Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, 32nd Parl, 1st Sess, No 16 (1 December 1980)
By: Canada (Parliament)
Citation: Canada, Parliament, Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, 32nd Parl, 1st Sess, No 16 (1 December 1980).
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HOUSE OF COMMONS
Issue No. 16
Monday, December 1, 1980
Senator Harry Hays
Serge Joyal, M.P.
Minutes of Proceedings and Evidence
of the Special Joint Committee of
the Senate and of
the House of Commons on the
Constitution of Canada
The document entitled “Proposed Resolution for a
Joint Address to Her Majesty the Queen
respecting the Constitution of Canada” published
by the Government on October 2, 1980
(See back cover)
First Session of the
Thirty-second Parliament, 1980
SPECIAL JOINT COMMITTEE OF
THE SENATE AND OF THE HOUSE
OF COMMONS ON THE CONSTITUTION
Senator Harry Hays
Serge Joyal, M.P.
Representing the Senate:
Representing the House of Commons:
Joint Clerks of the Committee
Pursuant to S.O. 65 (4)(b) of the House of Commons:
Monday, December 1, 1980:
Mr. Ittinuar replaced Mr. Robinson (Burnaby);
Mr. Landers replaced Miss Cambell (South West Nova);
Mr. Irwin replaced Mrs. Côté;
Mr. Henderson replaced Mr. Gimaiel.
Pursuant to an order of the Senate adopted November 5, 1980:
Monday, December 1, 1980:
Senator Connolly replaced Senator Cottreau;
Senator Goldenberg replaced Senator Lapointe;
Senator Asselin replaced Senator Flynn.
MINUTES OF PROCEEDINGS
MONDAY, DECEMBER 1, 1980
The Special Joint Committee on the Constitution of Canada met at 8:02 o’clock p.m., this day, the Joint Chairman, Senator Hay, presiding.
Members of the Committee present:
Representing the Senate: The Honourable Senators Adams, Asselin, Connolly, Goldenberg, Hays, Lamontagne, Petten, Macquarrie and Tremblay.
Representing the House of Commons: Messrs. Beatty, Bockstael, Corbin, Crombie, Epp, Fraser, Henderson, Irwin, Ittinuar, Joyal, Landers, Lapierre, Mackasey, McGrath and Nystrom.
Other Members present: Messrs. Allmand, Fulton, Nickerson and Schellenberger.
In attendance: From the Parliamentary Centre: Mr. Peter Dobell, Director; From the Research Branch of the Library of Parliament: Mr. John McDonough, Researcher.
Witnesses: From the Inuit Committee on National Issues: Mr. Charlie Watt, Co-Chairman; Mr. Eric Tagoona, Co-Chairman; Mr. Mark R. Gordon. Coordinator; Miss Mary Simon; Mr. Zebedee Nungak.
The Committee resumed consideration of its Order of Reference from the Senate dated November 3, 1980 and its Order of Reference from the House of Commons dated October 23, 1980, both relating to the document entitled “Proposed Resolution of a Joint Address to Her Majesty the Queen respecting the Constitution of Canada” published by the Government on October 2, 1980. (See Minutes of Proceedings, Thursday, November 6, 1980, Issue No. 1).
Messrs. Watt, Tagoona and Miss Mary Simon made statements and with Messrs. Gordon and Nungak answered questions.
At 9:55 o’clock p.m., the Committee adjourned until 9:30 o’clock a.m,, Tuesday, December 2, 1980.
Joint Clerks of the Committee
(Recorded by Electronic Apparatus)
Monday, December 1, 1980
The Joint Chairman (Senator Hays): Honourable members of the Committee, it is my privilege and honour tonight on behalf of Mr. Joyal, the Joint Chairman and myself to welcome the Inuit Committee on National Issues, who are here tonight to present their brief.
We are looking forward to your brief with great anticipation.
At this time I should like to introduce Mr. Watt, who is Co-Chairman, and Mr. Eric Tagoona, Co-Chairman; and at this time, I should like to ask Mr. Watt if he would introduce other people who are with him and then at that time probably he could make his opening remarks.
Mr. Charlie Watt (Co-Chairman, Inuit Committee on National Issues): Thank you, Mr. Chairman.
First, I should like to introduce the young lady on my left, Mary Simon, who is also a member of the Inuit Committee on National Issues; to my further left we have Mark R. Gordon, who is also a member of the Committee.
Eric Tagoona will read the brief, the presentations that we are making, and halfway through the brief, there is going to be a switch to Mary Simon, who will start outlining the conclusions and recommendations that we are about to propose.
Mr. Eric Tagoona (Co-Chairman, Inuit Committee on National Issues): Mr. Chairman, honourable Senators, honourable members: this is a critical period in the history of Inuit in Canada. During the past several years, federal-provincial discussions on constitutional reform have begun to take place with a renewed sense of purpose.
Upon examination of the various proposals for constitutional reform, it has become apparent that the rights and interests of all aboriginal peoples in Canada may be seriously jeopardized. In almost all cases, our aboriginal rights and other and rights and interests have not been taken into account by governments.
The need for a special committee with national Inuit representation became evident in order to represent effectively the Inuit of Canada and to participate directly in the constitutional reform process.
As a result, the Inuit Committee on National Issues was established by resolution at the annual general meeting of Inuit Tapirisat of Canada at Igloolik, Nunavut, Northwest Territories on September 3 to 7, 1979.
ICNI represents approximately 25,000 Inuit in Canada occupying Northern Quebec, Labrador and Nunavut. This area, the Inuit homeland, includes approximately one third of all the land in Canada. Moreover, Inuit constitute the majority population in these areas.
In order to ensure that ICNI adequately represents the views of Inuit, six regional associations participate equally within ICNI. These six Inuit regional associations include Labrador Inuit Association from Labrador; Makivik Corporation from Northern Quebec; and Baffin Regional Inuit Association, Keewatin Inuit Association, Kitikmeot Inuit Association, and Committee for Original People’s Entitlement, COPE, from Nunavut, Northwest Territories.
ICNI’s purpose in appearing before this Joint Senate-House of Commons Committee is to impress upon you the necessity for certain amendments to the proposed resolution for a joint address to Her Majesty the Queen respecting the constitution of Canada.
If given the force of law in its present form, the proposed resolution will have the effect of eroding the constitutional position of aboriginal peoples in Canada. No reference is made to our special status and relationship with the Crown as confirmed in the Royal Proclamation of 1763. Moreover, the proposed resolution divides the amending power solely between federal and provincial legislatures and governments. The failure to provide for our participation and consent in the amending process unduly and severely minimizes the opportunity for beneficial constitutional reforms in the future.
In the following discussion, ICNI will define its concerns and proposals in detail—politically and morally as well as legally.
What is at stake is our future relationship with Canada and our vision of contributing to its heritage and growth. Therefore, the essence of the fundamental principles we propose must not be lost or denied to us through narrow, legalistic interpretations. To achieve these goals, ICNI will provide you with the actual texts of our amendments to the proposed resolution for your consideration.
I Historical Background
1.1 The Principle of the Inuit National Identity
Inuit have occupied the Artic and sub-Arctic for thousands of years. The tradional life style of Inuit, which adapted to the harsh demands of the Arctic, was based on hunting, trapping, fishing and whaling.
We lived communally, travelling the land which we respected. We worked co- operatively to feed an clothe ourselves, nourished our language, culture and traditions, and enjoyed collective self-government. We had our own accepted and commonly understood values which regulated our social, political and economic practices. We were a self-sufficient nation.
In order to trace our history to the modern day, it is essential to have some appreciation of the relationship which existed between the aboriginal peoples and the Imperial Crown.
Our status as a nation is given some legal confirmation and protection in the Royal Proclamation of October 7, 1763.
This constitutional document, which states our special and unique historical relationship with the Imperial Crown, has been called both an Indian bill of rights, and a charter of Indian rights, due to its fundamental importance to aboriginal peoples in Canada.
While the Royal Proclamation. by nature. is not a law of the Imperial Parliament, it does have the same legal effect as a statute. Furthermore, its provisions relating to aboriginal lands still have the full force of law in Canada.
As indicated in our brief to the Foreign and Commonwealth Affairs Committee of the British House of Commons, the Royal Proclamation clearly reflects several basic principles that underline the relationship existing between the aboriginal peoples of Canada and the Imperial Crown. These principles:
(1) recognize the aboriginal peoples as nations;
(2) imply the necessity of mutual consent to alterations in the relationship;
(3) confirm and protect the aboriginal rights in and to lands in Canada covered by the Royal Proclamation;
(4) imply a right of aboriginal self-government in those areas not ceded to the Crown.
As evidenced by the Royal Proclamation, the aboriginal peoples of Canada interacted with Imperial representatives very much like nations in the international sense. This status as nations within Canada vests in us rights not held by others who later immigrated to Canada. As original inhabitants, such rights flowed as a natural consequence from our historical status and position.
1.2 Erosion of Inuit National Identity:
The bilateral nature of our relations with government, as witnessed in the Royal Proclamation, has gradually deteriorated in Canada over the past 100 years. Although the Royal Proclamation has never been repealed, unilateral legislation from time to time on the part of the Canadian Parliament has served to violate the essential principles of the proclamation.
Despite Canada’s trust responsibility in regard to Inuit, we were not consulted when Canada transferred jurisdiction over part of our homeland to Quebec by virtue of the Quebec Boundaries Extension Acts of 1912. Nor were we allowed to participate in the formation of a system of government in the Northwest Territories established under the Northwest Territories Act, Nor were we consulted when Labrador joined Canada in 1949. In addition, we were denied the right to vote in federal elections until July 1, 1960. This legislative encroachment upon our capacity to predetermine our social order was compounded by various government policies that impeded Inuit local control.
1.3 Present Situation of Aboriginal Peoples
From 1867 to the present time, governments in Canada have failed to confirm unequivocally the rights and status of their aboriginal peoples. This continued state of uncertainty has permitted the ongoing erosion of our special rights and interests by both federal and provincial governments. This uncertainty has had a destabilizing effect on our society. Political and economic colonial policies have worked to deny us access to adequate resources. It has left us lacking in essential services and economic opportunities. It has offered us little or no cutltural protection. We are today faced with unprecedented social problems, while our culture and traditional values are being eroded at an alarming rate.
This present situation is unacceptable. The economic, social and political disadvantages we suffer are not mere coincidence. They are, at least in part, the consequences of perpetuating the uncertainty of our constitutional rights and status while, at the same time, permitting their future erosion by the daily actions of governments. It is only through adequate constitutional protections that the Inuit can enjoy positive growth and deter the constant pressures of assimilation.
II Effects of the Patriation Resolution
2.1 Lack of Status in Proposed Resolution
The proposed resolution in its present form provides no definition for the status of aboriginal peoples in Canada. Apart from the oblique reference to the rights or freedoms that pertain to the native peoples in Section 24, there is no indication in the resolution that the aboriginal peoples have an intrinsic right to their own identities within Canada. By failing to include the principles which form the basis of our special status, the proposed resolution may in effect assist only those who favour the elimination of such status. If the constitution does not specifically provide for affirmation of such status, it may be assumed that it no longer exists.
2.2 Amendment Opportunities at the Post Patriation Stage
In determining whether the aboriginal peoples of Canada require certain amendments in Canada’s constitution at the prepatriation stage, one must examine the situation of aboriginal peoples following patriation.
It is the stated position of the Prime Minister, that the mere act of patriating the Canadian constitution shall have no adverse effect upon the aboriginal peoples of Canada. According to the Prime Ministers letter, it may in fact facilitate the process of securing necessary constitutional amendments for aboriginal peoples. In addition, the Prime Minister has confirmed his commitment to involve the aboriginal peoples of
Canada in the next constitutional conference of First Ministers by including native peoples and the constitution as an agenda item.
However, the situation of aboriginal peoples in the postpatriation period is not that simple. During the first two years following patriation, Section 33 of the proposed constitution act, 1980 provides that any amendments to Canada’s constitution will require the unanimous consent of the 10 provincial legislatures or governments as well as Parliament. Moreover, after the two-year period following patriation, amendments to the Canadian constitution will still be subject to the individual veto of Parliament, or the legislative assemblies of either Quebec or Ontario, in addition to a possible collective veto by the Atlantic or Western provinces.
In light of the many possibilities for federal and provincial veto of future amendments, the assurances and commitments in the Prime Minister’s letter in regard to the postpatriation stage hardly reflect the impending reality.
In regard to most constitutional matters, aboriginal peoples have competing interests with the provinces. Therefore, there is little or no incentive for provinces to agree to constitutional amendments in our favour at the postpatriation stage.
If anything, there is greater likelihood that federal and provincial governments may jointly agree to affect our status or rights in a manner contrary to our wishes. According to the existing amending formulas in the proposed resolution. no safeguards exist to protect us, even in the case of amendments which make special reference to aboriginal peoples.
2.3 Future Implications for Aboriginal Peoples
In summary, the effects of the proposed resolution appear numerous. It ignores the principles laid down in the Royal Proclamation of 1763 in favour of the aboriginal peoples of Canada. It provides no specific protection for our existing rights and interests. It adopts an amending formula which excludes any role for the aboriginal peoples of Canada even for constitutional provisions which specifically refer to them. By such measures, the Government of Canada is unjustly and unilaterally altering the constitutional position of aboriginal peoples in a manner which jeopardizes our distinct identity.
This subtle but effective erosion of our status and rights may be the legacy we inherit under Canada’s patriated constitution. Our assimilation rather than our rights seem destined for entrenchment through the current constitutional reform process.
At best, the result may well be that the present economic, social, political and legal situation of aboriginal peoples, namely the status quo, will be perpetuated. This status quo is unacceptable.
III Inuit Objectives
The only way that aboriginal peoples may have a realistic opportunity of obtaining constitutional amendments in their favour after patriation is by including certain fundamental principles relating to aboriginal peoples in the proposed resolution, ICNI recognizes that amendments in the postpatriation stage, if any, in regard to aboriginal peoples may deal with substantive issues. However, the prepatriation amendments that are being urged as a very minimum in this brief are of a fundamentally different nature. The amendments that ICNI is proposing have basically two essential objectives as discussed below.
3.1 Recognized Status
First, the amendments serve to enshrine in the constitution some further indication of the special status of aboriginal peoples as nations within Canada and their unique relationship with the rest of Canada. By necessity this principle embodies the element of mutual consent that is reflected in the Royal Proclamation of 1763.
ICNI acknowledges that the precise limits of the Imperial Crown’s residual responsibilities in regard to Canada’s aboriginal peoples are not clear. We recognize that the Royal Proclamation must be read together with Section 91(24) of the BNA Act, 1867, which conferred legislative jurisdiction and a trust responsibility in respect to aboriginal peoples to the Parliament and Government of Canada. In this regard, Canada should carry out its trust responsibility in a manner which upholds the principles reflected in the Royal Proclamation.
In regard to Britain, it is our contention that termination of our direct relationship with the Imperial Crown must not be a by-product of unilateral patriation without adequate protections. The residual responsibilities of Britain must be transferred to Canada under our Proposed resolution in such a way as to preserve the basic tenets of our special constitutional position. As stated earlier, the principles which we seek recognition of in the proposed resolution include both aboriginal rights and the right of self-determination within the Canadian federation which must govern our future constitutional discussions.
Today we seek self-government within the Canadian federation.
For instance, the Inuit of the Northwest Territories have proposed a Nunavut government in a detailed proposal, a copy of which is availabale. The main thrust of this proposal is to create a new territory above the treeline which would become a province after an orderaly transition period. The Nunavut government would initially have powers similar to the existing government in Yellowknife. All residents could vote, the government would be for all those in Nunavut, and Nunavut would adhere to the highest standards of human rights.
It was gratifying that the recent Northwest Territories Council session in Frobisher Bay supported in principle the
concept of a new territory. This demonstrates the commitment of the elected representatives in Northwest Territories to seek responsible government in new creative forms.
3.2 Role in the Amending Process
Secondly, our proposed amendments serve to formalize, in the constitution, the political commitments of federal and provincial governments to negotiate with us constitutional matters of concern to aboriginal peoples. We do not believe that these political commitments create a heavy burden on federal or provincial governments. However, without some formalized commitment in the constitution, it is apparent that the uncertain constitutional position of aboriginal peoples will continue to our detriment.
It is our position that the prepatriation amendments proposed in this brief are both minimal and reasonable. In addition, they may be easily integrated with the proposed resolution. Without some constitutional protections in favour of aboriginal peoples at this crucial stage, we sense that an increasing number of groups among Canada’s aboriginal peoples feel compelled to seek more radical solutions. This is primarily due to the continued lack of sensitivity and response from government.
ICNI supports patriation of Canada’s constitution, We look forward to further developing our relationship with governments in Canada once our constitution is patriated. Under these circumstances, we have no desire to perpetuate our unique constitutional and legal ties with Britain. Nevertheless, in terminating the residual responsibilities of Britain which still exist in our favour, our special status and rights must not be eroded through either omission or neglect in the Proposed resolution.
I think Mary Simon will continue the presentation.
Miss Mary Simon (Member, Inuit Committee on National Issues):
4.1 Limitation to Guarantee of Rights and Freedoms Section I provides:
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits as are generally accepted in a free and democratic society with a parliamentary system of government.
The limitation in Section 1 of the Charter has generated a great deal of controversy. Opposition to its scope has already been extensively voiced by numerous individuals and groups appearing before this Committee.
ICNI fully supports the principle of enshrining some flexibility in Canada’s constitution. However, we agree with a large number of people in Canada who object to such a broad
limitation diluting the guarantee of rights and freedoms enshrined in the Charter.
Due to the many diverse groups who are already engaged in arriving at a better alternative, ICNI has not prepared any specific amendments in regard to the limitation in Section 1.
4.2 Mobility Rights:
Section 6 as amended provides:
6. (1) Every citizen of Canada has the right to enter, remain in and leave Canada.
(2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right
(a) to move to and take up residence in any province; and
(b) to pursue the gaining of a livelihood in any province
(3) The rights specified in subsection (2) are subject to
(a) any laws or practices of general application in force in a province other than those that discriminate among persons primarily on the basis of province of present or previous residence,
(b) any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services; and
(c) any laws or practices as are reasonably justifiable to mitigate adverse environmental and social impacts on a community, culture, economy or society of the aboriginal peoples of Canada.
The main reason for including mobility rights in the Charter is to encourage the creation of a true economic union within Canada. ICNI supports this concept which is intended to strengthen the economy in all areas of Canada. However for cultural, economic, social as well as environmental reasons, an additional limitation is required in Section 6(3).
Both the northern environment and Inuit communities are particularly susceptible to significant environmental and social impacts when faced with large-scale development. Laws or practices of general application, as provided in Section 6(3)(a), may be sorely inadequate to meet the special needs of Canada’s North and to protect Inuit culture.
The same is true in relation to our northern economy. The massive influx of a temporary workforce from southern parts of Canada when northern projects are announced, if unrestricted, may have severe consequences in the North. In such a situation, we would be unable to compete. Northern unemployment would not be reduced. Therefore, special protections are necessary in order to develop a viable northern economy and to establish a northern workforce.
The principle of priority of contracts and employment for northern residents appears to be inconsistent with the mobility rights in the Charter. Therefore, benefits owed to Inuit under the James Bay and Northern Quebec agreement may never be
realized. The loss of this benefit, which presently has the force of law, is unacceptable.
4.3 Equality Before the Law and Equal Protection of the Law
Section 15, as amended, provides:
(1) Everyone has the right to equality before the law and to the equal protection of the law without discrimination because of race, national or ethnic origin, colour, religion, age or sex.
(2) This section does not preclude any law, programme or activity that has as its object the amelioration of conditions of disadvantaged persons or groups, or the recognition of the aboriginal and treaty rights of the aboriginal peoples of Canada.
Although the proposed amendment is a relatively minor one, it has important implications for the aboriginal peoples of Canada. Aboriginal rights are additional rights vested in aboriginal peoples and are unique to us. It is our view that the constitution, while establishing the general principle of equality before the law, must ensure that our aboriginal rights are not seen as discriminatory. While what we are requesting here may seem to be self-evident to some citizens of Canada, a large number are not familiar with the history of aboriginal peoples in Canada, our special status, or with the fact that we possess and enjoy rights by virtue of our being this country’s original inhabitants. The Canadian constitution, therefore, must make it clear that the right to equal protection under section 15 cannot be invoked to challenge legally our unique status and rights.
4.4 Aboriginal Rights and Freedoms
Section 23A provides:
(1) For the purposes of this act, the aboriginal peoples of Canada means the Indian, Inuit and Métis people of Canada.
(2) Within the Canadian federation, the aboriginal peoples of Canada shall have the right to their self-determination, and in this regard the Parliament and the provincial legislatures, together with the government of Canada and the provincial governments, to the extent of their respective jurisdictions, are committed to negotiate with the aboriginal peoples of Canada mutually satisfactory rights and protections in the following areas, inter alia:
(1) aboriginal rights;
(b) treaty rights;
(c) rights and protections pertaining to the aboriginal peoples of Canada in relation to Section 91(24) and Section 109 of the constitution act, 1867;
(d) rights pertaining to the aboriginal peoples of Canada in relation to the Manitoba Act, 1870 and the BNA Act, 1871;
(e) rights or benefits provided in present and future settlements of aboriginal claims; rights of self-government of the aboriginal peoples of Canada;
(g) representation of the aboriginal peoples of Canada in Parliament and, where applicable, of services in regard to the aboriginal peoples of Canada;
(i) economic development and the reduction of regional disparities;
so as to ensure the distinct cultural. economic and linguistic identities of the aboriginal peoples of Canada, generally, our section 23A provides some fundamental principles from which future constitutional protections may evolve. This section, therefore, serves as a cornerstone or at least a beginning to an aboriginal bill of rights.
Subsection (1) of section 23A merely provides for the obvious, namely, that the aboriginal peoples of Canada include Canada’s three groups of indigenous peoples. Presently, there exist other artificial distinctions under Canadian law which have posed considerable problems for a great number of aboriginal people in Canada and for which we must seek alternative solutions.
Subsection (2) unequivocally provides that the right of aboriginal peoples to self-determination is solely within the Canadian federation. The intention here is to recognize the rights of aboriginal peoples to achieve greater control over matters affecting our lives while reaffirming our desire to contribute to a united Canada. It is important to note that the right of self-determination, as stated in this subsection, is not an absolute right but is merely a principle to be applied in future negotiations to establish mutually satisfactory constitutional rights and protections in favour of aboriginal peoples, Moreover, the recognition of the principle of self-determination at this time adheres to Canada’s commitment to the international community. The right of all peoples to self-determination is a fundamental principle in international law. This right is proclaimed in the United Nations Charter as well as the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights. Canada has ratified all of these conventions.
The commitment to negotiate mutually satisfactory rights and projections with the aboriginal peoples of Canada in regard to specified subject matters, among others, is meant to create a political rather than a legal obligation. We consider a formalized political commitment essential since it provides some recognition of the fundamental principle of mutual consent presently witnessed in the Royal Proclamation. Furthermore, it increases the possibility that aboriginal peoples will have a just and reasonable opportunity to negotiate constitutional protections with federal and provincial governments in areas of vital concern.
The items specified under subsection (2) have been included for several reasons. First, these items enjoy high priority among all aboriginal peoples. Second, the items directly affect the rights and interests of aboriginal peoples and often comprise of matters of sole application to them. Third, the items in subsections (a), (b), (f), (g) and (h) have been specifically mentioned by Prime Minister Trudeau in a major policy
speech at the National Conference of Indian Chiefs and Elders held in Ottawa on April 29, 1980. Therefore, all that is being provided for here is a formal affirmation of the commitment to negotiate subject matters of constitutional concern to aboriginal peoples, as previously stated on different occasions by the Government of Canada.
The reference to distinct cultural, economic and linguistic identities at the end of subsection (2) reflects, in general terms, the essential attributes that aboriginal peoples associate with their concept of domestic nations within Canada. Furthermore, these attributes are guaranteed to aboriginal peoples under international law. In particular, Article 27 of the abovementioned International Covenant of Civil and Political Rights identifies specific minority rights in this regard.
In respect to subsection (3) of section 23A, it has often been stated by aboriginal peoples that their aboriginal rights are inseparable from their identity, both individually and collectively and must not be subject to extinguishment. For Canada’s constitution to permit the continued extinguishment of such unique cultural rights would be both to acknowledge and sanction the ongoing assimilation of aboriginal peoples. As evident in the case of the James Bay and Northern Quebec agreement, government do in fact exert considerable pressure on aboriginal peoples in order to convince them of the necessity for extinguishment. For example, in the case of Inuit of Northern Quebec, the government of Quebec made extinguishment of aboriginal rights in and to land in the province of Quebec and essential prerequisite to the settlement of aboriginal claims.
Subsection (4) of section 23A enshrines the right to the use and enjoyment of property presently found in the Canadian Bill of Rights and is similar to the property rights provision in the United States Constitution. The collective nature of such rights is of vital importance to aboriginal peoples since their property rights are generally held in such manner.
Although the Prime Minister did not choose to include this property right as part of the Charter in the proposed resolution, earlier drafts of the federal position on the Charter of Rights and Freedoms indicate the government’s intention to provide for both individual and collective property rights. The special relationship which Inuit have with the land and the constant threats and pressures of erosion of our land base necessitate the inclusion of some protection of our property prior to patriation. Limitations on the right of aboriginal peoples to the use and enjoyment of property have been narrowly stated in our proposed amendment due to the tremendous cultural significance of land to our people.
4.5 Undeclared Rights and Freedoms
Section 24, as amended, provides:
The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate, abridge or derogate from any undeclared rights of freedoms that exist in Canada, including the aboriginal rights and freedoms that pertain to the aboriginal peoples of Canada and those rights acquired by
or confirmed in favour of the aboriginal peoples of Canada under the Royal Proclamation of October 7, 1763.
In discussing Section 24 of the Proposed resolution we find it particularly useful to compare this section with the equivalent provision found in the federal government’s constitutional amendment Bill C-60. tabled in Parliament by the Prime Minister in 1978.
It should be observed that the present wording in Section 24:
not . . . denying the existence of
dilutes the protection originally provided in the equivalent section under Bill C-60, In this regard, it is arguable that, while the Charter may not in the future deny the existence of certain aboriginal rights and freedoms, it could abridge or otherwise modify their meaning or import. Secondly, the rights of aboriginal peoples under the Royal Proclamation was specifically referred to under Bill C-60 but significantly has been omitted from section 24 of the proposed resolution. In both these instances, the federal government’s intention to dilute our protections as evidenced in Section 24 is clearly unwarranted. Our proposed amendment, therefore, purports to correct these weaknesses.
A further element which we have added to Section 24 is a specific reference to the fact that the rights and freedoms of aboriginal peoples referred to in Section 24 are aboriginal in nature. If Canada is truly committed to negotiate constitutional protections for aboriginal rights, then the resolution should at least refer specifically to aboriginal rights if not define them. It has been suggested by certain government officials that one does not put a term in the constitution if the meaning has not been made perfectly clear. We cannot accept this rationale. The terms generally found throughout Canada’s constitution are characteristically broad and general in nature and subject to considerable interpretation both judicially and politically.
Due to the lack of time to negotiate constitutional protections and to clarify the exact nature and scope of aboriginal rights, it is our position that the amendments in the prepatriation stage should at least make reference to this most crucial element of our position as original inhabitants. To deny us a specific reference to our aboriginal rights in Canada’s constitution indicates to us that political commitments by governments to negotiate such rights in the postpatriation stage are of little consequence.
4.6 Participation of Aboriginal Peoples at Constitutional Conferences
Section 32, as amended, provides:
(1) Until Part V comes into force, a constitutional conference composed of the Prime Minister of Canada and the first ministers of the provinces shall be convened by the Prime Minister of Canada at least once in every year unless, in any year, a majority of these composing the conference decide that it shall not be held.
(2) Such constitutional conferences shall include the direct participation of one representative of each of the Indian, Inuit
and Métis peoples of Canada for matter on the agenda which affect them, in accordance with rules to be established in this regard by an appropriate person or body duly authorized for such purposes by the Governor-in-Council.
It has been repeatedly stated by the Prime Minister and his officials that the Government of Canada is committed to providing for the direct participation of the aboriginal peoples of Canada in constitutional conferences for matters which affect them. In order to formalize this commitment, subsection (2) has been added to section 32. Just as the first paragraph in section 32 has been provided in order to formalize the federal governments commitment to the provinces, so should a similar commitment be included in regard to aboriginal peoples. This is of particular importance due to the previously described difficulties that await aboriginal peoples in the postpatriation amending process.
4.7 Amendments to Constitutional Provisions Referring to Aboriginal Peoples
Section 51A provides:
(1) Nothing in Parts IV and V shall be construed as permitting any amendment to any constitutional provision that makes references to any of the aboriginal peoples of Canada without the consent of each of the aboriginal peoples of Canada so affected in accordance with rules to be established by an appropriate person or body duly authorized for such purposes by the Governor-in-Council.
The effect of this amendment is to require the consent of each of the aboriginal peoples before amending any constitutional provision that makes specific reference to them.
It was discussed earlier that the special status of aboriginal peoples has been continually eroded or otherwise altered by the unilateral actions of governments in Canada. In order to prevent such further alterations of our constitutional position, the principle of mutual consent, embodied in the Royal Proclamation, must be enshrined in Canada’s constitution prior to patriation.
It is important to note, however. that section 51A does not in any way prevent Parliament and the provincial legislatures from dealing with other matters affecting all citizens in Canada. Section 51A is meant to provide minimal protections for the rights and status of aboriginal peoples while, at the same time, fully respecting the doctrine of Parliamentary supremacy.
48 Relevant Omissions in Schedule 1
1A The Royal Proclamation of October 7, 1763
3A Order of Her Majesty in Council admitting Rupert’s Land and the North-Western Territory into the Union, dated June 23, 1870.
The critical importance of the Royal Proclamation to aboriginal peoples of Canada has already been emphasized in this brief. The Order-in-Council respecting Rupert’s Land is also of fundamental importance to aboriginal peoples. In sec-
tion 14 of the Order-in-Council, and in an identical section of the attached Deed of Surrender, provision is made requiring the Government of Canada to dispose of claims of Indians to compensation for lands in communication with the Imperial Government. In essence, there exists an obligation upon the Canadian Government to settle all such claims.
Neither of these constitutional documents, although of particular relevance to aboriginal peoples, has been included in Schedule 1 of the proposed resolution. Section 52 of the proposed resolution delineates which documents shal comprise Canada’s constitution after patriation. Since the wording of section 52 could easily be interpreted as limitative, it may well result in a situation where any documents not referred to in section 52 and not included in the list of constitutional documents in Schedule 1 are deemed to be extraneous to the constitution. In other words, documents which are presentely considered to be part of Canada’s constitution could be deprived of their constitutional status if not specifically referred to in section 52 or in Schedule 1.
Unlike the United States, Canada’s constitution is made up of many different documents. There does not appear to be one clear and unequivocal definition of which documents make up what is known as the fundamental law in Canada’s constitution. At the same time, however, there appear to be some criteria established under constitutional law which may assist in determining the constitutional nature of an instrument. In this regard, the legal and technical arguments have been included in Appendix IV of this brief.
In regard to the Royal Proclamation and the Order-in-Council of 1870 respecting Rupert’s Land, it is our position that both these documents are constitutional instruments which should for greater certainty be included in Schedule 1 as part of Canada’s constitution. In light of the particular relevance of these documents to the body of aboriginal rights, and to aboriginal peoples in general, it is critical that they be enshrined in our fundamental law.
Conclusions and Recommendations
1. Inuit have, and must continue to have, a homeland within Canada. This is our birthright. It is also our right in law, as reflected in the terms of the Royal Proclamation of 1763.
2. Our status as Inuit within Canada must not be altered without our consent.
3. Aboriginal rights are an inseparable part of our indentity as Inuit.
4. The right to our identity is enshrined in international law, and this principle has been accepted by the Government of Canada.
5. There are constant pressures of assimilation in the existing political, legal and economic make-up of Canada which seriously threaten to erode our identity.
6. The proposed resolution further compromises Inuit status by refusing to recognize our status within Canada.
7. The proposed resolution compromises Inuit status by ignoring the necessity of obtaining our consent in relation to further changes in our status.
8. The proposed resolution leaves little real opportunity for obtaining constitutional amendments in our favour in the postpatriation period.
9. It is therefore critical that prepatriation amendments in favour of aboriginal peoples be obtained which give some indication of our relationship with governments in Canada.
In this regard we therefore propose:
10. That our right to Inuit identity be enshrined as a principle in the proposed resolution.
11. That, in accordance with this principle, the future of Inuit in Canada be premised upon the principle of self-determination within the Canadian federation.
12. That within this context, the Government of Canada commit itself to negotiate a framework of constitutional rights and protections for aboriginal peoples.
13. That our aboriginal rights, as an inseparable part of our individual and collective identities, must not be subject to extinguishment by Parliament.
14. That the participation of the aboriginal peoples of Canada in future constitutional conferences as promised by the Government of Canada be formalized in the proposed resolution in a manner similar to the commitment made to the provinces.
15. That any further amendments to the constitution that make specific reference to the aboriginal peoples of Canada should not be permitted without the consent of those aboriginal peoples so affected.
16. That the Royal Proclamation of 1763 and the Order-in-Council respecting Rupert’s Land be included in Schedule 1 of the proposed resolution so as to be clearly recognized as part of the constitution of Canada.
17. That mobility rights in the Charter be further limited so as to protect the cultural, economic, social and environmental interests of the aboriginal peoples, particularly in light of special needs and conditions in the northern regions of Canada.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Watt and Ms. Simon. I shall now call upon the honourable Mr. Epp, who will direct questions to you first.
Mr. Epp: Thank you, Mr. Chairman.
I would like to express my thanks to the Inuit Tapirisat of Canada and their representatives here this evening for their balanced brief, for their view of the area where they have lived for thousands of years, and also the excitement they have and that they have brought here to share with us as they see the development of that area of Canada to the larger Canadian Confederation.
I would like to start my questioning, Mr. Tagoona, with specifically two sections. One, Section 24, and number two, I
would like to get into the self-determination question. Section 24, as you are aware, does attempt to, in rather loose language, and those are my words, in rather loose language define it as including any rights or freedoms that pertain to the native peoples of Canada.
I would like your view whether, first of all, you feel that Section 24, apart from the additional sections that you want to include, for example the Royal Proclamation of 1763, just to name one, whether Section 24 in fact does guarantee the present status quo?
Mr. Watt: Mr. former Minister of Indian Affairs, in regards to your question concerning Section 24, whether the provision that has been outlined in the resolution would adequately, given the provisions for the native peoples, be considered as a part of the resolution, Mr. Epp, no, it does not give us adequate provision in order for the native peoples to feel that they are adequately included in the resolution because the aboriginal rights are not mentioned in the resolution itself, neither the real proclamation of October 7, 1763 is included, which again we stated in our brief that in Bill C-60 was included. We are wondering why it was excluded this time around when it was taken into consideration when Bill C-60 was drafted.
Mr. Epp: Do you feel that Section 24, Mr. Watt, by interpretation of the courts, because that section would be open to the interpretation of the courts in the future, whether in fact the courts through interpretation could in fact reduce the status quo, by that I mean reduce rights that you now enjoy?
Mr. Watt: Yes, it would reduce the—right now, at this point in time, it is very, very difficult for the native people to feel that they have adequate protection, at this point in time, under the status quo, because whenever the aboriginal rights concept is brought up, whether it is in the courts or in negotiations, government or the developers are always arguing that the aboriginal rights have to be defined.
Mr. Epp: Do you feel, Mr. Watt, from your experience, and of course we can only go on past experience, that in the courts the aboriginal rights have generally been interpreted and protected in favour of the aboriginal people?
Mr. Watt: Could you repeat your question?
Mr. Epp: Yes. You have had cases before the courts, example the Baker Lake incident. Do you feel that the courts to date, while there is not a constitutional guarantee, that the courts to date have been sympathetic to the protection of aboriginal rights?
Mr. Watt: In order to just clarify my earlier statements, I do not know whether this will answer your questions, even if it is recognized as aboriginal rights in principle, within the resolution, it does not mean the native people would have legal grounds to take action against the government in order to enforce their aboriginal rights. That is something that has to be worked out at a later date, after the patriation and taken place, for the reason that aboriginal rights definition has to be worked out.
If we leave it up to the courts to decide, to work out the definitions, I do not think it would be proper for the Government of Canada or the native people, or the citizens of Canada, to favour leaving it up to a court to decide. I would prefer to see it being handled by the native people and elected representatives of Canada.
Mr. Epp: I take it, then, from your answer, while we do not have an experience relative to the courts deciding on constitutional issues, that your experience to date in protection of aboriginal rights over and against other countervailing claims in the north, be they development or whatever, that in fact your experience with the courts has not been positive.
I would like to direct your attention, sir, to Section 24 and Section 50 and specifically Section 50. As you know, Section 50, either under Section 41 which is the amending formula which requires the regional majority, or Section 42 which requires the referendum system, that in either one of those procedures Section 24, though it is limited in its protection to you at the present time, that it can remove any rights that are guaranteed in Section 24.
Are you satisfied that your rights, whatever they may be and no matter how they might be enshrined, that they should be subject to an amending formula, either under Section 41 or Section 42?
Mr. Mark R. Gordon (Coordinator, Inuit Committee on National Issues): Yes, this is our belief, that if the aboriginal rights are at the sole discretion of the federal and provincial governments and legislatures, it could be very conceivable that for the development interests in our area, that we could be legislated or our rights could be amended out of existence. We feel that if anybody is to deal with this specific area in the constitution, that we should be the first people to deal with this specific provision and we would be willing to discuss these provisions with you.
Mr. Epp: I take it, then, that what you are looking for, even though you did not address specifically Section 50, but brought in an additional Section 51(a), if I recall, that Section 50 as it now stands would in fact not give you the protection that you are seeking. In fact, what you are seeking is to take it out of arms length from either a referendum procedure or an amending procedure, a procedure which you would not have a great amount of say in simply because of numbers; is that correct?
Mr. Gordon: Yes, that is correct, and I believe that it would detract from our very principle of self-determination and would take that away from us.
Mr. Epp: You led me into the second part of my questioning and that is the concept of self-determination, I think for a lot of us, in order to further our understanding of that term, there has been a lot of not only questions but various views expressed as to what is the exact meaning of self-determination. Could you, for the benefit of members of this Committee, give us your definition?
Mr. Gordon: What we mean by self-determination we tried to outline in the brief in that this is self-determination within the limits of the nation of Canada and not the self-determina-
tion as has been expressed to be able to secede from Canada. This is not our interest. We wish to remain within Canada but we wish to be able to develop and foster and give more growth to our own society within the Canadian Confederation.
Mr. Epp: I am trying to get a better picture of that. Are you trying to promote or are you proposing a system, which you call Nunavut, that you would have separate provincial status or not receiving provincial status, that there would be an interim arrangement of the area whereby laws made in the federal Parliament would be subject, firstly, to appoval from your legislature or from your legislative body?
Mr. Tagoona: As you probably know, Mr. Epp, you probably received our document on the Inuit proposal and the proposal itself, as we have said, is very similar to the present territorial government that is now in existence, with the same powers and that, but there are a few amendments that we have come up with, a few more powers that we thought we could have in areas that affect us more in the Eastern Arctic, so to us, in terms of self-determination, that would mean for us to have the right to govern ourselves, but of course be subject to the federal government here in Ottawa.
Mr. Epp: Thank you for that clarification. I take it, then, what you mean is that should your proposal be accepted in a form close to what you propose, the Nunavut proposal, in fact the laws you would make would be in an order which is determined today and given, let us say, to the provinces or municipal governments as apart from the division of powers or the order of governments that is given to the federal government; is that correct?
Mr. Tagoona: Yes.
Mr. Epp: Having said that, Mr. Tagoona, could we get into the question, then, of how do you determine that laws that are passed in the federal Parliament and that you might feel are deterimental to your development and to the development of your people, would you have a procedure in place for review, or would you feel that you would be adequately protected by having a certain number of seats that have in the past been determined as native seats, in the federal parliament, similar to the Australian proposal?
Mr. Gordon: I am not familiar with the Australian proposal myself. However, we would propose a system that would deal with our aboriginal rights specifically, and that the seats that we request in the legislatures is to be able to carry on the daily business, but when it deals with the constitutional rights, we would hope to negotiate a specific procedure in order to deal with this.
Mr. Epp: I take it then what your are saying is that you are open to negotiation with the federal government as to division of powers, and that the parallel would be to the existing division of powers which now exists between the federal government and provincial governments in Section 91 and Section 92 of the BNA Act, and that you would be willing to establish a timetable and a course of development which would eventually lead you to responsible government in Nunavut, and then later the decision could be taken as to whether or not provincial status would be accepted? Is that your plan?
Mr. Gordon: Yes, it is.
Mr. Epp: Thank you, Mr. Chairman.
The Joint Chairman (Senator Hays): Thank you, Mr. Epp. Mr. Ittinuar now, followed by Senator Adams.
Mr. Ittinuar: Thank you, Mr. Chairman. Hi, follows. I did not know I was next on line, Mr. Chairman, however I will try and proceed.
I must congratulate you on a most comprehensive and, to me anyway, the best proposal I have heard so far to this Committee and I am sure that Committee members here will take the time and study this very comprehensive proposal as it is, I think, intrinsic to the proposed constitution of Canada.
I would like to mention that Mr. Michael Amarook, the President of the Inuit Tapisirat of Canada is sitting behind Mr. Watt and I would like to have him stand and take a how.
I only have a couple of questions for the ICNI people. Specifically, I would like to question Mr. Watt or Mr. Gordon about page 18, how the James Bay Agreement has been affected by your relations with the federal government and how some of these rights that you obtained through negotiations for the James Bay Agreement have been abrogated or abridged, or in other ways not considered by either the provincial government or the federal government. You also mention on page 7 that it is only through adequate constitutional protection that Inuit can enjoy positive growth and deter the pressures of assimilation, which I think you feel the pressure of on your James Bay Agreement. Could you elaborate on these points?
Mr. Watt: Mr. Ittinuar, as the native people, I guess we are the only ones who have a modern settlement with the Government of Canada and the Government of Quebec. I would just like to respond to the questions that Mr. Ittinuar has raised in regards to the problems of the James Bay-Northern Quebec agreement, what type of problems we have.
The basic problems we have in regards to the James Bay-Northern Quebec agreement is a lack of a formalized procedure. This is the one area, a very crucial area, that needs to be immobilized. When the government machinery is on the move, they have no problem taking certain actions in order to correct some of the areas that need to be corrected or re-establish some areas that have been misused or mishandled. When the machinery is not on the move, it is so hard and typical to try to implement the modern agreements that you have obtained. How to solve our James Bay-Northern Quebec agreement is very simple: it requires a formalized procedure and it requires federal attention and it requires provincial attention, and it also requires the native parties attention in order to mobilize the machinery. That is one area.
We also have been facing problems in regards to constant pressure because the Government of Quebec, too, from time to time passes a bill and passes legislation. Whenever they pass a bill or legislation from time to time, whatever the legislation they are passing affects the agreement, even though the agreement is supposed to over-ride the existing legislation or legislation to come about, in order to not affect the aboriginal rights
that have been negotiated by us with the Government of Canada. There is no adequate protection and there is no formalized procedure. This is one of the reasons why we tend to lean toward looking into the avenue of the constitution and see if some protection could be built into the resolution that has been passed in order for us to work out the details at a later date.
Mr. Ittinuar: Thank you.
Mr. Gordon: I would like to add just a bit to that in the context of this document, in that the rights we had obtained through the James Bay Agreement, and specifically referring to a group of rights under hunting, fishing and trapping rights that we have received, according to the new proposed constitution here these rights would be illegal, they would be construed as being based on ethnic origin or would be considered prejudicial. These rights we have received in hunting and fishing, the rights we have received in the James Bay Agreement, are of fundamental importance to our people. Even today they still provide 80 per cent of the edible food that we get in our villages, and to be considered the special rights that we received and so that we could continue this activity to be able to provide ourselves with food, could be construed as being contradictory to the new proposed resolution. All we are asking for here was the right to feed ourselves but because of the new proposed resolution and the failure to recognize specific aboriginal rights and making allowances for them, that could take away the right of the Inuit to feed themselves and they would become totally dependent on imported food.
Mr. Ittinuar: Thank you. There is not much time here. but I would like to ask a general question about the fact that a lot of people feel there is a relationship with the separatist movement either in the West or in Quebec with the proposals that we have here. These are very comprehensive statements and proposals we have made to the federal government. I do not believe they have any relation to separatism in Canada. However, there is always a fear amongst the ordinary people in Canada that these proposals are related to succession of some type.
Could you perhaps assure the people around this table that this is not so.
Mr. Gordon: We have tried to outline this theme throughout the document, that we are not asking to be able to secede from Canada, but rather that we be given the opportunity to grow within the Canadian context.
Mr. Watt: Just to go a step further gentlemen sitting around here, I think over the past few years now we have talked about separation; you people talked about separation; we talked about separation; not really in the content of running away from Canada and, when you are old enough, coming back and trying to get in again. But it is hard enough to stay within Canada. We are not in the position, we cannot afford to talk about separation, we are not talking about separating from Canada.
That type of concept is totally out to lunch. If that is what your interpretation is, reading from this document, listening to
this document, I am afraid you are wrong, because it is hard enough to stay within Canada. Thank you.
Mr. Ittinuar: One more brief question. I would like to ask you about the definition of aboriginal rights, whether you have one or whether it is something you can state to people on an equal basis and, again to allay the fears of people generally, whether these proposed amendments you have take away anything from the people of Canada.
Mr. Gordon: To define aboriginal rights in this brief time that we have is almost impossible, to try and encompass all the concepts involved in what we call aboriginal rights, but basically what it means to us is the right to live as a distinct society within Canada, with the right to go within Canada and the rights to our lands and to our heritage.
These rights encompass areas of our culture which would include even areas of family law or our particular notion of collective property rights in and to the lands.
There is not enough time to try to include everything that could possibly be included in this but aboriginal rights are not an outright claim on the entire territory, so we can exclude everyone else. We are only asking the right to be able to exist in dignity and as an organized society with the opportunity to grow with other societies in Canada.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Ittinuar Senator Adams followed by Mr. Fraser. Senator Adams.
Senator Adams: Thank you, Mr. Chairman (speaks in Inuit language). I do not think that is being interpreted into English and French. Mr. Chairman, so I would like to interpret it myself. We have been listening to our witnesses there, Eric and Mark and Charlie and Mary and I think I am allowed to speak my language here as we are all Canadian and I think we should first speak in our language here as we have been living in Canada for over 3000 years. Eric says 1000 years but I would say at least 3000 or 4000 years we have been living in Canada. I feel right now, Mr. Chairman, that those original rights of the people should be shown here in our constitution.
In the meantime, why are we not settling any fighting here with our government, we have been here long enough in Canada. I ask my question of the witnesses, I think we have been fighting with the government for a while now over the land claims, aboriginal rights and everything for Canada, why are we not settled yet? Maybe the witnesses could tell us briefly why we are fighting so long between Indian and Inuit here in Canada. We lived here first, and I cannot see why we are still fighting.
In the meantime, I was born in Northern Quebec and I have lived up in the territories, and I wonder sometimes why we are fighting over the land and the government says, go ahead, you own the country.
My colleagues out there I think have been fighting themselves for the rights of the people and I think those people have tried to settle. for native people to have the freedom to hunt if
they live on their own land, and I think it is about time if that constitution would pass to settle the fight over the land or territory in Quebec or the rest of Canada.
Maybe, Charlie, you can tell me, I think you have been fighting with the government for a long time, the provincial government, I do not know how many Ministers have gone by since the government is running it. Charlie says six anyway and I think everyone of them that we ask for something say we have to go to Ottawa.
We are living in Ottawa here now, and I do not know how many thousands of Indian Affairs people living in Hull work for the federal government and in the meantime half of those who live in the territories work for the federal government. We have somewhere around 24,000 Inuit people and maybe have 20,000 government people.
Anyway, Charlie, why does it take so long to fight with the government to settle the land claims and everything.
Mr. Watt: Thank you, Senator Adams (speaks in Inuit language).
Ladies and gentlemen, there is only one lady here. Senator Adams has raised I think very important questions. Why do the native people of Canada and the Government of Canada constantly come up with confrontations all the time, year after year. Many years have passed since and still we have not been able to live together and even still today we are dealing with something of precise, crucial importance to society today, which is the constitution, and we are still fighting over who is going to get what. Who is going to have more power over who?
Do you people not think this has been going a little bit too long? As Willie said, we are the aboriginal people. we should be recognized as aboriginal people, the first people in Canada.
I do not think we are asking a great deal from you. I think all we are asking for is recognition that we are a distinct people, we live in Canada, and we are here to stay.
If you recognize that principle, let us work out the details after the patriation. This is what we are saying.
In order for you to recognize the aboriginal rights and principle, put it in your resolution. You need to put it into the resolution. Then we can take you seriously. Maybe we can understand you; maybe we can go half way to understand your needs if you can go half way to understand our needs. This is very, very important to us and I think it is important to you all too, unless you want to see the Indian people assimilated entirely within Canada. I do not think this is to your interests; it is not to our interests either. Canada is the one place that everyone lives freely. Let it be that.
I do not think I can add that much more and I think the brief speaks pretty well for itself. If there are any details to be worked out. any further questions to be raised. I will be prepared to answer some of those questions and I think some
of our Committee members including Peter Ittinuar, who I am very. very proud of, he is an MP from Nunatsiaq he was elected in Nunatsiaq; but he still takes the trouble to take the interest in what is happening in Labrador and to take the trouble to understand what is happening in Quebec. He has been very. very useful to us and I think you people should listen to him a little more often.
Mr. Gordon: I would like to add just one small point to what Charlie has said. Probably one of the reasons why Charlie has seen such a succession of Indian Affairs Ministers and yet in the territories and in other places the claims have not yet been settled, there is an inherent contradiction in the government’s policy towards native people and that is that on one hand it says it is willing to negotiate aboriginal claims and on the other hand it does not want to give whole hearted recognition to the aboriginal rights and claims and would rather that they be settled through the courts where the grounds are the weakest and where the least could be defined.
When claims have been settled by way of treaties or through agreements such as the James Bay Agreement they have been made so rigid that they quickly become out-dated and no method of amending these out-dated agreements and treaties has been put in place so the people quickly grow very frustrated with the deals that they had gotten in the recent past or in the distant past.
In order for the whole notion of claims to work, it has to be adaptable to the times and the method in which native claims and aboriginal rights is dealt with now, it is made extremely rigid and very limited. We would hope through the provisions that we have tried to introduce in this proposed resolution and also through the negotiations in the postpatriation stage that we could correct some of these basic problems.
The Joint Chairman (Senator Hays): Thank you very much, Senator Adams—one more question, I am sorry, go ahead.
Senator Adams: I would like to ask a question of either Mark or Charlie why Northern Quebec people, I know you have a representative from the area around Quebec—maybe two questions—why Northern Quebec people do not have any representative in the provincial government or in the House of Commons in Ottawa. I think that Northern Quebec is big enough that the Inuit from there should have their own representatives provincially and here in Ottawa.
The Joint Chairman (Senator Hays): Mr. Watt?
Mr. Watt: Senator Adams, we have a gentleman here who has been working on these electoral districts for quite some time now. If the Chairman does not mind I would like this gentleman to respond to the questions that he just raised because there is a difference between the Quebec provincial electoral ridings and the federal electoral ridings.
His name is Zebedee Nungak and he and I have worked together for a number of years. We started off in 1970 and we are still together even though from time to time he is dealing with some other areas and I am dealing with some other areas
in order for us not to spread ourselves too thin because we are very small numbers and have a lot of responsibilities.
If you do not mind, Mr. Chairman, I will have him respond to Willie Adams’ questions,
The Joint Chairman (Senator Hays): Yes. Mr. Nungak.
Mr. Zebedee Nungak (Member, Inuit Committee on National Issues): Very briefly, to answer Senator Adams’ question, the electoral ridings provincially and federally at the present time that encompass Northern Quebec are drawn up in such a way that all the votes and all the representation is concentrated in the southern portions. In the provincial riding of Duplessis which has recently been renamed Ungava the main voter centers are located on the North Shore of the St. Lawrence River in towns such as Three Rivers, Port-Cartier and so forth.
Any candidate running in that district has in his riding included all of the northern villages of Northern Quebec but even if all of the voters encompassed in the territory of the 55th parallel voted for one candidate their votes are absolutely miniscule compared to the voter interest in the more heavily populated centers. Therefore our vote in the provincial elections can never count, at the present time.
Federally it is even worse because the territory of Northern Quebec is divided into two ridings of Abitibi and Manicouagan. Some of the communities of Northern Quebec are included in one district and the others are included in the other district. I have run in two elections, in the 1976 provincial election and in the 1979 federal election, and it has demonstrated that the voters of whatever origin residing in Northern Quebec can never have adequate representation with the way the ridings are at present.
Therefore I would say to Senator Adams’ question it is impossible at the present time to have the interests of that region which is substantial in mineral and hydro electric resources to have any representation worth speaking of in either the provincial or federal legislatures. It is a gross injustice which should be corrected and which should be recognized in the very near future by people who are empowered to correct these kinds of injustices. Thank you.
The Joint Chairman (Senator Hays): Thank you, Senator Adams.
Mr. Crombie, followed by Mr. Mackasey.
Mr. Crombie: Thank you very much, Mr. Chairman. Let me join with the others in congratulating this deputation with respect to a most impressive brief, as well as on a most articulate and, if I may also say so, eloquent presentation.
I have some questions in relation to your comment that what you are interested in is having patriation, and, if I may put this in the form of a quote, “dealing with the details later.” That is a position with regard to which, I am sure you are aware, you will find considerable support from those of us on this side.
But can you tell me this? I wonder if you have addressed yourself to the question of any amending formula which should be put in place along with patriation?
As you may be aware, on a number of occasions, people have said “Let’s patriate,” and a question which then follows is: “What about an amending formula?” Have you given any consideration to that?
Mr. Gordon: We have a specific provision dealing with this. I believe it is numbered 51A and is at page 28.
The amending formula proposed is one which would deal with the government on the question where we could participate when matters specifically relating to us were dealt with; that the other areas of the constitution would be up to the federal and provincial legislatures as proposed in the proposed resolution. However, in those specific areas which concern us directly. we wish to be involved.
Mr. Watt: Section 51(a) talks about:
in accordance with rules to be established by an appropriate person or body duly authorized for such purposes by the Governor-in-Council.
Does that answer your question?
Mr. Crombie: Yes, it does in that specific section.
Mr. Watt: In other words, the formula would have to be worked out at a later date.
Mr. Crombie: Do I take it that Sections 41 and 42 of the resolution before us is not sufficient for your needs. and the improvement you would seek would be along the lines you have just mentioned? Is that correct?
Mr. Watt: They certainly would not be sufficient; you are right.
Mr. Crombie: The most fundamental part of your brief deals with the proclamation of 1763. Indeed, recognition of that clear, unequivocal and unambiguous recognition of the rights contained in the proclamation of 1763 is fundamental to the whole of your argument.
Can you elaborate on why the absence of the proclamation 1763 is significant to you, the fact that it is not in the schedule? What does that mean to you?
Mr. Gordon: We find it quite unusual that in the first proposal of the government they included it in Bill C-60, and then specifically excluded it in the second proposal, the one which is in front of us now.
Our argument hinges around this, because this is a historical recognition of our rights and special relation. This is the only reference which we could find in the history books which were written by your society in their dealings with us. If there was more we would have included more.
Mr. Watt: In the proclamation of 1763, when the Imperial system was in place, that is before I became colonized, King George III, according to a proclamation of 1763, recognized the fact that there was the possibility of nation-within-nation concept surviving side-by-side.
But, again, if you were to read the British North America Act of 1867 and put the two together and try to arrive at some consensus from them, what is our interpretation now?
In 1867, what happened was that the concept of nation-within-nation was deleted and we became subject to the federal government.
Again, there are interpretations to be made. Was it solely that we were to be subject? Was that concept of nation-within-nation still possible?
But, in order to minimize any scaring of you people by talking about nation, it is necessary to mention that when we speak of the nation concept, we understand that within our own terminology; it is as people; Inuit is a nation. There are two alternatives there, and that is where we always have difficulty in understanding which is which.
Do you follow?
Mr. Crombie: I do.
The need to maintain the legitimacy of the concept of nation contained in the proclamation of 1763 was somewhat embodied in a section in the old Bill C-60, to be exact, Section 26 of that Bill.
Does Section 26 of old Bill C-60 come close to your explicit understanding of the legitimate protection of the concept of nation?
Mr. Watt: That is correct, yes. It would be a benefit to the native people in order to highlight what was the original interpretation of the proclamation of 1763 in order to put ourselves in a position to negotiate with the Government of Canada.
Mr. Crombie: I understand.
One final question, if I may, Mr. Chairman. It relates to page 9 of your brief. At the top of that page, the last sentence says:
In addition, the Prime Minister has confirmed his commitment to involve the aboriginal peoples of Canada in the next constitutional conference of First Ministers by including native peoples and the constitution as an agenda item.
Two questions in that connection. One, have you received confirmation of that commitment? Secondly, has there been any discussion on the working out of an agenda which is satisfactory to you?
Mr. Gordon: We have received a letter stating that he would undertake to do so, but as to additional confirmation I do not know of any.
Mr. Crombie: Are you satisfied with the nature of te commitment, which is fundamental to my question?
Mr. Watt: Mr. Crombie, no; we are not satisfied with the commitments he has made. In order to put the commitment to use, he is going to have to be prepared to accept the aboriginal rights in principle being enshrined within the resolution.
This is why on a number of occasions I have myself requested to meet with Mr. Trudeau and I have tried every avenue possible to get to him, and for some reason I have been blocked. Why, I do not know.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Crombie.
Well, you have probably heard the bells ringing. There will be a vote taken, Mr. Watt and Mr. Tagoona, and certain members of our Committee will have to go to the House of vote.
I have several more speakers; Mr. Fraser, Mr. Mackasey, Mr. Lapierre and Mr. Allmand who would also like to speak.
If it is the wish of the Committee, probably after the vote, which shall take about 20 minutes, you could come back, if you wish, in 25 minutes time; I am in the hands of the Committee.
Mr. Epp: Mr. Chairman, as an alternative, I do not know if the ICNI are planning to stay overnight. But I understand that there is a time block between 9:30 a.m. and 10:30 am. tomorrow. We could discuss this issue more adequately if it would be agreeable to them to come back at 9:30 am. tomorrow morning to use that hour.
The Joint Chairman (Senator Hays): Would that be satisfactory to Mr. Watt?
Mr. Watt: Yes, and we appreciate it. We appreciate the fact that we will be heard again tomorrow.
The Joint Chairman (Senator Hays): At 9:30 a.m. in the morning.
I see that is agreeable to the Committee. Mr. Nystrom.
Mr. Nystrom: Mr. Chairman, I have been in communication with the National Indian Brotherhood who are slated for tomorrow, and I am advised that they still have not completed their constitutional talks across the street over at the Skyline Hotel. Because of that, they would prefer to come before the Committee Wednesday afternoon, if possible. I feel we should do everything in our power to accommodate them. It is very difficult for them to come before us without a mandate from the Chiefs.
I have spoken with both Mr. Austin and Mr. Epp on this question and I think we could probably make those arrangements if it meets with your approval.
The Joint Chairman (Senator Hays): Yes, could we not take a look at that tomorrow morning? We have the Premier of Nova Scotia who will be here at 10:30 am. in the morning. Could we not resolve that in the morning?
Some hon. Members: Agreed.
The Joint Chairman (Senator Hays): I want to thank our witnesses for being here tonight. It has been a most interesting brief. I am sure that every member of the Committee has been very interested in it. You have just elated us, having done a great job, and we look forward to having you back tomorrow at 9:30 am.
The meeting is adjourned until 9:30 tomorrow morning.
From the Inuit Committee on National Issues:
Mr. Charlie Watt, Co-Chairman;
Mr. Eric Tagoona, Co-Chairman;
Mr. Mark R. Gordon, Coordinator;
Miss Mary Simon;
Mr. Zebedee Nungak.