Proceedings of the Standing Senate Committee on
Human Rights
Issue 2 - Evidence
OTTAWA, Monday, March 22, 2004
The Standing Senate Committee on Human Rights met this day at 4:40 p.m. to study key legal issues affecting the subject of on-reserve matrimonial real property on the breakdown of a marriage or common law relationship and the policy context in which they are situated.
Senator Shirley Maheu (Chairman) in the Chair.
[English]
The Chairman: I should like to welcome everyone present today, as well as those who are listening to us on the radio, watching us on television or listening to us over our Web site.
Welcome, Minister Mitchell. It is our pleasure to have you here. I understand that you are aware of what was in our last report, which is entitled ``A Hard Bed to Lie In: Matrimonial Real Property on Reserve.'' The important part is the ``hard bed to lie in.'' We must seriously look at and solve the problems. I understand that you are already well into the issue for us.
In this particular session, we agreed to continue with the study possibly in a different vein. We will examine the interplay between the provincial and federal laws in addressing the division of matrimonial property, both personal and real, on reserve and, in particular, enforcement of court decisions.
I am not sure which item becomes more critical. The practice of land allotment on reserve with respect to the custom of land allotment is a problem in the case of marriage breakdown with regard to how the property is divided and possible solutions that would balance individual and community interests.
We also must look at the Quebec issue, where StatsCan tells us the communities living on reserve are short by 7,000 houses. Quebec alone is short by that amount. I think your statistics and StatsCan's figures are way off. I am not sure who is right, but I would prefer to believe that the department is well aware of the situation in Quebec. We are just not putting our money where our mouth is. We have to start looking at that issue very seriously. We have, in my opinion, not always been as fair as we could be with our native communities — which may not sound too good to you, coming from my mouth. However, I have listened to women who are facing real problems, and I have no choice but to believe them. We have just scratched the surface. We have not even gone into the issue in any depth at all.
[Translation]
The committee met a large number of witnesses; however, that number was insufficient. Over the next few weeks, a fair number of organizations, individuals and experts will have the opportunity to appear before our committee. Ms. Cornett has already appeared and I expect that she will do so again. That is also the case for Ms. Ginnish.
It is essential that we invite the departmental officials back to the committee, as the need arises. It is also possible to submit written comments on the topic to the committee through our clerk. Ms. Gravel will then distribute any written comments to all of the members.
[English]
I should like to introduce the senators present: Senator Watt, Senator Ferretti Barth, Senator Plamondon and Senator Beaudoin.
Welcome, minister.
The Honourable Andrew Mitchell, P.C., M.P., Minister of Indian and Northern Development: I do appreciate the opportunity to be here in front of the committee and to have an opportunity to speak to this issue.
I would be remiss if I did not congratulate you, Madam Chair, on your reappointment to this committee. I also want to express my appreciation to the committee for it continuing study on this issue, in this, the third session of this Parliament. I want to thank you for doing that. In my view, this is an important and critical issue.
I would also be remiss if I did not take the opportunity to congratulate the committee on its interim report, ``A Hard Bed to Lie In: Matrimonial Real Property on Reserve.'' I think the committee has done important work in that respect. A great deal more needs to be done, and I am pleased that you will move forward on what is a difficult and complex matter, but one on which we need to move forward. I look forward working with you, myself directly, as well as my officials, as you move through this process because I believe we can be of some assistance to the committee. I want to pledge to you our willingness to cooperate and to assist in the ways that we may be able to.
I shall take a few minutes to give you a bit of my perspective, as well as to make some possible suggestions as we move forward. There is one thing that is absolutely certain — that is, that the status quo is not acceptable. That is clearly the case in my view, and certainly the basis upon which I want to operate as I go forward.
I want to talk about some fundamental issues that I believe we face in trying to come to grips with this particular issue. I want to enunciate what I believe needs to be some of the principles that need to be reflected in the solutions that may be considered and may be recommended as we go forward.
I want to talk about some actions that I believe are being taken in respect of some of your initial comments. Also, I wish to talk about some possible approaches that we may want to take in the medium term, as well as some approaches that we may want to take or some things we may want to consider in the shorter term.
As I said, the status quo is unacceptable. It is not appropriate, I believe, that individuals living on reserve have fewer rights upon marriage breakup than those living off. That is fundamentally unfair, and as Canadians I believe that we would all see that as being fundamentally unfair.
There is a basic conundrum, though. The committee is well aware of this because you enunciated it in your initial report. There is nothing in the Indian Act to deal with real property rights upon the breakup of a marriage; as well, provincial law, where you will find such issues addressed, does not apply. There is, in essence, a legislative gap in this particular issue and it is one that presents a certain conundrum for us as we move forward.
Also, in terms of fundamental principles that we have to deal with in this, there is the necessity to reconcile the principles contained in section 15 of the Charter of Rights and Freedoms with those contained in section 25, which protects Aboriginal rights and freedoms, and section 35, which guarantees the rights of the collectivity. As we move forward with potential solutions, we need to move forward in a way that we can ensure that all of those sections of the Constitution are given attention to and are reflected in the solutions that we move forward with.
To put it more simply, it is an issue of how to reconcile collective property rights with the First Nations community with the rights of its individual members. That is basic question that we need to deal with as we move forward on this issue.
Another issue — and one that is important not just in terms of matrimonial real property but also in the broader issues that we deal with in Aboriginal affairs — is whether changes should be made prescriptively through amendments to the Indian Act or other form of legislation or whether they should be made by First Nations themselves through negotiated self-government agreements. There is a fundamental difference in those two approaches. Therefore, not only is it important how we resolve the issue, but also important is how we give rise to the remedies that we may decide upon or that you may recommend. The way that we give rise to that is also important, both in the context of matrimonial real property rights as well in the broader context of how we deal with a whole range of issues in terms of First Nations and Aboriginal Canadians.
As I mentioned in the beginning, there are a number of principles that I think should be reflected in solutions that may be proposed. First, there should be equal treatment of spouses and partners with respect to the matrimonial home during the relationship and on breakdown, including interim exclusive possession. That needs to be a principle that is adhered to. The second principle is the protection of the band's collective interest in reserve land — for instance, that non-members may not acquire a permanent interest in reserve land. Third, mechanisms must be in place to enforce court ordered remedies. Fourth, the solutions must complement self-government and the FNLMA processes. Fifth, the solutions should meet Canada's international obligations. And finally, sixth, any solutions must be subject to extensive consultations with First Nation leaders and their members.
In moving forward, I want to talk about potential initiatives in three broad categories. First — and I think the committee addressed this clearly in your initial report — it is important in terms of research and outreach activities. The issue of matrimonial real property needs to be the subject of discussion both in the First Nations community and in the broader Canadian community. One of the drivers that will lead us to successfully addressing this problem is to have a broad-based discussion amongst Canadians so that we have an opportunity to understand exactly what is taking place.
In that respect, a number of the committee's suggestions in terms of outreach and research will be undertaken — for example, revising plain language material on MRP, making it more accessible, which I believe is critical. We will be taking your recommendation and producing a video to highlight the issues, again, in terms of information. We will be doing a research piece on the American experience, where I think there are some lessons that we may want to examine vis-à-vis their approach to dealing with the MRP. We will continue to do extensive research within the department — and, as I said at the beginning, we are quite prepared to share that with the committee as we move forward on that.
As well, I believe that it is critical, through these processes and through others, that this be an active and thorough discussion that is taking place amongst Canadians and within First Nations communities.
In terms of approaches that need to be taken, I have broken this down into two categories. Probably — and I will not prejudice the committee's work — there will need to be a legislative change that takes place. Legislation, however, is not something that will happen overnight; it is something that will take a period of time to achieve.
In terms of legislation, there are three different approaches that the committee may want to consider and address in a final report in terms of providing some direction and advice. You have addressed some of this in your initial report as well.
The first approach is to amend the Indian Act to referentially incorporate provincial and territorial legislation governing the rights of spouses in relation to MRP. Although this may be the quickest legislative method of proceeding, it will, I suspect, be opposed, both in process and substantively, particularly with respect to sections 25 and 35 rights. There will also be issues in respect of custom, and there will also be a series of issues that will arise through the implications of band membership. That is one of the possibilities, but in considering that it is also important to consider the types of reactions and the types of issues that will arise from that.
A second approach is to develop a code of principles in respect of matrimonial real property based on a reconciliation of sections 15, 25 and 35, also guided by international standards, and have them applied by adoption through self-government agreements or through delegated authority under the Indian Act. That is another approach. It would tend to be a slower approach. It might be more acceptable to many individuals and groups than the first option, but in the sense that you will still be amending the Indian Act there will be people who will express a concern over that particular approach I suspect.
A third approach would be to develop a code of principles in respect of MRP, based on trying to reconcile the various components of sections 15, 25 and 35, being guided by international standards and to have them applied through negotiated self-government agreements. That would probably be the slowest of the three processes, in the sense that arriving at self-government agreements is a negotiated process and sometimes a lengthy process. It is slow, but it may be likely to have consensus in terms of moving forward.
Those are some approaches, all of which would involve legislation and would certainly have to meet that principle I talked about earlier of extensive consultation.
I would be very interested, if the committee would so choose, to provide some opinions in terms of those different legislative options — whether that opinion is that of the members directly or whether it is based on input that may be received from witnesses.
In the shorter term, however, there may also be some work that would be worthwhile. First — and this is something that I was struck very much by in your report, and it is hard, I suspect, to express in words the depth of the feeling of some committee members and that was expressed by some of your witnesses. It is very difficult to speak to people who are affected by this particular situation and to say to them, ``Be patient, we will legislate or we will find a solution, but it will take some time.'' I appreciate that that is a difficult situation.
Hence, I would ask the committee, and you may choose to, to focus on some short-term issues, as well.
First, to make any recommendations on whether or not you believe there is non-legislative, quick action that can be taken on an interim basis. You may want to seek opinion of this, through witnesses. Are there processes that are non- legislative in nature and that can be implemented in the short term to bring some sort of interim relief? Waiting for a legislative change may be, to say the least, frustrating for individuals.
Second, it would be an idea if the committee would choose to undertake an examination of the self-government agreements that are in place — and not the agreements per se, because we can all simply read the agreements — but, rather, how they are working in practice in respect of matrimonial real property. There would be a great value to doing that. We are beginning to have a number of self-government agreements that are operating and they address MRP in different ways. It would be of some value to examine what is happening in real terms in real time on the ground in respect of these agreements and to talk to those communities and members of those communities.
Third, it would be helpful and useful if the committee were to make specific suggestions or recommendations on the possible component parts that would be in a code for matrimonial real property.
Some of those issues you touched upon in your interim report, but there is a body of work that is taking place, and adding to that body of work would be particularly helpful.
Those are some of my views on this on this subject. I appreciate the opportunity to speak to you and look forward to working with the committee on this study. This is important work and something that we can do collaboratively. A final report will be a valuable piece of work that can make a valuable contribution to this difficult situation.
We have a collective responsibility to address this issue, to eliminate what I believe to be an obvious inequity that exists today. It is important that we work to resolve this issue in a manner consistent with individual and collective rights under the Constitution and consistent with Canada's international human rights obligations.
The Chairman: Thank you, Mr. Minister. Before turning to Senator Beaudoin, I wonder if you are aware that most outpouring of money to First Nations has remained very stable since 1982, or for over 20 years. Have you had time to think about the impact of this and the fact that it has not even kept up with inflation?
When we look at the province of Quebec — which happens to be where I come from, as well as Senators Watt, Beaudoin, Plamondon and Ferretti Barth. You are inundated on this particular committee with the preoccupation about the enormous difference between figures that are floating out there and the real needs of the native people.
Although Canada did — and I say ``did'' — have a reputation that was almost untouchable, as far as human rights go, our treatment of our Aboriginal people has taken us down. It is something that is still being talked about. I was at an international meeting last week; we are not as lily white as we like to think. We have a long way to go.
With me, minister, what you see is what you get. That is exactly how I feel. We have a long way to go — which is a shame. When I hear Canada being touted as the place to live, as far as human rights is concerned, I almost choke. Quite frankly, I am ashamed, when I stop and think about this committee and what we have heard — and we have barely scratched the surface.
We talk about statistics that tell us that 30 per cent of Aboriginal people live on reserves. That is not true. In Quebec, 70 per cent of Aboriginal people live on reserves. There are so many statistics that are wrong. I hope your department will get down to brass tacks and not talk about legislation that is 10 years down the road; let us talk about legislation that we can implement now.
Minister, would you like to respond?
Mr. Mitchell: Yes. First, I agree that the Canadian reality is that there is a disparity between the economic and social well-being of Aboriginal Canadians and Canadians in general. That has existed throughout our history. We have made some progress in closing that gap, but that is not to suggest that we have come anywhere near closing that gap. Whether you are looking at education, health or economic development, the outcomes are significant.
My broad-based objective as a minister is simple: Close that gap. The actions that we take as parliamentarians, the actions I take as a minister and the actions the government would take need to be measured in terms of whether they will be effective in closing that gap. That is the first point.
Second, when it comes to programming, someone said that the definition of ``insanity'' is doing the same thing in the same way but expecting a different result. We need to be cognizant of that in my department. I am particularly cognizant of that as we move forward. I believe that will necessitate, in terms of developing policy, in terms of moving forward, what I call thinking outside the box. In other words, simply doing more of the same is not necessarily what we need to do.
There are two parts to this. There is the substantive issue with which you need to deal and there is the relationship that exists between Canada and Aboriginal people. We need to deal with both of those simultaneously if we are to be successful. In other words, not only must we worry about making new investments, we must also ensure that the process by which those investments get to First Nations and other Aboriginal Canadians is built such that the money is delivered in an effective way.
I am sorry for taking up that time, but I could not resist after the opening you gave me in your comments, Madam Chair.
Senator Beaudoin: I am not an admirer of the Indian Act. We have many statutes on our law books that are much better, and I am pleased about that.
We missed the boat in 1867. Paragraph 91.24 of the Constitution makes jurisdiction over Aboriginals a federal power. Jurisdiction over marriage is also federal. Also, according to jurisprudence, we have a fiduciary duty toward the Aboriginal nations. Therefore, there is no reason in the world that we have not settled that problem. It is not a question of money, because we have money.
I do not understand. Where is the problem? We have the right to legislate, even on the question of property. Property and civil rights are provincial, I agree. I come from Quebec and I teach the law of Quebec. I know that it is important.
We have the power to do something; I do not understand what we are waiting for. In 1982, we made a lot of progress for Aboriginals. Section 35 gave them collective rights. Others have only individual rights, but Aboriginal peoples have collective rights. However, that is not reflected in legislation — only in some judgments of the court.
This report is interesting. We know what the problem is but we seem to hesitate to proceed. If we must amend the Indian Act, why not do so? That is our job.
There is also the issue of equality between men and women. The Liberal government made the first amendment to the Constitution after 1982 when Mr. Trudeau said that Aboriginals should have equality between men and women. However, they do not. It is a pity that after 20 years we are still talking about equality between men and women on Indian reserves. It is in the Constitution; we have no choice. Marriage and divorce fall under federal jurisdiction. With regard to property, if it is helpful to apply the law of the provinces, why not do so?
We should make, tomorrow if possible, the amendments necessary to provide equality between men and women on reserve. It is a shame that it does not already exist. If a woman ever takes such a case to the Supreme Court, you may be sure that she will win easily, just as Madam Lovelace won her case before the United Nations on equality between men and women.
The federal authority has the power necessary to change the entire situation. Could you tell me why it is taking so long time to do this?
Mr. Mitchell: I will try, senator, although I do not know whether I will be successful.
You said, and I do not disagree, that we have the power as a Parliament to amend the Indian Act. We do, but I suspect that you could engage in a fairly substantial debate about whether amending the Indian Act is the most appropriate way to achieve our objective. I do not think you will find much argument with the objective, although you may find some argument with the means.
You also said — and I and many others agree with you — that the Indian Act is not the best piece of legislation. In many respects, it is a nineteenth century tool trying to operate in a twenty-first century world. Therefore, amending the Indian Act may not be the best way to achieve our goal. We may want to consider self-government instead. Some would argue that this is something for the community to resolve.
Senator Beaudoin: You say that it is up to the Aboriginals to do this. I do not agree. It is our duty here to do that. There are two orders of government in this country — the federal and the provincial. The Aboriginal people have collective rights, but the power to improve the situation is within the Parliament of Canada and I do not think that we should wait for the existence of a third order of government because the power is with the Senate and the House of Commons. We may involve the Aboriginals and ask them what they want, as we should. We could even amend the whole Indian Act. That would not be the end of the world. It is possible to do.
However, in my opinion, a third order of government for Aboriginals is not the solution because the Supreme Court has not yet said that they have a third order of government. Federalism in Canada is between Ottawa and the provinces. The Aboriginals have a special status. If there is one population in this country that has power and is distinct, it is the Aboriginals, because of section 35.
However, to leave the question to the Aboriginals, in all parts of Canada, to imagine a third order of government in the reserves, I do not think is what they had in mind in 1982.
Mr. Mitchell: I will comment on that and on the original comment.
I am not here to suggest to the committee how to operate, but it would be instructive, senator, to ask that question of witnesses, not in terms of objective but in terms of process, if they believe that amending the Indian Act is the best way to proceed. It would be interesting to see the opinions that would come forward in that respect.
With regard to First Nations and Aboriginal communities taking on self-government, sections 15, 25 and 35 of the Canadian Charter of Rights and Freedoms apply in the agreements that we have to date. It is not a matter of suggesting that they will do it outside the purview of the Constitution of Canada, but it is an issue of whether or not, through self-government, those communities will decide how to achieve those solutions being respectful of sections 15, 25 and 35. That is a slightly different perspective than you were offering, senator.
One of the important issues here — and I may be naive — is that there exists in dealing with this situation a need to simultaneously, within the same universe, deal with the issue of collective and individual rights, that the solution should not impinge upon either of those and that we need to find a solution that is respectful of both.
I agree with you, senator. Needing to do that is no reason to say that this is too complex and too difficult and, therefore, we will walk away from it. I totally agree that that is what we cannot do, because the inequities that exist and the impacts of those inequities are real. Our obligation is to find the solution. I am saying that, in finding that solution, there are important considerations. At the end of the day, it will not assist us to proceed in a manner that the community at large does not feel is appropriate.
Senator Jaffer: Minister, as you know, we were asked by the previous minister to carry out this study. On his request, we have presented an interim report. Before we continue with this work, and not to feel that this is a make- work project for this committee, it would be helpful — and I know you covered it obliquely — to know what the department will be doing concretely. I should like to hear from you.
I was also very pleased to hear you talk about the gap, and I want to congratulate you. As somebody who has come recently to this country, I have always felt that I have more rights in this country than Aboriginal women, generations of whose families have lived here. My preoccupation is that we raised expectations, if you wish. We saw and talked with many Aboriginal women. The senators now sitting here will tell you that those women now think that our committee will be able to address the issues they expressed.
I want to come to a practical issue, and that is housing. The strongest message we got from many witnesses was on the issue of housing. I would very much appreciate, minister, if you would comment on what you are doing in response to the interim study on housing. What are the immediate steps your department is taking? I have some further questions on that subject.
Mr. Mitchell: I agree with you, senator, that in terms of this particular issue it is intertwined with the issue of housing. There is a shortage of housing in First Nations communities.
I think we need to go about this in two broad ways. First, we need to make a separation with regard to what I would term the need for social housing. That need is different in various First Nations communities. There are some communities where the vast majority of housing will be social housing. It is the reality that those communities face.
I go back to my comments about thinking outside the box and the opportunity to look at solutions that may be different. There may be ways, and I have already signalled to the national chief and to the AFN a willingness to work with them, to discover creative solutions to developing housing, where you may want to consider a market-like process to develop — and I use that expression directly, purposefully, because it would not be a market as we may see it. We may want to look at processes that bring partners into the process of developing on-reserve housing. There are some First Nations who have accomplished that.
In doing that, I think it is important that we realize that not every First Nation is the same. A solution that may work in British Columbia may not work in Northern Ontario. We need to reflect that.
However, as a department, I intend, working with my officials, the AFN, other First Nations and Aboriginal groups, to develop alternative approaches, ones that may be effective in dealing with the housing issue.
When we talk about closing the gap, that has to be part of it, because that is part of the gap. It really has an interplay on this issue. It has an interplay on many other issues as well. If you do not have appropriate housing, it is tough to deal with other issues, such as education. There are a whole series of issues. We stand prepared to work with the AFN and other organizations.
One of my basic philosophical approaches to dealing with this portfolio is that change needs to happen in a collaborative way, working with First Nations communities. The knowledge is not necessarily resident on the 21st floor over in Hull in the Department of Indian Affairs and Northern Development. Knowledge is resident in large part in the communities themselves. It is our ability to tap into it and our ability to build solutions from the bottom up that in the long term will see us be successful.
Senator Jaffer: Minister, I commend you on saying that the knowledge is not just in Ottawa or in your department on the 21st floor in Hull, and also on the fact that a collaborative effort has to happen. However, I also believe that the buck stops here in Ottawa. We have to take responsibility to make sure there is housing. That is the responsibility of leaders. We are also the leaders of these Aboriginal women. My concern is this: What are the practical steps? For example, at this point, how many houses are being built annually by the federal government on the reserves? Can you tell us that?
Mr. Mitchell: I do not have that information here, but I will get it for you.
Senator Jaffer: I should also like to know how many housing units the department estimates are currently required across the country to address present needs. Some witnesses were saying that, if a spouse had died, they sometimes were asked to relocate because there was not enough housing and they did not have the pull to stay in the same housing.
Many of these issues are based around the very practical issue of how many houses are available. I commend you for wanting to think outside the box, but what is the thinking about how we can provide extra housing? That is the crux of what we were hearing.
Mr. Mitchell: I will get you statistics that you want. There is no question that it shows a gap.
I word it a little bit differently, but I do so because I think it is important. I see and accept that responsibility that lies with the federal government. However, it is not simply an issue of going in there and building housing. In my view, the issue is to be able to empower communities so that they have the opportunity to build housing for their members. That is important, because the type of housing that they may want to build could be different from community to community. The types of partnerships that may be available will be different from community to community. The idea is to provide the tools to First Nations.
In some cases, it may be giving them the tool to be able to raise capital on the market so that they have dollars to invest in housing. That is not a tool that will work everywhere, but there are some in your province, for instance, where that may work well. There are other areas, for instance, in Northern Ontario, and I expect in some places of Quebec, where that may not be a practical solution.
I want to work with the national chief, his organization and with other organizations on how we accomplish the types of models and approaches. That is not to say we would not do anything in the interim while we are trying to develop these new approaches but to say that that has to be an integral part of how we move forward. Let us find those innovative ways. Let us find ways where we can form partnerships where it will work.
I am the last person to suggest that there is one solution that will fit all and that there is some panacea that will result in the whole problem being fixed, because that is not the case.
The Chairman: Minister, you mentioned social housing a little bit earlier. I wanted to put on the record that housing may be social, but it does not diminish the shortage that native communities are facing. Be it social or whatever you want to call it, there is a blatant shortage out there.
Senator Plamondon: I want to comment on the approaches. You were suggesting a code of principles. Every time someone suggests that, because I have worked on different codes in other organizations, I think it is to elude the fact and buy time so as not to legislate. I was wondering if there are any other studies being made by your department and if you are suggesting a code of principles to buy time to have those other studies made. The problem is known. The principle is justice and fairness. I would take the legislative route to solve the problem, because, with a code, there are no sanctions, only principles. With a law, there are sanctions. I think it is high time that we go with a law.
Mr. Mitchell: Senator, to make it clear to yourself and to the committee, it is not my intent, nor is it the department's intent, to elude the issue or to escape the issue. It is a real issue that has real impact on people's lives, and it needs to be addressed. Without wanting to prejudice the outcome of any consultation or to prejudice what this committee may recommend — it could very well entail legislation — but it is the choice of legislative vehicle that we would use that is also at stake and needs to be considered. If there were a straight amendment to the Indian Act, a provincial jurisdiction could create some difficulties, because it may bring it into conflict with other parts of the Indian Act that deal with the collectivity. We would need to be cognizant of those facts.
We have begun to do a substantive amount of work on that. We are quite happy to share that with you. My idea in mentioning that is to ask the committee if it may want to add to that and expand upon it, or say, ``That is a foolish idea, minister; I do not know why you would even suggest that in a code.'' That may be one of the suggestions that would arise. If, at some point in time, you decide to address this problem, either through self-government or through, let us say, a delegated authority under the Indian Act to individual First Nations, you may want to have a set of principles, as you referred to them, senator, as being something around which the individual community codes need to be built.
For instance, you may have a principle that there has to be gender equality in how you deal with the issue. I think all of us around the table would say that that is a given in what you do, but there would be a series of issues. We need to contemplate how you to deal with the solution in terms of having a code. It will be useful in whatever way you choose to do it. If you choose to do it through some sort of self-government or delegated authorities so that the communities do it, then you have a set of principles. If you decide to do it directly through amendments to the Indian Act, I suspect that set of principles being developed would be the ones that would find their way into legislation. It is not wasted work regardless of the way you do it. It is important work to be done.
Senator Watt: Minister, once again, congratulations. I will try to touch upon what you highlighted as being where the actual problem is — individual rights versus collective rights. Back in the very early years of our dealings with the government, whether the provincial or federal government, we felt that we would eventually arrive at a way of rectifying the difference between the two. I think we are moving in that direction now. At least the various individuals and the communities are beginning to highlight the fact that this is a problem that needs to be rectified.
It is not an easy issue, because it is not only related to the real property on reserve, but also to potential problems coming from other areas, such as a corporation considered as an artificial person in law and that artificial person or corporation representing the people on behalf of the collectivity, which has raised a problem from time to time — in other words, a collective's notion overriding an individual's interests. That is something that also needs to be looked at seriously if we are to move in the direction of arriving at a solution to individuals versus collective rights.
We have always known, as Inuit, that one day we will have to come up with a mechanism to protect ourselves from ourselves.
How do you do that? That is a way to come up with legislation. Let me use an example that might be closer to the answer. The ministries administering the modern treaty agreements are the ones that have different problems when people operate and live under the Indian Act.
That returns to what I said earlier on. Corporations make decisions on behalf of everyone. Those decisions could very well be made outside the community, but nevertheless, the corporation makes the decision.
I am new on this committee. This is the first time that I have participated in this committee. I wish I had been involved earlier, but I am here, although I am late. I would like to offer a potential solution. We need a bill of rights of our own. We need a bill of rights for the Aboriginal people. Without a bill of rights, Aboriginal people will always be struggling between individual and collective rights.
This committee will proceed to find a solution only on the merits of what you have done so far. You must go further than that in order to get to the answers.
I am not sure that today, without a strong and serious attempt and the political will that goes with it, we are serious about implementing section 35 of the British North America Act, 1982. I do not think we will be creating a full picture of the bill of rights that I am talking about, because they go together. The bill of rights leads and the other follows. Maybe there is a mechanism we can build in later that we could use to correct that bill of rights from time to time, depending on the speed of the development of the constitutional rights being implemented. Those are the factors that I see that need to be looked at seriously. Without a strong political will from our government, I think we will only be providing lip service.
I know that the Prime Minister, and you as the Minister of the Department of Indian Affairs and Northern Development, wishes to get out of the box and to begin formulating new ideas and finding the formulas.
As an Aboriginal senator, I would call upon the government to stop paying lip service. Let us get serious and begin to implement what is already within the Constitution. We must live with that. It is already there. There is nothing we can do about it.
We are not talking about new rights. We are not talking about opening up constitutional matters. There is a way to implement that through legislation. This is an area we might want to use as a test case to begin formulating the bill of rights, even though the Constitution is not being implemented yet. In that way, we will begin to see what else we need to do. We must begin somewhere.
Dealing with matrimonial real property rights is urgent, if I understood correctly. That needs to take place. With the information we have at hand, we should begin to formulate that and put it in the bill. Forget about this business of amending the Indian Act for now. Let us deal with that later, way down the road.
When we begin to formulate the right provisions — what needs to be on the agenda of the government — then we will worry about amending the Indian Act, but not before. That has been our problem, namely, trying to start off with something that we should leave for a later date.
Mr. Mitchell: Senator Watt, I appreciate your input. You bring to this issue, other Aboriginal issues and in dealing with me, a wealth of experience built up over a lifetime. I am appreciative of your willingness to share that.
It is interesting to listen to some of the members around this table with their different perspectives on the way to proceed — not on the solution, but on the way to proceed. It is that type of advice from the committee that will be valuable to me.
It is not my intent to sidestep this issue. Senator Jaffer made a comment about a ``make-work project.'' This is not a make-work project. There is a real and substantive problem for a large number of Aboriginal people and First Nations people, primarily women. We have an obligation to work with them to find a solution. We are of the same mind. We need to do it in a way that works and is the appropriate vehicle. We need to do it in a way that will, perhaps, give us some short-term relief while we are trying to deal with some of the medium-term issues. We need to do it in a constitutional context. I do not disagree with Senator Watt. I would add that sections 25 and 15 need to be dealt with as well as section 35. Our objective must be to find a way in which all of those sections can be honoured, in the same universe and at the same time that we are trying to deal with this issue.
Senator Beaudoin: Mr. Mitchell, you said that amending the Indian Act is not the only way to solve problem. Can you show me the best way? Is it better to leave that matter to each Aboriginal people or band, or each province?
Some subjects of legislation are federal and some are provincial. The Aboriginal jurisdiction was given to the central authority. Since 1982, they have had a certain bill of rights, section 35, where it is stated that they have collective rights. When they go to the Supreme Court, most of the time they succeed. The Supreme Court is rather generous, and I am glad that they are.
Senator Watt: They are not that generous, they are respecting the Constitution.
Senator Beaudoin: That is right, but it is something.
The Supreme Court has adopted the principle of law that if you prove that a treaty right exists, even if you have no document, just verbal evidence, the court declares that it does exist.
They have rights that I do not have. I agree with that. I have no problem with that. I agree with all collective rights. However, you say that the first solution, to amend in Parliament, is not necessarily the best. We should, perhaps, leave that to the Aboriginal people. You will have many differences from one province to another. You will have many differences between one band and another. What kind of law will you have?
In Quebec, we have a Civil Code; it works. The other provinces have the common law; it works. However, that common law does not change from Toronto to Kingston to Montreal to Quebec. It is the law of Quebec and it is the law of other provinces. We have Aboriginals in all parts of Canada, if I am not mistaken. If we leave that to the bands on the reserve, I do not think that we will succeed.
We need a statute for the entire country. If it varies from one province to another, we may provide in federal statute what Aboriginal people may do. I agree with that. However, we must have uniform legislation in this huge country. In order to come up with something that is effective, I do not see another solution.
The Chairman: Senator Beaudoin, self-government is currently being negotiated on an individual basis. It is not done on a provincial basis; it is done band by band.
Senator Beaudoin: Each band has its own statute?
Senator Jaffer: Yes.
Senator Beaudoin: Does it work? I do not see how it can work.
The Chairman: Maybe they need their own bill of rights.
Senator Beaudoin: Do you want a third order of government in the Canadian federation?
Senator Watt: I think that we should negotiate to see whether space can be made for us. That is all we are asking for.
Senator Beaudoin: I accept, as a principle, because it is in the Constitution, that each time the Parliament of Canada legislates, we should consult the Aboriginals.
Senator Watt: Would you be prepared to go a step further and make room for us?
Senator Beaudoin: Yes, because I have respect for Aboriginal people.
Senator Watt: Are you saying that you would not only consult with me, but you would make space for me?
Senator Beaudoin: It depends how you define ``space.''
Senator Watt: To make room; to make a seat.
Senator Beaudoin: We deal every week in the Standing Senate Committee on Legal and Constitutional Affairs with the Criminal Code. The Criminal Code is the same in all provinces, with a few minor differences. An Aboriginal code should be the same in the whole country. If you argued that we must give special treatment to some populations, I would certainly listen to that.
I believe 100 per cent in equality. The most important thing in the Constitution is equality between men and women.
Senator Watt: The problem is that we cannot mix apples and oranges.
The Chairman: Minister, would you like to add something?
Mr. Mitchell: Senator Beaudoin asked whether it is working. As I said to the committee, we do have some self- government agreements in force and operating, and they are not all exactly the same. It would be a useful exercise for the committee to talk to the communities to learn what the results are.
As evidenced by the observations of the two senators on opposite sides of the table here, there are different perspectives on the best way to proceed. By reflecting on those different perspectives and providing its opinion on the most appropriate way to proceed, after consulting with the witnesses that you will call, the committee will make a useful contribution. I ask you to do this not in an attempt to delay the solution, but rather, to ensure that we get the right solution. Those who know me know that I do not have a lot of patience with process. I like results. That may come from the 20 years that I spent in the private sector before coming to this place. I want to achieve results. However, to get it right, we must have positive and meaningful results that will solve the problem.
Senator Jaffer: Minister, we made an interim report because we felt compelled to do something after we heard from our many witnesses. I asked whether it is a make-work project not because I do not take the issue seriously, but because we will not be viewed as credible if we do another report before any changes are made as a result of that interim report. If that is to be the case, there was no need to do an interim report.
Therefore, minister, I believe that we need to work with your department to come up with some practical solutions before proceeding further. I am not talking about big things like changing the Indian Act. That is too large an issue for now.
We would like to see a difference being made in housing, for example, as a result of our interim report. In her report, the Auditor General said that 8,500 houses are needed across the country. However, in Quebec alone they are saying that there is a shortage of 7,000 houses.
I am concentrating on a practical thing like housing because I believe that you can make a difference. You talk about tools. With tools must go resources, and I believe that our government must provide resources immediately to alleviate the housing situation.
When I ask whether this is a make-work project, I am asking whether this will be another report that will sit on another desk. Let us be practical. There is an election coming up, so next year we will still be talking about this report.
We cannot recall the witnesses we previously heard, look them in the eyes and say that we did something, because we did not. If we cannot do something, we should not raise expectations.
The Chairman: I totally agree with Senator Jaffer.
Mr. Mitchell: I would answer that question in a number of ways.
First, specifically on the issue of housing, as important as that is, it is much broader than just how it relates to the MRP issue. That needs to be addressed in a much broader context, and it is being addressed. If we solved the issue of housing and left everything else alone, that would not solve the MRP issue. We need to be concise in concentrating on a particular issue.
In terms of the future work of the committee, there are certain things that the committee has recommended so far, and some of those recommendations are being dealt with as we speak. I concur with the issue of division being expressed in self-government agreements, and, for the most part, we are proceeding.
Senator Jaffer: Can you tell us how the things you have done have made a difference?
Mr. Mitchell: For instance, on the Nisga'a agreement, a provincial law will apply. There is a self-government agreement under which, because of the form of the agreement and decisions made by the First Nations through their negotiations, provincial law will apply. That is one model that the committee should look at.
Senator Jaffer: As I recall, the Nisga'a agreement was in place before this committee began to study this matter. I am speaking about continuing negotiations.
Are you bringing this up? We would like the details of that so that we have the comfort of knowing that we have been heard.
We feel that you are very much in favour of our work, and we appreciate that, but we need more than that. To continue with the work, we also need to know that change is occurring, even if it is the slightest of changes. If a woman came and sat where you are sitting and asked, ``What difference did your interim report make?'' I would like to be able to say that four houses were built.
You were a business person in your other life. I am a practical person. Before we proceed, I want to be able to say that this interim report made a difference.
Mr. Mitchell: I will address that but, senator, I want to make a point clear: If the measure of this committee's work will be how many housing units are built, then I do not believe that is the right measure.
Senator Jaffer: That is not what I am saying. You know I am not saying that. I am saying that to proceed, we must tell the women who have appeared before us that we made these recommendations and Mr. Minister has done X, Y and Z. Without that, it would not be credible for us to proceed.
Mr. Mitchell: There are three broad suggestions that the committee made in its interim report that are being dealt with. First, there is the issue of ensuring, and emphasizing to the government, that MRP is an issue when dealing with self-government. It is an issue of looking backwards to what has occurred and perhaps taking lessons from that. It is also an issue of looking forward. The committee has made that point. It is a good point, and the government certainly accepts it.
Second is the view that it is important to try to develop a code. The committee has suggested that. I concur, and I am saying that we are working on that. There is more work to be done in respect of the committee and we are happy to do it jointly.
The committee makes another suggestion that I am saying needs to be expanded upon. The committee has addressed a particular legislative approach. I am suggesting to you that yes, that may be an option, but it may also be important to consider other legislative approaches that may work, whether it is the Indian Act, self-government or some other legislative means. In that sense, the committee's work is being taken into account.
I have been a committee chair in the past. My view is that some work has been done and some suggestions made. There is a body of additional work that needs to be done in terms of addressing this issue.
We will deal with the issue of matrimonial real property. The committee can be an important part of dealing with it. As I said in my opening comments, an inequity exists. It is having a negative impact on people's lives and we have an obligation to address it. In my view, we need to exercise that obligation in a collaborative way with First Nations and Aboriginal Canadians. We need to address it in a way that will be effective and give rise to the kind of protection and equality for which we are striving.
Senator Jaffer: Minister, I understood you to say that you will deal with the matrimonial property rights issue. Can you elaborate on that? What do you mean by that, sir?
Mr. Mitchell: First, through this committee, as an example, and in other ways, there is a need to have conversations — I have used the word ``conversations''; there is probably a better word — with First Nations and Aboriginal communities.
Because we are starting to acquire a body of evidence from our self-government agreements, we need to examine the actual impact of those. There will be a need, through the Land Management Act, to examine those that are operating under that particular regime and the impact that is having. There is a need to — and I believe it is important — develop a code of principles that should apply, whether through a self-government regime, an Indian Act change or a delegated regime. That is important work that needs to be done as well.
It makes some sense to examine the U.S. experience. Although I have not done an in-depth analysis of their report, I have seen some high-level observations of the U.S. system and there may be some initial lessons there. There is a series of activities that is taking place, with the objective being to find the appropriate solution.
Going back to my opening comments, we are trying to find one solution that entails sections 15, 25 and 35. If you come up with a solution that deals with section 15 and ignores sections 25 and 35, you will not be able to implement it and make it work. In the same way, if you deal with section 25 and ignore section 15, I do not think you will get far either. There is a need to deal with those sections in a comprehensive way. I believe the work of the committee is achieving that. I believe my officials are working towards achieving that.
I would like to be able to say, ``I have the solution. This is exactly the way it would work. I have total agreement on the way to implement it and I will implement it right now.'' That would be the ideal situation. I do not think we are at that place and that time just yet. However, just because it is difficult and challenging is no reason why we should shirk from trying to find the appropriate solution.
Senator Jaffer: Minister, if legislation or solutions were as easy as knowing exactly what to do, it would have happened already.
My only experience of legislation that has worked is from 20 or 25 years ago, with drinking and driving. There were different attitudes. I am not saying that this is the same thing, but we had legislation; we had attitude change; then we had further legislation and then further attitude change. I am saying that we do not necessarily need legislation but we need something to start. We cannot wait for the ideal solution. I am not saying that by providing housing we would make a difference, but it is a start.
I would also like you to think about one of the things that we heard from many witnesses, and that is the situation of common-law relationships. The situation of married women is bad, but it is worse for women who are living in common-law relationships. I do not want us to forget that issue, because there are many women who live in common- law relationships. Does your department have the figures for how many people live in common-law relationships and have you looked at how to maximize protection for those women?
Mr. Mitchell: I am not familiar with whether or not we have the figures for common-law relationships, but I will check on that.
I want to comment on your first suggestion, Senator Jaffer, because I agree with you about the need to have people face the reality of what exists, if I could put it that way. That is why in some of my comments — and you may not have been in the room at the time — I said that the educational outreach, the research work that we do, the need to ensure that people are engaged and have access to the information, are all critical. In order to take a different perspective, it is important that people have the information and in a way that is usable for them.
That is part of what I believe we need to do in the short term. We are committed to doing that.
The committee indicated that that was an important part of what we needed to do, and I very much agree with that. Officials are working, through a number of steps, to ensure that that happens. You are right. There needs to be a discussion and an understanding by the broadest of populations of this issue, First Nations and Aboriginal as well as the Canadian population as a whole. This issue needs to be understood and discussed in the broadest possible sense.
The Chairman: Minister, I wonder if you could foresee your department undertaking a massive consultation process and not relying on this committee to see as many witnesses as we can and give you another report that may just collect dust. If you start trying to resolve it at your end before you get to a negotiated settlement, which is undertaken by the executive, Parliament will ratify whatever the executive wants on this issue. You, as a member of the executive, will be responsible for making the proper recommendations. Your department has a job to do as well, and I think that job is 10 years overdue, if not more. This committee cannot do it alone. Your department has to move on the issue, and maybe come back to us at some future date, perhaps a month down the road, after you have had time to consult a little, see what you can come up with and what the native communities feel may be something they can work and live with. Is that possible?
Mr. Mitchell: I do not know whether it is possible in a month, senator.
The Chairman: Maybe two, if need be.
Mr. Mitchell: I do agree that there is a need to have that discussion, whether we do that directly or through some very fine organizations out there that do excellent work that may be able to help us. That is certainly a possibility.
I will return to my opening comments: I am looking for a way to work with the committee. It is not a matter of saying, ``You deal with it; we will not deal with it;'' or vice versa. I want to work collaboratively with the committee to develop solutions. The Senate has a great deal of expertise amongst its members, and I want to utilize the wisdom that is resident in this place.
The Chairman: I was reading in the paper this morning that we have a Third World in our backyard and our back alley. I do not like to see headlines like that. I do not think Canada should allow headlines like that to appear.
Senator Watt: I will get back to the point that you raised when you were responding to Senator Jaffer regarding sections 25, 35 and 15. Unless you deal with them all, you cannot get to where you want to go.
If my recollection is correct, section 15 is equality rights, whether we talk as men or women. I guess it does exist in some Aboriginal communities, but not necessarily on every reserve or in every community. That is to say, we do not question our equality. When it comes down to section 15, it always goes without saying. That exists. We do not want to fool around with section 15. That is important. Leave it alone. Do not try to come up with alternative solutions to section 15, because it recognizes men and women are on an equal footing in terms of opportunity or whatever.
Section 25 is, to me, a seal. It is a provision in the Constitution to protect the rights of the Aboriginal people in case a third-party interest or a government initiative that comes about hinders the rights of Aboriginal people. Section 25 is very important to us. That is one of the reasons why, when a piece of legislation comes down that has the potential to impact on our rights, we always to try to ensure that a non-derogation clause or provision is built into that legislation.
I have said often enough, over time, and since you have had the portfolio of Minister of Indian Affairs, that we need to bring the Aboriginal people to the point where they can be effective — not just consulted, because we have lived with that over the years and it really does not mean that much. They send a note out and initial it, and at times that is used to say, ``I have consulted with them.''
Do you see negotiations taking place, rather than dealing with section 35 on a piecemeal basis, which is how we are handling it now? Senator Beaudoin mentioned this. How can it work? It is not equality. It sets up a checkerboard across the country. One day, maybe 10 or 15 years down the line, we will revisit this and say, ``Hey, what did we do in 2004 to set up a checkerboard right across the country?''
Let me put it this way. What do we have to do to get our message across? There is an urgent need to implement section 35. All the others go with it. We will leave section 25 to see if we need protections. Maybe, in some cases, we do not need protections. Let us look at section 15 at the same time, and the implementation of it, to make sure that if there is inequality among our people, we deal with it.
We need true negotiations dealing with section 35. Do you see that forthcoming in a reasonable time?
Mr. Mitchell: If I understood your question correctly, senator, it was, could we, instead of negotiating a series of individual self-government agreements, negotiate far more broadly? Let me put it this way: I suspect that there is a body of opinion that would suggest that that is a desirable approach. I would think that, if you look at it from a standpoint of efficiency and the speed at which you can achieve it, people may say that is the way to go. I suspect, though, that another body of opinion may say, ``Is it possible to do that, given the diversity of First Nations communities across this country? Is it possible to have a national framework, negotiated nationally, and then, community by community, fill in the pieces?''
It is probably worth exploring whether that is possible, senator — not in the context of this particular committee. Again, I would seek the advice of First Nations and Aboriginal Canadians as to whether it makes sense to proceed in that way. I suspect that you would find different opinions being expressed as to whether that was a positive idea or not.
Senator Watt: One of the difficulties I have seen over time is that a federal government, as a central instrument, has a willingness to negotiate on a reserve-by-reserve basis or a community-by-community basis. I am not saying that should be eliminated completely. There are issues that can be dealt with through bilateral negotiations between the community and the federal government. I do not doubt that at all.
However, my problem as an Aboriginal person — I am not the only one who thinks this way — is that there is a wish among the top level to keep their system alive. We have been divided and conquered a number of times in the way that we have been dealing with the government. Could we not learn from the mistakes? That is not working. We can begin itemizing what matters to the community, where the direct bilateral negotiations take place, and make a list or inventory. At the same time, we could make a list or inventory of what is of national concern — to everybody. This is where the national government comes into the picture.
For example, we have the James Bay northern agreement with the Government of Quebec, which works very well, but things are not working very well when it comes to national government. There is something wrong that we need to fix.
Otherwise, it will continue to be very costly to the Aboriginals and to the general public of Canada — the taxpayers, that is. We need to move in the direction of finding a solution. I do not think we are at that point yet, but I think the opportunity is open to move in that direction and try to deal with it.
The Prime Minister has already invited the national leaders to participate at the cabinet level. Maybe that will produce something tangible that could be worked on. However, the lack of clear agenda items does not help the Aboriginal people across the country, nor does it help the government.
On the other hand, Aboriginal people on the outside are saying, ``Make sure the government does not draft any more legislation for the Aboriginal people. They make a big mess of it. It is too big to handle now. Let us do it ourselves.'' We need to be serious about implementing section 35 so we can deal with them both and see what we can do collectively.
The Chairman: I would venture that you would find a great deal of difference of opinion on that particular issue. Minister, could you wrap up this session for us? I hope you will give us the opportunity to invite you back again.
Mr. Mitchell: Madam Chair, I am always happy to come here to have a discussion with the senators. Let me just close by briefly reiterating our desire to work with you on this particular issue, or any other issues that you may raise. You know, and the Prime Minister has emphasized it on a number of occasions, the importance of Aboriginal issues to this government, and to him personally. He has a desire to make progress in closing that gap. He has made that perfectly clear.
I think Senator Watt is quite correct in pointing out the importance of developing a relationship between Aboriginal people and Canada as part of any solution with which we move forward. Thank you.
The Chairman: Thank you, and we will see you again. Ms. Ginnish and Ms. Cornet, we hope that you will also be available to come back with the minister, or alone, if need be. I declare this session closed — by obligation, rather than by desire.
The committee adjourned.