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We'll open this meeting of the Standing Committee on Aboriginal Affairs and Northern Development on Tuesday, April 24, 2007.
Committee members, you have the orders of the day before you. We are still working on .
Today we have witnesses from the Canadian Bar Association. We have Christopher Devlin, chair of the national aboriginal law section, and Tamra Thomson, director of legislation and law reform.
Welcome to the witnesses.
We'll have a presentation of around 10 minutes and then we'll be moving into questions.
Committee members, I would like to take a bit of time at the end of the meeting to talk about the two motions that have come forward from Madam Crowder and Madam Neville. I think we're going to deal with those on Thursday, but we'll talk about that.
Welcome. I'll allow you to begin now, please.
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Thank you, Mr. Chair, honourable members.
The Canadian Bar Association is very pleased to have the opportunity to appear before your committee today to address the very important issues reflected in .
The Canadian Bar Association is a national association. We represent over 37,000 lawyers across Canada. Our primary objectives include working toward improvement in the law and the administration of justice. It is in this optic that we developed the submission before you today.
I will ask Mr. Devlin to address the issues in the bill.
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We have three points to make today, for three reasons.
Our first point is that the Canadian Bar Association supports the repeal of section 67. There's no question that equality should be uniform across federal legislation as it applies to the Indian Act; however, we have two things to urge the committee to consider.
First, we would urge the committee to consider adding a non-derogation provision and an interpretive provision to the bill. The second thing we would urge the committee to do is extend the delay of the effect of the repeal from the current six months to the 18 to 30 months that we suggest in our submissions.
There are three reasons for these points. First, the Bar Association feels there should be sufficient time for consultation with first nations. Second, we feel there should be provision for the capacity of first nations to deal with the application of the Canadian Human Rights Act to their local governance and capacity for first nations members to take advantage of the rights that will be extended to them under the act. The third provision is the need to balance individual human rights with other first nations rights and interests, particularly the rights of the collectivities of these communities of first nations.
I would like to start with the third reason first, because it's there that I think our submissions add to what the committee has heard from other witnesses before the committee.
Our primary reason for urging the extension of time and the interpretive and non-derogation provisions is that the repeal of section 67 has the potential for the inadvertent repealing of the Indian Act itself and for significant reforms to the Indian Act itself, but in a piecemeal fashion. I would refer the committee to the comments of.... Let me explain this. Mr. Justice Muldoon, in the Federal Court, has described the Indian Act as a piece of racist legislation and has said that were the exemption under section 67 to be repealed, it would oblige the Canadian Human Rights Tribunal to tear it apart.
It's important to appreciate that the Indian Act is fundamentally a piece of 19th century legislation that is based on 19th century precepts of race and of ethnic and national origin that are very much at odds with our modern 20th century and 21st century views of individual human rights.
We have examples. We point to examples in our submissions, such as the blood-quantum provisions under the membership section, section 6, of the Indian Act; we point to the application of property tax bylaws under section 83 of the Indian Act; we point to the issues of inheritance of real property on reserve under several provisions of the Indian Act. All of these provisions illustrate the 19th century policies that are in place under the Indian Act.
That said, and notwithstanding that it's fundamentally a piece of legislation that I think we all view as being flawed from a modern perspective, it serves as the administrative and operational framework for over 600 local governments across Canada: most first nations continue to have their governance provisions regulated by the Indian Act; their entitlement to their reserves is predicated on the Indian Act; their communities are entirely governed by the Indian Act. It also safeguards certain treaty rights and entitlements under certain treaties between Canada and respective first nations.
The Canadian Bar Association is concerned that sections 15 and 16 of the Canadian Human Rights Act may not be sufficient to have a proper balancing between the individual human rights of first nations members, or of non-first nations people dealing with first nations, and the collective rights of first nations communities.
As you probably know, section 15 is the bona fide occupational requirement provision of the Human Rights Act, and section 16 is a special programs provision. I think there's some doubt that those provisions would be adequate to address the kinds of balancing that would be required to recognize the specific historical and constitutional place that first nations occupy within the Canadian legal framework.
In 1977 the bar association made submissions on section 67. We refer to those in our submissions here. At that time we urged that the government repeal section 67 but leave in an exemption for programs that protect the rights of Indian people as Indian people.
NWAC has made submissions, and so has the Human Rights Commission, to this committee about a non-derogation clause, and we support that non-derogation clause as well. Our view is that the next 18 to 30 months should be taken to develop and canvass the significant policy concerns related to the potential for piecemeal reform of the Indian Act by repealing section 67 so that a proper non-derogation clause and a proper interpretation provision can be drafted, so that as we move forward after section 67 is repealed, the collective rights of first nations aren't taken out from under them.
In an ideal world the Indian Act would be replaced on a proper modern footing, so that first nations would have the appropriate legal frameworks to move forward as local governments. However, what we don't want to see is the Human Rights Tribunal essentially striking down the Indian Act. Of course, it's not the appropriate body to replace the Indian Act with a legislative framework to help first nations move forward with their government.
That's the third reason why we say there should be the delay. From that, I think it's obvious that we need to have consultation with first nations to be able to discuss with them adequate interpretation and non-derogation provisions, and also that they need to have the capacity to engage in those discussions.
That's the opening statement that we have at this time.
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The Indian Act is fundamentally predicated on the definition of what an Indian is, and all the entitlements flow from that. There are Indian reserves that are set aside for the use and benefit of bands of Indians. When you look at what a band of Indians is, it's a group of Indians. When you look at what an Indian is, an Indian is defined in section 6 fundamentally by blood quantum. There is the sort of historical perspective under section 6, and then as you move forward it's really a question of blood.
The fear here, or not the fear, but I think the law reform issue is that you have a statute that defines a group of people essentially by their race, according to their blood quantum, and that racial characteristic entitles them to their reserves and all of the benefits that flow from their reserves. So their ability to reside on these lands held in common by the group, their ability to have the tax exemption on their reserve, the exemption from seizure, their ability to inherit property on that reserve and pass that property down to their children, their ability to tax businesses that may start on their reserve for their own self-government, all of that, if you work it backwards, comes down to the definition of an Indian and the blood quantum.
Fundamentally, according to Justice Muldoon, that's predicated on a racist notion and a racist personal characteristic.
If that's attacked successfully and struck down, a whole series of dominos could fall. The potential implication is that communities that have lived on plots of land since the 19th century could suddenly find that they're no longer Indians. If they're no longer Indians, they no longer have a band and they no longer are entitled to possess the reserve set aside for that band by Canada. You suddenly have dispossessed whole communities of people from the remnants of their historic lands.
Again, if we appreciate sort of the nation-building exercise in Canada, these reserves, not in every situation but often, were the remnants of larger tracts of land that the first nations used, and the government ended up setting those reserves aside for the use and benefit of these communities.
If the statute is struck down, if the fundamental premise of the statute is struck down, these communities could be disentitled to their lands, to their remaining lands.
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We support it with the caveats that I mentioned.
We believe there should be a non-derogation clause, and we support the non-derogation clause in the concept advanced by the Human Rights Commission and by NWAC, which is found on page 3 of our submission, in terms of a non-derogation clause.
We also support, in the report from the commission, that there also be included an interpretive clause that would help then guide the Human Rights Tribunal in applying the Canadian Human Rights Act to the specific historical and constitutional circumstances of aboriginal people, so that you don't get this wholesale disentitlement as a result of a Human Rights Tribunal decision.
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Thank you, Mr. Chairman.
Thank you, Mr. Devlin and Mr. Thompson. Mr. Thompson, we do not need an introduction since we've already met at the Justice committee. I know your experience and I respect the Canadian Bar Association. This is the first time I speak to a member of the Indigenous Bar. I know there is an Indigenous Bar in Québec.
Let us forget the government for a while. If clause 67 is repealed without any consultation, as you recommend, would we not risk doing indirectly what cannot be done directly, that is to say abolish the reserves through a limited and narrow interpretation of the Canadian Human Rights Act?
As I explained, it's not that it would happen overnight; it wouldn't happen tomorrow. It would be the result of a particular challenge and the result of a decision by the Human Rights Tribunal.
So the law reform issue we're trying to address here is that there should be reform of the Indian Act. But this should be done in a legislative process, so that there's something to replace it, in order to enable first nations to continue governing themselves as we move forward.
The problem with the Human Rights Tribunal is that if it decided it was going to strike down, for example, the status provisions of the Indian Act, things would fall after that. So it would be after a decision.
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I am pleased to hear you quote Judge Muldoon. It is at page 10 in French and at page 8 in English. This is what it says:
Over time, if all the incorrect or illegal administration of the Indian Act were corrected by human rights tribunals, that Act would be so permeated by human rights precepts that it would be ultimately destroyed.
And, further:
...the guarantee in this Act of certain rights shall not be construed so as to abrogate or derogate from any Aboriginal, treaty or other right that pertains to Aboriginal peoples in Canada.
As you see, I am a lawyer and I wonder if one should conclude that, for you, everything that has to be interpreted after the implementation of the Canadian Human Rights Act will have to be interpreted by taking into account what you want to be included in the bill, which is:
...does not abrogate or derogate from any Aboriginal, treaty or other right that pertains to Aboriginal peoples in Canada.
I know I seem lawyerly, but you are following me?
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Thank you, Mr. Chair, and I want to thank the witnesses for coming before us today.
I want to talk about consultation, and I'm glad to see that you raised it. When the minister came before the committee on March 22, in a response to a question I asked about consultation, he indicated that lots of consultation had gone on. He specifically quoted the human rights review that happened in 2000 with Justice La Forest. I went back to the actual recommendations from that report, and it's quite interesting that in this review it talks about the importance of consultation. I just want to quote a couple of things.
It says, under “Consultations and Submissions”:
Any effort to deal with the section 67 issue must ensure adequate input from Aboriginal people themselves.
Then later in the report there's a great deal of discussion, raising some of the points that you have raised. He goes on to talk about the complexities, and he says:
These points raise huge questions about the social and economic structure of Aboriginal life and its legal underpinnings. Such matters deserve far more study than we have been able to give them.
So I take it, from the words of this report, entitled “The Report of the Canadian Human Rights Act Review Panel--Promoting Equality: A New Vision”, that the panel itself determined that this was not adequate consultation for a repeal of a section of the Canadian Human Rights Act that would have far-reaching impacts, and I think you've outlined some of those.
In your view, if we were to develop something around a repeal of section 67, what would that consultation look like?
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I think we don't address the nature of that consultation in our submissions specifically. The reason for that is that fundamentally the nature of the consultations, in some respects, should be determined between the government and the first nations leadership, and this goes to the earlier question that was raised about who we are.
The aboriginal law section is a group of lawyers who practise aboriginal law. There are other organizations of aboriginal lawyers, the Indigenous Bar Association being one of them, and I understand that they may be witnesses to the committee as well. The interest of our section, as practitioners of aboriginal law, is to identify the law reform issues and bring them to the committee's attention.
In terms of the process of consultation, the courts have told us that consultation really is a two-way street between the Crown and the first nation, and while as practitioners we're involved in helping facilitate that two-way street on a daily basis, the lead very much has to be taken by the first nations in terms of the sorts of consultations they want. So we didn't feel it was appropriate to put in our brief what that consultation should look like.
But clearly, you've had submissions from the Assembly of First Nations, or you will have submissions from the Indigenous Bar Association.
The position of the Assembly of First Nations has been very clear that consultation needs to happen. There are other indigenous groups that have also put forward their views, and they are the ones that ought to be involved in sketching out the framework of what those consultations should be. And I agree that probably 18 months would be a bit tight. I think it's probably a bit longer process than that. We know that it's been 30 years that this exemption has been in there, and that's a long time for human rights to be suspended from reserves. We're not interested in seeing that continue indefinitely, and as early as 1977 the CBA was calling for at least a limited repeal of section 67.
We appreciate that a lot of time has passed, but whatever the consultations that happen, they should be done appropriately and not be rushed, so that the law reform issues that are raised and that are implicated by the repeal are adequately addressed by that consultation process. It's not just a question of setting up opportunities to chat for the sake of chatting. It should be meaningful discussion with first nations leadership to talk about the sorts of issues that would certainly include the issues we've raised today.
The Indian Act is a house built on clay, and you might not like the clay, but if you get rid of the clay foundation, you no longer have a house, right? We have to make sure that we don't remove the foundation and have the house fall down.
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I think that is a valid comment.
I want to hearken back again to Bill C-31, which was intended to redress discrimination against women and has inadvertently created under subsection 6(2) a mechanism that is actually going to look at assimilation eventually, because people will lose their status under that section by continuing to marry out.
So I think your comment around the fact that section 67 and the Indian Act both can have far-reaching and complicated effects is very important, so that we responsibly look at those issues in a broader context.
Do I have any time left, Mr. Chair?
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That is a lovely complicated constitutional question.
We know that the Canadian Human Rights Act is afforded quasi-constitutional status. We know that section 35 protects aboriginal and treaty rights. But we also know that the Indian Act is enacted under Parliament's jurisdiction over Indians and lands reserved for Indians and is a statutory framework, an administrative framework, if you will, for that head of power under the Constitution Act of 1867.
It would be a very interesting case to see if section 35 would save the Indian Act as a whole if it were held by the Human Rights Tribunal that the Indian Act was fundamentally racist and contrary to the provisions of that quasi-constitutional document.
I suspect that it would be a rather complicated and messy affair. It certainly isn't a clear-cut case that section 35 would operate as a measure to save the Indian Act.
When we look at cases like Corbiere, in which section 15 of the charter was used to strike down certain provisions of the Indian Act, notwithstanding section 35, I suspect that if the Indian Act were held to be racist that section 35 wouldn't be a shield to protect it.
I am happy to elaborate further on the examples that I brought to your attention, to sort of work you through those if you so wish.
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It just seems to me that the constitutionally enshrined rights of aboriginal people in Canada would not be cause for the removal of lands from people due to a section 67 exemption, especially in light of the fact that non-derogation, to some extent, is actually incorporated into all law that we have in Canada due to section 35. You can't derogate from that section, in my opinion.
So as we proceed with a repeal, I am fully confident that not only would the Canadian Human Rights Commission be able to actually implement human rights in a judicious manner, but this type of scenario you're envisioning is one that I see as not practical under the current constitutional law in Canada.
But perhaps we could move on from there.
Did you see the submission of the Canadian Human Rights Commission?
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The reason I asked that question first is I'm convinced there has not been enough consultation, because if there had been, not every one of our submissions now would be asking for an interpretive clause and not every one of our submissions would be asking for a longer implementation period. Those are the two recurring points that we're hearing from every witness before us.
If there had been consultations, that's what would have been told to the government before the legislation was drafted.
The other point I want to make, more to put it on record, is going back to what you said about the section that determines who is an Indian. In my ten years here, almost ten years, on this committee, from 1997 to now, that has been one of the recurring things that we hear. Whatever subject, whatever piece of legislation we're dealing with, there's always someone complaining that it should not be the government who determines who is an Indian.
I'm very worried about the comments you just made, in that in the legislation I've seen with the matrimonial property and also with this legislation, I'm seeing under the layer a tone of undermining rights. I'm worried that there's a bigger goal than just what these bills are trying to do. As an aboriginal person, if there was someone determining if I was even an aboriginal person, and what rights I had as an aboriginal person, I would not be concentrating on other issues. It would be very difficult for me as an aboriginal person to pursue other things in life if I was being challenged as to whether I was even an aboriginal in the first place, and that I think is the tone in the country right now. People are being asked to deal with other issues to determine their very eligibility for services in this country and therefore can't even be running their bands and reserves in the way they should to serve their people. I'm very worried about that, with the legislation we're getting.
To go back to this legislation, you would support the need to have that interpretive clause right in the legislation. You feel that six months is definitely not enough, that we need to make sure that aboriginal rights are protected in this legislation before we pass it, and those amendments need to be inserted before it leaves this committee.
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I would agree with that except to say that really what we're talking about here is specifically the Indian Act, not necessarily aboriginal rights as we know them under section 35. I'd like to give an illustration of what I mean by that.
Many urban and semi-urban Indian bands now have on their reserves significant populations of non-Indian residents through leasing of land for housing developments, so much so that on some of these reserves the Indians of the band are outnumbered by the non-Indians who live on the reserve. Nevertheless, the Indian band still has the authority for zoning, for property taxation, for the delivery of water and sewage services, and these sorts of things.
One of the inherent conflicts, then, becomes the non-Indian residents who don't have a legal say in the governance. There can be advisory and consulting committees with the band council, but the point is, the residents, because they're not Indians, don't have a right to have a say in what happens. They can't vote for chief and council, that sort of thing.
It's not difficult to envision that group of people, those non-Indian residents, challenging and saying they're being discriminated against by the provisions of the Indian Act in the place where they live, and I don't think that is a far-fetched example.
In reading the parliamentary discussion and the blues so far, there's been a lot of discussion about, for example, trying to ameliorate the situation of Indian women and how Bill C-31 has somewhat backfired in terms of advancing the rights of Indian women on reserve. The CBA certainly supports the equality rights of discriminated groups like Indian women, but one of the possible applications of the Human Rights Tribunal by these non-Indian groups is to take a run at the Indian Act because they feel, and perhaps rightly so, that they're being discriminated against by the provisions of the Indian Act.
Then you have this conflict between the community structure, for better or for worse, as a 19th century construct, being attacked on legal grounds in the 21st century, and that inherent tension. That's the kind of issue that I think needs to be wrestled to the ground through a consultation process, so that we don't end up seeing Indian bands disenfranchised on their own lands and the benefits they get from having these non-Indian residents on their reserve. They get the property taxes, they get the leases, and that helps them with their self-government, but that's all predicated on the fact that they're Indians.
If someone takes a run, and a successful run, at the underlying predication or foundation for that, which is the “Indian-ness” of these people as defined by the Indian Act, not as aboriginal rights under section 35 but as statutorily defined Indians, then that whole opportunity for self-government and getting the benefit of their reserve lands could be removed from them. That's the caution we're bringing to the committee today.
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The example I used earlier was of, say, an urban first nations community or a semi-urban first nations community that has leased out part of its reserve for housing projects, so that you have non-Indian people taking subleases, building houses, and living on the reserve. This happens very frequently in urban and semi-urban areas now.
The Indian band and the band council are still the responsible local government authority on reserve. They have the jurisdiction under the Indian Act. They are the ones who pass the taxation bylaws, pass the zoning bylaws.
Very often in the property taxation bylaws I've seen, there are exemptions for Indian residents on reserve but not for non-Indian residents on reserve. It has always been the common understanding in the legal community that this is an ameliorative provision, whereby the band isn't going to tax its members but will tax other people who decide to either live or set up their businesses on reserve.
It provides a taxation revenue stream for the benefit of the Indian band. Sometimes there are even per capita distributions from taxation revenue streams, part of the tax revenues being used for band programing and part actually given out in the form of distributions to band members.
If a non-Indian band member living on the reserve finds out that their tax dollars are being distributed to individual band members, or finds out that their tax dollars are being used for a first nations community centre where only first nations kids can go to school, or whatever to assist in keeping that community intact, they may say, “I'd like to have a say about that; I'd like to have a say in where my tax dollars are going.”
The rest of us in Canada do have a say about that, in the municipalities in which we live and the cities. We can vote, there are referendums, there are municipal elections, and we're able to participate in the allocation of our tax dollars to a limited extent. There is no extent for that in the current regime.
I can see one of those residents saying, “I don't think that's fair. I think I'm being discriminated against because I'm not an Indian and don't have rights under the Indian Act. The Indian Act governs my reserve where I live, but I'm not an Indian and I have no say about what happens in the community in which I live. So I'm going to go to the Canadian Human Rights Commission and lodge a complaint.”
That's the example I use to illustrate how the Human Rights Act could be used by a non-aboriginal person to attack some of the provisions of the Indian Act. Of course, once you lift the lid on the Indian Act and dig deeper into what gives the band council the right to be there, you get further back to this fundamental premise of who is an Indian. From that definition all the rights follow, including the right to possess the reserve.
Another point that's made in the Assembly of First Nations submission in regard to the non-derogation clause is that they were concerned that customary laws and traditions, for example, be protected.
I would ask the CBA, what is your position in dealing with alleged discriminatory practices, for example to do with gender, that may be justified on the basis of customary traditions or laws? How would we deal with those conflicting perspectives?
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Thanks, and I actually want to follow up on this. Again, I'm going to come back to this 2000 report. It's actually really interesting to me that we end up with this Bill without an interpretive clause provision, when it had been strongly recommended in a number of places, including this review back in 2000. They talk about the interpretive provision, and in it, in laying the groundwork for the reasons for an interpretive provision, they say:
We think that an interpretative provision should be added to the Act that requires the taking into account of Aboriginal community needs and aspirations in interpreting and applying rights and defences....
It goes on further to say:
This would supplement the bona fide justification argument, ensuring that it is properly adapted to the needs of Aboriginal government, without binding the Tribunal to any one interpretation. This is consistent with the Draft Declaration on the Rights of Indigenous People that requires that States take measures to assist Indigenous people to protect their cultures, languages and traditions.
Then they go on to make a very clear recommendation around the need for an interpretive clause. I think the challenge that many of us have is that most of us come from a Eurocentric background, where individual rights are paramount, and we keep bumping up against many indigenous people who have a very strong belief that collective rights are paramount, or at least need to be considered. I wonder if you've seen cases or examples, perhaps in other countries even, where that collective versus individual right has been balanced and taken into consideration. This seems to come to the core of what we're talking about.
Just going back to my previous line of questioning, in relation to interpretive clauses, it seems that this committee has found the one element of discussion for this bill that seems to be the most difficult for us to move forward on--and I think that's for a good reason, because I think it's difficult to make this interpretation.
We've received one suggested interpretive provision, and this was from the Assembly of First Nations. Have you had a chance to read through it?
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Again, these are similar questions to ones that I've asked other witnesses, but they would be in relation to part of the interpretive provision supplied by the AFN, where it talks about the entitlement that is granted to a first nations government to provide preferential treatment to its members in relation to allocation of resources, employment, and economic benefits, etc.
In part, my concern on this particular point would be in relation specifically to housing allocation. It seems one of the largest impetuses for us even to begin to take on this big challenge of wanting to extend human rights on first nations reserves is not, obviously, to destroy first nations communities, by any means. It's more to extend some things that we take for granted in the rest of Canada, such as when there is a marital breakup and the marital asset is distributed equally. Within Canada that's one thing that so many families take for granted. Of course, one would argue it's one of the biggest benefits that women throughout Canada have been able to retain through marital breakup. So one of the biggest reasons that I think we're doing what we're doing today is for this very purpose.
Do you envision our government being able to proceed with a matrimonial real property legislation without first repealing this section of the Canadian human rights code? Also, do you envision our being able, from a legal perspective, to have that legislation be considered lawful before the courts with an interpretive provision that allows for this preferential allocation to still be done?
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On what I understand of the matrimonial real property initiative on reserve, it's going to be a suggested amendment to the Indian Act itself or regulations under the Indian Act. Normally I don't give legal opinions off the cuff, but I'll make some assumptions here.
It strikes me that you wouldn't need to repeal section 67 of the Human Rights Act to amend the Indian Act to provide further clarity about the allocation of real property on reserve. That has already been done under the Indian Act. There's a whole statutory and regulatory regime about the allocation of property and resources on reserve. The repeal of section 67 isn't a necessary first step to putting in matrimonial real property provisions under the Indian Act.
I'm glad you raised that specific issue, because although we refer to inheritance law as one of our concerns in our submissions, it works equally well with matrimonial issues. On an Indian reserve, the best title you can have as an individual is a certificate of possession, which isn't equivalent to fee simple but it's getting close.
So people get a parcel of land under a CP and build a house. The marriage splits up. If they're both Indians, the matrimonial real property law would likely address the division of the marital assets, quite similar to how it's addressed provincially. However, if one of them isn't an Indian and is no longer entitled to live on the reserve, not only are they forced to leave the reserve, but under the Indian Act only an Indian, a member of that band, can actually be on the title for the CP. Then you get into questions of whether there is a resulting trust. I can see a situation where that non-Indian person, particularly if it's a woman with kids, says, “I don't want money. I want to live in the family house, and he should go. Just the fact that he's an Indian and I'm not shouldn't change that.” So the underlying property regime, for good or bad, under the Indian Act could fundamentally be attacked on exactly that kind of fact pattern.
The question for the Human Rights Tribunal is whether it would be entitled or permitted as part of its jurisdiction to look at the public policy on why property is held communally and the whole concept of communally held property in the form of a reserve when considering that woman's individual human right to have a share in the family home--and have that balancing.
So while we haven't endorsed the interpretive provision that the AFN has put forward--or for that matter the provision that was recommended in the Human Rights Commission report--we think that from a jurisdiction point of view, the tribunal should be able to look at those sorts of factors when coming to its decision, rather than just privileging the human rights, not looking at the communal rights, and effectively trumping the communal rights, or worse.
Thank you very much for your presentation. You've certainly raised a number of issues that have not been raised before and some that many of us have been talking quietly about.
You keep referring to the Indian Act. I'm not a lawyer, but I've certainly looked at it in all its complexity, and it's not easy to make one's way through. You talk about the policy and legal implications of the repeal of section 67. How do we identify them, and how do we address them as a committee? Some of them are far-reaching and maybe very much counter to the traditional and historical culture of aboriginal peoples.
You've raised so many questions in your presentation today, I'm trying to get my head around how we address them.
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Fundamentally, I think we can't address all of them here. I think there are two things we can do, though. We can give the Human Rights Tribunal a framework in which they can consider these factors when they're making their case-by-case assessment, such that we don't create the capacity for indirect repeal of the Indian Act without replacing it with something else.
Ideally, Parliament would say the time has come, not after just 30 years but 130 years, to replace the Indian Act, and that it was going to move forward to do that. That's where all of these policy implications would properly be vetted and sorted through. We can appreciate the magnitude of that challenge.
I think the interpretive provision and the non-derogation provision would help to prevent that kind of process from happening in a particular case in front of the Human Rights Tribunal, so that the Human Rights Tribunal wouldn't be faced with saying, “You can't do this, no matter how egregiously this individual's human rights have been violated, because if you do this you strike down the Indian Act and potentially affect 600 communities.”
That we don't want to put the tribunal in that position would be my submission. If the tribunal is enabled and given the jurisdiction to look at the collective communal rights of first nations, they can try to engage in the appropriate balancing for the case in front of them. They can limit the critiquing of the Indian Act as best they can to the case in front of them and to the specific community in front of them, so that they also don't end up using an egregious set of facts from one community to affect 600 other communities.
That's the hope behind the interpretive provision and the non-derogation provision; that we could limit, so that the sections of the Indian Act that are repugnant in a particular case could be somewhat limited to that particular case without the whole act falling down.
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My opinion is that it makes eminent sense until you run up against sections 20 and so on of the Indian Act, where it's very clear that only Indians can have an interest in the reserve, and that the reserve is for the use and benefit of a particular band of Indians. If someone is a member of the band, that's fine, but if they're not a member of the band and if they're non-Indian, then they can't inherit the land even if their parents were Indians.
Similarly, under the present property regime under the Indian Act, if you're non-Indian and you divorce an Indian, you can't have an interest in the land itself. You might get a resulting trust, or a constructive trust, where the person has to buy out your interest, but the CP can't be passed to a non-Indian.
Whether we like it or not, that's the Indian Act as it is, and the public policy issue there is to preserve the entitlement to the reserve for the benefit of that particular community as it's statutorily defined. If we start allowing non-Indians to have an interest in the land beyond a lease, for example, but an actual interest in the land equivalent to the--
Committee members, I just wanted to make you aware of, first of all, the issue around the Barreau du Québec. They will be available on May 8, and we have managed to.... If you look at your updated calender, and I hope you have that, the chair will try to give them an hour in that meeting. They'll be on the panel, so they'll be part of that panel, just so you're aware of that. We have rescheduled the Indigenous Bar Association, and that is on May 10 at the same time. There are two panels that we'll be dealing with at two different times. The first hour we'll have the Indigenous Bar Association with the other three groups.
I also have the issues around the two motions, one from Madame Crowder and one from Madame Neville.