be done on this process. We are happy that we at least had an opportunity to vent because there was no dialogue.

However, I am hoping this Senate committee will not fall into the so-called consultations by Canadian Heritage where they were only gathering information. I hope are you not only here to gather information and make a report. I hope you are as concerned as we are by the fact that Canada's reputation has been tarnished, that Canada seems to have a certain preference whereby only certain kinds of people can have human rights, and that the Constitution only applies at certain times.

We will not go away regardless of how much legislation is placed against us. We have to go to the international community. Canada used to be one of the supporters of human rights in the world. Is it not a shame on Canada that we have to go to the international community to have our rights recognized? I think it is a shame. Canada is a great country.

I know you are looking at the time so I will stop at that point. I hope we will have a dialogue tonight.

The Chair: Thank you.

Senator Brazeau: Thank you all for appearing before this committee. I have two questions.

First is the issue of consultation. The word ``consultation'' means different things to different people. From my experience, there have been situations where I attended meetings in my previous role. As soon as a meeting did not go the way that some people were expecting it to, it was labelled an information-sharing or information-gathering exercise. However, when the meeting was successful, it was then termed consultation. I would like to know from any or all of you what you see as a true consultation process with the Government of Canada.

Second, I have to disagree respectfully that Canada has a tarnished reputation on human rights. Other witnesses in previous meetings have mentioned that our situation is rather good here in Canada if you compare it to indigenous peoples around the globe.

We have a Constitution and rights recognized in that Constitution. We have a specific claims process. We had the residential school apology last year. We have treaties. Over $10 billion is spent on Aboriginal peoples in this country per year. I will not ask you whether you agree with that.

When we are talking about human rights, First Nations people in Canada did not have access to the Canadian Human Rights Commission before June 2008 if they felt they had been discriminated against. Many Aboriginal organizations, representatives and leaders in Canada went to the international forum and talked about Canada not honouring human rights internationally in terms of the United Nations Declaration on the Rights of Indigenous Peoples. However, I did not see those same leaders and representatives fight to have human rights domestically. I would like comment on that.

Ms. Jacobs: Regarding your question on a consultation process, consultation is when indigenous women feel that their voices are heard or when any of our voices are heard that results in not only being heard but also a process that allows those voices to be implemented in action occurs. That has never occurred.

You mentioned specifically the Canadian Human Rights Commission and the change in the repeal of section 67. The consultation process did not occur. That was the issue. There was no consultation process.

For Aboriginal women, human rights violations occur on a daily basis. There was a repeal to allow indigenous women to access the Canadian Human Rights Act. However, the issue we were addressing was access to justice. Women living in poverty do not have access to the act despite changes to legislation. Those were the other issues that needed to be addressed with respect to human rights violations. You cannot simply change the black letter of the law and think that it will make any changes for anyone. Currently, it has not.

You talk about human rights being better for indigenous peoples in Canada, but the situation is not any different. I have spent time in Colombia, Peru and Guatemala. All issues that have impacted indigenous women are not any different than what has happened to indigenous women in Canada. Indigenous leaders are murdered or disappeared. That is not any different than Aboriginal women who are disappearing or found murdered in this country.

Women are being violated on a daily basis. It is not any different in any other country. The issue is the same. Human rights of indigenous peoples and indigenous women are being violated in the same manner. Only when there are no more missing or murdered Aboriginal women and when an indigenous woman can say that she feels safe in her community, only then will I know that there is a change.

Senator Brazeau: I fully agree with you on that. I do not think that is a point of debate. We see eye to eye on that.

However, my question is with respect to the UN declaration. Again, many organizations, leaders and representatives are demanding that the federal government adopt the UN declaration. That raises two questions. What specific outreach have you done to attempt to convince the Government of Canada to change its position on adopting the declaration? Hypothetically, if the Government of Canada were tomorrow to adopt the UN Declaration on the Rights of Indigenous Peoples, what would that do to change the life of an indigenous person here in Canada?

Ms. Preston: I am happy to answer one part of your question, which is about the kind of work we have done with the Government of Canada.

There is an ad hoc coalition of human rights organizations that has worked with indigenous people's organizations over several years. All of you received a copy of the declaration this evening; our organizations are on the back and you know who we are.

We have had several different initiatives and strategies. One was a successful motion in the House of Commons last year, where Parliament felt that Canada should endorse — and by the way, Canada cannot adopt the declaration but can endorse it, the way Australia has just done, by saying we have decided to change our position and we now endorse the declaration. That is the legal issue here now.

We had a vote in Parliament, which was successful. We have worked with many federal officials. You probably are aware that before the vote, many federal departments had given instructions to their ministers that Canada should adopt the declaration. This is on record because of a freedom of information request that Amnesty International filed.

We had done a lot of work with federal officials ahead of the vote. There was nothing we could do to change Canada's position on that, no matter what we did. Since that time, we have worked with all political parties to try to engage the government on the declaration and encourage their support of it.

One problem is that we cannot get a response from the current federal government. There actually has been no engagement, consultation or dialogue with the current government over the declaration, with either human rights organizations or indigenous people's organizations, since it was adopted.

The only other point is about consultation. I am sure you are well aware that the constitutional duty to consult Aboriginal peoples is completely different than a requirement to consult a civil society organization. They are completely different things. It is good if the state engages with civil society, but the state has a legal obligation to consult with Aboriginal peoples.

The Chair: I have a long list. Do you have more questions?

Senator Brazeau: There was the question about what exactly and specifically the declaration would do to better the life of an indigenous person in Canada.

Ms. Gabriel: Maybe we could all drive Porsche 4-by-4s.

I think it will respect us as peoples. We have lands, we have territories, we have a culture, we have a language, and that has been denied to us since the arrival of Europeans.

It is unfortunate, having been at some of the meetings that you have been at, Senator Brazeau, because all the so- called consultation meetings I have been to have not resulted in anyone being happy. I think consultation is a dialogue; consultation includes informing the other party about what your position is. I did not see that in any of the meetings I attended regarding this issue. No one was able to answer any of our questions; no one told us any kind of position that Canada had. The real issue at hand is why the honour of the Crown is not being represented in this. It is not a matter of debating.

I apologize for sinking to a child-like opening comment, but the frustration is still there. Unless you have visited every single community in Canada, I do not think you have a right to say what you did. You can say it, but I do not think you can back it up. I would prefer to answer questions from other people.

Senator Brazeau: I appreciate the free promotion for my dealership.

The Chair: I had hoped we would not get into that kind of dialogue. Everyone is free to express their opinions in the Senate, and I think the senators here are expressing their opinion and want to keep an open dialogue. While I am not going to take issue with your comments, I had hoped we could continue freely expressing ourselves from our own perspectives.

Consultation and dialogue would mean that we do not always agree, and we may not even say it the way others want us to say it, but if we start from an honest opinion on behalf of all of us, I think we will get further. I hope we can resume that tone.

I will intervene at this point and ask one question. I was involved in some of the first consultations of any NGO groupings with the Human Rights Commission many years ago. It was never expected of me, as the representative, to be able to put forward the government position. It was always understood by NGOs that I was a representative to try to get all the opinions I could, and then to take them to the government and say this is what the Canadian people are saying on these issues. It is true that we had more sessions and more time to work it out. The government, at some point, would respond and say these are the issues we are going to take up.

Is one of the problems today the fact that we did not know what the Human Rights Council was going to be like and that we did not know what the Universal Periodic Review was going to be? For example, we were told Canada would not come up that quickly. Then we were told Canada was going to come up in November and it came up in February. Are we not all struggling under difficulties of understanding what this process is and how it should be handled?

I respect the fact that you have made other comments. However, is there some need for us — which is something we have been struggling with in the committee — to give some advice for the next one, how to handle four years as opposed to four months?

I would not want to be the government, getting a report from 70 nations and everything and having four months to get it through the maze of the bureaucracy and politics we have in Canada. It is impossible.

Ms. Jacobs, you and I were on consultations on a different issue. It took six months until the report came back, and it was on one issue. It is not enough time. How do we ensure that we do not fall into this trap of time and misunderstanding?

I know that when we were in Geneva, we could not get an answer out of them last year as to what the Universal Periodic Review would look like — what the expectations were. We are struggling with the new one; and rather than get bound by what we did wrong, what can we do that will get us out of the conundrum we are in now? How can we get something more effective, more real, upon which we then can judge any government that is in place to say, look, here were the steps, here was the process, why did you not do it — or you did not do enough of this?

Should our first engagement be on setting a proper process?

Ms. Jacobs: First, on your comment about timing, I agree that timing is always an issue with change. However, what we are presenting is the frustration that we felt in this process — that there was no engagement, no dialogue, nothing coming back and forth. That is the issue.

With the time that there was, people are feeling that was not respectful or honourable; that is what the frustration is about. Yes, we learned our lessons from that. If we are learning our lessons about how to make it better, we make it better by learning from mistakes.

If we are learning from mistakes, then we have four years. Right now, let us figure out what that means, if there is an engagement process. It is not just the human rights process either. It is all other areas within the Canadian government of engagement — with environment, with matrimonial property, with the Indian Act — all of these issues that Canada has to engage around with indigenous peoples in this country. In order to establish that, as Senator Brazeau said, what is the process of consultation?

When the grassroots people have a voice and feel that something will make a change for them, then there will be a positive movement forward. It might mean that we have to talk to every individual in our community; so be it. I would say that about consultation in my community. A process is built internally where everyone has a voice. Everyone should be able to present his or her voice and have a respectful dialogue. It should not continue in only one way. That is the issue.

The Chair: That would be helpful.

Ms. Preston: Last week, we asked specifically whether civil society indigenous peoples organizations would have the opportunity to see the draft report after Canada had put it together and before it is submitted in June to the council. We were told no. We did not have access to the national report before it was done or any input into it. We will not see the final report before it is submitted in June, although I am sure it will contain a paragraph saying that civil society and Aboriginal peoples were consulted.

That is also a problem. As well, the small meeting held by Foreign Affairs last June, which was more on process, brought in a representative from the U.K. because the U.K. had already been through a UPR. In the first session, she talked about the U.K.'s experience. She gave a fantastic presentation, and I thought, this is great — Canada plans to do all this. It was about their engagement with civil society. It is unfortunate, because although Foreign Affairs arranged that and brought her to Canada to describe their experience, we did none of what the U.K. did. They were up one year before Canada was up, so we cannot say Canada did not have enough time to get it together.

We say that we need to learn from our mistakes, but the review was the first week of February. When you know you have only four months to put your report together, do not wait two and a half months to have your first set of meetings. Meetings should have happened at the end of February, not the end of April. That would have been a key, easy thing to do.

Senator Poy: I would follow up with what you just said, Ms. Preston and Ms. Jacobs. I do not believe it is a matter of months or years, because the way in which Aboriginals have been treated in Canada historically has been bad all along. What will change in a few months or a few years? It has to be much more basic. The government has to be involved and realize fully that we have problems and we need to change many things.

Ms. Gabriel talked about colonization. What do you think would happen if the government were to repeal the Indian Act? Should it be replaced by something else? I would like to hear your point of view.

Ms. Gabriel: It is a good question. Indigenous representatives had mentioned that we would like to see the replacement of the Indian Act, but with what? This is where the consultation process comes in to discuss what we would replace it with, what kind of reconciliation we would have with the Crown with regard to all the important issues for us, and how we would have a peaceful coexistence with Canadian society.

It took us over 100 years to get us to where we are today because of the Indian Act and the destruction of our languages. Many communities want to see our languages vibrant again and used by youth and children. We want to see land preserved because it is so much a part of our identity. We turn to the land to find our health and our peace. Decolonization is about more than getting back our identity. We cannot live the way our ancestors lived, because we cannot fish in the streams and hunt, especially those of us close to it. The whole process of decolonization first has to come within the desire and discussions by indigenous people and then in discussions with representatives of the Canadian government. This is what we have always wanted and this is what our elders have taught us. Currently, there are so many policies and programs that I see them as contributing to forced assimilation. While there are many good things, it is destroying our identify and destroying us as indigenous people. I would hate to see only remnants of our identity in museums.

We have talked extensively about this amongst ourselves but not enough with people from government.

Senator Poy: Do you think that could solve the problem instead of implementing the suggestions of other governments in the UN as to what Canada should do toward its indigenous people?

Ms. Gabriel: I am not too sure that I am clear.

Senator Poy: Other governments have made many suggestions in the UN about what Canada should do and the process to improve the treatment of indigenous peoples. Should it begin by repealing the Indian Act?

Ms. Gabriel: It is a good place to start, but we have to be careful. What would we replace it with in our reconciliation of our relationship with the Crown? What kind of treaties would we create? How much of the old treaties, in particular the Silver Covenant Chain, could we use? It is still possible to use that. There are some good recommendations with good intentions, but there needs to be more detail in the process and more indigenous peoples' input on how that has changed.

Senator Poy: We have been hearing that.

Ms. Jacobs: The Indian Act has been a blanket process and has treated indigenous nations in the same way. When you make a generalized statement of how to make change, if you repeal the Indian Act, then it will be different in every community. Some communities might rely on the Indian Act while others do not rely on it. Some communities have traditional governments that they rely on and others have customary governments. That must be part of the consultation process, because they are not all the same. We all come from different languages, different cultures and different creation stories. To me, that is part of the difference between all the indigenous nations.

Senator Poy: After hearing the four of you speak, I wonder whether you feel very cynical, especially about Canada's image internationally as a human rights champion.

Ms. Jacobs: I think you have heard our cynicism.

The Chair: I am sorry, we have someone at the table I do not know.

Paul Joffe, Legal Counsel, Grand Council of the Crees (Eeyou Istchee): My name is Paul Joffe. I am a lawyer and I am counsel for the Grand Council of the Crees. Romeo Saganash asked me to deal with some of these questions.

The Chair: That is a bit unusual, if I may say so, and we are running out of time. I am not sure what part of the questions you would like to answer. Are you going back to everyone's questions or is it the last question? If it is the last question, you can answer if you wish but we must move on because I have other senators.

Mr. Joffe: If you want to move on, you can move on.

The Chair: I want you to answer the last question if that is what you were invited to answer.

Senator Poy: Yes, about the cynicism.

Mr. Joffe: I do not think it is a matter of cynicism. I think it is a matter of human rights. Let me give you a concrete example, because we are talking about the UPR. Recommendation 11, from Morocco to Canada, says: ``Continue its committed policy, federally, provincially and territorially, to promote and protect all human rights.''

Canada would like to know what indigenous peoples or civil society think. Well, we asked the question specifically. When it says ``all human rights,'' does that include the collective rights of indigenous peoples? For example, when Canada answers yes, it will promote and protect ``all'' human rights, if we do not know whether that includes the collective rights of indigenous peoples, then we are no further ahead. A yes or a no does not tell us very much. That goes to part of the heart of the problem. We do not have a discourse on human rights. Part of the duty to consult, to have a meaningful discourse, is to speak, as Mr. Saganash said, ``the common language of humanity,'' human rights. We have said it over and over.

I will give you one other example that affects not just the UPR. I looked at the last two years of your annual reports from this committee about Canada and the Human Rights Council. You have a section on bloc voting. You have talked about how Canada is isolated and how the Human Rights Council is being abused. That is valid; it is affecting everything, including the UPR. Our experience is that Canada actually also exploited block voting when they could not get support and they saw the African Group coming up with a proposal. It had about 33 amendments to the UN declaration, including to delete the right of self-determination, which Canada accepts and has ratified in the covenants, and to respect only existing treaties, with no more discussion about future treaties. Canada, including the woman sitting back there with Willie Littlechild, very harmoniously, came up with treaty provisions, so it did not conform to Canada. The proposal also said that every country, every state, would determine who is ``indigenous'' unilaterally. Land and resource rights, ``subject to national legislation,'' — does not exist? — sorry, no rights. I am just giving you a taste of their proposal.

Canada wrote a letter together with Suriname, which had been found to commit crimes against humanity; the Russian Federation, which you know does not have the best record; New Zealand and Australia, two of the most active obstructionist states in the process; Colombia, which might be the most dangerous place for indigenous people to live because of the killings; and Guyana, which does not have a very good record. They wrote to the president of the UN General Assembly that: ``The appointment of a facilitator'' — there was supposed to be a facilitator, a positive thing — ``and the amended text put forward by the African Group helpfully provide a good basis for discussion.''

I am saying this very respectfully: If you want the Human Rights Council to improve, one cannot have states complaining about other states — yet, when it is in their interest, or how they perceive it, they exploit bloc voting to diminish human rights in a way that goes against their constitutional obligations and their international obligations. That is why Canada got isolated in part, because they lost the trust of indigenous peoples, of civil society, and their allies.

I raise this point because if you want a good UPR process — and that is a small part of it; UPR is looking at the performance of states — there must be honest dialogue on human rights. It cannot be just made up. I will stop here.

The Chair: Thank you. We are virtually running out of time and I still have three senators who I would like to get into the process: Senator Jaffer has been waiting patiently, Senator Goldstein and Senator Munson has added his name. With that qualifier that we have three more to go, please proceed.

Senator Jaffer: I am very much aware of the time. When we had our last report, we warned Canadian Heritage that this process would come up and to prepare for this, so they did not have short notice; they did have long notice.

This committee was in Geneva. We heard from many groups about the declaration and the stain that our country has sadly suffered.

When we talk about the missing women from Vancouver, we must never forget that they are from Prince George as well. I go back on Thursday to deal with the issue of trafficking of Aboriginal girls. The abuse continues. Each member here is aware and has heard of your issues.

The time is late, so I have a favour to ask. We cannot look at the past. Obviously, you know that you are not the only ones who have said the process was marred. We accept that. I do not think anything can happen with the report come June; some other groups have also said to us that choice is gone. To move on, what should it look like now? What should our recommendation be? I am not expecting an answer today, because I know other senators have questions, but I would appreciate it if you would give us an idea of what you think should be the process.

The Chair: Would you like them to respond now?

Senator Jaffer: Quickly now then reflect on it.

Ms. Preston: I think this has already been brought to this committee by other people who made presentations. One submission to the UPR that many civil society organizations signed was about the implementation gap. I believe you all have that submission. In that, they identified the solution.

The Chair: You are referring to ``Promise and Reality''?

Ms. Preston: Yes.

The Chair: That was brought to our table by Amnesty International. That is for the record.

Ms. Preston: That is right. The number one solution is that government secrecy around these issues must give way to openness and transparency. That is the key. There are two other longer points there that you can look at, but one of the problems is that we do not have an effective mechanism to look at international recommendations and we do not have an effective mechanism to try to work together to reach common solutions. We need that mechanism.

Senator Jaffer: We have that. I did not clarify my question, so I apologize. I meant what we should do differently when it comes to the Aboriginal community, because communities are not cookie cut. Every community should not be dealt with in the same way. After you look at what Amnesty International had suggested, if there is anything specific you think we should look at, please let us know and we will see if we can recommend that.

The Chair: Does anyone else wish to comment?

Mr. Saganash: I will respond briefly to that. I mentioned in my presentation that this committee should look seriously at the positions of the Government of Canada vis-à-vis the declaration. That is one thing. Also, this committee should seriously consider taking an in-depth look at the treatment of Aboriginal peoples' human rights in this country. That is another suggestion I would like to make.

The Chair: In your reflection, we are concentrating on the federal government, but there is a role for provincial governments as well. That has been one of the difficulties as a result of the situation. When you go internationally, you see the face of the federal government, and they certainly get the brunt of the comments, but they are speaking for provinces as well in that process.

We do not know what has happened between the provinces and the federal government to lead to the position that was put forward, now that we know what the report says. Some reflection on the process of the provinces and the federal government on this issue is key. Perhaps you can factor that into any other comments you may want to make to us for our recommendations.

Senator Goldstein: I am not asking a question; I just want to encourage you to keep speaking, keep being active, keep forcing or trying to force the government to do what the government should be doing. Please continue to do that.

Senator Munson: I wish we had another couple of hours.

The Chair: We will have another session. As we pointed out, we are not giving up on our references. We make interim reports as opposed to final reports, because I think someone talked about persistence on these issues.

Senator Munson: We are well aware after hearing the testimony tonight that there is a cry to be heard. I would encourage this committee to invite Minister Strahl to appear before us, as well as other ministers, because if we are talking about the process and dealing with the Human Rights Council and the Universal Periodic Review, a human right is a human right. We have been walking around the table with 60 groups here and 30 groups there, but there is one human right, and it applies to all of us. I am making a statement as well.

Briefly, what positive step could the minister take now to address this issue? Your feelings are very strong. You say that all levels of government should collaborate on a national plan of action. You talk about women, families, enforcement of courts, band protection and so on. Every day something horrible is happening in this country; and every day, from my perspective, governments are not wilfully turning a blind eye on these issues but not stepping up and doing something about them. We have to do more. That is basically it.

Ms. Jacobs: I want to add to that. I think part of the decolonization process is that the way of thinking about the process needs to change with government. Right now, the way it works is within silos. There are departments of Indian affairs, health, justice and public safety, when all of these departments have a responsibility to indigenous peoples in this country.

There should be a whole intergovernmental working group that comes together to address the safety of indigenous women, human rights violations and health and well-being. When we come here, we come here thinking holistically that everything has an impact on who we are as a people. That holistic way of thinking needs to change, because that is part of the difficulty. The difficulty we always have is trying to present our solutions and recommendations in different forums and different processes when we are saying the same thing over and over again. That is a continued frustration.

We need one place where we can present all of these issues and solutions, with something coming out of it. We continue to present positive solutions and changes and things that need to be done, but there is nothing coming back to us. That is part of the problem.

The Chair: If you read our report on the Convention on the Rights of the Child, we spoke to that issue, the need to act interdepartmentally. We also stated that it is a broader need; we need the Aboriginal community to come together to address some of the children's issues. The whole point is that you look at the child and the child's needs, and who can best support and help that child. We would be better off doing that than determining who has responsibility and who will do what with it.

You are echoing a theme that has come out of this committee on children, but it applies equally to all other problems.

Ms. Gabriel: Those comments made during the meetings not just by indigenous organizations but by members of civil society as well were to the effect that we will play a game of semantics and talk about something being done by the government when the reality might be a little different. There might be some essence of truth to the statement. We were told that the government has only six pages with which to respond, and that limits the truth from really being told.

In the 19 years I have been doing cultural sensitization and public speaking, I have experienced that all kinds of great academic research are being done out there. When I went to the Aboriginal Policy Research Conference, I went to a language workshop. The woman heading the workshop was a former employee of INAC who had retired. I said to her, ``You have all these wonderful things that will promote our languages and communities, but it is almost as if the government knows this is what you need for success and they do the exact opposite.''

That is my sentiment on the policies and programs. That is why we need to have something more. Yes, bring Minister Strahl here, but I would like to have a discussion with him. It is not just him making a statement to you, which sounds all nice and flowery. There is the reality of the situation that might apply to certain communities. This pan- Indian approach, if you will excuse the expression, is what is done by the federal government as well as by the provinces.

I agree with the jurisdictional issues. With respect to Jordan's Principle, I was told recently that INAC has supplementary funding to implement Jordan's Principle, which was great news; but so much more is lacking. We have talked about a decolonization process and about talking to one another.

I told a woman from the Department of Justice during one of these meetings that we are not doing this just for us; we are doing it for you and your future generations as well. Our indigenous knowledge teaches us how to perpetuate the environment so that future generations can enjoy it.

If I were alive 500 years ago, I would have wanted to assimilate these people and teach them what true democracy is, what true holistic practice and peace is. That would be my wish if I had lived 500 years ago.

The Chair: On that point, I should say that our role is not to supplant the government. We are well aware that the consultation is between the Aboriginal people and the Government of Canada or the provinces.

We are looking at the machinery in the international arena and trying to see whether that can work in favour of us all, as you have put it. That is where we are going on this. We want to make sure that the UPR process is not detrimental to anyone in Canada but that it starts forming something more of a positive dialogue, both within our country and internationally.

It is a shame; they talked about a Human Rights Council. It was intended to create a whole new concept that was originally badly marred and scarred by the Human Rights Commission. They did not take time to talk about how it would be implemented. It would simply be a new thing that would wipe out all the ills. We do not want to fall into that process here. We want to make sure we are dealing with those issues that are just as important.

Process is important. That is what you keep telling us. That is why I think the processes within the UPR and the Human Rights Council are as important as the fundamental rights that are stated. If rights are only stated, they go nowhere. They can be a guide, but it is the process that allows for implementation and then some meaning in all of our lives.

It is not a small issue we are talking about and it is not one that we will let go of, because we are seeing it evolve. We will critique it, but we also want to start providing some positive suggestions. We do not want to say the government is doing this wrong and has been doing this wrong for 20 years. It is time to state what can be done and then monitor to see whether it is done.

One of the biggest issues is transparency. If we do not know what is going on, how can we deal with it? That continuing committee, where so much is decided, is still not open to anyone's scrutiny, and I think in a modern, democratic society it should be. I am not stating my position; I am stating this committee's position for about seven years. We will continue to say it. It does resonate from time to time. Incrementally, we hope we have made a difference. Your presence here has been made a difference to our dialogue. Thank you.

(The committee adjourned.)