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 17 (2 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 17 (2 December 1980).
Other formats: Click here to view the original document (PDF).
HOUSE OF COMMONS
Issue No. 17
Tuesday, December 2, 1980
Senator Hairy 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 OF CANADA
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
On Tuesday, December 2, 1980:
Mr. Irwin replaced Mr. Landers;
Mr. Robinson (Burnaby) replaced Mr. Ittinuar;
Mr. Corbin replaced Mr. Irwin;
Miss Campbell (South West Nova) replaced Mr. Corbin;
Mrs. Hervieux-Payette replaced Miss Campbell (South West Nova);
Mr. Mitchell replaced Mr. Robinson (Burnaby);
Mr. Allmand replaced Mr. Henderson;
Mr. Henderson replaced Mr. Allmand;
Mr. Waddell replaced Mr. Mitchell;
Mrs. Côté replaced Mr. Lapierre.
Pursuant to an order of the Senate adopted November 5, 1980;
On Tuesday, December 2, 1980;
Senator Smith replaced Senator Macquarrie;
Senator Roblin replaced Senator Smith;
Senator Bird replaced Senator Petten;
Senator Lucier replaced Senator Adams;
Senator Stanbury replaced Senator Connolly;
Senator Lapointe replaced Senator Austin;
Senator Austin replaced Senator Lapointe;
Senator Lapointe replaced Senator Goldenberg;
Senator Petten replaced Senator Bird.
Issue No. 15
Pursuant to an order of the Senate adopted November 5, 1980:
On Friday, November 28, 1980:
Senator Lamontagne replaced Senator Lapointe;
Senator Lapointe replaced Senator Cottreau;
Senator Cottreau replaced Senator Connolly.
MINUTES OF PROCEEDINGS
TUESDAY, DECEMBER 2, 1980
The Special Joint Committee on the Constitution of Canada met at 9:40 o’clock a.m., this day, the Joint Chairman, Senator Hays, presiding.
Members of the Committee present:
Representing the Senate: The Honourable Senators Adams, Asselin, Austin, Connolly, Goldenberg, Hays, Lamontagne, Petten, Smith and Tremblay.
Other Senator present: The Honourable Senator Flynn.
Representing the House of Commons: Messrs. Beatty, Bockstael, Miss Campbell (South West Nova), Messrs. Corbin, Crombie, Epp, Fraser, Henderson, Irwin, Ittinuar, Joyal, Landers, Lapierre, Mackasey, McGrath, Nystrom and Robinson (Burnaby).
Other Members present: Messrs. Allmand, Hawkes, Nowlan and MacKay.
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 and Mr. Thomas Suluk. From Government of Nova Scotia: Honourable John Buchanan, Premier; and Honourable Edmond Morris, Minister of Intergovernmental Affairs.
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)
Questioning of Messrs. Watt, Tagoona, Gordon and Suluk resumed.
On motion of Mr. Epp, it was agreed,—That Appendix IV of the brief from the Inuit Committee on National Issues be printed as an appendix to this day’s Minutes of proceedings and Evidence. (See Appendix “CCC-2”.)
Mr. Joyal assumed the Chair.
Honourable J. Buchanan made a statement and answered questions.
At l:05 o’clock p.m., the Committee adjourned to the call of the Chair.
The Special Joint Committee on the Constitution of Canada met at 3:48 o’clock p.m., this day, the Joint Chairman, Mr. Joyal, presiding.
Members of the Contents present:
Representing the Senate: The Honourable Senators Asselin, Austin, Bird, Hays, Lamontagne, Lapointe, Lucier, Roblin, Stanbury and Tremblay.
Other Senator present: The Honourable Senator Goldenberg.
Representing the House of Commons: Messrs. Allmand, Beatty, Bockstael, Corbin, Epp, Fraser, Henderson, Mrs. Hervieux-Payette, Messrs. Irwin, Joyal, Lapierre, Mackasey, McGrath, Mitchell and Nystrom.
Other Members present: Messrs. Hawkes, Mclean and Robinson (Burnaby).
In attendance: From the Parliamentary Centre: Mr. Peter Dobell, Director; From the Research Branch of the Library of Parliament: Mr. Louis Massicotte, Researcher.
Witnesses: From Native Women’s Association of Canada: Mrs. Marlene Pierre-Aggamaway. President; Ms. Donna Phillips, Treasurer. From Indian Rights for Indian Women: Mrs. Nellie Carlson, Western Vice-President; Mrs. Rose Charlie, Board Member and Barbara Wyss, Treasurer.
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 for 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.)
Mrs. Pierre-Aggamaway made a statement and with Mrs. Phillips answered questions.
Mr. Austin moved,—That the Subcommittee of the Steering Committee, composed of Messrs. Austin, Epp and Nystrom, be authorized to consider and report to the Steering Committee as soon as possible on the following matters:
1. The time required by this Joint Committee to review the Resolution clause by clause.
2. The time required by this Joint Committee to hear witnesses and receive briefs.
3. The question of the Joint Committee sittings over the parliamentary holidays, if necessary.
4. Selection of witnesses among organizations and individuals including expert witnesses.
5. Such other matters as the Subcommittee should think relevant to discuss and refer to the Steering Committee.
After debate, by unanimous consent, the motion was agreed to.
Mrs. Charlie and Mrs. Wyss made statements and with Mrs. Carlson answered questions.
At 6:38 o’clock p.m., the Committee adjourned to the call of the Chair.
The Special Joint Committee on the Constitution of Canada met at 8:13 o’clock p.m., this day, the Joint Chairman, Senator Hays, presiding.
Members of the Committee present:
Representing the Senate: The Honourable Senators Asselin, Austin, Hays, Lamontagne, Lapointe, Lucier, Petten, Roblin, Stanbury and Tremblay.
Representing the House of Commons: Messrs. Bockstael, Corbin, Mrs. Côté, Mr. Epp, Mrs. Hervieux-Payette, Messrs. Irwin, Joyal, Nystrom and Waddell.
Other Members present: Messrs. Allmand, Friesen, Hawkes, Landers and Wright.
In attendance: From the Parliamentary Centre: Mr. Peter Dobell, Director. From the Research Branch of the Library of Parliament: Mr. John McDonough and Mr. Louis Massicotte, Researchers.
Witnesses: From the Native Council of Canada: Mr. Harry Daniels, President; Mr. Louis Bruyère, Vice-President; Mr. Gene Rhéaume, Honorary President; Mr. Vic Savino, Legal Counsel.
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. l.)
Mr. Daniels made a statement and with Messrs. Bruyère, Rhéaume and Savino answered questions.
At 9:54 o’clock p.m., the Committee adjourned to the call of the Chair.
Joint Clerks of the Committee
(Recorded by Electronic Apparatus)
Tuesday, December 2, 1980
The Joint Chairman (Senator Hays): May I call the meeting to order and if those with the cameras would please leave we will get along with our proceedings.
Mr. Watt, while we are waiting for the cameras to leave, do you have an Inuit who would be able to do the translation?
Mr. Charlie Watt (Co-Chairman, Inuit Committee on National Issues): Yes, Mr. Chairman, if you would give him a few minutes.
The Joint Chairman (Senator Hays): Well, I suppose if he could come up here. I do not know how this machine operates, but I suppose that is where he should be, if he could come up at this time.
He might sit at the table beside you.
Mr. Watt: If the translation equipment is not all that sophisticated, well maybe he can be assisted on how to run the translating equipment.
The Joint Chairman (Senator Hays): Well, maybe it is better if he can sit beside you and operate from the end of the table?
Mr. Watt: No. The only thing that worries me still is the alotted time that we have. It is going to take up that much more time if it is not translated simultaneously, that is the only concern I have.
The Joint Chairman (Senator Hays): Well, do you care to go on the way we did yesterday then?
Mr. Watt: Yes.
The Joint Chairman (Senator Hays): Okay, fine. Well, our first speaker this morning is the honourable Bryce Mackasey, followed by the honourable John Fraser.
Mr. Mackasey: Mr. Chairman, on a point of order before I begin. Will there be time for Mr. Allmand?
The Joint Chairman (Mr. Joyal): Yes.
Mr. Mackasey: Because if there is not, I would gladly give up my time.
The Joint Chairman (Senator Hays): No, go ahead.
Mr. Mackasey: Thank you. Mr. Chairman, on my behalf, welcome. I would like to concentrate just a little more on the letter of the Prime Minister, to which there was some illusion last evening, which you were kind enough I believe to attach to your brief.
I say without hesitation to the witnesses, and speaking for myself, that I have great respect for the Prime Minister’s sincere concern for individual rights. He has been associated with this concept or principle for as long as I have known him, which is a long time.
I just want to repeat for the record, you are in favour, or are you in favour of entrenching individual rights and human freedoms in the charter?
Mr. Watt: Yes, we are in favour of entrenching the collective rights, but the individual rights are, to us, it does not really make all that much sense when you are talking about individual rights, When you are dealing with an aboriginal rights concept, those are the collective rights.
Basically, what we are talking about, entrenchment of the aboriginal rights is the collective rights.
Mr. Mackasey: Thank you very much. you can add to it if you like?
Mr. Mark R. Gordon (Co-ordinator, Inuit Committee on National Issues): We agreed to the concept of individual rights as we would receive them as normal citizens of Canada, but the reference to collective rights is the concept in which we hold our aboriginal rights,
Mr. Mackasey: I appreciate that and I appreciate you reminding all of us the so-called minority groups are also Canadian citizen and therefore are bound by the Charter in general. The principle that you want to see enshrined sooner than later in the constitution are your aboriginal rights, the collective rights as people. I understand that.
Now, obviously, reading the Prime Minister’s letter, I think he shares your views. I think he lays it out with conviction, and I have to come back to my premise that he wants what you want, it is just a question of how to get it and not get it.
He comes back and he said, let me respond to your worries by saying I am personally convinced that you people will lose nothing in his act for patriation, and you have a right to disagree with the Prime Minister, We have to, as a Committee, assess your contribution and see what we can do to allay those fears.
For instance, you were concerned I think earlier about Section 24 and I think you expressed your concerns quite validly, but let me read again for the record what the Prime Minister says on page 2 of his letter dealing with Section 24, which is in there.
The Prime Minister says:
In the “Proposed Resolution for a Joint Address to Her Majesty the Queen Respecting the Constitution of Canada,” you will note that under Section 24, any rights or freedoms that pertain to the Native Peoples of Canada shall not be abrogated by the introduction of a guarantee in the “Charter of Rights and Freedoms” of certain rights and freedoms for all Canadians.
This section is meant to safeguard the special rights which Native Peoples may have and leaves open the possibility of future entrenchment of such rights in the Constitution.
Would you care to comment?
Mr. Watt: That could very well be the good intention of the federal government to attempt to enshrine the aboriginal rights, but our arguments to that precise area is that we felt that since they are only talking about denying the existence of any other rights for freedom that exist in Canada, including any rights or freedoms that pertain to the native peoples of
Canada, that precise area does not go far enough. W felt that is watered down because that aboriginal concept is not even included in there and also the reference that should be highlighted in the resolution, it is in Schedule l, that is the Royal Proclamation.
Mr. Mackasey: I appreciate that.
Mr. Watt: I refer you to the wording of your resolution.
Mr. Mackasey: And I think your pertinent observation will be brought to the attention of the Minister when he appears before us next week, or whatever.
Your concern, your reservation, I think we are both agreeing that whether it is achieved or not by Section 24, the Prime Minister of Canada on his own stationery, signed by himself, at least interprets Section 24 to provide that kind of safeguard. In making that point, it is obvious that he is dedicated to the preservation of what rights have been acquired and what appear in legislation.
Mr. Gordon: One of the worries that we have about this provision is that it does not deal with the contradictions that would lie when dealing with our concept of aboriginal rights, vis-à-vis the other areas of the proposed resolution.
Yesterday we mentioned the fact that the equal rights provision could be in contradiction with our right to be able to provide food for ourselves. We want it to be a bit more clearer and not to be left to the interpretations of the courts when this is finished.
Mr. Mackasey: Which I think is the point the Prime Minister makes in his letter and in his answers from the House, is that we have got to, in some form, first of all agree to what those rights are, how are they defined. For instance, when you quite properly talk about the Proclamation of l7ó3, I think the words you used in your brief, insofar as it touches on the rights of the aboriginal peoples of Canada, at the moment you say so far as it touches on the rights of the aboriginal peoples of Canada. You infer that not everything does and sooner or later, insofar as it touches on the rights of the aboriginal peoples of Canada, those rights will have to be clearly spelled out, clearly enunciated, clearly understood, clearly accepted by the various governments before they are enshrined in the constitution.
I think that is the Prime Minister’s point. He is afraid of enshrining at this moment in the constitution general phrasing and then finding later on the interpretations of a court are much too restrictive, which I think is your own fear.
However, I think what the Prime Minister is saying, he would like those rights to be more specific after discussions. Would you not agree with that?
Mr. Gordon: Yes, they should be definitely much more specific after we have had the opportunity to discuss that with you, but we think some very basic elements and basic principles have to be recognized at this time in order for us to have a meaningful discussion.
Now, Section 24 does not allow, as it now stands, for us to represent our views directly and does not allow us to participate in any amendment to the constitution when it is dealing with us.
The procedure that we suggest in the brief dealing with amendments must be included in order for us to be an equal partner in the discussions.
If the amendment provision is not put in, we will not be able to voice—well, we will be able to voice, but not to have a say in our rights.
Mr. Watt: Can I just extend Mark’s remarks?
Mr. Mackasey: Sure.
Mr. Watt: In the past, before the passage of these resolutions were put forward, yes, we did deal with the substance of what we want enshrined within the constitution as much as possible in detailed form. We have already outlined our positions and we have submitted them to the constitutional Committees in the past.
Right now, the reason why we are here today, we are dealing with the procedures at this point in time, and this is the place where we wanted to emphasize to you why the principles have to be entrenched before the patriation takes place because the details will be worked out at a later date. This is what we say.
Mr. Mackasey: Well, this document is really grand, broad principle but I am quite sympathetic to your point of view and impressed by your contribution, but really we are not here to debate it, rather to bring out your views. For instance, the Prime Minister, in that same letter, and you must forgive me if I put a lot of stress on his letter but when you are the Prime Minister of Canada and you write a letter to a particular group, it shows the great respect the Prime Minister has for your culture, for your people, a view I think all Canadians share. None of us are against what you are after, but we are trying to do it in such a manner that really provides you with the ultimate in protection.
The Prime Minister said, for instance, on the very point that you raise, and I quote from the bottom of page 2 of his letter:
More recently, I stated in the House of Commons on October 10, 1980, that any changes in the Constitution which would directly affect Inuit people would only be made after discussion with them.
And he goes on further to say:
Furthermore, I added the undertaking that when negotiations on the Constitution recommence after the Constitution is brought to Canada, we will be prepared to put the item of Native rights on the agenda. In effect I am saying that the way will be open for either amending the Constitution or adding to it.
And of course the Prime Minister is talking about the 24 month period before a referendum comes into play and which he is hoping will be a full-fledged federal-provincial conference, not only to come up hopefully with an amending formula but also to deal with particular items, including yours which he
is guaranteeing will be on the agenda, placed there by the federal government.
The Joint Chairman (Senator Hays): Mr. Mackasey, that will be your last question.
Mr. Watt: Can I just respond to that?
The Joint Chairman (Senator Hays): Yes, go ahead.
Mr. Watt: ln regards to the goodwill of the government…
Mr. Mackasey: The Prime Minister.
Mr. Watt: The Prime Minister, that probably also reflects the Government of Canada, it is very, very hard for us to accept the political commitments which are not really prepared to go as far as recognizing the necessity of the aboriginal rights in principle, knowing the fact that it is going to take a number of years to evolve, these constitutional discussions to arrive at some acceptable conclusion. And again, the prime Minister of Canada might not be a Prime Minister of Canada at the next election, or he might even drop out before the term is up.
Mr. Mackasey: I hope not.
Mr. Watt: We are all counting on that, we hope not, but the fact is it is going to put us into uncertainty and I think we have had uncertainty for many years. All we are asking for at this point in time is give us some room, give us some leverage and recognize aboriginal rights in principle, then we can sit down and discuss and work out the details.
Mr. Mackasey: I gather my time is up and I thank you very much for your constructive interventions.
Mr. Watt: Thank you.
The Joint Chairman (Senator Hays): Thank you Mr. Mackasey. I have now the honourable John Fraser.
Mr. Fraser: Thank you very much, Mr. Chairman.
I, too, along with others want to welcome you here and we are very pleased you could come back this morning. There was some very interesting testimony given last night on your behalf to- the effect that, because of the difficulties you have in terms of your numbers, that you are not adequately represented in either provincial legislatures or in the federal government. Now, we understand why, because your population is relatively small and the ridings in which you are included have the bulk of their population many hundreds of miles from where you live, and I think that was the gist of your testimony.
Now, at the time of Confederation, as you will know being perhaps better students of history than some of us, the Senate was established to create a balance between the interest of people living in the regions and the outer provinces against the heavy population density of the centre, and the reason for that was because without that balance it was felt that there would always be a sense of unequal participation in the decision-making in Parliament. I am not talking about just the House of Commons, I am talking about parliament being the House of Commons and the Senate.
Now, let us suppose, because there has been a lot of talk about Senate reform, let us suppose that you and others who
agree with you, myself included, make proposals for changes in the Senate in order to give to your group and to other native and aboriginal peoples more representation in Parliament by way of the Senate.
Now, can you just comment upon whether that, while not perhaps as satisfactory as being able to have your own riding, 6ut let us assume that that was considered, is that something that you would support?
Mr. Gordon: Yes, we would support any notion that would increase our say and our participation in the Parliament. However, we find it quite essential that we be allowed the representation in the House of Commons because there is where most of the actions of the government are initiated and we do not want to place ourselves in a position where we could only do it by way of reaction and by way of defence; but rather to initiate and to develop our place in this society through the Commons.
Mr. Fraser: Let me follow that up. Certainly as far as I am concerned I agree with you in principle, and I personally would do anything I could to support that proposition, but in the House of Commons you will only be a few people and inevitably you will be in one way or the other bound into the party system, but the purpose of the Senate was to sit as a watch guard on what the House of Commons does, and if Senators who are doing their duty decided that despite your efforts in the House of Commons something was being proposed by the majority in the House which you could not block because you would only be several in the total House, and if the Senate, which is supposed to look after the areas and the regions and this sort of thing, is blocked or emasculated in its traditional function of being able to stop a piece of House of Commons legislation, then you see the difficulty you would be in.
Now, have you looked at Section 44 of the proposal, because what Section 44 does is say that if an amendment is Passed, an amendment to the constitution which could work against you, that is what your concerns are and it is why you want to get rights in, if an amendment to the constitution was passed by the House of Commons and then it went to the Senate, and let us assume that you had a reformed Senate in which you were better represented and let us assume that that Senate decided that the proposed amendment was against the interests of the Inuit people or other aboriginal and native people, what Section 44 in this proposal does is, it says if the Senate does not approve of what the House of Commons is doing within a period of 90 days, then the proposal can go back to the House and if passed again becomes law.
In other words, Section 44 of this proposal emasculates the Senate and strips from it its historic purpose to look after minorities, represent regions and areas, and I am wondering if you have considered that because provided Section 44 stays in the way it is, we could, along with your help, reform the Senate to give you better representation there, but with Section 44 that Senate in which you were better represented would have lost its function and lost its capacity to protect you.
Mr. Gordon: Thank you very much for your opinion on this matter, We would not want to have to be in a position where we have to trade one off against the other.
We would like, if at all possible, to be represented in both Houses. If the Senate is inherently weak by virtue of the provisions of the constitution, then we would rather not be there. If we were forced to make a trade-off, then we would choose the Commons.
Mr. Fraser: I am not asking you to make a trade-off. I support you on both proposals. But I take it you realize what Section 44 would do if it becomes law as a result of the proposals before us?
Mr. Watt: I would like to ask a question in relation to Section 44. Are you implying that if that Section goes through as it is without reference to the native people in it, it could have some effect on the native people? Is your recommendation that we should take that into consideration, including ourselves or to open up a provision within Section 44 to have our representatives be part of the Senate in order to be in a position of, say, a watch dog to see what is being passed and to be in the position also to make recommendations to the House for reconsideration? Is that what you are saying?
Mr. Fraser: I think you understand me perfectly.
I am saying if in subsequent discussion it was proposed, and agreed, in order to increase your representation and effectiveness, you should have representation in the Senate, if Section 44 remains as it is, then on a matter which affected your rights or areas you could have a situation where the Senate did not like it, maybe as a result of your representations in the Senate, but it would not make any difference.
Mr. Watt: May I raise another question. In order to be in a position of a watch dog, since we are all running out of time—and here we have Senator Williams and are counting on him to have a close working relationship with us until some conclusion is arrived at as to what is going to go through the Senate, if time is still available to us to have more input into the Senate, if that can be acceptable and is accepted today and to have one of our people speak as a Senator, then by all means let us do it.
The Joint Chairman (Senator Hays): Thank you very much.
Mr. Fraser: One more question, Mr. Chairman.
The Joint Chairman (Senator Hays): Go ahead.
Mr. Fraser: I noticed you have been concerned with one of the amending formulae, Sections 33 or 34; you mentioned that specifically. You have also then made general reference to the fact the other amending formulae do not take the native people, especially your own group, into account at all. Is that your position?
Mr. Watt: Yes, that is correct.
But it goes further than that, in that there is no provision for native people in the amending formula.
It also puts us in a difficult position, especially those who live within the province. How are we expected to compete with-I do not like the term-a pack of wolves who already
have a good bargaining position and hold power or jurisdiction over natural resources, which natural resources affect our daily lives? That is a hell of a position to be in; Quebec is an example, so is Labrador.
So that is one of the reasons why anything which is directly or indirectly affecting the native people, development, or changing of traditions, or our lifestyles gradually, we are saying, then, that we must be consulted and be part of the group that is going to be making the decisions, because you are going to be affecting our lives.
There is another area of concern to us. We are gradually being assimilated into the existing system, rather than contributing to the system, I do not think we should be looked at in that way, nor do I think that in the long run you are going t succeed in assimilating the native people. We are prepared to use all modern techniques, technologies, to our benefit, and, again, to the benefit of the rest of Canada.
Instead of putting us into the welfare case, put us in a position where we can be productive. That is the point we are trying to put across.
For that reason we say—without political institutions, without an economic base—this does not mean anything at all to us, that is, if we are going to be wholly dependent upon government handouts. If we are not going to be able to rely on our own resources, on ourselves, which can be our economic base, then it is very difficult as an area to survive, not only because of being ethnic groups, such as the Inuit, or the Indians, but because of the lack of delivery of services which are to be provided to the native people, and because we are dependent upon government handouts.
We are saying let us look at the whole thing and see if some adjustment can be made within the society. I think there is room for that.
The revenue sharing concept is based on what? You can base it on the size of population, or the extent of the growth which will take place in generations to come, and also on the game and species available to you, knowing that certain development is going to take place: that, also, has to be taken into consideration. Only then can you decide what percentage should be allocated to the native people, apart from what is being allocated to the general public.
Give us some economic base. This is what we are saying.
The Joint Chairman (Senator Hays): One more question, Mr. Fraser.
Mr. Fraser: Mr. Watt, from what you have said just now and last night, I take it that is really the reason why you have proposed this new section 234.
I would like to remind the Committee of some of the wording in that proposed section on page 19.
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,
Then you enumerate aboriginal rights; treaty rights; rights and protections under Section 91(24) and Section 109 of the Constitution Act, 1867; rights pertaining to the aboriginal people of Canada in relation to the Manitoba Act, 1870; and rights or benefits provided in present and future settlements of aboriginal claims; and you go on.
Now I gather, from what you are saying, that what you want here is a guarantee that, when discussing your relationship with the rest of the Canadian society, your rights, whether they be historic or more recently obtained, for instance, under an agreement-and I have in mind the James Bay Agreement-that those rights must be on-going?
Mr. Watt: Alive.
Mr. Fraser: Alive. And if they are to be changes which you wish or somebody else wishes, you want this constitution to guarantee that those changes would be worked out with you on a mutually acceptable basis on the concept of a partnership with the rest of your fellow Canadians?
Mr. Watt: That is correct. Those are the precise reasons why we are in front of you.
I would like to go further, if I may, Mr. Chairman, to speak about Section 234.
We are asking the Government of Canada, especially, Mr. Trudeau for the political commitments that he has made before; we want those to be attached, that is, in the new Section 234 that we are proposing.
This does not have a legal validity. In other words, we cannot turn around and take legal action on those bases, even after the patriation takes place. But there is a possibility that will give us some leverage at a later date if we are challenged or our rights that we have negotiated are being deteriorated for some reason and then we will be in the position to say, okay, you are not respecting our rights. If we can agree or settle those matters amongst ourselves without taking legal action, let us do it. If that fails, it will put us in the position at a later date, after the details have been worked out, to have some legal validity, but at this point in time, until the detail is worked out, we are not going to be in the position to take any legal action.
I am just trying to assure you that there is really nothing to worry about if you attach those lists which we consider are the political commitments of Trudeau.
The Joint Chairman (Senator Hays): Thank you, Mr. Fraser. Mr. Lapierre?
Mr. Lapierre: Mr. Chairman, I see time is moving along, and I shall put only two short questions in order to give my colleague on the right time to put his own questions.
On the one hand, you speak of the provisions of your new Section 23, and you say that you would like some political commitment, but I must remind you that any provision enshrined in the Constitution is much more than a political commitment, it becomes a legal reality, which would allow you to take legal action at any time.
I do not think that we can have double standards. Either it is part of the new Canadian law, or it is not.
Could you explain further, so that I might understand the difference between the two?
Mr. Watt: The gentlemen on my left, I think he just raised some very important questions and I would just like to respond and I believe that Mark is going to extend my response also.
If they are entrenched within the constitution, what you are saying is that they are going to have legal validity and that we are going to be in the position of taking legal action. I am afraid that I do not agree with you because this is only an attempt to work towards defining aboriginal rights. Until aboriginal rights are defined, we are not going to be in the position to take legal action because even if it is landed in the court, then the same problems that we have today will always be the problem.
This is why I said, until such a time as we work out the definition of aboriginal rights, we are not going to be in the position to take any legal action.
Mr. Lapierre: Well, if you are not going to be in that position, then why put that in the constitution because if we do so and if they are not well defined, are you sure we should do it right away?
Mr. Watt: Again, we are not dealing ,with the details right at the moment. It is very disappointing for us that it is a step back because we have dealt with the substance and we have dealt with the details. We have a specific proposal in a lot of areas that have been discussed during the summer by the First Ministers’ conference. We have a specific detailed proposal, but right now w€ are dealing with the procedures. If this is the understanding of everyone that we are dealing with the procedures, let us deal with the principles and work out the details later. So I do not think you should be worried about the details, but whether we are going to be advancing ourselves to have a bargaining position before the details are worked out.
Mr. Lapierre: Yes, but the problem I see is that we are going to go ahead with this proposal very soon, as you know.
Mr. Epp: That is the problem..
Mr. Watt: That is the problem, give us a leverage, give us some leverage before the patriation takes place.
Mr. Lapierre: Yes.
Mr. Watt: Without any leverage at all, to try to be amongst the First Ministers, then what am I going to do, open my arms, and say eat me alive.
Mr. Lapierre: That is not really what the Prime Minister is proposing, but my last question: I would like to know the legal status of the Royal Proclamation of 1763? You have read it a few times and I would like to know the legal status of the Royal Proclamation of l763, as of now?
Mr. Watt: Yes, right now, if we wanted to raise the question as to the validity of the Royal Proclamation, we can do that now. We can raise the question of the interpretation of the Royal Proclamation of 1763; we can raise that here in Canada, but there is no time for that. We can also raise that in Britain,
and I think we have a little time for that. But I hope we do not have to go through that channel.
Mr. Lapierre: Thank you.
The Joint Chairman (Senator Hays): Thank you very much. Mr. Hawkes, followed by Mr. Allmand.
Mr. Hawkes: Thank you, Mr. Chairman and welcome. I am sorry I was not with you last evening, I was dealing with employment issues in the 1980s in a special parliamentary committee.
I would like to direct your attention of page 9 of your brief and the last paragraph. Mr. Mackasey started out today with reference to the Prime Minister’s letter and in that paragraph, page 9, you say that the assurances and commitments in the Prime Minister’s letter in regard to the postpatriation stage hardly reflect the impending reality. Could you just expand on that a bit for me?
Mr. Gordon: The reality that we are referring to here is that we do not believe that amendments to the constitution will be made easier after patriation takes place.
As it now stands and if the package is passed in its present form, we will not have a place in which we could discuss and make agreements on those specific areas that are relating to us. We would be at the total mercy of the federal and provincial legislatures and through the amending formula that has been set up.
Now, we find it quite unusual that you would want to put us in a position where we could not speak directly about our concerns and to have an effective voice in those concerns. I am not talking about merely being able to represent our views, but actually making an agreement on that because these areas that we would be dealing with in the future would deal with very essential things to us, such as, areas of family law and other areas. These are basic cultural needs that we need to protect and be able to develop over the future. But as it now stands, this would be at the total discretion of the federal provincial legislatures and we would not have the opportunity io present our consent to an amendment that would be dealing with such essential issues to us.
Mr. Hawkes: Okay, if I can summarize, and I think it reflects a lot of the testimony we have had since these hearings began, but in a sense the Prime Minister is saying in a letter that he is assuring you that certain things will happen in the future, but when you look at this constitution act 1980, when you read it carefully, when you get legal opinion, what you discover is that what he told you is going to happen will in fact not happen. Is that an adequate summary?
Mr. Gordon: Well, I would not like to say that it would not happen just in case that is the only thing that comes our of this, first of. We find that the weight is against us on a very tremendous imbalance and I cannot see how we could come to a reasonable understanding without having the equal bargaining position of dealing with such essential matters such as our language rights and other areas that we hold sacred to ourselves.
Mr. Hawkes: You are a minority group, a charter of rights is supposed to protect minorities and you do not feel very well protected by this Charter, is that what you are saying?
Mr. Gordon: Well, I believe that the minority groups are protected quite well in this package as it now stands if your minority group is European in origin because this proposal endorses the European values and European systems. Since our culture and our system is completely different, we believe that there should be a way for us to integrate it into this package.
Mr. Watt: Especially when you are aboriginal inhabitants of this country.
Mr. Hawkes: Thank you. My last question, could I just take you to page 16 where you deal with the mobility rights section. If I understand your criticism correctly, you are, like most Canadians, in favour of a system that would encourage mobility of labour because it would be good for the economy, but when you look at the specifics of your personal situation, you find this section to be inadequate for a couple of reasons; number one, it does not protect you from massive invasion, so it needs to be changed in that direction; it does not protect you economically adequately in being able to have first call on some jobs and some training. I think I see those two threads. I have raised the issue very briefly with the Minister of Justice and our time ran out, but I direct your attention to clause 3(b) which is one that people have not paid much attention to. But it seems possible to me that in law someone could sue to stop the expenditure of public money for social purposes, and I am wondering for instance, if the legal advice you have might indicate that some of your people who may be wanted to come south of 60 for a period of training and that in the ordinary case public funds would be used to assist in that, whether or not somebody could sue in a sort of reserve discrimination sense and stop the expenditure of public money for the kinds of training programs that people might need and want.
Have you got concerns about that particular part of the mobility section which is before us. Have you looked at that and does that concern you?
Mr. Gordon: In the specific example that you site here of people coming down south for training, I think that would be adequately covered in Section 24 as it now stands where it deals with the disadvantaged groups being given the opportunity to be able to be given programs and social assistance.
The Joint Chairman (Senator Hays): Thank you. Mr. Allmand?
Mr. Allmand: Mr. Chairman, when the Prime Minister says in his letter of October 30th to Mr. Watt and Mr. Tagoona that he is personally convinced that you people will lose nothing in this act of patriation, and we can argue whether he is right or wrong, but let us presume the Prime Minister is right. Even if he is right, all he is saying is that you will not lose anything by this act of patriation. He is not saying that
you cannot lose anything by the effects of any other law or bill existing or to exist at the federal and provincial level. So all he is saying, he is leaving you in the same position you are in today. He is not doing anything to protect your collective rights from the effect of many laws.
I would just like you to give a few examples to the Committee. For the last few years you have been negotiating a claim in the Eastern Arctic, an Inuit claim. While you were negotiating that claim under the present laws, certain lands near Baker Lake were alienated to large companies to do resource developments, lands on which you were making a claim and negotiating. Just tell us what happened there to that claim. My understanding is that the court ruled against you and in favour of the alienation of those lands. Is there anything in this proposal that would protect you against that kind of action, the further alienation of your lands during the negotiations,
Mr. Watt: Mr. Warren Allmand, I appreciate your comment. This is one of the precise reasons why again we are appearing here in front of you outlining our concerns because it does not give us any sensitivity that we are secure within Canada. I think for once and for all, the sense of being secure in Canada, this will have to take place. We are so few in numbers who are in the position to speak for our people. It does not allow us, let me tell you, to be with our families and be able to enjoy our life today because of an uncertainty, because of no sense of security.
Even if you have a specific agreement like we have with the James Bay Northern Quebec agreements, you are always worrying about, when a new bill is being introduced, what they are going to do to us this time, in what way are they going to be affecting us. All it does to us is run around in circles and try and protect our interests as much as possible in order to protect our people. This is why we are coming to you in the light of talking about constitution. We understand constitution is not going to give you all that much advancement, it is not going to give you any extra meat or candies or the goodies that you have to have in order to survive within Canada, but it gives you some leverage, it gives you some sensitivity that you have some means and ways to realize that you have something that you can use as a reference if your lifestyle is being disturbed.
I am sorry, Warren Allmand, if I do not answer you precisely on this. I would like to…
Mr. Allmand: I want to know if you confirm my feeling about the Prime Minister’s statement that even if the Prime Minister’s statement is correct, the patriating act will not protect your collective rights against any other laws or bills at the federal-provincial level, and that is what you are afraid of. Is that correct?
Mr. Watt: That is correct.
Mr. Allmand: Let us take your James Bay agreement, for example. You spent years in the seventies negotiating that claim. It was finally signed with the federal and Quebec governments, bills were passed in Quebec City and Ottawa confirming the claim, but those bills at the federal level and
the provincial level are only ordinary laws. What is there to prevent a government in five or ten years time at the Quebec level or at the federal level from passing laws to amend your settlement of the 1970s, say, 1975 o¡ 1976 and reducing the rights in that settlement that you worked so hard to get. What is to prevent a government, let us say a parliament made up of Sid Greens, the Member of Parliament from Manitoba, who thinks his way. Is there any protection against that kind of an amendment to your agreement?
Mr. Watt: No, there is no protection. Since the agreement that we have obtained through the negotiations and, again, it was negotiated politically. When you have an agreement that was negotiated politically, as you know, a lot of you have experience, a lot of you are lawyers, I am sure, and even if you are not a lawyer, you have at one time or another worked with the lawyers. There is always tendency to push apart when you have two professional people competing to deal with the detail of the legal definition.
For that reason, it seems there are a lot of areas in the agreement that is subject to the interpretation because of that. On one hand, the province wanted to have an upper hand; on the other hand, we want some leverage. A lot of our agreements which we could consider as a benefit to the native people, could be interpreted completely differently from the way we interpret it, and it would not stand in the court too good.
So, the step has already been taken. For example, Kativik school board, there was supposed to be one school board above the 55th parallel and there have been some steps taken by the Minister of Education to create another school organization concept within that territory. There is a breach there already. But we came to the conclusion we have to sit down and talk it out and to try and come up with an acceptable solution. If that does not happen, we are going to be forced to take legal action.
The other area, first refusal rights to the tourist camps. There is a provision in the agreement, a very detailed provision outlining how the mechanism should work. So, there is another breach in there already because the Ministers have passed the procedures and the format, when the procedure is already existing. It is right in the agreement.
So there is an attempt of erosion of all rights that is already taking place.
The Joint Chairman (Senator Hays): Thank you. Do you have another question, Mr. Allmand?
Mr. Allmand: My last question. Before the European’s came, as you said yesterday, you had societies, governments, laws, cultures, economies, you had sovereignty over the lands of the Arctic, the High Arctic, the Eastern Arctic and so on, and when they came you claim that you never gave up those rights voluntarily. I say “voluntarily” because laws were passed in the Parliaments of Canada and the provinces taking away those rights unilaterally, but has anybody ever produced evidence, to your knowledge, that you voluntarily gave up those rights you had before the Europeans came? Has anybody every put on the table any evidence that you agreed to giving up those rights?
Mr. Watt: Mr. Allmand, we have examined every possible document that we could use, we have examined every possible precedent that has been set, even outside the country. Now, we have not seen any documents anywhere whatsoever stating we have given up those rights.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Allmand.
Mr. Allmand: On a point of order, Mr. Chairman, I just wanted to propose that maybe you include in your proceedings of yesterday’s meeting or today’s, the excellent legal analysis of the Royal Proclamation and the Order-in-Council, which is in appendix IV of the brief last night. I read it, it is an excellent five page examination of those issues and since it was not read it would not be in the record but I think it would be very beneficial to have it in the record. I cannot propose that because I am not with the Committee.
Mr. Epp: Mr. Chairman, on behalf of Mr. Allmand I would move that it be attached.
The Joint Chairman (Senator Hays): Is that agreed?
Some hon. Members: Agreed.
The Joint Chairman (Senator Hays): Thank you, Mr. Allmand. We have Mr. McGrath who would like to ask a question, followed by Mr. Ittinuar.
Mr. McGrath: I have one or two short questions, Mr. Chairman, and it has to do with your claim for self determination, territorial status and ultimately provincial status, and the first part of my question is this: what is your relationship to the Inuit people of Greenland? I understand there was a meeting this year in Greenland.
Secondly, in terms of some form of political self determination, how do you see the Inuit people of Labrador and Quebec who are now citizens of those two provinces and have to deal with these political jurisdictions?
Mr. Gordon: The meeting you refer to is the Inuit Circumpolar Conference, there have been two of these conferences since the process began. Now, we included the Alaskan Inuit as well as the Greenland Inuit and we are having on-going discussions of our common concerns, but one of the primary principles of this conference is that we agreed to work with each other within our individual countries. This conference is so that we could help develop our cultures together because in some areas, such as in the Western Arctic, there are relatives that live on both sides of these borders and we have many common interests, we have a common economy, this has been illustrated and the views have been represented on such issues as whaling. If the Alaskans were denied the right to hunt bullhead whales they would have to revert to harvesting of beluga which would greatly affect the economies of our western communities.
In Greenland, the marine resources that we share between Canada and Greenland, the development of these two groups, we must start talking to each other now before we begin to have adverse effects on each other. Now, one example that we could cite is the salmon. In Ungava Bay the salmon, they come into Ungava and also go up to Greenland, and we are harvest-
-ing the same group of salmon, so we must begin now to start developing a working relationship and also to develop our areas of culture.
Now, we are trying to do this all within the context of living in separate countries, but we would like to continue and develop this relationship that we have begun. I know that it has probably made some people quite nervous in Canada to hear the Inuit having meetings. We are not interested in declaring some form of sovereignty, but rather we just want the opportunity to work with each other and to help each other out. We want to participate with them and develop, but we also want to retain our Canadian identity.
Mr. McGrath: The second part of my question, Mr. Chairman, is important and perhaps in repeating it I just want to preface it by saying that I am very sympathetic to your brief and I was very impressed by what you had to say, but I would like you to respond if you could to the second part of my question which has to do with I suppose the consistency of your position in terms of seeking a form of self determination, territorial status, with your ability to speak for and relate to your Inuit brethren in Labrador and Quebec, Newfoundland and Quebec?
Mr. Gordon: I will defer the question to Mr. Suluk here who is working on this specific area.
Mr. Thomas Suluk (Land Claims Negotiator for the Inuit Tapirisat): Well, the reference that you made to the territorial status is an internal one in the Northwest Territories whereby we are trying to work through an established system in the Northwest Territories to make it work for the benefit of the Inuit more suitably than it is being worked by them, so this is more of an internal one which we are winning, by the way, through the accepted political and public arenas, so that I would just like to clarify that this is an internal one in the Northwest Territories.
The Joint Chairman (Senator Hays): Thank you very much,
Mr. McGrath: Yes, Mr. Watt.
Mr. Watt: Just to elaborate a little further, in regards to self determination, as I stated earlier, in order for our culture and our traditions and our lifestyle to survive we have to have some economic base which I outlined earlier, and their is also a way to work that out, work out the details. All we are saying to you is accept the concept of self determination in principle, but that does not mean that as soon as you accept it in principle we are going to turn around and run in opposite directions. That is not the case. If you recognize in principle that self determination concept we will be in a position to work out details with you, that is what we are saying, Because we cannot make it alive unless it is acceptable within this Canadian society, and it has to be acceptable to the Canadian government, it has to be acceptable to the society of this country, this is why we say accept it now in principle, then we will sit down and work out the details with you.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Watt. Mr. Ittinuar, do you have a question?
Mr. Ittinuar: Thank you, Mr. Chairman. Yes, I do have a question.
I would like to have the pleasure of introducing Mr. Thomas Suluk, who is the chief negotiator on land claims, the Inuit proposal, and Mr. Suluk is on my left and I would like to ask him a question.
I would like to follow up on page 21 of the brief which mentions Canada has ratified in the United Nations Charter the international covenant on economic, social and cultural rights, and the international covenant on civil and political rights, which, to briefly state them, allow groups of people the right to self determination. Canada has ratified ail these conventions and ‘Mr. Suluk, if this constitutional resolution passed as is would make the creation of a new province, for instance Nunavut, dependent upon the agreement of both the federal government and at least a majority of the provinces, or would the amending formula make the creation of a new province in the north more difficult, and I would like Mr. Suluk to elaborate on the problem because I think it would be for the benefit of the members of this Committee to see an example of a political development amongst the Inuit vis-à-vis the proposed resolution.
Mr. Suluk: Mr. Chairman, I would just like to ask Mr. Ittinuar, in view of the fact that I just got in out of the cold this morning, to restate his question, please, so that I can catch up a little bit more on the background.
Mr. Ittinuar: Yes. Could you tell the Committee members about this document here which is included in the brief, political developments in Nunivik and tell the Committee members just what Nunivik is all about.
Mr. Suluk: Well, that, Mr. Chairman, I can do very briefly. What we are trying to do in the Northwest Territories, in the Eastern Arctic part, is that because the Northwest Territories Act was imposed on the people of Nunavut, the Inuit in particular, back many years ago, a hundred years ago or whenever, without the consent and knowledge of the people, and during the time, at this time when people in the north are becoming more and more aware of what is happening in the north we had made a proposal to the Government of -Canada to, as part of our settlement, so to speak, a political settlement in some respects in a minor way, that tire Government of Canada agreed to the creation of the splitting of the Northwest Territories as it is because there is quite a lot of division between east and west in the Northwest Territories and I think that as most people know the Northwest Territories stretch almost across Canada, all across the provinces, and there is quite a lot of difference between the two, the east and the west, and in order to make the territories more viable and the government more representative we are proposing that we divide the territories, the one to become the western arctic territory and the other to become the eastern arctic territory.
I should add that about a month ago in Frobisher Bay there was a debate lasting about eight days, and the territorial legislative assembly agreed in principle io the separation of the territories into two parts and basically there is really no difference in the proposed territory. It would be the same as the existing territory although it might be modified to some
extent, but that is basically what the territory, eastern arctic territory proposal is,
It has been agreed to and I believe that a presentation of three of the legislative assembly members will be made this month, on December 15 here in Ottawa, to try and get the mechanics going on this proposal.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Suluk and Mr. Ittinuar. Our time has expired and we do have the Premier of Nova Scotia here and we indicated we would have him on at 10:30 a.m.
At this time I should like to thank the Inuit Committee on National Issues, Mr. Watt, Mr. Tagoona, Mr. Gordon, Miss Simon and Mr. Suluk for being here this morning. I am sure I speak for everyone on the Committee when I say that your evidence here for over three hours surely enlightened me and I am sure every member of the Committee, and that we will be much wiser in our decisions for your having been here. We appreciate the problem of your 25,000 people and are now very much aware of them and in our deliberations I am sure we will give this brief of yours great consideration and I want to thank each one of you for being here and for representing your 25,000 people.
Mr. Joyal, my Joint Chairman, I think has a word to say. He has been sitting here listening to your excellent brief.
The Joint Chairman (Mr. Joyal): I would like to say on my behalf as a Joint Chairman and on behalf of all the honourable members of this Committee to my sisters Inuit and my brothers Inuit that I have been much impressed by two things:
The first one is that I look embarrassed in front of them discussing among Canadians of European extraction nondiscrimination issues especially between men and women, which is a big issue among Canadians of that origin, while you come to us with your way of life, with your traditions showing that nondiscrimination was a principle of life among your people. That I think is a very important lesson for us.
The second point is your own statement this morning when you said that for Canadians, as a Canadian, to have an original contribution to Canada we have to stop that process of assimilation. That very principle was at the root of our stand as French Canadians, to stop that process of assimilation and to fight during the 1970s to make sure Canadian laws and Canadian statutes stop that process. We are very conscious that you are requesting in the 1980s the same kind of fight that we had in the 1970s to make sure that the Canada of tomorrow will be a Canada of all peoples.
Thank you very much.
Some hon. Members: Hear, hear!
The Joint Chairman (Senator Hays): Thank you very much.
Mr. Watt: Mr. Chairman, if I am permitted to say something?
The Joint Chairman (Senator Hays): Yes.
Mr. Watt: I appreciate, Mr. Chairman, and your the Joint Chairman’s interest to what we have outlined to you. This is one of the reasons why we are here in front of you, because
you need the resources in order to survive and you have been doing so for a number of years. We are not trying to make a reference to what you have done to us in great detail, all we are trying to do is to warn you that there are sensitive areas that you are slowly getting into now.
You did it in the past by means of taking some unilateral actions and decisions in the past, that reference to 1867, and a few other matters or legislative areas that have come about to allow developments to take place in the north and what not, not necessarily to take into consideration who are up there and what do they do with their lifestyle, you are slowly stepping into an environment that you are not too familiar with. I am talking about people that make political decisions. It is a very sensitive environment, it is also a very sensitive people.
In order to minimize the side effects or the damage that will arise in the future, I think we do have a contribution to make because we understand our environment, we live up there, The species, we understand them, we understand tire cycle of different species, marine life, fur bearing animals which in the long run are going to disappear because of your demand for oil, raw materials, minerals and what not that you need to survive down south, We recognize that, this is why I said yesterday-: today we are prepared to go half way to recognize your need if you are prepared to recognize our need, if you are prepared to go half way, but let us sit down and work out the possible effect that is going to take place in the future to try to minimize it as much as possible.
Instead of looking at it in the sense of: I do not think we really have anything to worry about because we are going to assimilate them anyway; that concept is not acceptable.
I am leaving it in your hands and I am counting on all of you, opposition members, and the parties that are in power, to make a sincere recommendation to the parliament, that eventually the Parliament is going to make decisions. Thank you.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Watt, I am sure your message has come through loud and clear. Thank you very much.
The Joint Chairman (Mr. Joyal): Monsieur Nystrom.
Mr. Nystrom: Mr. Chairman, on a point of order before you call Mr. Premier Buchanan.
Yesterday I raised the question whether the National Indian Brotherhood could appear before the Committee. I have consulted with both Mr. Epp and Mr. Austin, and the three of us agree to invite them to appear here tomorrow afternoon at 3:30 p.m. I mention this to facilitate the work of the Committee. I would like to move therefore that you invite the National Indian Brotherhood to appear before the Committee between the hours of 3:30 p.m. and 6 o’clock on Wednesday, December 3.
I mentioned this out of courtesy, too, to the National Indian Brotherhood who are still in the process of discussing their constitutional position, and to facilitate the Committee in planning independently our own schedule and agenda, That would be seconded by Mr. Epp and Mr. Austin.
The Joint Chairman (Mr. Joyal): Senator Austin?
Senator Austin: Mr. Chairman, I am not sure we need a motion. We have agreement. I do not believe we need a formal motion, if acceptable to Mr. Nystrom.
The Joint Chairman (Mr. Joyal): I sense that there is unanimity around the table in relation to that suggestion, and I do in fact at once accept that we hear the National Indian Brotherhood tomorrow between 3:30 p.m. and 6 o’clock’
Mr. Epp: Mr. Chairman, if I may, on the same point o[ order, I am willing not to have the motion moved, if that is Mr. Nystrom’s wish. The point being made is that scheduling must take place. That time would be acceptable both to the National Indian Brotherhood and to this Committee’
The Joint Chairman (Mr. Joyal): Thank you very much. It is now my honour and privilege this morning to welcome, on behalf of all honourable members of this Committee, the Government of Nova Scotia’
I would like to introduce the honourable John Buchanan, Premier, the honourable Edmond Morris, Minister of Intergovernmental Affairs; the honourable Harry How, Attorney General and Mr. Jeremy Akerman, Executive Director, Intergovernmental Affairs.
The honourable Mr. Buchanan.
Hon. John Buchanan (Premier, Government of Nova Scotia): Mr. Chairman and honourable members of this Committee, it is certainly a great pleasure for me to be here to present this very short brief on behalf of the government and people of Nova Scotia.
I must mention that you committed to mention one member of our delegation, the Deputy Attorney General, Mr. Gordon Cotes.
Mr. Mackasey: Is your brief available to members?
Mr. Buchanan: It should be here very shortly.
Mr. Chairman and members of the Committee, I am here today to talk about Canada. I am here representing Nova Scotia in a constructive spirit pursuing a course of moderation. I sincerely hope that in the days ahead I will find in others a similarly conciliatory attitude which will enable Nova Scotia to stay out of the courts.
Mr. Chairman, we Nova Scotians believes that we have a special stake and a special responsibility in what is happening to Canadian federalism at the present time.
Apart from our native peoples, we are first among Canadians and, Mr. Chairman, we were one of the four original provinces in the federation of 1867, and we brought to that federation a great deal-a great deal of history, of law, of government, of purpose and not least of all, we brought to the union of 1867 our commitment to serve in a constructive way in the new federal state that had been created.
We feel that we have special responsibilities to preserve and to protect the understanding of 1867.
Now what is that understanding? It was an understanding that Canada was to be a federation-a federal state.
To the end that our understanding of what we are talking about at this time may be accurate, it would perhaps be useful to go back to beginnings.
Federalism, historically, is defined as a league between states, a compact, covenant or agreement, The Shorter Oxford Dictionary defines the verb “federate” as:
To enter into a league for a common object, to organize on a federal basis.
“Federal” itself is defined as:
Of or pertaining to a covenant, compact or treaty.
It thus appears that the terms “federalism”, “federate” and “federal” involve the concept of a political arrangement in which some sort of agreement is implied.
A review of historical federations shows that they invariably came into being by means of a contract or agreement. It is clear, as Senator Forsey has said, that the Charlottetown and Quebec negotiations which resulted in the British North America Act, consisted of very well informed and extremely intelligent negotiations by the colonial and provincial leaders of British North America.
Senator Forsey declares that the British North America Act is nearly _!00 per cent homemade. It was designed by conferences in Charlottetown, Quebec and London, made up wholly of British North Americans.
Senator Forsey’s point is, of course, that the British North America Act is essentially a product of British North American political experience and the inventiveness and constructive imagination of British North American political leaders.
The British North America Act embodies an intention of the British North American colonies to join together for common Purposes.
The ideas, the understanding and the agreements embodied in the Act by its British legislative draftsmen was the work of British North Americans.
That the maritimers, the Nova Scotians especially, were parties to these negotiations and to that agreement—the agreement that was made and confirmed by the Imperial statute of 1867 is a matter of sober historical fact. And from it, Nova Scotians understood that they were partners in a new political process which they had assisted in creating, and in which a new process of government was established: the government of the Dominion of Canada—the general Government of Canada—which had assigned to it specific responsibilities under the British North America Act.
The British North America Act may fairly be said to have embodied at that time the understanding of the colonies and provinces involved of what the agreement of federation was to be. It was—as all federations in the modern age have been an agreement not between people per se, but an agreement
between governments to embark upon a common project of government and in the process, to create this common organ of government to be known as the dominion government. We do not suggest that the dominion government thus created was the servant of the provinces, but it is clear that the British North America Act created a new political community with a specific and limited area of jurisdiction.
Mr. Chairman, nothing is perfect, and if these arrangements no longer meet the needs of the latter part of the 20th Century, then let us have change.
But, Mr. Chairman, let us have change in accordance with the spirit in which our constitutional arrangements were originally promulgated, that is, with the participation of the governments which founded this federation.
We must accept that in this, as in all federal systems, every citizen belongs to two communities- the province and what we have historically identified as the dominion.
It further follows that these two communities should be clearly distinguished and effectively provided with their own governments, each with clearly defined areas of autonomy. Neither should be superior nor inferior to the other, They have co-ordinate duties to perform and they exist by virtue of an agreement of governments that neither provided nor contemplated the possibility that either would assume a unilateral right to alter the terms of the agreement and to invade the autonomy of the other.
It may be, indeed, that change is needed, but it is a change that can only properly be achieved by mutual agreement of the participants in the process of federalism.
Nova Scotia supports the patriation of the Canadian constitution at the earliest convenient time. There has never been any question about our position on this basic principle. It is a position we have maintained at all constitutional gatherings since November 1978. However, we believe that patriation should be simple and straightforward; a repeal of Section 7(1) of the Statute of Westminster with an amending formula which is agreeable to the provincial governments and the Government of Canada.
As far as Nova Scotia is concerned, we have already indicated that we are prepared to accept either the Victoria formula or the Vancouver consensus and did, in fact, agree to the Vancouver consensus at the federal-provincial conference in September as did all other provinces.
Although Nova Scotia is prepared to accept the Vancouver consensus, the point needs to be made that we do object to the Government of Canada attempting to unilaterally impose it upon the provinces.
While we are somewhat flexible or the question of the amending formula, we arc unshakeable in our belief that any alteration to the Canadian constitution beyond patriation with an amending formula should and must be done by Canadians in Canada.
Our position, in essence then, would be to seek a renunciation by the United Kingdom of its authority over our constitution and to enable us to get to work on it here in Canada.
The Government of Canada, however, does not seem to take this view because they seek to have the British parliament make significant additions to our constitution. In our opinion, Westminster has no business doing that, and we, certainly, have no business asking them to do it. In fact, the Government of Canada’s asking them to act in that way constitutes an intrusion and an imposition.
Further, Mr. Chairman, Nova Scotia believes that the Government of Canada is asking the United Kingdom parliament to enact legislation which would, in effect, alter the relationships between the federal and provincial governments without their participation and consent. This is not only in violation of convention, but also of the fourth general principle enunciated by the honourable Guy Favreau in the Government of Canada’s publication of 1965, The Amendment of the Constitution of Canada which is:
The Canadian Parliament will not request an amendment directly affecting federal-provincial relationships without prior consultation and agreement with the provinces.
It is interesting also to note that this principle was one with which-the Right Honourable Louis St.-Laurent quite clearly agreed when he said at the federal-provincial constitutional conference of January 1950:
Parliament could not take from the legislatures without their participation something over which the Act of 1867 had given them jurisdiction.
We further object, Mr. Chairman, to provisions for constitutional amendments, by referenda to be held apparently only on the Government of Canada’s initiative, at their timing, under their rules and always with their proposition on any ballot. We note with some alarm that the referendum provisions may even be applied to change the amending formula itself.
It is clear that the inclusion of referendum provisions and the Charter of Rights is leading to an increasing disunity throughout Canada. The proposition that the Government of Canada should be able to go over the heads of the provinces with referenda is one which strikes at the very heart of the Canadian Confederation, is incompatible with parliament democracy, and, certainly, was not contemplated when the federation was formed in 1967.
Some persons have suggested that those who are not prepared to support the proposals of the Government of Canada in this respect are weak in their support of Canadian independence. and stand opposed to confirming our nation’s sovereignty.
Mr. Chairman, Nova Scotia very strongly resents such suggestions. In fact, Mr. Chairman, we believe it is arguable and probably demonstrable that by asking Westminster to enact measures which could not be legally enacted by the Parliament of Canada alone, they are actually inviting the
United Kingdom to exercise a jurisdiction over us which is inconsistent with our status as a sovereign nation.
Let there be no mistake about it: the Government of Canada’s proposals do not constitute some minor amendments or alteration to the British North America Act. They are substantial additions to it, and, in effect, would lodge further Canadian domestic legislation at Westminster.
At the First Minister’s conference in September, I was impressed by the measure of good will and spirit of compromise that I witnessed at that time. I said then that I believed agreement was possible on a variety of important matters if the will to succeed existed, and we were prepared to continue negotiations.
Let me also say, Mr. Chairman, that I believe Premier MacLean did your committee a service when, in appearing before you, he outlined the extent to which agreement was actually reached in a number of areas. I agree with what he said. Since a greater measure of agreement was achieved at that conference than had hitherto been the case, optimists like Nova Scotia see that as an encouragement to continue, not as a reason to surrender.
I believe, Mr. Chairman, that we will be able to sit down, to respond to the needs of Canadians, and to agree to changes which be in keeping with demands of the future. I believe we can work together and can do it together as Canadians acting in concert.
That is not to say there will not be differences of opinion, not is it to suggest that these solutions will be easily and quickly arrived at, but we owe it to the citizens of this country to give it our best effort and to try a lot harder than we have to date.
We also owe it to Canadians to make sure that our attempts to resolve our differences are done by ourselves in our own country Canada. If we do not, then we have not right to call ourselves a nation.
So I believe, Mr. Chairman, that the conference process should be resumed as soon as possible and that while negotiations proceed unilateral moves by the government of Canada should be held in abeyance. Nova Scotia is confident that further Progress can be made.
Let us recall again the agreement and the near agreements of September of 1980, including the agreement on the amending-formula. Let us refrain from running to London to make our decisions for us but instead bring the constitution of Canada home and get to work on it right here in Canada. On behalf of the citizens of my province, I am prepared to accept that challenge and I think the other provinces are similarly willing. The government of Canada should also be ready to meet that challenge.
In conclusion, Mr. Chairman, let me say that I believe that your Committee is certainly no ordinary Committee of the House of Commons and Senate. Your Committee is charged with a very serious responsibility of protecting the interests of Canadians both present and future. To many Canadians your Committee is seen as the last and only hope to prevent
something from happening which they believe may well destroy our country,
The unity of Canada is vital but the future of that unity is at stake. I appeal to you and to the members of this Committee today to do everything within your power to se€ to it that we respond to the demands of Canadians that we work with one another not against one another, and not allow there to be planted in our soil the seeds of the destruction of this nation.
Mr. Chairman and members, I thank you for your kind consideration and your permission to appear before you on behalf of the people and the government of the province of Nova Scotia.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Buchanan
I would like first to invite to open our discussion with the honourable members of your delegation and yourself, honourable Jake Epp.
Mr. Epp: Thank you, Mr. Chairman. premier Buchanan and the other members of your government, I would like to welcome you here today and thank you for the statement that you have made. My reaction was, as you were giving your statement, Mr. Premier, what further questions need I ask, but that you had said it all.
But I do want to get further information from you, sir, on a number of areas and, primarily, I want to concern myself with the nature of the federation, not two levels of government which, in my mind, has become a phrase that is used to the detriment of all Canadians, but rather two orders of government and that each order of government in its own right has a position and a responsibility as outlined in the British North America Act and with that in mind, sir, I would like to direct your attention first of all, if I might, to page 5 and read the latter part of your address on page 5.
You are referring to the two governments and I take it that you are referring to the two orders of government in that paragraph when you state, and I quote, in other words:
they have co-ordinate duties to perform and they exist by virtue of an agreement of governments that neither provided nor contemplated the possibility that either would assume a unilateral right to alter the terms of the agreement and to invade the autonomy of the other.
I believe that is the heart and the thrust of what you are trying to say to us this morning. I would like to ask you, sir, in the opinion of the Premier of Nova Scotia and your government, in what manner are the two orders of government being altered by the proposed resolution should it go to Westminster and in what manner is the unilateral action in fact encroaching on provincial rights.
The Joint Chairman (Mr. Joyal): Honourable Mr. Buchanan ?
Mr. Buchanan: Yes. Well, Mr. Epp, I have a short summary, areas where we believe the present proposals do infringe on what could be called existing provincial constitutional powers under the BNA Act and I say here, a unilateral right to alter the terms of the agreement and to invade the autono-
my of the other. We believe that certainly does exist in the proposals. We believe that they include Section 92(l) where there is an infringement on constitutional powers of a province, 92(13), are property and civil rights provisions,92(16), Section 93 and Section 95. All of these sections are in one way or the other infringing upon the constitutional powers of a province as granted to provinces under the BNA Act. Therefore, any proposal which infringes on our powers our powers as provinces in those sections, which is unilateral in nature, these proposals certainly will take away from our-federation something that is very important and that is the division of powers or the agreement of the division of powers of 1867.
Mr. Epp: So, I take it then, sir, you feel definitely that the agreement which Nova Scotia entered as one of the four original partners in the federation that the agreement of 18ó7 will be broken should the proposed resolution go forward to Westminster and you have been very specific in the terms of where you feel that agreement has or will in fact be broken.
I would like to ask you, sir, this being the case, your government at this moment has chosen not to take a challenge on the breaking of the agreements and the encroachment by the federal government into provincial jurisdiction to the courts.
Mr. Buchanan: That is right.
Mr. Epp: At this moment, if I understand your position correctly, you have decided not to proceed. Yet, in your statements today, you left it open, you prefer this conciliation route and that is, I guess we can put it, let us reason together, that that has been the position you have taken.
Mr. Buchanan: Good way to Put it.
Mr. Epp: Do you feel or is it your position, the position of your government that regardless of the interpretation of encroachment, and I believe there is encroachment, but regardless of the interpretation that any action should be suspended until the court has made or rendered a decision.
Mr. Buchanan: Yes, we do believe that we believe the matters at present before the appeal court of three provinces, we believe that these proposals should be suspended until those matters are dealt with by the courts. I think that is rather fundamental.
As far as the position that we have taken, we are politicians, we believe that our political system in Canada is a strong political system, federally and provincially. We believe that negotiation is preferable to confrontation, that co-operation is preferable to confrontation. The court system is an adversary system. In this business of constitutional reform, we should not bs adversaries, but we should be partners as we were in 1867 and, therefore, we took the position a month or a month and a half ago that we would prepare a position for the House of Commons and the Senate Committee, that we would negotiate the matter with the Minister of Justice and the Government of Canada and we would take every avenue open to us of a political nature to negotiate in an attempt to impress upon the government of Canada that these proposals are creating a divisiveness within our country which they should not be creating.
Simply put, that a resolution to the House of Commons, to Westminster should contain nothing but the patriation of our Canadian constitution with an agreeable amending formula if we can get that far.
It is based on our simple belief in Nova Scotia that amendments to our constitution should be made by Canadians and not by people in Great Britain.
Some hon. Members: Hear, hear!
Mr. Epp: Mr. Premier, you have taken me into that area, I think all of us accept patriation, and I would like to see it done now. So it takes me to the question we keep hearing constantly that for 53 years we have not been able to have agreement and, therefore, the constitution remains resident in Westminster, in London rather than in Canada and, therefore, we cannot make changes to the Canadian constitution by Canadians, an objective which we all have.
That being the case, would it be your view of the summer meetings that we have now, as Canadians, and you as heads of governments in Canada, have advanced to the point that at this point in time we could have patriation, an agreed to amending formula, you said, and I do not want to put words in your mouth, but there was an agreement on Vancouver.
Mr. Buchanan: Yes.
Mr. Epp: And, thirdly, that we would then have agreed to a meeting of the First Ministers of the country within a relatively short period of time to discuss future and further amendments to the constitution. Is that a position which Nova Scotia not only holds, but do you believe it is a position that is now agreed to by the provinces of Canada?
Mr. Buchanan: Well, I cannot speak for the other provinces of Canada but I certainly can speak for my own province and the government of my province in giving an opinion as to what I consider the position of the other provinces of Canada. There is no question that at the conference held in Ottawa in September that all of the provinces did agree to an amending formula.
Certainly, I said at the conclusion of that conference that as far as Nova Scotia was concerned, we would be willing to sit down at a conference table again early in 1981. With the intervening months, ministers and the continuing Committees would work together to prepare for a conference in 1981 when we could, I am sure, iron out some of the differences that separated us in September.
The idea of 53 years, probably corrected in 53 years, there had been discussions of a constitutional nature, but I believe that over the past year the negotiations have been more intense than at any time in that 53-year period, and I think we probably have achieved more in the past 12 months or shorter period than 12 months than at any time in the 53 years so that the opinion we have as Nova Scotians is simply this, that if we can achieve that in a matter of months, with intense negotia-
tions and conferences, surely we should not set a timetable of a few months to complete it all. What is a few more months or a few more years if we can keep the country completely together, no disunity, certainly differences of opinion, but those differences of opinion would result in a consensus of opinion. That is the opinion we have.
Mr. Epp: Just to understand you correctly, Mr. Premier, the first position, that is, patriation, you said there was an agreed to amending formula in the summer. It was my understanding that was the Vancouver consensus and that you would then be willing to meet at a very early date for further consultation.
What I would like to then ask you, Mr. Premier, you made reference to this…
Mr. Buchanan: I just want to check. Yes, as I can recall it, in my notes, 10 provinces agreed on the amending formula.
Mr. Epp: Thank you, Mr. Premier. I would then like to ask you, sir, and it is to my way of thinking a position that members of this Committee and all parliamentarians should look at very closely and that is on page 9. You make the point, you made it earlier in your brief that Nova Scotia does not accept that those who oppose the government’s unilateral action are less Canadian than those who are proposing the action.
First of all, that being case, on page 9, you make a reference that the action, the unilateral action is further dividing the country and could lead to further disunity, it is a fear that all of us have. Would you care to elaborate on that position, sir?
Mr. Buchanan: Well, again, I believe that the majority of the provinces, in fact, all of the provinces would agree that Confederation was an agreement between governments, it was the creation of a new level of government, if you will. It was a compact, it was an agreement, it was a covenant with a division of powers, not creating one government superior or inferior to another and, therefore, if suddenly in any contractual relationship, if one party to that relationship determines unilaterally to break it, then certainly you are not going to have the other party smiling at you and the other party will be rather upset. I think what is happening in this country today is that one level of government has determined unilaterally to change the agreement and the other levels of government are not going to agree to that, they are just not going to go along with that and that is causing disunity in the country, divisiveness in the country and, in my opinion, it is real. I believe the divisiveness, because of this constitutional wrangle is real, but I do not believe it should be. I think it could have been avoided and I think it still can be avoided if we determine that we will have a cooling off period for a period of time, put our act together again, get back to the conference table and settle our differences or come close to settling our differences.
Mr. Epp: Thank you, Mr. Premier.
The Joint Chairman (Mr. Joyal): Thank you, honourable Jake Epp. I would like to recognize now, Mr. Lorne Nystrom, followed by Miss Coline Campbell. Mr. Nystrom
Mr. Nystrom: Thank you very much, Mr. Chairman. I want to welcome Premier Buchanan and his officials here this morning before our Joint Committee on the Constitution and to ask you questions in about four or five different areas, but just to start off with the comment you just made, we need a cooling off period. How long is the cooling off period, what kind of a process?
Mr. Buchanan: I would not want to put a time limit on it, but I think we could agree to a period of a matter of months and in that period of time our various Ministers, parliamentarians could get together and we could finalize one thing that I think is very important and that is the amending formula. It seems to me that if a resolution is forwarded to Westminster containing patriation of the constitution of Canada though we would amend it ourselves in this country and an amending formula which is acceptable to the 11 partners in this Confederation, I think we would be well on the road to solving the constitutional problems that we have had over the last number of months and years.
Mr. Nystrom: On the question of the amending formula, Mr. Premier, you make reference on page 9 of your brief to the referendum and you are greatly concerned and you strongly object to the referendum which could be initiated solely by the federal government or the timing solely in our hands, questions written by them and rules written by them and the like.
I would like to ask you whether or not you have considered some of the implications in this for Nova Scotia, because if I look and read correctly the resolution before us, I find under Section 42 on the referendum provisions that if there is a referendum, there has to be a national majority and then a regional majority of the four Atlantic provinces.
Now, the Minister of Justice has indicated to Mr. Henderson that he is going to accept an amendment that pertains to the Atlantic province where he will delete the reference to population so that if there is going to be a referendum in the Atlantic provinces, the referendum can be approved by at least two of the Atlantic provinces voting in favour of it. Now, that could be Prince Edward Island and New Brunswick or Prince Edward Island and Newfoundland and they could approve of the constitutional amendment and that could represent a very tiny minority of the people of Atlantic Canada. It could say, for example, it would be only 30 per cent or 40 per cent of the people of Atlantic Canada, but that referendum would still pass because two of the provinces have voted in favour of it. Have you considered this? It seems to me that as the biggest province in the Atlantic region, that must cause you concern.
Mr. Buchanan: We have considered that and, quite frankly, the position we are taking on the amending formula that is included in the resolution is first of all, and I think we better start from this basic premise, that that amending formula, which includes a referendum, has not been agreed to by the
Provinces of Canada, It has not been. In fact, quite frankly, it, as I recall, was not really seriously even considered in September at the federal-provincial conference. So starting from the basic premise it is not an amending formula that the provinces of Canada have agreed to or even considered.
Secondly, the theory of a referendum is something in my opinion that contradicts the kind of parliamentary democracy that we have in this country, but even having said that, it seems to me that if this is the amending formula that we are going to be discussing, surely it should be an amending formula, and including the referendum—are flexible in Nova Scotia and if a majority or the consensus is the referendum should be included to break a block of some kind we would be flexible but we would only be flexible on the basis that it was discussed by, and there was a consensus or agreement, the provinces of Canada and the federal government.
So that we cannot say let us change the referendum proposals in here to make it more compatible to a region, because we start from the premise that we do not agree with it, first of all, and secondly, we do not agree with the amending formula until it has been discussed by the provinces of Canada and the Government of Canada.
Mr. Nystrom: Thank you, Mr. Premier. I think that is a very important point because as is written in Section 41 and Section 42, asl stated before, if indeed they go ahead with the referendum and indeed if the Minister is not willing to accept some kinds of amendments where at the very minimum there has to be a regional majority, you could find yourself as the largest atlantic province voting overwhelmingly no to a certain constitutional amendment along with one of your sister provinces and it still carries because two provinces have voted yes, and I think that is something you should take a very serious look at.
I would like to ask you as a premier, you talked a bit about deadline and consensus and so on, and if I remember correctly, I know Premier Maclean said that there was a consensus on a number of items and you said the same thing, and I noted in the speech here made by Mr. Wells, who is the Minister of Intergovernmental Affairs in the Province of Ontario, he said, “However, at the latest round of First Ministers’ discussions what we saw were clear signs of stalemate”, and he goes on to talk again about he believes we must have the courage to break the deadlock of our constitutional talks, he calls it a deadlock and you and Premier Maclean say that there was not a deadlock, that there was a consensus.
How does one in the constitution define deadlock? Can you offer the Committee any advice as to how we should define that concept if indeed the government does insist on writing it into our constitution?
Mr. Buchanan: Well, I think that we will look at this in two ways: first of all, the series of meetings held, as I recall, from
the month of June until August throughout this country, in Montreal, Toronto, Vancouver, Ottawa, where ministers, members of continuing Committees on the constitution met and, as I recall the briefings I had, there were really not that many roadblocks or deadlocks. There was a consensus, as I recall, on many of the items and matters that were under discussion.
Now, then we proceed to the federal-provincial conference which was held in Ottawa and my recollection of that, in the private meetings and in the public meetings, was certainly there were deadlocks on certain issues but there was a consensus and agreement on many others, and there is an old saying that we have in Nova Scotia, maybe you have it in Ontario, too, that you have to crawl before you walk and walk before you run, and maybe we are still in the crawling stage because we have not had anyone prodding us that much but we are now, I believe, in a position where we are in the walking part of that old saying and we are now ready to sit down once more and in the areas, as I recall it, about eight of the items, there was not just a consensus but there was an agreement by not only a majority of the provinces but almost all of the provinces on those items. So, when you are that close to agreement why create the kind of divisiveness and disunity that we see happening today because of the unilateral move by one of the partners on the agreement?
I am very serious when I say that my reading of the federal-provincial conference in September was that we were just about there, and I believe, I sincerely believe, that we can agree on an amending formula, we all agree on patriation of the constitution so why do we not get it home here and then sit down and we as Canadians amend our own constitution from then on.
Mr. Nystrom: Thank you, Mr. Premier. If you would check Section 38(3)(a) of the resolution you will find that the federal government can place any amending formula it wishes to the people of the country. This is Part IV of the Resolution where there may indeed be a national referendum on choosing our amending formula where you can get eight provinces representing 80 percent of the people to put forth a proposition and the federal government has the option of sticking with the modified Victoria Charter or else, under Section 38(3Xa) you will notice it says:
41(l)(b) or any other alternative thereto proposed by the government of Canada
can be put to the Canadian people. So really what the government is asking us to do here before this Committee is approve a resolution where there may be a national referendum to choose between two amending formulas, neither amending formula of which we know about at the present time, and they do not have to come back to Parliament to get approval for their option, it can be the government itself, and I am wondering if you see any dangers, I am sure you would as someone who believes in cooperative federalism, for this kind of pig in the poke approach to the future of the country?
Mr. Buchanan: I do not agree with it. However, I want to repeat something again, that I certainly do not agree with it, I think that it will cause even further disunity in our country but it seems to me that when you talk about an amending formula, and quite frankly the amending formula which is in this document is going to probably cause more problems and more disunity and more divisiveness than some of the other sections here, but it seems to me that when you have the so-called Vancouver consensus agreed to by 10 provinces, when you have the Victoria Charter of 1971—I was not involved at that time but my recollection is agreed to by all the provinces and the federal government-well, I think Quebec agreed at first and then decided against it—but it just seems to me that when you have that kind of agreement on an amending formula to unilaterally impose one which is neither fish nor fowl, it really does not bear any resemblance to the Victoria Charter or the Vancouver consensus; it is very wrong in my opinion to attempt to impose unilaterally that kind of amending formula on 10 provincial governments and the federal government where we have had two other methods of amending our constitution, one of which was agreed to by all 11 governments and then one backed off, but the other one agreed to by 10 governments.
Mr. Nystrom: I assume you have noted that under Section 39 that if indeed we do have a referendum, Mr. Premier, that a simple majority of persons voting at the referendum will make a decision as to what that amending formula is going to be and it seems to me that, once again being a Premier of a province with a smaller population, this would cause you some concern. We have seen division in our country back in 1941 on the conscription referendum where we had French Canada voting one way and English Canada voting the other way. I wonder if you have thought about Section 39 and whether or not you could offer any suggestions to the Committee?
Mr. Buchanan: Well, first of all, Mr. Nystrom, the idea of a national referendum determining the method of amending the constitution of Canada and doing this by a simple majority of the people of this country is something that in my opinion is quite ridiculous. It will lend itself to lobby groups of every conceivable kind. The people of Canada, I do not believe, are really in a position that they can, by voting in a referendum, determine how our constitution is going to be amended when, as it has been said here today, we have been discussing it for 53 years.
The people of Canada are not lawyers, they are not legally trained and you are going to have questions asked in the referendum that are very legalistic in nature and it just seems to me completely incompatible with our democratic system to have a referendum on a very deep and profound question such as constitutional amendment and the methods by which legislatures of Canada and the Parliament of Canada would amend a constitutional document. I do not believe the Canadian people would really ask that that right be granted to them in a referendum.
Referendums can be used for many purposes but I do not believe that a referendum should be a method of amending our constitution. If the people of my province or the people of the
other provinces, the people of Canada, do not like the methods and means by which the parliamentarians have proceeded to amend their constitution, then they have a way of getting rid of them, and that is every five years.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Nystrom. I would like to recognize now Miss Coline Campbell followed by the honourable Senator Smith.
Miss Campbell: Thank you, Mr. Chairman.
I would also like to welcome the Premier and other officials from Nova Scotia. I do hope that we have all benefited so far from your comments and I am sure we will enjoy the rest of the time that you have with us.
I would like to state that contrary to what the editorial in the Chronicle Herald has stated about my being on this Committee, I am sure Mr. Morris, wearing his other hat, would agree with them on the fisheries and the expertise perhaps of this member on the fisheries and marine matters, but unfortunately we are not talking on this day about those matters of economic distribution, but I do feel I should be qualified to speak as an individual from Nova Scotia on this Committee, as a member of Parliament for almost six years, as the only woman elected in Nova Scotia to any House, as a lawyer, as half Acadian and half Scot, those two great groups in Nova Scotia, so I hope, contrary to what the Chronicle Herald has said about this Committee, that you will feel that I am qualified to speak to you not only as a politician but as an individual.
Mr. Buchanan: We agree.
Miss Campbell: I would like to go back to the amending formulas and where you stated you had a preference for either the Vancouver formula or the Victoria formula and in my own humble estimation the Vancouver formula hurts the Atlantic provinces because you have to have 70 per cent of the provinces to reach agreement and 50 per cent of the people, therefore, if you have three provinces, let us say Nova Scotia, New Brunswick and Prince Edward Island being against some proposed amendment, you would have no veto. If we went under the…
Mr. Buchanan: Not really, no. Continue.
Miss Campbell: Well, or 50 per cent of the people, and if you had Ontario and the West or Quebec on the other side, we would be out of luck on the veto because we do not have 50 per cent of the people in those three provinces of Canada and it takes four provinces to veto under that Vancouver formula.
Under the Victoria formula, which you also feel would be good, and perhaps you are not aware but the Minister has said he is willing to consider giving Prince Edward Island full status and doing away with this 50 per cent, it was on the motion of Mr. Henderson from Prince Edward Island, we would only need three provinces in the East to have a veto. It seems to me that we should be heading for the Victoria
formula rather than the Vancouver formula, from the east anyway. Could you tell me why I should not be heading for the Victoria formula over the Vancouver formula?
Mr. Buchanan: Well, I think, as you will recall my comments, I said that Nova Scotia was willing to accept either the Vancouver consensus of the Victoria charter. We did emphasize the Vancouver consensus because we did agree in September that we would accept the Vancouver consensus and did so on the basis that all of the other provinces were in agreement and we, Nova Scotians, are moderate, we are flexible and we want harmony and co-operation and we believe in this great country and we want to keep it together and if that is one method of doing it, we agree with it.
Miss Campbell: But you are not really against the Victoria formula, we arrive at that in this discussion?
Mr. Buchanan: No, I am not, and certainly if it came to a point where the consensus of opinion was a Victoria charter without the impediment to Prince Edward Island, that Prince Edward Island would be literally out in left field on it, in other words, if the 50 per cent was taken out, then sure, if the consensus of opinion was to that kind of amending formula, we would agree to that.
I want to point out one other thing, though. In the Vancouver consensus, even though it is two-thirds of the provinces representing at least 50 per cent of the population, any of the three provinces or the provinces in the one-third could opt out if the item of amendment affected the (a), (b), (c) and (d), provisions in the Vancouver consensus, which of course would be any infringement on provincial rights.
Miss Campbell: Yes, but it would not be the basic, shall we say, equalization, which would be something that we are entrenching in the constitution but if we had the Vancouver formula and the rest of Canada, to the detriment of three eastern provinces wanted to do away with it, it would, under the Vancouver formula, be done away with?
Mr. Buchanan: I am sure you are aware of the Vancouver consensus and I will just read the last section of it. It is:
Two-thirds of the provinces representing at least 50 per cent of the population of Canada, provided that if the enactment is one affecting, (a) the powers of the legislature of a province to make laws; (b) the rights or privileges granted or secured by the constitution of Canada to the legislatures or the governments of a province; (c) the assets or property of a province; or (d) the natural resources of a province, any legislative assembly of a province which has not approved such enactment and which has expressed its dissent thereto by resolution may continue exclusively to make laws in relation to the subject matters coming within such enactment.
However, again, I want to repeat that we did agree to the Vancouver consensus and we would agree again to the Van-
couver consensus if it would break the deadlock. If it were the Victoria charter and that Victoria charter would be the amending formula to break the deadlock, we would agree to that as long as Prince Edward Island was protected.
Miss Campbell: Thank you. I would like to move on to what I felt in watching the federal-provincial conference, not only this time but in other federal-provincial conferences, our basic problem dealing federally and provincially has seemed to come down to economic redistribution of powers. In fact, offshore resources would be a good example with Nova Scotia. I really feel that your statement that we should be making this proposal in Canada, made in Canada, by Canadians is misleading because what are we doing right now? We have gone through the whole system of the federal-provincial conferences, the people in Canada have heard about it, in my lifetime a great deal, prior to that it was discussed. I would now like to sort of talk on the areas that I think this proposal might bring on further discussion. We talked about the amending formulas and how difficult it is to arrive at a consensus, I would not particularly like the Vancouver formula because I think it hurts us but I do like the Victoria.
However, let us go back to the other aspects of…
Mr. Buchanan: You do like the Victoria?
Miss Campbell: I do like the Victoria and I think we will arrive somewhere in this with an amendment to that particular clause, Section 41, I think it is. However, let us go to the other areas that we are talking about.
Most of the witnesses that have come before us, I would say the majority of the witnesses, feel that the Charter of Freedoms and Rights should be entrenched. I talked with the Canadian Bar Association and Civil Rights, the Advisory Council on the Status of Women, the Territories, the Human Rights, the Polish Council of Canada, the Canadian Jewish Council and many other groups that have been writing in have felt that definitely, before you repatriate a constitution as we are doing, that these basic rights should be there. I would like to now just ask you and go into a discussion of that, but before saying that I would just like to say to you that John Diefenbaker felt this way 20 years ago when he introduced the Canadian Bill of Rights in the House of Commons. He asked the question:
Why is it now necessary to state explicitly in the constitutional document what is already implicit?
And there is the argument that we do not need a charter of rights because it is implicitly there but it is not implicitly, and we see a lot of injustices along the way.
Experience has shown that what is only implicit in part is in fact endangered by lack of recognition and of acceptance, and that an explicit statement of rights is not only advisable to create public recognition of the fundamental
basis of our society, but also to prevent infringement of those rights.
I happen to agree with him wholeheartedly. Do you?
Mr. Buchanan: If Mr. Diefenbaker said that, I probably would agree because I agreed with many of the statements made by Mr. Diefenbaker.
Miss Campbell: He is not here to refute it.
Mr. Buchanan: May I just comment on the Charter of Rights? Again, I am not saying that we are in favour of nor opposed to a charter of rights. What I am saying is that if such a sweeping amendment, an addition, a major addition to the constitution of Canada is made, surely it should be made in Canada and we should not ask another government in another country to add something to our constitution for us that we have not been able to, to this date, do ourselves. It is a basic premise of a sovereign nation. We are a sovereign nation, now why should we ask another country to add to our constitution? Surely we should be able to do that ourselves.
Miss Campbell: Just as an aside to that, we basically did that in 1867 and it worked very well…
Mr. Buchanan: Oh, no.
Miss Campbell: We went to the British Parliament and they passed an act.
Mr. Buchanan: No, no.
Miss Campbell: We are now asking them to pass an Act…
Mr. Buchanan: You are overlooking completely…
Miss Campbell: After much discussion we got to Section 91 and Section 92.
Mr. Buchanan: Coline, you are overlooking the fact that in 1867 our provinces were colonies of Britain. We were not a sovereign nation, we were colonies of Britain and you are overlooking the Statutes of Westminster completely, when we were given almost total sovereignty and I do not overtook those, I think that Canada is a sovereign nation, I believe in Canada and I believe that we should be nationalistic enough and Canadian enough to amend our own constitution at home, and if we have a need for a charter of rights we should be able to include that charter of rights in our own country without asking another country to do it for us.
Miss Campbell: May I just finish off because my time is running out and I do not know if there will be a second time, but I would like…
Mr. Buchanan: Could I ask you a question, is that possible?
Miss Campbell: No, you can ask me that after, on your time.
Other areas of concern in the charter of rights, I would just like to quickly go through them. I would assume you are for equal rights for men and women before and in the law, educational rights for the minorities of any one of the official
languages in Canada, the courts perhaps being bilingual, not just having interpreters for those people whose basic first language is French, and equal rights for all Canadians without discrimination? And what about the equalization rights, it seems to me that you are for that?
Mr. Buchanan: Equalization, yes.
Miss Campbell: And mobility rights. Are you for the entrenchment of all these in a basic constitution?
Mr. Buchanan: I have no disagreement whatsoever on the principle of equalization and the methods and formulation of equalization being entrenched in the constitution of Canada; but, again, I say that we should do it here in Canada and not ask another country to do it for us.
Miss Campbell: We are doing it in Canada.
Mr. Buchanan: The problem is by one level of government.
I believe, again, going back to our constitutional conference in September, as I can recall, I think all participants in that Conference, with the exception of one, entirely agreed with the method of including equalization in constitutional amendments. Only one, British Columbia, I believe were hung up on certain wordings on it. We are so close that we are, as we say, a smidgeon away from it.
Equalization, certainly; we can agree with equalization. We can agree with the principle of it, its formulation, and equalization payments.
As Senator Smith well knows, Nova Scotia was the province where equalization was born. We were the initiators of equalization many years ago.
Now, what was your other question?
Miss Campbell: It concerned educational rights for the minority and the extension of matters in the criminal sphere.
Mr. Buchanan: We have no objection to the entrenchment in our constitution of matters which are totally federal in nature, and which do not infringe upon the rights and privileges and powers of provinces: none whatsoever.
As far as linguistic rights in Nova Scotia are concerned, I think you were present at College Ste. Anne when I said that we were prepared to, and will, at the earliest opportunity, enact legislation in Nova Scotia to protect the linguistic rights of the Acadian people in the Acadian areas of Nova Scotia. You supported that at the time, and I believe you still do.
Miss Campbell: That was not entrenchment.
Mr. Buchanan: Well, it certainly is going to be entrenched in our provincial legislation.
The Joint Chairman (Mr. Joyal): Thank you very much, the honourable John Buchanan.
Mr. MacKay: On a point of order, Mr. Chairman.
The Joint Chairman (Mr. Joyal): You have a point of order, Mr. MacKay?
Mr. MacKay: Yes, Mr. Chairman. I think the very essence of this Committee is to promote a very meaningful dialogue between all participants, and I would move that the member from South West Nova be given additional time so that Premier Buchanan could ask her a question. It appears all to be one way.
An hon. Member: I would like to second that, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. MacKay.
Honourable Senator Smith, followed by the honourable Carl Goldenberg.
Senator Smith: Thank you, Mr. Chairman. I should like to join very warmly in the welcome which has been extended by other members of the Committee to Premier Buchanan and his ministers and officials.
It is certainly good to see them here contributing to the general education of this Committee, a Committee of both Houses of Parliament.
I would like to pursue a subject which was raised in some detail by Mr. Nystrom relating to referenda.
Perhaps I could begin by asking you to turn your attention for one moment to Section 50 of the proposed legislation, and then to go on to Section 38.
Section 50 is clearly designed to create the impression at least, if not the reality, that an amendment to the constitution in relation to certain matters set out in Section 50 can only be done in a certain way, that is to say can only be done either consistent with Section 41, which is essentially the Victoria formula, or Section 42, which is one of the referenda propositions.
But I am going to ask you in a moment to consider whether section I does not potentially remove that protection entirely. I would like to enumerate those rights which were supposedly protected by Section 50, that are protected in the sense that they can only be affected by changes in the constitution pursuant to Sections 41 and 42. Those items are: the office of the Queen, the Governor General and the Lieutenant Governor of a province; the Canadian Charter of Rights and Freedoms—and those who are particularly interested in that should take a close look at what might happen under Section 38; the commitments relating to equalization and regional disparities set out in Section 3l; the powers of the Senate; the number of members by which a province is entitled to be represented in the Senate and the residence qualifications of senators; the right of a province to a number of members in the House of Commons not less than the number of senators representing the province; and the principles of proportionate representation of the provinces in the House of Commons described by the constitution of Canada.
As Mr. Nystrom has pointed out, under Section 38, in certain circumstances, the federal government can ask the people of Canada to determine whether Section 41 or Section 41(b) at least, shall continue to be part of the constitution of Canada, and whether it shall be substituted for by a proposi-
tion agreed upon by eight provinces, or whether it shall be substituted for by a proposition enunciated by the Government of Canada, which might be any proposition whatsoever. There is absolutely no limit on what the Government of Canada might propose. Then you find that this, in effect, makes it possible for the Government of Canada to endeavour to obtain a replacement for Section 41 by any proposition which occurs to it as a result of a referendum in which only a majority of the total voters of Canada may decide.
So that, if the circumstances set out in Section 38 were to come about, Section 41, as it now stands, namely, the Victoria Charter would completely disappear,
The protection intended to be afforded by Section 50 as regards these particular rights, including the protection of the Canadian Charter of Rights and Freedoms, would also disappear.
Now, have you any views on this?
Mr. Buchanan: Yes, I do, Senator.
Our reading of this, of course, is exactly as you have said,
Section 50 and the apparent protections in that section, that amendments can only be made under Sections 41 or 42 under the Monarchy, the Governor General, the Lieutenant, the Canadian Charter, et cetera, et cetera; there is no question that that can be varied, but it can also be substantially changed when you read Section 30. That is why, in my opening statement, I said that we were opposed to the referendum proposals, but we also:
note with some alarm that the referendum provisions may even be applied to change the amending formula itself.
So that there is no question that the protections which are apparently afforded by section 50 can be swept away by Section 38. There is no doubt about it.
Senator Smith: I would like now to turn, if I may, to a subject which was raised by Miss Campbell, namely that of equalization, which one finds, I think, at page 2ó of the document, the Canadian Constitution of 1980, and section 31 of the proposed legislation.
Now, you have said quite emphatically that you were in favour of equalization being entrenched in the constitution.
But I ask you to consider what entrenchment is really made by the wording of this provision in Section 31, which deals with equalization and regional disparities. But the reason I asked you is because it contains these particular words:
are committed to:
(a) promoting equal opportunities for the well-being of Canadians;
(b) furthering economic development to reduce disparity in opportunities; and
(c) providing essential public services of reasonable quality to all Canadians.
But I ask you if any province, for instance, Nova Scotia, were to feel that that commitment was not being kept, what remedy is there to enforce the commitment?
Mr. Buchanan: Well, Mr. Chairman, Senator Smith, this proposal for equalization, in my opinion, bears little resemblance to the proposals which we discussed in September on equalization.
What is here, in my opinion, is a very weak proposal. It is a watered down proposal in relation to the equalization proposals that we had discussed in September. It certainly is a watered down proposal of equalization as we know it today.
It is well worded. It is principled, but, as the fellow says “You cannot eat principles”. That is one of the big problems here.
I think Premier Maclean, in his brief to your Committee, indicated exactly the position that we take in Nova Scotia, that the proposal before you on equalization certainly does not contain anything in connection with equalization payments. It does not indicate, in fact, where payments would be made or to whom they would be made, whether they would be made directly to people, to provincial governments, to society, to associations or to whom they would be made.
Therefore, it is not the kind of equalization proposal that we would promote, or, of course, to which we would agree in Nova Scotia.
The equalization proposals must be more explicit and must set out such things as equalization payments and to whom they are to go, and not a specific formula but some form of determination as to how those payments are to be made and determined.
In other words, in my opinion, on a reading of Section 31(1) there is no commitment on equalization as we know it today.
Senator Smith: Thank you.
There was some reference made in enumerating the matters covered by the proposed Charter of Rights to mobility, for instance, of movement. Have you any views on that as to whether it trespasses upon the rights given to the people of the provinces through their legislatures?
Mr. Buchanan: Before commenting on that, I would like to make one thing absolutely clear to members of this Committee. There has been over the past number of months some comment, both political and editorial, that we have passed in Nova Scotia, or are proposing to pass, legislation which will restrict the movement of Canadians into our province and restrict people other than Nova Scotians in obtaining employment in our province.
I want to set the record very straight on that at the present time. That is completely incorrect. We have not on our books such legislation, nor do we contemplate such legislation. We believe Canadians should have a right to work in any part of this country, whether it is British Columbia, Nova Scotia, Newfoundland or in the Arctic or in the Northwest Territories or the Yukon.
We believe Canadians have that right at the present time and it should continue.
But we have proposed and will propose in Nova Scotia that in matters maybe affecting off shore, if Nova Scotians are fully qualified, that these Nova Scotians be at least entitled to some form of preference to obtain a job, I repeat if they are fully qualified for that position
I do not think anyone could really argue against that proposition, because it is a. position which has been taken historically by the federal government and by the provincial governments throughout this country.
I do believe that provinces should be able to continue to have a right of some form of determination of preferences within our provinces, contractual relationships, employment preferences of a qualified nature and that we should be very careful of entrenching in our constitution proposals which would absolutely do away with any form of provincial right on this kind of mobility right.
The Joint Chairman (Mr. Joyal): Thank you very much, honourable Senator Smith. I would like to call now honourable Senator Goldenberg, followed by the honourable James McGrath.
Senator Goldenberg: Thank you, Mr. Chairman.
I want to join in welcoming Premier Buchanan and his associates to this meeting today. I heard with considerable interest the opening statement of Premier Buchanan and I noticed that he began with a definition of federalism as a league between states, compact, covenant or agreement. I want to suggest to the Premier that he was not defining federation, he was defining a confederation and Canada is not a confederation, it is a federation. A confederation is a league of independent states which transmit, which transfer certain powers to a new government. That was the case under the Articles of Confederation in the United States in 1783 which worked so poorly that they had to adopt the present Constitution in 1787 to become a federation.
Incidentally, the man who demolished the compact theory of federation in Canada was a very distinguished Nova Scotian, a very dear friend of mine, Norman Rogers.
The Premier referred .to our former colleague, Senator Forsey, and he quoted him correctly, but he did not say anything about Senator Forsey’s views of the compact theory. Senator Forsey has replaced the late Norman Rogers as the principal critic of the compact theory. I was glad to see the Premier say we do not suggest that the dominion government thus created was the servant of the provinces, but he adds that it is clear that the British North America Act created a new political community with a specific and limited area of jurisdiction. The suggestion of a very limited area of jurisdiction is, in my opinion, and I say this with respect, wrong.
I wonder what Sir John A. Macdonald would have said if he had heard his constitution defined that way. What about the
power of reservation, the power of disallowance, the power to make laws for peace, order and good government.
So, I would be very hesitant about using that phrase.
Mr. Buchanan: Honourable Senator, sir, I will take the word “limited” out.
Senator Goldenberg: Good, thank you.
I come next to the Premier’s references to the publication under the auspices of the late honourable Guy Favreau, and this relates to the Fulton-Favreau conferences. I was an adviser at both of them, 1960-61 and 1964. The Premier quoted him correctly, but I suggest that he omitted one or two phrases. Mr. Favreau said:
Certain rules on principles relating to amending procedures have nevertheless developed over the years.
He goes on to say though:
they are not constitutionally binding in any strict sense.
The Premier then quoted correctly the fourth general principle. At the end of the paragraph in which that fourth general principle was set out, we read this:
The nature and the degree of participation in the amending process however have not lent themselves to easy definition.
In this same publication, there are references to all of the amendments to the constitution which were made without consultation with the provinces or with consultation and notwithstanding dissent by one or two provinces. I can think of no more important amendment in the past 30 years or so than the British North America Act of 1949 which provided for the entry of Newfoundland into Confederation. There were no consultations with the provincial governments.
I remember well that at least two provincial governments objected to the absence of consultation.
An hon. Member: It is already in there.
Senator Goldenberg: As a member of this Committee, I submit I have a right to comment on briefs which arc submitted to us. I am not going to be interrupted in that way.
Now, the Premier said, or I understood him to say, that there should be a resumption of the federal-provincial meetings and he seemed to suggest that another conference might lead to agreement. What does he base himself on and what could be agreed on if another conference were held?
Mr. Buchanan: Yes, all right.
Senator Goldenberg: I was told that I am supposed to ask you questions, so, I am putting a question to you.
Mr. Buchanan: Well, first of all, Mr. Chairman, I want to refer back to my comments on page 2. I do not have any intention today, nor do I think you do, Senator, in getting into any great discussion as to whether we are discussing a compact or not discussing a compact here. My reason for including that was because it is in included in the definition of federalism, federate, confederation and I think as you will recall, I said it appears that the term “federalism”, “federate” and “federal”,
involved a concept of a political arrangement in which some sort of an agreement is implied.
Certainly, I am not saying in any way, shape or form that the compact theory is one that we are basing our federation on.
As far as Mr. Guy Favreau and the conference you mentioned, it is my understanding, and, again, I do not mean to be argumentative here, nor do I think we should get into an argument on this but it seems to me, the information I have, and I hope these researchers are right, if not—Of a total of 16 amendments to the BNA Act, only two affected federal-provincial relationships and in these instances the approval and consent of the provinces were obtained. I think you know the two I am referring to were the 1940 amendment on Unemployment Insurance and the 1951 on old age pensions, which were approved and consented to by the provinces and five amendments concerning the provinces were subject to provincial consultation.
The Newfoundland situation. under section 146. and I think this has been publicly stated by the Premier of Newfoundland on many occasions, that Section 146 of the BNA Act specifically provided for the admission of Newfoundland into the union at a later date. So, your theory that provincial consent was not obtained for the introduction of Newfoundland into Confederation, I, quite frankly, is nullified by Section 146 which was a part of the British North America Act, So, why go through the procedure of getting everybody to consent to something that they have already agreed to as the original partners in Confederation.
Senator Goldenberg: Premier Buchanan, I do not want to boast, but I was also involved in the Newfoundland negotiations and I draw to your attention that Section 14ó requires addresses from the Houses of the Parliament of Canada and from the Houses of the respective legislatures of the colonies or provinces of Newfoundland and so on. Newfoundland had no legislature at that time. Newfoundland was under Commission of Government. They had a referendum, two referenda.
Mr. Buchanan: May I say, Senator, I am not going to speak for Newfoundland, they do their own talking very well, both here and abroad.
Your final comment on what can be achieved and why do I think something can be achieved at another federal-provincial conference, well, you know…
Senator Goldenberg: When I asked that question, I hope you are right. I am not criticizing you.
Mr. Buchanan: No, I realize that. I simply put it this way, that I have been present in my short time in this office I have been present at three federal-provincial conferences, two of them on the constitution. I am really amazed at the work that has been carried on and the advances that were achieved in those conferences. I really did not believe that ten provincial governments and a federal government could cover as much ground as we did in the last year and a half. 53 years they have not really been able to cover as much ground as is pointed out here this morning, but in a year and a half we have covered a lot of ground. I simply say this that if in a year and a half we
can achieve that much progress, where ten provinces can agree, or nine provinces can agree on six items, ten provinces can agree on three items, ten provinces and a federal government agree on two items, surely if you come that close in a matter of a year and a half with two conferences, is it asking too much to have one further conference in 1981 to see if we can achieve the ultimate; that is patriation of our constitution with an agreeable amending formula, bring it home and let us get on with the business of amending our own constitution here in Canada, a sovereign nation.
Senator Goldenberg: Thank you. I have one final question, if I still have a moment. A very short question.
You have made reference to the Victoria charter and I remember when it was debated, it was Article 11:
Every person shall have the right to participate in French or in English in the debates of the Parliament of Canada and of the Legislature of Ontario, of Quebec, of Nova Scotia, of New Brunswick, of Manitoba, of Prince Edward Island and of New Brunswick.
Does Nova Scotia still stand by that?
Mr. Buchanan: Just let me take a look here. I believe, Senator, if you will recall, I said that we agreed to the Victoria charter, What I meant was we agreed to the amending formula which had been proposed and agreed at that time and that amending formula is the amending formula that appears in the resolution with the exception that Prince Edward Island is pretty well excluded in this particular proposal. It seems to me that if the 50 per cent is taken out, then you are into the Victoria formula or the Victoria amending formula on that part of the Victoria charter that included an amending formula and that is what we would agree to; either that of the Vancouver consensus which we had agreed to in February.
Senator Goldenberg: You are suggesting that Nova Scotia did not agree to any of the other parts of Victoria charter?
Mr. Buchanan: I was not there,
Senator Goldenberg: I was there.
The Joint Chairman (Mr. Joyal): Thank you very much honourable Senator Goldenberg.
With the consent of the honourable members of this Committee, I would be ready to open a turn around of questioners with the agreement that we would restrict the questions to five minutes for each speaker because I understand that our guests have been quite co-operative in answering all the questions and that we will be overdue in our time by 12:30 p.m. and I understand that if we would go to 1 o’clock it would be agreeable to honourable members of this Committee and to our guests this morning.
Mr. Epp: Mr. Chairman, I am somewhat surprised at your comment. I thought that the agreement was that we were on five minutes after the opening round. I defer, obviously, to the Chair’s decision, but in terms of future rounds now for this witness, five minutes is acceptable.
The Joint Chairman (Mr. Joyal): Thank you very much. I would like to call now the honourable James McGrath followed by the honourable Bryce Mackasey for a S-minute round.
The honourable James McGrath.
Mr. McGrath: Mr. Chairman, I should hate to think of the state of former Premier Smallwood’s health if he is watching this broadcast this morning, the former distinguished client of Senator Goldenberg as he hears Senator Goldenberg argue that Canada is not a confederation and argues very strongly in support of the principle that the federal government can unilaterally change the balance of power in this country without reference to the provinces.
My question, Mr. Chairman, to Premier Buchanan, and I welcome him and his colleagues here this morning. First of all, I was truck by the brief that the Premier read to the Committee in his opening statement that Nova Scotia believes in moderation.
We, as you know, Premier, had been arguing in this Committee that we do not have sufficient time to examine the proposals before us and to give the people of Canada an adequate opportunity to have input into these proceedings. Indeed, as of December 1, considering the fact we have to report back to the House by December 9, which is about a week away, in that we passed a deadline for new witnesses, that as of December 1, 304 individuals and groups have asked for permission to appear and another 474 individuals and groups have asked to make written submissions. So, you see the problem of not only the imposition of closure that this Committee poses for us as members of the Committee charged with the responsibility of examining these provisions of the proposal before us, but the fact that so many Canadians will be denied the right to appear before this Committee and to make submissions.
But given the deadline that we do have, which rather dramatically illustrates the determination of the government, the Prime Minister and the government, to pursue this unilateral action, given your own experience as a parliamentarian and a politician, is there any way, in your opinion—and believe me this is not a facetious question-is there any way in your opinion that the Prime Minister and the government can get off this unilateral roller coaster they are on and still save face?
Mr. Buchanan: Well, without really commenting here on the last statement in that way, Mr. Chairman, it seems to me that in politics deadlines can be very dangerous. I found that out just last summer when I continued to say that certain decisions of government would be made by the end of July. I suppose some people are wondering which July I meant because the deadline has come and gone and the decision has not been finalized. But deadlines certainly are dangerous in this business of politics.
I think that setting a deadline where Canadians, either individual if they are responsible Canadians and have a right to be heard; associations, or groups, they are responsible and have a right to be heard, that setting of a deadline that would cut those people off certainly is not going to contribute to Canadian unity but will contribute to Canadian disunity. I go
back to my original premise that I cannot understand the race for time here, I cannot understand why a certain time limit has not been proposed on constitutional change. It seems to me that that is going to be not only disruptive of the whole process but very counter-productive and will lead to much more divisiveness and disunity than has ever been contemplated.
It seems to me that if what we are talking about here, what your committee is talking about, is that these groups of Canadians, associations, societies, individuals, if they have a right to be heard, then extending the time of the Committee for one, two, oven three months is certainly not going to cause the disintegration of Canada. By not allowing them to appear, of course, may contribute to disunity.
Mr. McGrath: For purposes of the record, Mr. Chairman, I would like to take up for a moment the question that was pursued by Senator Smith with regards to equalization, the entrenchment of the principle of equalization, because there is a very important change in the proposed bill, in the best efforts draft, and this was alluded to by the Premier. In the best efforts draft, as I read it, the words:
committed to the principle of making equalization payments to ensure that provincial governments have sufficient revenue, to provide reasonably comparable levels of public services at reasonably comparable levels of taxation
have been removed from Section 31(2) of the Bill. Of course that substantially changes what the provinces agreed to in a very fundamental way.
Now, Mr. Chairman, I would like to move on to one more area. My time is limited, Premier Maclean, when he was before us, Mr. Buchanan…
Mr. Buchanan: Do you want me to respond to that?
Mr. McGrath: I did not think a response was necessary because I assume you agree with that.
Mr. Buchanan: Yes.
Mr. McGrath: Premier Maclean, when he was before us, made the statement, and I quote from the record:
Mr. Chairman, it is the position of Prince Edward Island and it will so argue that established conventions concerning amendments to the British North America Act have in the past involved either specific, or understood support of the provinces. Prince Edward Island contends that this is a well established precedent and one that should continue.
Now, that has to do with, Senator Goldenberg’s intervention notwithstanding, what is an accepted convention, and you referred to the only two areas affecting provincial powers where the federal government asked Westminster to make amendments were done after the consent of the provinces, namely those dealing with unemployment insurance and old age pensions.
Now, Premier Maclean went further to suggest that he was going to make a submission to the British Standing Committee in support of this position. You, however, have indicated that you favour a more moderate course. Can I read from that that
it is not the intention of the government of Nova Scotia, certainly at this time, to intervene before the British Standing Committee which is now examining the relationship of the British Parliament to the British North America Act?
Mr. Buchanan: Well, as I said after a meeting in Toronto about a month and a half ago, we had decided to take what has been called the political route, and I will not go through that again, we are here, this is the political route. We will also continue, outside of this committee, to meet with the Minister of Justice and others on the federal level to promote and pursue our positions as I outlined today, but as I indicated at a press conference in Halifax after the Toronto meeting, we are leaving our options open.
Mr. McGrath: Hypothetically, and I am sure you would not accept a hypothetical question in your own legislature, but these are extraordinary circumstances, hypothetically, if the government has its way and this Bill is referred in the form of a joint resolution to the Parliament of Westminster, what action will the Province of Nova Scotia then take?
Mr. Buchanan: We will leave our options open.
The Joint Chairman (Mr. Joyal): Thank you very much, the honourable James McGrath. I would like to now call on the honourable Bryce Mackasey followed by Mr. Nowlan.
Mr. Mackasey: Thank you very much, Mr. Chairman. I hope that the mood of conciliation is the direct influence of the former mayor of Halifax, former member of the House of Commons. We agree on that.
Mr. Buchanan: Thank you, sir.
Mr. Mackasey: Premier Buchanan, you used the words “disunity” and “divisiveness” quite frequently this morning and I think that is the way you see it. I, too, see it but from another point of view, if I may. I think that the deterioration, you referred to a smidgeon, the deterioration on the Friday and Saturday of the provincial-federal conference, sitting, frankly, as a concerned Canadian watching it on television, concerned about the promise we made to Quebeckers if they would support us in the referendum, I think that was the greatest thing I see potentially contributing to disunity in a long, long time. I was appalled, frankly, that so many premiers associated themselves in the dying hours from what appeared during what wake as the potential for a agreement which I know you wanted, but it was rather unsettling, I think, to TV viewers to see this deteriorating and I am not going to say who was to blame, but you referred to “time”.
I happen to believe, Mr. Premier, that time is of the essence and every premier that was quoted after the referendum made that same commitment to a speedy passage of not only patriating with an amending formula but certainly constitutional changes and it was done in that moment, in the context of the commitment we had made to the population of Quebec that once and for all we would, through an amended constitution, rectify many of the injustices that have been done to the French speaking Canadians of this country. I think one of the sections in that proposed resolution reflects the concern of the government, that it is the right of French speaking Canadians now to be educated in their language anywhere in this country.
This is one of the reasons, and I would have loved to see that consensus arrived at in the very manner that you described. It did not happen and so the divisiveness and disunity which you concerned yourself about, I am deeply concerned about from another point of view and that is that Quebeckers see absolutely no progress being made at these continuing rounds of federal-provincial conferences.
Now, I know you will want to refer to it, so I think perhaps I will go back to my simple days as Minister of Labour, and I met Mr. Morris and had many wonderful hours together, but there does come a time in the conciliatory process, which is what you are recommending, when there is an impasse, there has to be; and you refer that to arbitration, as a last resort to compulsory arbitration or an act of Parliament. So really what the government is trying to do here, sir, is resolve the impasse of a referendum.
However, I want to say you have made a valid point this morning that another conference could perhaps unblock this impasse, and I suggest, sir, that implicit in this resolution is the fact that there must be another one because, I think it has gone unnoticed by the press, and perhaps this, is our fault, my fault, for not having raised it, it is clearly understood, if you read between the lines, that there is going to be a 24 month period where the provinces and the federal government can sit down and work out an amending formula, and avoid the referendum.
Now, with your persuasiveness, and I must assure you that it is quite evident to me you are a hard man to dislike, you are going to say: well, you have the Vancouver formula. But the Vancouver formula was a formula that was totally inflexible, it would have created a checkerboard pattern; it would have made it possible for provinces to opt out of any clauses that bound them, particularly in the area of human rights and freedoms and the extension of minority rights in the various provinces, and you would have had a checkboard pattern that I do not think is consistent with our concept of one great country, and particularly inconsistent with the section on equalization which tries at least to minimize the differences. I would like your general comment.
Mr. Buchanan: Well, first of all, you are a pretty nice fellow yourself, Mr. Mackasey.
Mr. Mackasey: We are both Haligonians.
Mr. Buchanan: If we can first of all start on the amending formula, it just seems to me that if it appears that the Vancouver consensus, so called, is not acceptable, then I have already indicated that as lar as Nova Scotia is concerned we would be quite prepared to drop back to the Victoria amending formula.
Mr. Mackasey: Can I interrupt you at this point, and I appreciate you raising that point because that is the first real evidence of conciliation that I have seen from any of the premiers. The problem is, as you have admitted yourself, you cannot speak for the other premiers. Now if more of them would come forward we might be making real progress.
Mr. Buchanan: Well, all I can say is that I cannot speak for the other premiers but I do know that in 1971 there was more than a consensus, there was an agreement between 11 governments with one opting out later. It seems to me that in this proposal we have before us there is the Victoria amendment formula, which of course excludes PEI, and I understand from the member from South West Nova that that will be looked after, So your argument that there cannot be an agreement on an amending formula I do not believe holds water. I think we can have an agreement on an amending formula and that is all ten provinces and the federal government. I believe we can.
Mr. Mackasey: But not on the Vancouver one, not on one that permits provinces to opt out of responsibility.
Mr. Buchanan: Obviously what you are saying is that the federal government will not agree to the Vancouver consensus and I believe that to be correct, I think the prime Minister has indicated that very clearly in private meetings and publicity.
What I am saying is let us not let the ship sink just because we do not agree on that one item. If we can revert to another item that had been agreed to in 1971, which would protect Prince Edward Island, then fine, we are flexible and we would agree with that and I really believe that in the interests of Canadian unity you will find the other provinces would agree.
I am a little concerned about your comments on the Quebec referendum, and that in some way the provinces of Canada and the federal government offered the people of Quebec some speedy solution to what they considered to be the problems in Confederation and the problems with the constitution. It all depends on your definition or interpretation of the word “speedy”. In my opinion “speedy” does not mean frantic.
Mr. Mackasey: It means getting off the mark, though.
Mr. Buchanan: Well, I think we are off the mark, though I think we are off the mark and it depends on how fast you want to run to get where you are going. You might trip before you get there and never win the race.
So the word “speedy” I think is the wrong word to use because, in my opinion, it implies frantic; and if your are going to be frantic in your search to clear up a problem as far ai Quebec is concerned, or the people of Quebec, you may create a bigger monster than we trad before.
Also, if my reading of the situation is correct, the political leaders. in Quebec do not agree with the proposals that provincial…
Mr. Mackasey: But I remind you they did not agree with the outcome of the referendum so we do not really consider them all that great in that…
Mr. Buchanan: I said Quebec political leaders.
Mr. Mackasey: I appreciate that, I now realize your point.
Mr. Buchanan: Quebec political leaders. My reading of the situation is that even though there are differences of opinion between the two main leaders of the political parties in Quebec, that there appears to be a consensus among them opposing some of these proposals and some of the basic points in your proposal, so it seems to me that if your find the two
major provincial political parties in Quebec opposing the proposals then you are not really curing the problem that you believe you are curing.
Mr. Mackasey: Mr. Premier, could I…
The Joint Chairman (Mr. Joyal): I am sorry, Mr. Mackasey. We had just previously agreed to stick to 5 minutes tours…
Mr. Mackasey: I have one final point, Mr. Chairman.
The Joint Chairman (Mr. Joyal): I apologize but I have the Chair. Your are more than 10 minutes over now and I think we have to be fair to all the honourable members. Mr. Irwin is still on our side and I know that many members would like to add to that or put forward some questions.
I would like to recognize now Mr. Pat Nowlan.
Mr. Nowlan: Thank you, Mr. Chairman.
I, too, would obviously like to welcome the Premiers, also the Attorney General who happens to come from my home town although I did not get together with him before he appeared today, and really, Mr. Chairman, my question is, ironically enough, perhaps following a little of what Mr. Mackasey wanted, not in terms of the Quebec Referendum, and without getting into the debate that you fulfill a commitment to part of the country by perhaps breaking faith with the whole of the country, i.e. moving unilaterally, against convention as far as I am concerned, but on that part that has to do with the referendum and the amending procedure in the present resolution. We all are aware around this table, Mr. Chairman, that no matter where you sit on the resolution there is certainly more division in this country today than there was perhaps even in September, and that may not go away.
We talk about Vancouver, we talk about Victoria, the Premier is optimistic as most Nova Scotians are about the future of this land, and that is what I want to trade on in my question, Mr. Chairman,
Assuming, Mr. Premier, that there is not the agreement you would like, either Vancouver or Victoria, I would like to lay on you and before this Committee that if the resolution was changed by this Committee so that it accomplished two things, both of which you said you were in favour of, patriation now and an amending formula, but without getting into the debate of Vancouver or Victoria; but this Committee amended and restricted the wording of the resolution for amendment to a one shot deal, in other words that it in effect had a sunset provision, that if there was not the agreement of the provinces and the federal government to an ongoing amending formula in the two year period that is there in the present resolution, that then for the deadlock breaking mechanism which the Prime Minister talks about, and for that purpose alone, there would be a provision to go directly to the people where we all basically come from and one could say in this era of technology that a referendum is really a peoples constituent assembly, would your objections to the referendum be as strong and as logical as they were in your brief? In other words, it would just be for the one shot deal to break the deadlock if in the two
years the provinces and federal government had not agreed on what should be the ongoing formula?
Mr. Buchanan: Well, as Mr. Nowlan knows, I at all times attempt to agree with most of his logical propositions but in this instance I could not. I do not believe that the constitution of Canada is something that we should really toy with insofar as a referendum is concerned. I believe and I will repeat again that we have 10 provincial governments and the federal government and I sincerely believe that we can agree to an amending formula without a referendum provision.
Mr. Nowlan: We have two years to do that.
Mr. Buchanan: Well, that is a kind of a hammer over your head, you have got a deadline provision again, and I just do not agree with it.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Nowlan, for your cooperation. I would like to invite now Mr. Ron Irwin.
Mr. Irwin: Mr. Premier, it is a pleasure to have you here, I wish I had more time to express that as well as the others but unfortunately I have only five minutes.
I look on Nova Scotia as the honest broker in confederation and at the times there has been objection by the provinces to amendments in 1907, 1943, 1946 and twice in 1949, I note that it was never Nova Scotia.
Now, patriation, the amending formula, the role of the provinces has been adequately explained, I think, and I understand your position, so I would like to use my time on the seven key portions which deal with rights and freedoms. I would like to know if you substantially disagree with any of them.
For instance, Section 2 provides for freedom of conscience, religion, thought, belief, opinion, expression, press and other media, peaceful assembly and association. Sections 3 to 5 deal with democratic rights such as votes, duration of legislatures, and Parliament. Section 6 deals with mobility, and Sections 7 to 14 deal with legal rights. For instance, in 7, life, liberty and security of person; 8, unlawful search or seizure; 9, unlawful detention or imprisonment; 10, rights on arrest; I l, rights when charged; 12, cruel and unusual treatment 13, protection against self-incrimination and 14, the rights to an interpreter. I will stop there.
Is there any substantial disagreement that these should be enshrined somewhere, either by the province or by the federal government, but rights that the Canadian people should have?
Mr. Buchanan: Well, first of all, I want to very emphatically say that we in Nova Scotia do not appose the fundamental freedoms that Canadians enjoy today and have always enjoyed and will always continue to enjoy. I think that Canada is one of the countries in the world where we have probably more
freedoms than in any other nation and we are very proud of those freedoms because they emanate from the system of justice that we had in this country since 1867, and even before 1867, as colonies; so certainly we agree with them. We agree with democratic rights, fundamental freedoms, legal rights; and most of those are already enshrined in either federal law or provincial law.
Mr. Irwin: Thank you. Now, Section 15 and 23 I think are the most important Sections. Section 15 deals with nondiscrimination rights, nondiscrimination because of race, national or ethnic origin, colour, religion, age or sex, and Section 23 deals with minority language education rights where numbers warrant. Is there any substantial disagreement with these two Sections?
Mr. Buchanan: No, in fact in our provincial law at the present time there is one amendment which should be there, of course, on Section 15(1), after age or sex, disability. Maybe that would cover it, protection of the law without discrimination, period.
I might say that you honourable ladies and gentlemen may not be aware that in Nova Scotia we have a very far reaching human rights act and a Human Rights Commission, and that just recently we have amended our human rights act to include physical and mental disability.
I think I should note that you have not included it here and I just wanted to remind you of that.
Mr. Irwin: You have said that you agree with patriation and that you would live with the Victoria formula. I really do not know what we are arguing about.
Mr. Buchanan: What we are arguing about, Mr. Irwin, is this. If we are to have a so-called Charter of Rights—and we have not agreed that it should be entrenched in the constitution; but again, we are flexible—in the interest of Canadian unity and everything else that goes with it, we believe that if we are to have an entrenched Charter of Rights embodying all of the fundamental freedoms which you have just outlined, that it should be done here in Canada by Canadians.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Irwin.
I would like now to call on the honourable David Crombie.
Mr. Robinson: On a point of order.
The Joint Chairman (Mr. Joyal): Yes, Mr. Robinson.
Mr. Robinson: With respect to my good friend, Mr. Crombie, according to my understanding the order of speakers was that the New Democratic Party was next. I wonder if you could just clarify that?
The Joint Chairman (Mr. Joyal): I think that with the usual corporation of Mr. Crombie, he will stick to the 5 minutes that we have previously agreed upon, and you should have a chance to go on to a final question.
Mr. Crombie: I just have one question, and I think there will be more than ample time for Mr. Robinson.
The Joint Chairman (Mr. Joyal): Thank you.
Mr. Crombie: Mr. Premier, I think, along with Mr. Mackasey and others this morning, we were very impressed with the conciliatory tone with which you approach the question of the amending formula.
I was particularly impressed with the proposition which you made that there ought to be a meeting of First Ministers prior to an address being sent to London.
I wonder if you have had an opportunity to consider-and I think this was a question—whether or not Premiers would go to such a conference, indeed whether or not any progress could be made either along the Victoria or the Vancouver formula or some modification of either one.
I wonder if you have had an opportunity to read the speech from Mr. Tom Wells, the Minister of Intergovernmental Affairs for the Province of Ontario in his speech on Thursday November 27, when he said, in dealing with the amending formula:
I want to make it clear that Ontario is prepared to enter into discussions as soon as possible to see if we can come up with a formula that could be supported by all governments. We have the time to do so. We have the opportunity, and the message from Ontario is that we have the will.
Now, it is also my understanding that Mr. Sterling Lyon who is the presiding Chairman of the Council of Premiers, is willing to call a meeting at the initiative of certain Premiers.
I would like to ask you whether or not you would welcome an initiative from Premier Davis with respect to a calling of a conference prior to the address to London which would deal with an amending formula?
Mr. Buchanan: Well, I do not know about premier Davis; but certainly I would welcome the initiative of premier Lyon. He is the Chairman of the Canadian premiers Conference. I certainly would be present on behalf of the government of Nova Scotia.
Now, I cannot speak for the others. I sincerely believe they would. I know that in Nova Scotia we have the will to have this thing succeed. We have the desire to have it succeed. I believe the others do. I sincerely believe that.
Mr. Crombie: Thank you very much.
The Joint Chairman (Mr. Joyal): Thank you Mr. Crombie.
Mr. Robinson: Thank you very much, Mr. Chairman.
I would like to join in welcoming this distinguished delegation.
Mr. Premier, I note, in the atmosphere of conciliation and consensus, that it is a multi party delegation. as well; and I think that is desirable.
Mr. Chairman, I cannot help commenting on the remark made by my good friend Bryce Mackasey with respect to the collective bargaining analogy, and with his extensive experience as Minister of Labour, I wonder if he might ponder the question whether or not he is aware of any form or collective
bargaining in which one party, at the end of the collective bargaining process, can unilaterally impose a settlement.
My understanding of the arbitration process is that there is supposed to be some independent third party.
I do not want an answer to that now, because it will cut into my time.
Mr. Mackasey: It will cut into your whole five minutes,
Mr. Robinson: But I wonder if you would like to comment on that at some time.
Now, Mr. Chairman, I have two brief questions.
The Joint Chairman (Mr. Joyal): Mr. Robinson, I would like to advise you that the one who tempts is as responsible as the one who sins. You have offered Mr. Mackasey an open temptation, and I am very grateful that you have resisted it.
Mr. Robinson: Thank you.
I have two brief questions, if I may, Mr. Chairman.
The first question relates to the question of process. You have indicated, Mr. Premier, that you would be in favour, as I understand it, of patriation with an amending formula and that we would settle some of the long-standing grievances here in Canada.
How would you then deal with the concern which has been expressed by native people in this country that they would be excluded, that there would be no protection of treaty or aboriginal rights, and that when the constitution came home, they would have to rely upon the provincial Premiers and the Prime Minister of this country, and that they would have to go on bended knees to them to obtain their rights? What would your response be to that?
Mr. Buchanan: No, I do not really believe that they would be coming on bended knees. They are Canadians as I have indicated in my opening remarks, they were native Canadians before we were here, even though we Nova Scotians were the first, maybe, Canadians. They were even more first than were.
But it seems to me that the native peoples of Canada and their concerns would be better looked after here in Canada also, rather than asking for amendments from Westminster to our constitution.
As I can recall, it has already been agreed that native rights would be on that agenda.
Mr. Robinson: I think it is fair to say that the native people do not believe that it should be up to the provincial Premiers and the Prime Minister of this country to determine what those rights should be.
My final question relates to section 15 of the proposed charter of rights, the equality, nondiscrimination section.
You are aware, Mr. Premier, that your province is bound as all the other provinces already are, by the international covenant on civil and political rights.
Again, on your suggestion that the constitution be patriated with an amending formula with no charter of rights, how can
you defend the suggestion that Canadian women, who comprise 51 per cent of the population of Canada, should have to go before 11 men, 10 Premiers and a Prime Minister, and ask them to give them equal rights in law?
Mr. Buchanan: Well, again, I would think that the Canadian women, who certainly deserve those rights, would certainly not want to go to a foreign government to get their rights when they could get them right here in Canada.
The Joint Chairman (Mr. Joyal): Thank you very much Mr. Robinson.
Before I extend our good wishes to the honourable Mr. Buchanan, I would like to invite our Joint Chairman, Senator Hays to say a word to our distinguished guests this morning.
The Joint Chairman (Senator Hays): Thank you very much.
Mr. Premier, I did not have an opportunity to be at the First Ministers’ Conference, although I did watch it on television.
I think our Committee is very honoured by your presence here—this morning. We certainty appreciate your being here, and I believe your great wisdom and contribution will help our Committee no end.
As a Western Canadian, I want you to know that this applies not only to your province but all the Maritimes—If you were to scratch most Western Canadians deep enough, you will find that they came from the Maritimes, and that we do have a very close rapport with the people of the Maritimes, particularly people from Nova Scotia, and I must say Western Canada is a great deal better off for their presence.
Mr. Buchanan: Thank you very much, I just would like to thank you, Mr. Chairman, and members of your Committee for giving us the opportunity to appear and io put our viewpoint forward on the Canada that we see in the future and the kind of proposals that we would like to see discussed by your Committee.
We agree with you, sir, that Western Canada is a great part of Canada but because of Nova Scotians and other Maritimers who are there.
The Joint Chairman (Mr. Joyal): I would like to add to what has been said on behalf of ail the honourable members of the Committee, by thanking you whole heartedly for having been with us this morning and for having accepted our invitation to participate in the great responsibility we have in deliberating about the future of our country.
I would like to remind honourable members of this Committee that you are heir to a very prestigious tradition of past Premiers of Nova Scotia who came at the federal level and have made a tremendous contribution to Canadian live. I am thinking, in terms of the last decade, of the Honourable Robert Stanfield, the Honourable Gerald Regan; the Honourable Gordon Fairweather, who is still very active on behalf of all Canadians. I am thinking also of the honourable Senator Smith.
I am grateful that you came to us this morning with that sort of conciliatory approach which we have to keep in mind in our discussion if we are to arrive at the common goal that we are pursuing.
Thank you very much.
The meeting is adjourned until 3:30 this afternoon. At that time we will hear from representatives of the Native Womens’ Association of Canada.
The Joint Chairman (Mr. Joyal): Order please.
I would ask the honourable members to take their seats so that we might get on with our work.
It is my privilege this afternoon to welcome on behalf of all the honourable members of this Committee the representatives of the Native Women’s Association of Canada.
Mr. Epp: A Point of order, sir.
The Joint Chairman (Mr. Joyal): Mr. Honourable Jake Epp on a Point of order.
Mr. Epp: Excuse me, Mr. Chairman, to raise a point of order, but I think for the work of the Committee it is important that I do so at this time.
First of all, I want to say to you, Mr. Chairman and to members of the Committee that we are pleased that our motion has been accepted, the motion of February 6 and this Committee can now go on with hearing Canadians and their views on the constitution. What I want to raise, Mr. Chairman, I am not going to do it in the form of a motion, but I want to serve notice to you and especially the Subcommittee and that is that I will be raising and I am just giving this opportunity to members so they can think about it, I would think now in view of the extension to February 6, which we welcome, that the deadline of November 25 which members will recall ended both the submission of written briefs and application to be heard before the Committee, that I will be raising that in Subcommittee with the view of now reopening that date as well and that Canadians who want to be heard, that they can. I just want to serve notice, Mr. Chairman, that that will be done at the first opportunity.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Epp. Mr. Nystrom?
Mr. Nystrom: I want to complement what Mr. Epp has said. When we originally made the decision to have the cut-off date for written briefs and also for people to apply to this Committee to be heard, we were working under the assumption of course that the House of Commons and the Senate had given us the deadline of December 6. I think all of us now should reconsider opening up that deadline once again and pushing it back by several weeks. I am not prepared to make a motion today, but I just would like to ask members of the Committee to think about that, think about what another reasonable deadline would be so we can hear the maximum number of organizations and individuals across this country.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Nystrom. Honourable Bryce Mackasey?
Mr. Mackasey: Mr. Chairman, I am pleased that the matter is going to be referred to the proper group and that is the subcommittee or the steering committee. I know the subject is a very important one and I am sure we would want to take into consideration the 300 odd briefs that we now have and the importance of retaining some priority for those people who have already submitted a brief. I would not want to see a wholesale putting aside all these briefs for a whole new series, but in any event, those are one of the things you would want to discuss at the steering committee.
The Joint Chairman (Mr. Joyal): Thank you honourable Bryce Mackasey. Honourable James McGrath.
Mr. McGrath: I wonder if I can—I must confess that I have not tried this out on my colleagues and I am proceeding with trepidation-I wonder if it might facilitate the work of the steering committee, given the fact that we have so little time to spend in the steering committee because of the schedule wo operate under in the general Committee, if perhaps the Subcommittee could be reactivated, that was known as the Traffic Committee and if it could bring to the steering committee a list of the briefs that are in priority in their estimation because there are a number of important briefs that have been pressuring us to get on the list and some of us have made commitments that we would take up their interests in the steering committee.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. McGrath, for your suggestion. I understand that later on this afternoon it will be given due consideration by those who were involved in that so-called traffic subcommittee.
Thank you very much.
It is my honour today to welcome the president of the Native Women’s Association of Canada, Marlene Pierre-Aggamaway and I would like to ask for her to introduce the other members of her delegation. The brief has already been distributed among the members of the Committee and that you will have an opening statement and you will be agreeable to answer-questions or comment on questions put to your by the honourable members of this Committee.
Mrs. Marlene Pierre-Aggamaway (President, Native Women’s Association of Canada): Thank you honourable members of the Parliament of Canada. We are happy to be here today representing the original nations of Canada. I want to introduce to you Donna Phillips who is a representative of the United Nations of the Iroquois Confederacy to my right. She is an executive member of our Council. To my left is Brigid Hayes who has been acting as a consultant in a number of matters that our organization has been interested in.
We come to this historical event not to directly address the proposed amendment as it is inappropriate from the stand which we are taking. It is inappropriate for us to discuss it as it
is written because it does not allow for native nations for self-determination and self-government on our behalf.
We, the aboriginal women of this land, are making representation to the Government of Canada to declare the sovereignty of our peoples and to serve notice that we intend to relate to Confederation as equal partners with the federal and provincial orders of government, As women we speak for ourselves, our children and the generations yet unborn, and join with the aboriginal peoples of this land in unity to declare that our rights, our nations and our sovereignty are ours to proclaim and ours to exercise. We want you to convey to the Government of Canada our willingness to negotiate and participate in such a partnership.
That is the preamble of our presentation. We will forward the declaration of principle and beliefs.
We believe that it is the fundamental right of every person of aboriginal descent to be recognized as such.
We believe that the aboriginal people hold a special relationship with the British Crown that cannot be extinguished by any Canadian government.
We believe that the aboriginal people of this land belong to sovereign nations that have the right of self-determination.
We believe that the aboriginal rights, set out in the treaties, agreements and conventions and as based on our historical claim to this land, must be recognized.
We believe that the Government of Canada must recognize that the aboriginal people have the right to determine their own form of government.
We believe that it is the right of the aboriginal people to determine their own citizenship, and that it is the right of all people of aboriginal descent who so wish to be recognized as such.
We believe that it is the right of the aboriginal people to retain the uniqueness and vitality of their cultures, customs, languages and heritages.
We believe that no act of the governments of Canada may abrogate, expropriate or extinguish aboriginal rights, including treaty rights.
We believe that the aboriginal people have the right to negotiate as sovereign nations with the governments of Canada to change, alter or amend aboriginal rights through treaties or agreements.
We believe that it is the fundamental right of native women to have access and participation in any decision making process, and full protection of the law without discrimination based on sex or marital status.
We believe that the rights of our children must be protected.
We believe that native women and children must have equal access to all social, economic, health and educational opportunities.
We believe that the rights of aboriginal people must extend to all people of aboriginal descent no matter where they live.
We believe that our future lies as sovereign nations with our rights as women protected. We desire to live under a government of our own making.
We believe that the constitution of Canada and not the Charter of Rights must state that the aboriginal people belong to sovereign nations and that the Government of Canada will honour our sovereignty.
We believe that the Charter of Rights must provide protection for all women.
I must relate to kind gentlemen and women the purpose further to which why we are here.
We represent women from all statuses and it is very ironic that I must state that, that the Indian Act which has controlled our people for so long has divided and defined women and children we no longer know where we are or sometimes who even we are. It is us, the native women, who are mandating our leaders to declare our nationhood. We do not any longer want to live under rules that are created by you, that have destroyed much of the basic fibre of our communities.
All of you in one way or another in your various activities and portfolios must have been informed by now of the problems of our women and children and our families and in the whole, that the problems of alcoholism, the problems of discrimination, the problems of single women who are looking after their children both on and off the reserve alone, the high ratio of almost 50 per cent of our population are parents who are single, singly leading their families without the basic support of not only this government, but sometimes we have failed to do that ourselves as Indian people.
Our organization is now located in Ottawa, We are very new to Ottawa. I want you to understand that while we have, over the last three weeks, drafted up and have put much effort into this, that we are small in terms that we do not have legal advice, we do not have the accesses that you have, but we have still come here prepared to declare, along with all the other nations in this country of who we are.
These feelings represent stated opinions from various provincial women’s organizations who are our members, who in turn have membership at the local level and in the communities on reserves and off reserves and almost every province of this country.
That is a small explanation of how we have come here. We are prepared at this point in time to answer any questions that may come from our declared statements, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Thank you very much for your presentation. I would like to invite to open the discussion with our witnesses, honourable John Fraser.
Mr. Fraser: Thank you very much, Mr. Chairman. Perhaps I could be permitted on behalf of all of my colleagues of the different parties here to welcome you and to say to you sincerely that we appreciate very much the fact that you have taken the effort and the trouble to come before us and that is appreciated and we are here to listen. I might say something else that as members of Parliament, most of us are conscious of the fact that we are your servants and, as a consequence, we have an obligation to listen, as well as a preference to listen to you.
Now, I want to clarify one thing first if I could. you have a series of almost basic principles set out on several pages which you have read to us. I think you said just a few minutes ago that you do not have legal help, you are not a large organization and I take it you are certainly not an affluent one. I gather then that you are not coming to us with a legal brief and you are not coming to us with the intention of trying to tell us how to draft the document. Is that right, do I interpret you correctly?
Ms. Pierre-Aggamaway: Correct.
Mr. Fraser: Now, you may not want to come and tell us how this proposal that the government has put in front of us ought to finally be drafted and I would not ask you to do that. We are being asked to do that and that is not easy, so, I would not ask you to do that.
I wonder if I could ask you about some of the things that you have mentioned so that we can see how the principles that you have espoused here relate to some of the more specific suggestions that, for instance, were made by the Inuit who appeared before us last night and today because if you take for example their brief, which is a legal brief, and I say that in the best sense of the word, it is a very fine brief and it has been thought out very meticulously and carefully by people, who, if they are not lawyers, they are certainly very well trained in history and in the ways of the constitution.
I am wondering if I could ask you some questions now and I will try to relate some of the things that you say that you need from some of the specific proposals that have been put before us.
Now, for instance, this is not particularly related to the Inuit brief but it relates to the briefs of many groups that have come in front of us who have said, yes, we want a charter of rights, we want rights spelled out and we want them in the constitution, but if you take a careful look at the proposal that is in front of us, they say, it will not do it, because Section 1 is defective.
Now, those are arguments that have been brought to us by people who have not been particularly concerned about aboriginal rights or native rights or Métis rights, with status Indian rights, but we are all Canadians here. Let me ask you
this: In principle, if it is decided to set out some certain rights in a charter and that charter is part of the constitution, would you be satisfied if, in the appropriate legal language, some of the principles that you espouse here were set out in such a charter at this time?
Now, would that be of assistance to you?
Ms. Pierre-Aggamaway: Our initial reaction to that was that the charter did not go far enough.
Mr. Fraser: Now, just a minute. On that point, then tell us in what way you feel it does not go far enough because that is helpful to us.
Ms. Pierre-Aggamaway: Okay, what we have said is that we believe that the constitution of Canada, not the charter of rights must state that the aboriginal people belong to sovereign nations and by putting this statement in the constitution we feel that the Government of Canada, by doing so, will ensure that the aboriginal people will be recognized as sovereign nations and as a third order of government.
The way it is now, rights can be denied by Parliament but if they are entrenched, they cannot be tampered with. We want to be recognized in the same way as it is being presented, there being two founding nations of English an French and also Indian government.
Mr. Fraser: Okay, let us see if I have got your point. Are you saying to me, and I think you are, that you represent the original peoples of this country and that as a consequence of that, that you have certain inherent and historical rights, some of which were confirmed by heatres [sic] and some of which have been granted by agreements since then, but that what you are really after is a recognition of your identity as a people within the total Canadian community and the people with whom the rest of us in our dealings with you must reach substantial agreement if the actions of the rest of the community impinge upon your identity and your rights as a people, as part of the Canadian family, but as a distinct people within that family. Is that what you are getting at?
Ms. Pierre-Aggamaway: Yes, nationhood within nation.
Mr. Fraser: All right. Now, let me understand the word “nation”. As I take it, what you mean is nation in the sense of the people, not nation in the sense of necessarily a political entity. Can you help me on that?
Ms. Pierre-Aggamaway: I hope I said third order of government and I am not sure what you are getting at, but what we are stating is that we would act as a third order of government to make agreements with your government for certain kinds of whatever,
Mr. Fraser: Okay, when you talk about a third order of government, I gather, because your brief is very broad, you talk not, for instance, just as the Inuit did of their own people ln a specific, but very large region of the country, you are speaking now of native peoples, aboriginal rights, Métis, status Indians, others, all of the native aboriginal family wherever they may be in Canada.
Ms. Pierre-Aggamaway: Yes.
Mr. Fraser: When you say that you wish that native family within the context of Canada to be treated as a third order of government, I have a little bit of difficulty here. I do not have any trouble understanding the concept of nation and the sense that members of your nation may be anywhere in the country at any given time and I do not have any difficulty in understanding the concept of government to some degree in certain regions where it is practical to have native or original peoples government; for instance, like Nunavut, which is the proposal of the Inuit, But I have a little difficulty understanding quite how you would govern for your people, where your people are scattered throughout an area in which there are already municipal and provincial and federal government levels. Could you address that?
Ms. Pierre-Aggamaway: I am not in a position at this point to share with you on divisions that we have of how our government would work. We are charging our people to do that for us and in that way I cannot be more specific.
Mr. Fraser: All right, that is fine, but am I right in assuming that however you mean the term “government” your fundamental concern is that you must be seen by the rest of us to be an entity, to be a group that recognizes itself as a group and that the actions that we take, or for that matter, the actions that you take, must be done on the basis of a partnership between yourselves and the rest of your fellow Canadians wherever they may be?
Ms. Pierre-Aggamaway: Correct.
Mr. Fraser: You agree with that. Now, I said I would try and stay away from legal language but I draw your attention to something which the Inuit brief this morning said and I will just read it and see if I can relate what you were saying to what they were saying because I think you can. I do not think you have the brief in front of you but it is on page 19 and it says that they propose a new section should be added to this constitutional proposal, and they said that
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
And these are the important words,
are committed to negotiate with the aboriginal peoples of Canada mutually satisfactory rights and protections in the following areas
And then a number of things are itemized.
Now, I come to the words,
are committed to negotiate with the aboriginal peoples of Canada mutually satisfactory rights and protections in the following areas
And I think Mr. Watt said that the rights and the obligations had to have some on-going life to them, and that if there were to be changes or additions or variations, then what our friends who were in front of us this morning and last night were saying is that there must be a commitment to negotiate mutually satisfactory rights and protections.
Now, without trying to pin you down on too much detail, can you say that, and I think you are, but can you say that you are generally supportive of that approach?
Ms. Pierre-Aggamaway: Yes. When we said that we believe that the aboriginal people have the right to negotiate as sovereign nations with governments of Canada to change, alter or amend aboriginal rights through treaties and agreements, we see this as a third order of government which would allow negotiations for changes in the distribution of powers and authority, or definition and exercising of rights through the setting out of mutually agreeable legal documents. That is what we interpret, from our standpoint, what that means.
Mr. Fraser: Just one last question, not because I have no more questions as my colleagues will be quick to tell you, but because my time is running out and they will want to ask some.
Can you let us know a little bit about how you see the Present wording of the Indian Act with respect to the rights of native women, especially when they marry a nonnative person and lose their status. Can you give some views about that and can you give us some suggestion as to what this Committee ought to recommend in that regard, and whether a recommendation for change there has your support and to what extent?
Ms. Pierre-Aggamaway: I imagine that you are referring to the two discriminatory sections of Section 12(1)(b) and Section 12(e) of the Indian Act which clearly discriminate against women and male children, I want to preface anything I say with the fact that we have to at this point live under the Indian Act, but while we are assuming or exercising our nationhood we know that citizenship will be determined by ourselves in our new nationhood outline.
I do not want to prejudice our statements and the declarations that are being made by Inuit or by the National Indian Brotherhood or any other organization that appears here, and l-do not want to negate any of their philosophies by talking about Section 12(1)(b) and what kind of wording we should change it to be, but I still must say that we as women, at least in three provinces where they conducted Indian Act research and came out with documents that unanimously said that they want to be rid of that section, they all wanted it to be retroactive and I can only interpret those two things to say that Indians as defined by the Indian Act, and all of those others who have been excluded, are saying that they now want to be recognized as aboriginal people, and that they can live anywhere in this country without being discriminated against.
So when they are saying these things, that is what I must interpret it as. They are not telling me to change the Indian Act. The Indian Act almost becomes irrelevant-well, it does become irrelevant in the new nationhood concept.
Mr. Fraser: Thank you very much. My time has elapsed. I am sure there will be many questions asked of you while you are here. Thank you very much.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Fraser. I would like now to ask Mrs. Mitchell to join us in the discussion and open the questioning with the guests that we have this afternoon.
Mrs. Mitchell: Thank you very much, Mr. Chairman.
I also would like to congratulate the Native Women’s Association, I know that this is a group that is recently formed and has been formed with representation across Canada and with very few, and I think everyone should make note of this, with very few funds compared to many other organizations, and they have had to struggle to get an organization set up. I commend them for their Ottawa office and certainly I know that women parliamentarians will support efforts to see that they are adequately funded.
I would like to concentrate my questions really on two aspects, one is a little bit on clarifying the relationship and the process, the relationship of your organization to other organizations, and I think that you are probably in support of each other but perhaps we can clarify that; and also I would like to concentrate particularly on the women’s rights part of it and particularly some of the points that were raised by the Advisory Council on the Status of Women where they frequently referred to some of the cases of Indian women, and Section 15 and Section 24 in particular.
So, I wondered, first of all, if you could clarify. for us the relationship of your organization to the National Indian Brotherhood and to the Native Council of Canada and also clarify whether you have met with them in developing these principles and whether there is sort of common support between the two groups and also perhaps you could clarify your relationship also to the other women’s groups, and incidentally we have, Mr. Chairman, three representatives in the audience from the Indian Rights for Indian Women group, I think they also come from a different part of Canada and I would hope at some future date they also will be heard, but I think it would be very useful to also clarify your relationship to that group and whether you are in support of each other’s aims as they affect Indian women in particular.
Ms. Pierre-Aggamaway: Our relationship with the other national organizations, in all honesty, has been touchy at points in time, mainly because some of the Indian women’s groups were taking specific stands on the Indian Act while the National Indian Brotherhood in particular had not taken a stand, or their stand was not to deal with it, which was no stand at all.
So I must admit that while that is now in the past, we have created alliances with the Native Council of Canada and we
are now again discussing with the new leadership in the National Indian Brotherhood a kind of alliance that recognizes and respects our opinions, whether they are different.
As well, the Indian Rights for Indian Women, IRIW for short, is also a recognized national Indian organization, women’s organization. They in particular have focussed their energies on the removal of Section 12(1)(b) of the Indian Act. We are developing a more cohesive relationship with that organization as we are extending that kind of hand to every other national native organization in the country.
Wo have offered also to share our resources, how meagre they are, with the Inuit Indian Women’s group to use their Ottawa offices when they need it.
You asked, secondly, about our principles, how did we come about or come to that stage in thinking. When you are born in Indian country you are raised by parents, especially mothers, who ingrain in you the philosophy of who we are, and since Confederation Indian people have waited for the Government of Canada to treat them not as a sibling but as a nation that we are. While we are being taught, we grow and mature and we still wait for Canadians to truly respect the aboriginal people in this country, that we come to think we did not go over the NIB, we did not go to NCC but when you are Indian you think alike, that is how we come to this position.
Today we are presenting our proposal as being presented through one of the Chiefs to the floor of the Old Chiefs’ Constitution Conference that hopefully will be used as a guideline in future discussions. So we are coming as one from the time we were here in this country and when you came we have tried to grow with you but it does not appear that Canada is growing very well through what they are attempting to do in this proposed amendment.
Mrs. Mitchell: Thank you. I think, then, am I correct in saying that your views here are probably the consensus and that the Indian Rights for Indian Women would support probably with more emphasis on their own problems as victims of Section 12(1)(b) of the Indian Act, and that there is a solidarity in the position that is being presented then.
I wanted to ask also, several times there has been a question about the process of involving Indian people and aboriginal people in the discussions of the constitution, first of all in the earlier stages and now the question of after the constitution comes to Canada and any amendments, and I wondered if you would feel, particularly as you have said that you believe it is the fundamental right of native women to have access and participation in any decision making process, if you would feel that in addition to the native groups that may possibly be dominated more by men, that you would like to have native women involved in that discussion as well so that you would have a voice for women in your own right?
Ms. Pierre-Aggamaway: Yes, I see us as women, as being part of the architecture of our nation, building of our nation, where what kinds of decision making powers, whether we will use the matriarchal system to make decisions in our own Parliament, then we do not at this present time know but we are asking our people to consider what mechanism would be used to ensure our full and complete involvement.
Mrs. Mitchell: Well, I would hope you ask for a voice also with the government of the land when the constitution comes home and they are seeking amendments.
I would like to refer now, if I may, to the amendments that were proposed by the Advisory Council on the Status of Women and maybe I should ask, first of all, are you familiar with what their presentation was? I am sure you have been so busy preparing for this session that you may not have had a chance to look at the legal points. You have seen that?
All right. I do not want to go into that and I am certainly not a lawyer and I will not pretend to go into it from a legalistic point of view but I did want to refer to Section 15, and this section, I believe, was of particular concern to the Status of Women groups because, and they referred particularly to the Lavell and Bedard cases, which I am sure you are very familiar with, because the Status of Women group felt that this was not strong enough, that it did not guarantee the rights of women strongly enough and that in experiences in the past, Section 1(b) of the Canadian Bill of Rights has been interpreted really just to include equality under the law, I believe it is, so it really just refers to the procedure, the administration of the law, not to the substance of the law.
Now, I am already getting a little beyond my own depth so we will not go into that from a technical point of view, but I think it is sufficient to say that the Status of Women groups felt very strongly that this section should be tightened up, the language should be changed, they talked about equality in the law, for example, including the right to equality before the law and to the equal protection and benefit of the law, and I wondered if you had any thoughts on that or whether you would support them and agree in that proposed change? It is really to tighten it up so that there will be a stronger protection, a guarantee of women’s rights in particular in the constitution.
Ms. Pierre-Aggamaway: Since you have asked us to comment on the proposed charter of Rights, we will say that we do agree with your interpretation that the section is not strong enough and will not end discrimination against women.
We do not have the magic words as to how it should be framed; but we will agree that it must be redrafted.
Mrs. Mitchell: Finally, Section 24, the very important one: again, the Status of Women Advisory Council suggested—and these were women lawyers, I am pleased to say—that there be an addition to that section to the effect that provided that such rights or freedoms pertain equally to native men and women.
Now this broadens it very much, to make sure that the things which have happened under Section 12(1)(b) of the Indian Act do not occur again under a revised constitution.
Our concern is that Section 24 really as it now stands reaffirms the status quo, which means discrimination against women who marry non Indians.
Do you agree with what the Council have proposed there?
Ms. Pierre-Aggamaway: Again, since we are being asked to comment on Section 24, the undeclared rights and freedoms, we see that section as providing no guarantee whatsoever for the protection of the aboriginal people of the country.
Now, I am about as much a lawyer as you are.
Mrs. Mitchell: I am not a lawyer.
Ms. Pierre-Aggamaway: Exactly.
I can only say in respect of this particular section, which does not define native people, their rights or freedoms, which does not even state that there are native rights, but merely that the charter should not deny those rights, the section cannot be seen as guaranteeing or entrenching.
Also, by putting it in the Charter of Rights, there is no acknowledgement that native people have the right to self-determination or self-government however we may propose it should take place.
So the undeclared rights of the section just are not satisfactory at all.
I would like to add one supplementary statement. By having the only recognition for native people in that particular section, in times of strife, for instance, the Government of Canada can remove any part of the Charter of Rights without our consent or acknowledgement. That cannot be stated to be any protection for native people.
Mrs. Mitchell: Thank you very much.
Mr. Chairman, I wonder if before the question turns, I might ask if the Committee will consider now that there is an extension, a request made several weeks ago by the Indian Rights for Indian Women Group to appear-before the Committee. All the officers are not here today, and I am sure they would appreciate a date to appear before you with their special concerns.
Ms. Pierre-Aggamaway: Thank you very much, and we also appreciate your support and recommendation to include IRIW representation.
The Joint Chairman (Mr. Joyal): Thank you very much, Mrs. Mitchell.
I would like to invite Madame Celine Hervieux-Payette, followed by the honourable Duff Roblin.
Mrs. Hervieux-Payette: Thank you, Mr. Chairman.
I would also like to welcome the Native Women’s Association of Canada to Ottawa, and say that I feel we have a great
deal in common, since as a women and a Quebecer, I come from a culture different from that of the majority in Canada.
I would like to remind you that I am one of those who freely chose last May 20 to belong to Canada and to play the game according to the rules of Canadian democracy, within the federal government, and to go on to the constitutional review now underway.
From this point of view, I would like to ask the Indian women of Canada if they consider themselves Canadians; having heard their proposed declaration of principles, I find it difficult to know whether the right to self determination and the right to a separate nationhood allows them to consider themselves Canadians as well.
That is my first question and one which I consider basic, since as a Quebecer, I still consider myself Canadian, even if my culture differs from that of the majority of Canadians.
Ms. Pierre-Aggamaway: We are descendants of the aboriginal people of this country. We have lived in the country called Canada, a name which was given to this beautiful land by Europeans. So, you want to feel that I am Canadian; you want to feel that I am a North American Indian; if you want to view me as anything you want, you can call me what you want; but I am a North American aboriginal person; that is what I am. That is how many Indian women, as they are called now, feel—as well as Métis and nonstatus.
Excuse me for asking for more details on your status. I know that we all live in North America. Nonetheless, you realize that you do have Indian colleagues living in the United States who also, I think, belong to the great Indian nation; I would just like to get this point clear, to help in the deliberations of the committee, because no matter who gave Canada its name, the fact remains that the name of our country has evolved. We had Upper Canada and Lower Canada, with four provinces joining together to found the country; bit by bit, other provinces joined the country called Canada which, by the way, I believe is a name taken from an Indian language.
So moving from there, I would just like to ask my Indian sister whether she considers herself a Canadian living in the territory called Canada?
My colleague will speak to this.
Ms. Donna Phillips (Treasurer, Native Women’s Association of Canada): At the beginning this land was called Turtle Island by our people. We still recognize it as Turtle Island. I belong to a society which still follows our traditions, and we still recognize our brothers and sisters in America, though we are separated by legalities.
We say we are North American people, that we have access to both countries. To us it is not two countries. It is one country, a country which our people inhabited from the very beginning.
We want those rights, and that is why we are speaking to the rights we need to have as aboriginal people of this land.
In the beginning it was not Canada, but Turtle Island. I do not define myself as a Canadian or as an American. Anytime anybody asks me that question or a member of my family or any of our people, we define ourselves as North American aboriginal people.
Ms. Pierre-Aggamaway: That is not to say we do not enjoy living in this country. We obviously have otherwise we would not be here, and I hope it does not stop you from proceeding to ask more questions; because we are willing to negotiate and agree on the way in which we choose to live, what kind of arrangements we choose to live under.
Mrs. Hervieux-Payette: Thank you for that clarification.
In any case, I really do not think that we will terminate our discussion in this field.
With respect to the rights included in Section 15, I would like to know whether the Indian women’s concept of nationhood.me4ns that they would like to benefit from the same rights, different rights, or. more rights; in other words, I would like to know the extent of the rights which Indian women would recommend to members of the committee. I am thinking specifically of the right to protection against discrimination based on marriage, on work outside the reserve, or on sex.
Actually, I would like to know what rights our Indian sisters would like to share with us.
Ms. Pierre-Aggamaway: I have to ponder that question, because you arc asking me to be very specific about Section 15(1) and Section 15(2). But the architecture of our Charter of Rights is only beginning to take form or shape. However, I think we would have to discuss women’s rights in the new constitution, designed by and for ourselves. You are asking me how it can be improved, and I cannot suggest any way, except to say that it should be looked at again and that it should eliminate, I guess, Section 15(2) where it talks about “disadvantaged groups”; there should be a proper interpretation or understanding of what “disadvantaged” means.
Also what does equality before the law really mean? I cannot comment any further than that. But those would be the type of things I would have in mind.
Mrs. Hervieux-Payette: As a French-speaking Quebecer, I would like to ask your advice and opinion of the language questions covered in section 16 and the following sections.
I do not want to criticize you, but I would like to mention that your brief is in English only, and I think that your Indian sisters in many parts of Quebec are French-speaking; I wonder whether the Indian associations in Canada recognize equal status for the French language within the Indian nation.
Ms. Pierre-Aggamaway: I guess we could be slapped on the wrist for not being able to translate our document into French.
We are not in a position to do that, and have no resources for that kind of thing.
The Joint Chairman (Mr. Joyal): Thank you, Mrs. Hervieux-Payette.
I would like now to invite the honourable Duff Roblin, followed by the honourable Senator Bird, and I would like to inio.t honourable members that the second round is a 5- minute round.
The honourable Duff Roblin.
Senator Roblin: Thank you, Mr. Chairman.
I have been following this discussion with a good deal of interest, because the witnesses we have before us now are assisting us in facing up to one of the most difficult and perplexing problems that this Committee could deal with, namely, how are we to do justice in this constitutional exercise in which we are engaged to the aboriginal people of Canada.
It is important that they should help us get a hold of this problem, particularly when seen from the viewpoint of the witnesses who are here today, This is not the kind of testimony we hear on every occasion, so we welcome it.
I would like to try and get a better idea of some of the concepts you have in your declaration of principles and beliefs, because it is important to understand them in order to know how to proceed in protecting them.
I wonder if you could give me some idea of who you think about when you refer to “every person of aboriginal descent”.
Now we have a definition in the Indian Act which, I am sure, would not be a completely satisfactory definition from your point of view; and we do know that Indian people are very widely spread in our community; we also know that there are various categories of status, nonstatus Indians, Métis and other descriptions.
How do you look at this expression “every person of aboriginal descent”? Where is the cut-off line? How far would you go? Can you help us to define this idea?
Ms. Pierre-Aggamaway: To be of aboriginal descent is to be born of at least one parent who two generations before descended from the first people. Now, that is a first kind of description we are giving you in answer to that. That is not an acceptable definition at this point in time and has not been thoroughly discussed and agreed to by our own nations. But those are some of the offerings.
Senator Roblin: Thank you. I agree it is a very tough question, I guess that is why I asked it because I do not know the answer myself.
If you were to consider this further and have any suggestions as to how this phrase should be defined and let us have it, I certainly would welcome it, for one.
Now, may I ask about another point that you make in your submission here. You mention that point number 2, the special relationship with the British Crown. Now, the whole question of the relationship of the Parliament of Canada to Westminster, what Westminster can or cannot do or what the Canadian
government can or cannot do is a matter of very wide debate these days in terms of what is constitutional and what is not.
Now, you have added another factor to the mix, that is, the relationship between aboriginal people and the British Crown, Just how do you look at that, what do you think the British Crown’s relationship with aboriginal people is?
Ms. Pierre-Aggamaway: Nations of this country signed treaties with the British Crown upon their arrival and their settling of this country and Canada would be I suppose a creation of the Crown and it should hold a parallel relationship to our native nations and we are using this logic as the third order of government by the very fact that these treaties were signed between two nations.
Senator Roblin: Yes. Thank you for that answer. I notice that the British North America Act makes a provision with respect to aboriginal peoples and apparently hands over the responsibility in respect of those peoples from the British Crown to the Canadian government of 1867. I take it that that does not represent your view and you think that there is a continuing link between the aboriginal peoples and the British Crown that only the British Crown can discharge. I take it that is your position on this matter?
Ms. Pierre-Aggamaway: Yes.
Senator Roblin: Thank you. There is another point I would like to get at and that is the connection of the matter of women’s rights in aboriginal communities.
Having read the Indian Act and having seen the definition that they put in there with respect to some of the rights of women, I must say it seems a little harsh. I am wondering what kind of support you are getting from other aboriginal groups in connection with your claim that the position of women should be much improved in any new constitution we have, the provision of aboriginal women. Are they backing you up on this or what is the situation?
Ms. Pierre-Aggamaway: Our Association, the Native Women’s Association of Canada has not really received any help from the government or anyone else, any private citizen group or whatever, to come here today. We have no direct relationship with any third world countries. However, we understand that the National Indian Brotherhood and other organizations do attend and have a linkage with the United Nations, with the world council of indigenous peoples. So, that is the relationship that we are aware of. We ourselves do not have that relationship.
Senator Roblin: Yes.
The Joint Chairman (Mr. Joyal): Thank you very much Senator Roblin. I would like to invite now honourable Senator Florence Bird.
Senator Bird: Thank you, Mr. Chairman. It is just 10 years ago that the Royal Commission on the Status of Women delivered its brief to the government and one of our most important recommendation was that Section 12(1)(b) of the Indian Act should be thrown out, it was grossly discriminatory and improper and it is still there. So, I guess you know how I teel and I think you have heard me talk about it before. I
understand your problem very well and I also know how difficult it is for you to have come here under all these lights with all these people and I am on your side.
Now, having said that, I do want to ask a couple of questions. First of all, I think I should make clear because I am not sure that you are aware of it, when the Charter of Human Rights is entrenched in the constitution, it supersedes all other legislation, which means that that discriminatory act is thrown out, that discriminatory section.
The second thing is something which you said in reply to one of the questions. The Government of Canada will not be able to change any of those rights and that is why they must be entrenched and why it is important that they should be. It can only be done by an amendment to the constitution.
Now, what I wanted to ask you is this, and I find it a little bit difficult to ask it but I think it is important. I was under the impression that 12(1)(b) in the Indian Act was really there because the majority of the Indian men wanted it there and we were told again and again that this was in the Indian tradition. Now, this is what we had been told.
Now, I also remember that when the Caughnawauga Indian women came to see us and we had, as you know, many women appear before us, they said that they were leaving, of course, you know, we will be beaten up when we go home because we came and asked for those rights; and they were. It was a great upset to all of us in the Commission when we heard what happened to them.
Now, if you did live by rules created by treaty Indians on the reserves, would you be any better off than you are now. Now, I know this is hard to answer and you need not answer it if you do not want to.
Ms. Pierre-Aggamaway: Yes, I guess it is really difficult to respond to what you ate saying, but I am glad you raised the ostracism and the negative reality of the prolonged enactment of Section 12(1)(b) where, if I may, address at this time the situation that exists with Sandra Lovelace in the Tobique reserve in New Brunswick. If I can use her example to demonstrate whether or not we would be better off living under the system that you have created for us under the Indian Act or if we did have command of our own rules that we have made up for our own selves under our own religious and spiritual basis, that I am not quite sure whether we would, but if we were indeed part of the decision-making process, we would have to work and have the same commitment as any other man or child would have to such rules and regulations.
But Sandra Lovelace from the discussions that we have had with some of the representatives, is constantly being pressured. She is at this point in time having her status as a citizen being questioned by the Department of Immigration-is it Manpower and Immigration-the Immigration department and I guess I want to take the opportunity at this time to show our support for her situation. Where she lives she is under constant Pressure to do what she is told to. She has a difficult time, as many
other women in that province have, to live decently with the warmth and food and the necessary things of life and also to bs able to support herself. She is not in the position to do that effectively because of the stand that she takes for herself and her children and for many other people who live in that reserve,
If I may ask that any kind of inquiries which would prove of benefit to her situation by any of the arm-rule members sitting around this table, we would be most supportive of any action that you took to assist her. As a matter of fact, it is today that she is to appear in her home community. As a matter of fact, we do have a letter in our possession which indicates that she must appear before this Committee.
Senator Bird: You did not answer my question and perhaps by not answering it you did. The point that I was trying to make is again that there are certain rules and one of them would be the Charter of Human Rights by which everyone in Canada would be protected. I am just wondering perhaps you would not like to be included in that everyone because we would like to have you there too. I think it is terribly important that all of you come, every person in this country is protected.
Ms. Pierre-Aggamaway: I attempted to answer your first question by using the examples of women who are suffering, whether they are on the reserve or not and I hope I have helped you. My colleague will speak to the other part of the question.
Ms. Phillips: I think you are referring to the first statement. you made and that is why I smiled a bit. You said that Section 12(1)(b) was put there because the Indian men wanted it there.
Senator Bird: That was suggested in a number of cases.
Ms. Phillips: I beg to disagree with you. It was the government that put it there, not the Indian people, Indian people were not even consulted when the Indian Act was developed and that is a misconception that people have and I am sure if we had our own form of government, our men will listen to what we are telling them.
Senator Bird: Thank you very much. Thank you, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Thank you very much Senator Bird. I still have two more speakers on my list: Mr. Hawkes and the honourable Warren Allmand. I am informed that the representatives of the Indian Rights for Indian Women Group are with us in the audience and that they would be agreeable to come to the witness table and continue the discussion that we have just opened with our guests this afternoon and if we would agree to have Mr. Hawkes and Mr. Allmand for a short period of questioning, we could proceed on with the representatives of the Indian Rights for Indian Women.
Mr. Hawkes: Thank you, Mr. Chairman. I will basically bow out but I wonder if Senator Bird would agree with me, and maybe correct something that I think she put on the public record, but having sat here through the testimony from
the Civil Liberties Group and the Commissioner of Official Languages and a variety of witnesses with considerable legal background, I think that the assertion that the Charter as it sits would have a particular effect on Section 12(1)(b) is in reality an over assertion. One might wish might do that, but I think the weight of the testimony that we have heard is that the legal situation would be somewhat uncertain, that whether or not Parliament is supreme or not supreme and the waters are a little murkier than perhaps I detected from the tone of the statement and I am wondering if the Senator would agree and if we could just clarify that and then I will pass it to Mr. Allmand.
Senator Bird: With your permission, may I answer this question?
The Joint Chairman (Mr. Joyal): Certainly, senator Bird.
Senator Bird: It is my understanding this would supersede all other action, that at the end of two years anything that is discriminating in the laws in any parts of the country would have to be rescinded—three years, I am sorry. I think it is the job of this Committee and I presume that that is why we are all here to make absolutely sure that the wording is so clear and correct, that that intention of the government, which is obviously the intention of the government, is not changed.
Mr. Mackasey: Mr. Chairman?
The Joint Chairman (Mr. Joyal): I am sorry to interrupt you Mr. Mackasey. I will recognize you. The President of the Native Women’s Association just indicated to me by her hand that she wanted to add to that.
Mrs. Pierre-Aggamaway: I want to explain that it causes a bit of confusion when we talk about this particular topic because this section could be used to challenge Section 12(1)(b) in that it would be inconsistent with Section 15(1) of the Charter, but perhaps the Indian Act, which is law only for the Indian people and not an affirmative action law could be challenged. While this is not such a negative thing, without entrenchment of rights which recognize treaties, native people could be left with no protection of their rights at all and the whole Indian Act could be challenged under Section 15(1).
The Joint Chairman (Mr. Joyal): Thank you very much. Honourable Warren Allmand?
Mr. Allmand: Mr. Chairman, I will restrict myself to just one question. Marlene and the others, some people have said that we cannot entrench aboriginal rights in the constitution unless it is defined very specifically and since that has not been done we cannot do it for the present time. I do not accept that. The courts have started to interpret aboriginal rights, they did it in the Nishka case, they have done it in the James Bay case before, both Judge Shortini and the Court of Appeal. However, I think you can do it whether you want to define it or not. The way I understand aboriginal rights is that before the Europeans came the aboriginal peoples in this country, the Indians and the Inuits had certain rights and if they have not given them up they still have them. Before the Europeans came they had sovereignty over lands, waters and resources, they had societies, they had laws, they had civilizations, they
had cultures, they had languages, they had economies and if they have not given them up they still have them and that is how I look on aboriginal rights.
Last night or this morning someone asked some of the Inuit representatives how he would define aboriginal rights and he gave a very poetic definition, different than mine, but it was a very good one.
Do you have a definition or do you think it is important to have a definition. In your principles you say you want aboriginal rights recognized in the constitution. Do you think that we must define it now, and, if so, do you have a definition. How would you define it?
Ms. Pierre-Aggamaway: Again, I am going to struggle with that question. I do not have a definition, we have not talked that specific. All we know that we as aboriginal descendants have inherent rights to resources and the right to self-determination.
Mr. Allmand: Well, that is fine, that is the point I made. I think you would agree that we do not have to have a definition to entrench the concept and the fact that you have those rights.
Ms. Pierre-Aggamaway: Exactly. Thank you very much.
The Joint Chairman (Mr. Joyal): Thank you very much Mr. Allmand.
It is my privilege and my honour on behalf of the other Joint Chairman, the honourable Senator Hays and all the honourable members of this Committee to thank you this afternoon for your presentation and, in so doing, I would like to stress something that was said by Donna Phillips. You are yourselves a member of the great Iroquois peoples and I happen to have collected in the past year artifacts of Indian cultures and there is among them a turtle and you have referred in your previous statement that Canada was called Turtle Island.
I have read a lot on the turtle in the Indian culture and the turtle is used because it has two lives: the surface life, which is the life that we see and the life in the deepness of the water. What you have brought to us this afternoon are those two lives of Canada: the surface life, which are the amendments and the corrections that we have to bring to our statute and to our behaviour, as was said by honourable Senator Bird and Mrs. Mitchell and madame Hervieux-Payette. But we have to look ahead for what is our future and I hope, like turtles, we have a second life and that is that second life that we have to build together.
I would like to thank you very much.
Ms. Phillips: Any Iroquois nation too, when talking to our grandfathers, that we are living for seven generations and that is why we are here today for those seven generations. Thank you.
The Joint Chairman (Mr. Joyal): Thank you very much. The honourable Jake Epp?
Mr. Epp: Mr. Chairman, possibly, just prior to seeing the second witness this afternoon. As you will recall, Mr. Chairman, in view of the fact now that the Committee has had an extension to February 6 there is the question that now
remains, namely, that this Committee earlier had rejected a motion which read, and I quote it:
That this Committee instruct the subcommittee on Agenda to prepare a list of constitutional experts to appear as witnesses before the Committee.
There is some discussion as to whether or not the Subcommittee is in fact empowered to now reconsider this question in view of the fact that the Committee has made such a decision. I do not intend to take the time of this Committee. I have given my intention both to Senator Austin and Mr. Nystrom. It is my view that not only must there be expert witnesses, this whole question be now examined, the question must be re-examined of the date of written briefs, the question of additional witnesses now having the right to apply, the time table in terms of witnesses, the time table in terms of clause-by-clause discussion.
Senator Austin, in view of my having suggested to him that I intended to move this motion, has developed a motion of his own. I believe it covers the salient points and therefore I do not intend to move mine and would invite him to move his motion and I would endorse it for quick dispatch in the Committee.
The Joint Chairman (Mr. Joyal): The honourable Senator Austin.
Senator Austin: Thank you, Mr. Chairman.
ln the beginning I would like to put a very tiny footnote on what Mr. Epp has said, in referring to the House of Commons adopting a this afternoon, I wanted to say that the Senate has not yet dealt with the matter, although no doubt it will be in agreement with the House of Commons.
Mr. Chairman, Mr. Epp and Mr. Nystrom and I have discussed this matter and I would simply make a motion and if it is acceptable we would act on it. I move that the subcommittee of the steering committee, which I believe Mr. Nystrom has colloquially called the Traffic Committee be authorized to consider and report to the steering committee as soon as possible the following matters. (1) The time required by this Joint Committee to review the resolution clause by clause; (2) The time required by this Joint Committee to hear witnesses and receive briefs; (3) The question of Joint Committee sittings over the Parliamentary holidays if necessary; (4) Selection of witnesses among organizations and individuals including expert witnesses; (5) Such other matters as the subcommittee should think relevant to discuss and refer to the steering committee.
The Joint Chairman (Mr. Joyal): I understand from Mr. Nystrom’s movement of his head that he does agree to such a motion.
Mr. Nystrom: You have very sharp eyes, Mr. Chairman. I agree to the motion, I think it is sensible and I think we can pass that unanimously. We are going to have to reconsider all the things that Senator Austin has spoken about and how many more witnesses we have, when we call them, enough time for a section-by-section study and whether or not we need some more expert witnesses down the road, and I think it is a sensible idea to refer it all to the Traffic Committee.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Nystrom.
Motion agreed to.
The Joint Chairman (Mr. Joyal): I would like to invite the representatives of the Indian Rights for Indian Women who are in the audience with us to come to the witness table.
On behalf of all the honourable members of this Committee it is my pleasure this afternoon to welcome the representatives of the Indian Rights for Indian Women Group. They are Mrs. Nellie Carlson, Rose Charlie and Barbara Wyss.
I understand that you have circulated a written brief to the honourable members of this Committee, and that you would agree to-make an opening statement, either in reading part of this brief or in making an oral presentation and that you would accept questions by the honourable members of this Committee.
If that is so I would like to invite you to address our Committee.
Ms. Rose Charlie (Western Vice-president, Indian Rights for Indian Women): Thank you very much, Mr. Chairman and the honourable people around the table here.
I would like to thank you very much for accepting us to come and make our presentation at the last minute. We have tried for so long to get in to make a presentation and we thought we were unsuccessful but at the last moment we were able to come in. I appreciate that very much.
We do not have our President, Jennie Margette with us. She was on her way but unfortunately she took ill so she went back home, so we have one of our Board Members with us, Nellie Carlson, and Barbara Wyss is the Treasurer of our organization, and I am Rose Charlie, Western Vice-president to Indian Rights for Indian Women.
First of all I would read parts of my brief and then Barbara is going to finish off and then we will have or we will entertain questions if you so wish from the floor.
First of all I would like to explain the Indian Rights for Indian Women Organization. We have charter members throughout the province. The provincial organizations that are established within the province are charter members to Indian Rights for Indian Women.
Before commenting on specific provisions of the proposed constitutional act, we want to make three general remarks. First, we think it is outrageous that the proposed document makes. no emphatic reference to the special status of the aboriginal peoples of this country. The whole tone of the document gives the impression that anglophones and francophones are not merely numerically dominant but also the founding peoples of this country. It might be replied that emphatic recognition of the position of the aboriginal peoples would.be purely rhetorical, since it would be preposterous to proclaim, say, that all the native languages and dialects should
have the status of “official languages.” But there is a difference between empty rhetoric and solemn proclamation. Constitutions can contain preambles which have an educative and moral force. We think a patriated Canadian constitution should contain a preamble which acknowledges emphatically the special status of the native peoples of this country.
Second, male-dominated native organizations have received funding from the national government to prepare sophisticated stands on the Government’s constitutional proposals. But IRIW, even though it is a national organization of Indian women, has received no such funding. Are the assumptions underlying this policy different from those which have enraged many women independently of race, colour, or creed? We think not.
Finally, the concerns we express concentrate on the injustices suffered for so long by Indian women in Canada. But we are not just Indian women. We are Indian, we are women, we are persons, and we are citizens of Canada and of the various provinces and territories. We are proud, not ashamed, that some of our remarks concern native men and nonnative women as well as ourselves.
Our general response to the Canada Act is, in two important respects, favourable. First, like we believe most Canadians, we favour patriation. Enough ink has been split on this matter that we do not feel obligated to add our 2 cents worth. Second, we believe that a new, patriated constitution should contain a charter of rights, provided that, as is the case in the present proposal, affirmative action programs are not proscribed. Those who appeal to a British heritage of legislative supremacy and tolerance of diversity for protecting rights should look to the current condition of British citizens of black and East Indian ancestry. In these important respects, we support the government.
But, we find the current proposals insupportably vague and/or ambiguous on important points. Admittedly, we are not known for reluctance to write or speak at length on matters we consider important. But we recognize that the Committee’s time is not unlimited, and so we have not commented on every point we consider unacceptable or potentially dangerous. Also, due to lack of funding and the subsequent necessity to rely largely on voluntary help, we have been unable to present our concerns in order of priority as we—and we are sure you—would have preferred. Accordingly, what follows is a commentary on some of the provisions of the proposed Canada Act as they appear in the document. The Canadian Constitution: 1980.
Section 6 deals with mobility rights. As things stand now, Indians have special hunting and fishing rights within their own treaty areas, but not outside them. Does this provision mean that a status Saskatchewan Indian who moves to Ontario carries with him/her those special rights, or not? This matter should be stated clearly; it should definitely not be a matter of unconstrained judicial interpretation.
Section 7 refers to “the principles of fundamental justice.” It would be ridiculous to suggest that a constitution should or could define these principles. But it is surely not too much to ask that these principles be specified, at least broadly. Specifically, could the decision in the Lavell case be confirmed under this provision? If so. we are unalterably opposed to it.
Section 11 has to do with the rights of a person accused of an offence. It neglects the fact that most Indians, and, indeed, most poor people cannot afford first-rate legal counsel, especially where appeal to a higher court is involved. This problem is not dealt with by provincial legal aid programs because they apply only to certain offences.
Section 12 guarantees everyone the right not to be subjected to unusual treatment. Obviously, this provision is meant to apply to those who are accused or convicted of legal offences. But we submit that Indian women who marry non-Indian men have long been subjected to treatment which is not only unusual but also cruel.
Section 14 specifies that:
- A party or witness in any proceedings pho does not understand or speak the language in which the proceedings are conducted has the right to the assistance of an interpreter.
This statement allows the court to decide whether or not the participant in a proceeding does or does not understand English or French well enough to express himself/herself clearly In one or other of those languages. But there are those who can speak only comprehensible English or French, but articulate Cree, Ukrainian, or Chinese. The decision whether or not a translator may be used should be, without exception, that of the accused.
Section 15 deals with “equality before the law.” We find this provision thoroughly unsatisfactory and we believe that all thoughtful Canadians should agree with us in demanding something more substantial. As it has been interpreted by Canadian courts, the requirement of equality before the law has been understood as entirely formal in character, as the notorious Bliss and Lavell decisions indicate, As this provision is now interpreted, equality before the law would be satisfied if there were a law specifying that all Canadian citizens with the surname Trudeau shall be decapitated and if all and only Trudeaus were decapitated. This is simply not good enough. Equality before the law requires clearer and more specific definition. We realize that this is not easy task.
Some differences in treatment are certainly warranted. Cabinet ministers, judges, medical doctors, and policemen, among others must have rights and duties which are not possessed by other Canadians. At the very least, the types of justified inequalities should be stated with some clarity. And, to speak to our own main concern, these types certainly should not allow continued inequality between Indian men and Indian women.
Section 24, the only one that includes reference to the native peoples of this country, could be construed as supporting the defensibility and legality of section 12(1)(B) of the Indian Act. Under that section of that Act, Indian men have rights denied to Indian women. We are unequivocally opposed to this.
Section 31 of the proposed Act deals with regional disparities and equalization. What it fails to recognize is that disadvantaged regions can and do exist within comparatively affluent sectors. For example, there is no doubt that in general northern Alberta is a far more affluent region than Eastern Quebec. But there are communities, typically native communities, in Northern Alberta which would make many communities in Eastern Quebec look rich by comparison. And what about urban native people? No doubt Regina and Vancouver are comparatively affluent places. But the native people in those cities are not suffering from the afflictions of the wealthy.
We join with our native brothers and sisters, including those with whom we have had serious disagreements, in expressing deep suspicion of an extraordinary complex amending formula which seems to permit unilateral alteration or abolition of sacred agreements between the Indian peoples of this country and subsequent immigrants. We cannot support a constitutional revision which allows this.
I will now turn the mike over to Barbara Wyss to finish. Thank you.
Ms. Wyss: In summary, we commend the effort of the Government of Canada to patriate the constitution of our country and to include within it an entrenched charter of rights. But we find a number of the specific provisions in the proposed patriating document to be vague, ambiguous in intent, or simply unacceptable in principle. We are convinced that more work needs to be done before the Government’s admirable objectives can be met. And we believe that we should be not only allowed but encouraged by reasonable funding to participate in the process of constitutional renewal so long overdue.
Because of their longstanding relationship of dependency on the Department of Indian Affairs, native people are in many ways more aware of the effect on their lives of government than most white people.
However, there is a great deal of misunderstanding and conclusion among us—and most white people are at least as perplexed—about the nature of and differences between the Canadian constitution, the Indian Treaties and the Indian Act.
It is generally agreed that a constitution specifies what, when and how governments may and may not act. Some governments like the British, have constitutions which are mostly unwritten. Others like the American, are mostly written, but partly unwritten. Most of the Canadian constitution is contained in the BNA Act of 1867 which, most importantly from the standpoint of the Indian people, distinguishes between the powers of the federal and provincial governments. The powers of the federal government are listed in Section 91 of the act, and those of the provincial governments in Section 92. It is seldom recognized, either by native people or by nonnatives that the BNA Act contains only one brief reference to Indians. Section 91, provision 24 of the BNA Act specifies as a matter of exclusively federal jurisdiction, that is, as a matter which is no business of the provinces.
Indians and land reserved for the Indians.
That is all the BNA Act says about Indians, or, for that matter, about native people in general.
But that short statement is not as insignificant as it may seem. For it means that certain services which are provided to non-Indian citizens by provincial governments must be provided to status Indians by the federal government. This is notably the case in regard to education.
ln the BNA Act education is specified as a purely provincial responsibility; that is for non-native Canadians jurisdiction over education is entirely a provincial matter.
But because of specific provisions in Section 91, the education of Indians is a federal responsibility for Indian education comes down to an obligation to foot the bill for the education of status Indian students.
One more thing should be said about the BNA Act in reference to Indians. Although Indians and lands reserved for the Indians are specifically designated in the BNA Act as a federal, not a provincial, responsibility, Indians are, like all other Canadians, citizens of a province as well as of Canada. Therefore, they are entitled as much as any other citizen, to the protection of their rights of provincial ðitir.nr. Thus, for example, under Section 92 of the BNA Act, the provinces have authority over the solemnization of marriage and over property and civil rights. But of course native people in general, and status Indians in particular, are covered by these provisions as much as anyone else.
Indian women, who are victims of the Indian Act, are not entitled to educational rights as well as her children, but an Indian man’s white spouse-is entitled to that right.
The constitution of a country is law, but it is more fundamental, or, as one might say, more “powerful” than other laws. what this means is that if the Canadian parliament or a provincial legislature tried to make a law that conflicted with
the BNA Act, that law would be declared unconstitutional, that is, null and void, by the Supreme Court of Canada.
For example, the BNA Act gives the federal government exclusive jurisdiction over currency and coinage. Therefore, if a province tried to pass a law enabling it to print its own money, the Supreme Court would declare that unconstitutional.
Similarly, if a province tried to pass a law regulating the conduct of an Indian Band Council, it too would be declared unconstitutional because, as we have seen, lands reserved to the Indians is a matter of federal, not provincial jurisdiction.
The Indian Act is not part of Canada’s constitution. It is an ordinary law, just like the law that we must drive on the right side of the road, or the law that grocery stores cannot sell beer. Just ¡s those laws could be changed in a perfectly ordinary way by government decision, so could the Indian Act.
The Indian treaties are much harder to explain simply. Obviously, they are not ordinary laws. Parliament cannot simply decide to change or abolish the treaties as it sees fit. But, on the other hand, court rulings clearly indicate that the Indian treaties are not treaties in the ordinary sense of agreements between nations.
What are the Indian treaties, then? That question has never really been decided. We will return to it later in this discussion. ln the meantime, we hope we have made it clear that there are important differences between the BNA Act, the Indian Act, and the Indian Treaties. Both natives and nonnative Canadians have been led into some confused thinking by failing to recognize these differences.
There has been a great deal of talk in the past few years about changing the Canadian constitution, or, at least, that part of it which is embodied in the BNA Act.
In order to understand this discussion, it is necessary to grasp the basic meaning of three terms which play a large part in it. The three terms are “patriation”, sometimes the word “repatriation” is used; “entrenchment” of a bill of rights; and “amending formula”.
As to patriation, the BNA Act is an act of the British Parliament which was passed in 1867. Some parts of this fundamental constitutional document cannot be changed except by the British Parliament. In a way that is a mere formality, for the British Parliament automatically makes whatever changes in the BNA Act that are requested by the Canadian government.
But many Canadians consider it an affront that ours is the only country in the world which can change its constitution only with the consent of a foreign government.
Patriation, sometimes misleadingly called repatriation, of the constitution means that the BNA Act could be amended in any respect without asking the British Parliament to enact the
amendment, ln short, “patriation” means bringing the BNA Act home.
Dealing with entrenchment, a bill of rights is a law which prohibits legal discrimination among people on such grounds as religion, age, race, or sex. Canada has a bill of Rights, but it is not part of our constitution. It is just an ordinary law like the law that crossing the street against a red light is Jay-walking. ln the United States, in contrast, their bill of rights is part of their constitution. The particular importance of this difference is easy to illustrate.
ln 1954 the Supreme Court of the United States was faced with the question whether or not segregation of black and white school students was permissible under the United States constitution. Their bill of rights, being part of the United States constitution, the court found that such racial discrimination was unconstitutional. In the notorious Lavell case in Canada, in contrast, sexual discrimination in the Indian Act was found to be constitutionally acceptable, precisely because the Canadian Bill of Rights is not part of the Canadian constitution, but just an ordinary law, If the Lavell case had been decided in the U.S., there is little doubt that Mrs. Lavell would have won, on the ground that the Indian Act violated the Bill of Rights.
Entrenchment of a bill of rights thus means that discrimination on grounds of race, colour, creed, sex, age, et cetera, becomes a matter of constitutional law and not just ordinary law.
As to “amending formula”, as was pointed out earlier, constitutional provisions are more fundamental or “powerful”; than ordinary laws, But this does not mean that constitutional provisions should be written in stone. We want to be able to amend our constitution to correspond to changing circumstances. No doubt we want to make it harder to amend the constitution than to change particular laws. But we do not want to be stuck with a constitution that is so inflexible that it cannot be altered to keep pace with changes in our manner of life. This means that we need a way of amending the constitution that makes it harder to amend than ordinary laws, but not so hard to amend that it becomes a golden cow.
What we need to consider now is how possible changes to the Canadian Constitution could affect native people. Probably the most important change that could be made to the BNA Act from the standpoint of native people would be ones that affected band membership. Suppose, for example, that an attempt were made to include in a new constitution a definition of the term “Indian”, or even to go a step further, to spell out who is eligible for membership in any particular band. This would be a matter of grave concern to all Indians. For, on the one hand, the National Indian Brotherhood has been arguing that guarantees of Indian self government should be written into a new constitution and that decisions as to who may be a member of a particular band should be within the authority of the band council.
On the other hand, Indian Rights for Indian Women has been insisting that the term “Indian” should be given a broader definition than it has now and that while Indian self-government is in principle highly desirable, it is essential that an appeal body be established to ensure that band council decisions regarding membership are consistent and fair.
Another area of potential concern is the entrenchment of a bill of rights. On first consideration, such entrenchment would seem to hold nothing but advantages for native people. After all, who could profit more from a law prohibiting discrimination on the basis of race, colour, or creed?
But there is another side to the story. In some places there is a practice called “affirmative action”, or, sometimes, “negative discrimination”. The purpose of affirmative action programs is to give special advantages to members of groups which are disadvantaged as a result of long-standing discrimination against them, such as black Americans.
Affirmative action programs are especially common in the field of advanced education. In Alberta, for example, if a native student applies to enter law school, he or she is almost certain to be accepted, even over a white student who has better formal qualifications, With an entrenched bill of rights this could be declared unconstitutional on the ground that it involves discrimination. That is not mere speculation. It has actually happened in the United States that laws favouring black students have been declared unconstitutional.
Still another area of concern has to do with the division of powers between the federal and provincial governments. For many years the federal government has been trying to shift some of its responsibility for Indian people to the provinces. There is probably nothing wrong with this in principle. In fact, it might be advantageous to Indians to make use of the expertise of provincial governments in such areas as municipal government, provision of health services, and local policing.
But Indian leaders have taken a very astute position that there should be no transfer of jurisdiction over Indians until there is an absolute guarantee that a revision of the distribution of power between the federal and provincial governments should not violate, or leave open, the possibility of violating the sacred debts of white people to native people. The upshot of all of this is that Indians should not tolerate the transference of powers from the federal to provincial governments without perfect assurance that such transference would not detract from their status as “citizens plus”.
Finally, there is the incredible difficulty of the status of the Indian treaties.
The position of the National Indian Brotherhood is that the treaties should be renegotiated and then included in a revised Canadian Constitution. This seems reasonable, but it is not certain that this is the best way for Indian people to go. There are two reasons for this. First, because no one is really sure what the status of an Indian treaty, is embodying them in the
constitution may make them less powerful than they could be. Secondly, it may be a mistake to enshrine the treaties in law at this point in time, simply because it may be discovered soon that they are unfair, or that the Indians who signed them were not fully aware of what they were doing, or that some Indians simply did not understand the idea of a treaty.
If any or all of these possibilities were real ones, it would be most unwise of Indians to lock themselves into a constitutional document which prevented them from raising later questions about the justice of the treaties.
Since the forgoing was written, the Liberal Government in Ottawa has declared its intention to patriate the Canadian constitution unilaterally, that is, without securing the approval of the provinces or other important interest groups, including Indians.
The Joint Chairman (Mr. Joyal): Thank you very much. I understand you are prepared to accept questions from honourable members of this Committee. I recognize the honourable Jake Epp.
Mr. Epp: Thank you, Mr. Chairman.
On behalf of my colleagues, I would like to thank the Indian Rights for Indian Women who appeared today at short notice. I am pleased that you were able to make the accommodation and to present to us the case that you have made so well today.
The very fact of the publicity which surrounds Indian Rights for Indian Women gives testimony to the fact that, as I believe, the time has come to change Section 12(1)(b). I know your position has been that for some time. So often when discrimination exists in an Act of Parliament, as it does in the Indian Act in Section 12(1)(b), unfortunately it takes a lot of time to either get enough public support so that the weight of public pressure forces the change, or that governments see the validity of changing the Act as you have asked to do.
You have referred to Section 12(1)(b), and throughout your brief I found it very interesting, for instance, at page 3, the manner in which you have interpreted Section 12(1)(b).
For members of the Committee I will only read Section 12(1)(b) and not the reference to Section 11, which is also referred to in that section of the Indian Act. Section 12(1)(b) of the Indian Act reads:
The following persons are not entitled to be registered
That is to say registered as treaty Indians,
and then 12(1)(b)
a woman who married a person who is not an Indian, unless that woman is subsequently the wife or widow of a person described in Section 11.
I will not read Section 11. It is rather lengthy. We know the purport of Section 12(1)(b) and what it does. You mentioned at page 3 of Section 4—and I quote your brief:
But we submit that Indian women who marry non Indian men have long been subjected to treatment which is not only unusual, but also cruel.
I say that is a new approach to that section of the proposed resolution, but one which I think makes your point very well, What I want to ask you is this: as you know, there was a commitment with the former government that we would present to the House of Commons an amendment to Section 12(1)(b) of the Indian Act before the end of the year, namely the end of 1979. As you ate aware of the events of that year, I do not have to go into them, but that opportunity has now gone.
I am asking you whether it is your view that before we look at a charter of rights that as a sign of good will, that the present government should amend Section 12(1)(b) before we look at the constitutional amendments before us.
Mrs. Nellie Carlson (Board Member, Indian Rights for Indian Women): We hope that members of Parliament in their wisdom would look at that Section 12(1)(b), that it is cruel, that in Canada, I am sitting here considering myself as an Indian woman but that Section 12(1)(b) affected me that I am declared non-Indian. So, I am a non-Indian facing you by your law, by your present law. This is what it is.
When is the present government or any other government going to ever change that law that affects Indian women who are declared non-Indians and their children too are non-Indians, yet they are Indians within the Canadian society. They look like Indians but they are not considered as Indians by law.
Mr. Epp: Do you have a commitment from this government and specifically the Minister now responsible for the Indian Act that amendments to Section 12(1)(b) along the lines you have requested will be initiated before the end of this calendar year or next?
Mrs. Carlson: No, there was no commitment made yet by the present government. As a matter of fact, last night we saw Mr. John Munro. The other night he very conveniently ran away from us. I think he knew we would kind of mention something about Section 12(1)(b).
Mr. Epp: So, you have received no commitment from the present Minister?
Mrs. Carlson: No. ln fact, he has not answered to our response that we would like to meet with him to talk with him on that. We met with him May 23 but as yet he has not responded, whether he would meet with Indian Rights for Indian Women again.
Mr. Epp: So, you have been in contact with him on May 23 of this year, we are now at December 2 and you have not had response?
Mrs. Carlson: No response.
Mr. Epp: What plan of action do you have other than before this Committee, which is obviously another plan, to make your case known and that discrimination removed.
Mrs. Carlson: Well, the Sandra Lovelace case is on now in the United Nations. We are fully supporting her.
Mr. Epp: If I understand the case of Sandra Lovelace, that she has been able to put it before the United Nations. Is this the first time that Canada as a nation has been before the United Nations on a case of discrimination of human rights?
Mrs. Carlson: Yes; towards the Indian women, yes, I think it is the first time, yes.
Mr. Epp: I understand that the Sandra Lovelace case is one whereby it has now been seized, is I think the term they use has been seized by the United Nations and that it will be heard by the United Nations along the lines of discrimination, is that correct?
Mrs. Carlson: Yes.
Mr. Epp: Could you explain to the Committee, I realize not only do Indian women lose their rights, a case that at least members on this side and from my party feel that amendments should be made to the Indian Act immediately, could you explain what happens to the children. Do they ever have the ability or the opportunity to regain their rights?
Mrs. Carlson: No. Even men who have been affected, taking themselves off the band list will never get back on the band list; especially men, but a woman who marries another band member can regain back her status, Indian status. There was a complaint made to me this week where an Indian woman in Alberta was married to an Inuit. She could not receive assistance. She is now living on the reserve because they are separated, O’Chiese reserve in Alberta. She is not entitled to live on that reserve because she is now a non-Indian and yet she is married to an Inuit. She is separated. This is just a complaint I got last week. She is not entitled to any assistance from the Department of Indian Affairs and they told her to go to the provincial government. This is why we mentioned something like the Indian Act is cruel. They are applying that law on her yet she is an Indian woman with four children who is married to an Inuit. You had an Inuit person here this morning, you had just said that, whether you recognized her as an Indian or an aboriginal person to this country, I do not know. But we Indian people or Inuit people all look alike and we have what you call a special right that you had made, your forefathers had made, the legitimate agreement on Indian peoples. Therefore, you turn around before you made that legitimate agreement in 1817 called treaties, you turned around and came up with a nice law in 1869 which states an Indian woman who marries a non-Indian is declared a non-Indian and is no longer a member to that band.
Mr. Epp: I thank you for that answer to my question and especially the reference you make to an Indian woman married to an Inuit. If I recall the testimony of the Inuit Tapirisat of Canada today, they regarded themselves interchangeably the word “Indian” for “aboriginal” and that under the Indian Act, they should not have lose their entitlement, according to that interpretation. It is my hope that as we move down the constitutional road, so to speak, that as a sign of goodwill that we are in fact looking at the rights and freedom of individuals, Canadians, thar as a sign of goodwill that Section 12(1)(b) should be amended immediately. But one of the problems that has occurred in the past with the amendment of the proposed amendment of Section 12(1)(b) has been the understanding by
governments generally that they want to move in tandem or co-operation with the Indian people and specifically the Indian leadership and the National Indian Brotherhood is one body of that Indian leadership.
Have you now received agreement from the National Indian Brotherhood leadership that in fact amendments to Section 12(1)(b) should be made and that you have that backing from them.
Mrs. Carlson: Not that I know of, but we have been asking to meet with the new elected President of NIB.
Mr. Epp: Thank you for answering my questions and I hope the change you ask will come soon.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Epp. I would like to recognize now the honourable Bryce Mackasey.
Mr. Mackasey: Mr. Chairman, I will be very brief. I would welcome our guests here. I think your last answer to Mr. Epp, that is, am I clear you have yet to convince the National Indian Brotherhood leadership of the necessity to amend that particular section of the Indian Act which is so discriminatory.
Mrs. Carlson: Yes, we had asked him to specifically talk to him about that, about the Indian women in Section 12(1)(b) but he has not answered yet. The President has written to him.
Mr. Mackasey: Not only is the Minister slow in answering his mail, but there are other people as well.
Mrs. Carlson: Yes, you become bureaucratic.
Mr. Mackasey: I am participating primarily to bring to your attention the remarks of the present Minister, Mr. Munro, who is an extremely sensitive person in a portfolio that requires his degree of sensitivity and understanding. I draw to your attention his remarks in the House of Commons in the Question Period Friday past—forgive me if I do not have the date—he did answer a series of questions on this particular issue and I think it is important to you because he, after all; is a Cabinet Minister speaking on behalf of the government and he expressed the opinion there quite categorically that Section 15(2)—without referring to Section 15(2), but referring to the resolution—would bring an end to this discriminatory sections of the act within a three-year period, if there is no change in the legislation in the meantime. Were you aware of this statement by the Minister?
Mrs. Carlson: No, I was not. But does that mean it is a three-year period you said?
Mr. Mackasey: A three-year period. If nothing happens in the three-year period, the interpretation of what we propose to do here, then Section 15(2) would eliminate that by a three-year period and it is to give all these various statutes an opportunity for the government to amend the statutes in such a way that they then conform with the Charter of Human Rights and since this is very much in contradiction, if at the end of three years these things would have to be changed by the federal government—it does not mean to say they have to wait three years, But more significantly the Minister emphasized what you stated, he would hope that the leadership of the
National Indian Brotherhood would step forward voluntarily in good will. If they do not, that section will disappear in three years anyway.
Mrs. Carlson: Well, do you not think the members of Parliament or the lawmakers could actually change that in less than three years?
Mr. Mackasey: Well, you make a phrase per se. The adaptation I am going to look at tomorrow, is on the order paper of last December and see exactly, precisely what Mr. Epp had proposed. As he pointed out, the events of last December made it impossible for the government of the day to pass all the legislation. This happened in December and since Mr. Epp promised to make this amendment by December, I presume there is some record to that effect. The bill has either had first reading, or at least therefore the title would be there, or second reading and therefore I will be able to see exactly what Mr. Epp proposed last year.
I would like to commend the other witness for what I thought a very perceptive treatment of treaties and you I think expressed the same concern as the Prime Minister expressed in his letter to the Inuit people, that enshrining all your treaties until they are perfectly defined and clarified in the constitution may in the long run work against the best interests of the Indian peoples. Am I right? Would you like to comment a little further on that?
Ms. Wyss: Yes, we feel that because of the time that some of these treaties were written up and agreed to between Indian parties and the Crown, that there were things in there that were not in the best interests of the Indian people and we understand that through the NIB and various Indian groups that they are looking into that.
Mr. Mackasey: You would be better to negotiate them further, rather than have the Supreme Court take them as they are.
Ms. Wyss: Yes.
Mr. Mackasey: Am I right in observing that a fair number of your treaties were really verbal commitments and not all of them were in writing, many of them were verbal?
Ms. Wyss: I could not give a full answer to that. I come from a nontreaty area.
Mr. Mackasey: Some of them are and the difficulty would be to put them in the type of language that would truly reflect what was meant.
Ms. Wyss: Yes.
Mr. Mackasey: Thank you very much.
Mr. Hawkes: A point of order, Mr. Chairman.
The Joint Chairman (Senator Hays): Yes.
Mr. Hawkes: This is just to point out to the witnesses that it is important in the context which Mr. Mackasey said that the Minister of Justice in his testimony before this Committee, and I think he speaks for the government, was much less sure about the impact of Section 15 on situations such as the ladies have brought to our attention today. I think it is just fair that they should be aware that different ministers perhaps have a different sense of certainty about that.
Mr. Mackasey: Talking to the same point of order. I want to assure the witnesses that one of the purposes of the whole exercise is to clean up or clear up this ambiguity when we get to that stage by stage clause and we will do exactly that.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Mackasey and Mr. Hawkes.
I would like to invite now Mrs. Mitchell to join us in the discussion.
Mrs. Mitchell: Thank you, Mr. Chairman. I would like to congratulate this group very much. I know that they have had quite a struggle because they are a group of very few funds and no national office as the previous group had, no paid staff, I believe and have worked under considerable odds and come a long distance, some of them from British Columbia and suffered jet lag white they have been preparing for today’s session.
So, I think I would like to point out again how important it is that there be funding for women’s groups such as this.
I would like to, first of all, refer back to the moratorium. You have been very much involved, in fact, meeting with some of us who are women parliamentarians about the moratorium on Section 12(1)(b) as an interim step to try and get major changes in the Indian Act and now in the constitution. Some of the things that I know you were concerned about, and we are too, is that this, although it is our first step it is pretty limited in as much as it requires the approval of each band and this has been difficult coming for various reasons, although, some have endorsed this. It also means that women like yourself will not be affected because it is not retroactive, it just means that an Indian woman who marries a non-Indian after the moratorium is declared would not have her rights taken away if the local band agreed,
So, it is very, very limited and we do not want this to happen in a constitution. I think it is very clear that there needs to be strong protection entrenched in the constitution, as you have said. I do not want to take time to go over it again, but I would urge you to have a look, if you have not already done so, to the presentations from the Status of Women groups where they did go very carefully over the proposals as it affected your group and where major changes are needed.
I wondered then if you agreed with what I just said and if you could just tell us how you yourself would legally define “Indian”, quite apart from who a person marries. Also, if you would comment on the whole question of the moratorium as you see it.
Ms. Charlie: ln regard to the moratorium, we certainly appreciated the moratorium as it was that we understood that if one of our girls had married a non-Indian she would not lose her status. What has happened in the past is that the governments have made this Section 12(1)(b) that had affected our people so much that when they marry a non-Indian they lose their status, but then there is no way they are recognized as Indian people. They are visibly Indian and they are not recognized.
When an Indian fellow marries a non-Indian women, she gains status and this is where our women feel it is so very cruel. When a non-Indian woman can gain status and she is considered a full-blooded Indian and she becomes registered under the Indian Act and when any of our women come on the reserve they are not recognized as an Indian person any longer under the Indian Act and this is where we want to see changes. If a non-Indian woman gains status, naturally, we respect the fact that her children should be members of the band, but our women cannot even say that they are Indian people.
So, this is what we would like to see changed within the Indian Act, that we feel that Section 12(1)(b) is very discriminatory and should be taken completely out of the Act.
What our people are feeling at the local level is that the governments have made this decision, it was not by themselves, but yet there is an awful lot of chiefs that are agreeing with us. Within the Chiefs’ conferences, there are a few of the chiefs that I was discussing this matter with and there is a fellow that had stated, and he is an hereditary chief that my daughter wants to move home and I cannot accept her back home. This is in regard to the Indian Act.
What are they really doing about it, they do not understand what they can do. They can say to do away with that discriminatory section of the Act, but they are waiting for the government to say that you can do this. But this is what the problem has been with our people that have been put on reserves. They are not fully understanding what their rights are o¡ whether they do have rights and when they are put on reserves, they have been waiting for the Department of Indian Affairs to go and tell them, now, we are going to build a house on this reserve and build another house on the next reserve and they do not feel that they have rights to be able to get up and request this. The problems that they are faced with on the reserves, that they have the right to get up and request these kinds of things. Yet, they are waiting for the governments to tell them, now you are capable and you are able to have a house on your reserve or we can dig for water on your reserve, you can have a water system, and these kinds of things. So it has an awful lot to do with educating our people and educating the governments on how they can work in co-operation together.
The Joint Chairman (Mr. Joyal): Mrs. Carlson, you wanted to add to the answer?
Mrs. Carlson: Yes. My definition of an Indian across Canada is that an Indian who had been born and raised in this country, who had never come from across the ocean to immigrate into this country, but was born and raised, had lived through the hardships but yet, at the same time, as Indian people we have our own highly spiritual belief which we transmit to our children, an Indian language, which a non-Indian woman cannot do to give that kind of transmission of an Indian belief or an Indian language which we have. We have these traditions for thousands and thousands and thousands of years. Indian people have been here and they have their certain beliefs, spiritual beliefs, that is my definition of an Indian and that is something that no other race of people could transmit
that kind of highly spiritual belief that we have, that we can carry on to our own children and our children yet unborn.
That is my definition of an Indian.
The Joint Chairman (Mr. Joyal): Thank you very much. Thank you very much, Mrs. Mitchell. I would like to ask Mr. Mclean for a short question. I still have on my list the honourable Senator Bird and Madame Payette for a short question. I understood it is getting late and that we have been almost abusive of our guests and witnesses this afternoon. Mr. McLean.
Mr. Mclean: I want to join others at the table in saying how much we appreciate the testimony of the witnesses this afternoon and the preparation they have done in presenting the background. I was one of the Canadian delegation at the UN Conference in Copenhagen on the Women, and at that time Sandra Lovelace came to speak to women there from around the world about problems that she was having and the case which she was taking to Geneva, and I was one who was embarrassed that at the same time we as a nation were signing the Covenant of Human Rights and committing ourselves, that we had this grave embarrassment in terms of Indian women’s rights and I know that I think all of us are anxious that that enigma, that injustice be dealt with and at the same time that we include the great richness and sensitivity that the native peoples bring to our Canadian community and mosaic.
I find, as your paper goes, that it seems to me, and I would appreciate your comments, that at one point you are arguing for entrenchment, then as you go on several pages later, as I re-read the text, you are saying: we are really not for entrenchment. I wonder whether for the record you could indicate to us just where your thinking is at that point?
The Joint Chairman (Mr. Joyal): Mrs. Carlson.
Mrs. Carlson: At that point when we were meeting with our consultant, I think that was where the girl had typed it, but we are actually saying that for entrenchment of Indian rights into the Canadian constitution was that there was one or two words that were not written there because we were saying that. Ln other words, when you say we were not for the entrenchment, I think that there was a word of misspelling because it was written in a hurry and we were supposed to have someone here to write it for us again but we did not.
Mr. Mclean: But your intention is to say that you are clearly for the entrenchment?
Mrs. Carlson: Yes, entrenchment of Indian Rights in the Canadian Constitution.
Mr. Mclean: Are you then saying that this should be after the amendment of Section 12(l)(b) or not until that time?
Mrs. Carlson: Not until that time.
Mr. Mclean: I wonder, Mr. Chairman, I will just take one more moment, in your document and notes to us early on, in fact on the first page, you make a comment about funding and the matter of your inability to have the funding to press the claims which you are making today, and we are appreciative of that. I wonder if you could say a word to us about the direction of your requests for funding and the circumstances of the refusal? Was that through the Department of Indian Affairs,
was it through the Department of the Secretary of State, and what were the reasons for the refusal of the funds, and the reason that I ask for this information is that other national women’s organizations have told me that in their efforts to organize and come together to discuss the constitution, they have also found that obstacles were put in their way and the grants they might have expected suddenly were not available and there were other reasons, and it would seem that there is a sensitivity to what women are saying about these provisions and I wonder if you could help us with what were the circumstances in your case?
The Joint Chairman (Mr. Joyal): Mrs. Carlson.
Mrs. Carlson: We speak about funding because that is where the inequality is, is that the men or the parliamentarians have always had substantial and highly priced consultants for whatever laws were to be changed, that they can go ahead and make laws like that. The same as our own people in other organizations, male dominated organizations, they have had large, substantial amounts of funding. I am sitting here sponsored by the provincial Government of Alberta, we took advantage to appear before you and these two people have been sponsored by the Secretary of State but they had a meeting with them and we thought we would take advantage of this because, through lack of funding, we could not appear another time. I think that is what we had meant. We had simply had a hard time for the Secretary of State to lobby for us enough funding to the Treasury Board and this is exactly what happened.
Under the native womens program there had been an increased funding, but, remember, that money is supposed to go across Canada for other native groups, not only for the groups that are specifically concerned with Section 12(1)(b). That money is supposed to be divided amongst other groups, so that is what we are saying.
Mr. McLean: So, Mr. Chairman, in terms of the funds that were made available for preparation to the native committee, that has been directed then to men and not to women to come before this Committee?
Mrs. Carlson: There is money available to the three major native organizations, and that is the ITT, NCC, NIB, $400,000 each. No moneys have come to Indian rights for Indian women or the previous women who have appeared here.
Mr. McLean: Thank you very much. Thank you, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Thank you, Mr. McLean, for your co-operation. I would like to invite now the honourable Senator Bird.
Senator Bird: Thank you, Mr. Chairman.
I do congratulate you on this well prepared brief and also for the courage you have shown, and also for the marvellous eloquence which I have always expected of Indian women and always received.
Now, I want to make three small points: one is that your worry about the affirmative action I think is taken care of
under Section 15(2). I think the reason that is there is to avoid the very difficulty that you were discussing, that Indians are regarded in many areas as disadvantaged groups, many Indians are not because they do not need to be regarded so, but affirmative action I think is safe under that section.
Secondly, about the Inuit and the Indian women who marry an Inuit, I think the Indian Act of course only applies to treaty Indians living on reserves, as you know. The Inuit never had any treaties with anyone, really non-Indian in the true sense, and if you look back in history they never regarded themselves as Indians nor did the Indians regard Inuit as anything but non-Indians, and I think therefore, that that interpretation of the act was probably perfectly correct, at least it would seem to me to be if you think back over history.
Now, the third part is about the moratorium.
I agree with the speaker earlier who pointed out that it was not perhaps ideal, but it is true that the Minister did offer a moratorium until such a time as the constitution would be entrenched, the three year period would go by in which the act would be wiped out, that Section 12(1)(b) would be wiped out, and as far as I can find out only 15 of the treaty Indian tribes have answered that or agreed to it and therefore it would seem to me, and I do not want to put you in an embarrassing position but I think we must get at the truth of this, that the fault lies not with the government but with those tribes on certain reserves more than not who have not agreed with this and I think we must face this quite honestly, that is it not perhaps the Indian Brotherhood who are more at fault over this issue than the government?
The Joint Chairman (Mr. Joyal): Mrs. Carlson.
Mrs. Carlson: The first thing I must say is that the moratorium was a government cop out.
Senator Bird: What did you say?
Mrs. Carlson: It is a government cop out. Then they put it in the hands of the Chiefs and Councils, which we as Indian people across Canada have been thoroughly brainwashed by Indian Act. We have been thoroughly brainwashed by the Indian Act, it is pitiful, then a moratorium goes in place. Rose Charlie just said that many of us do not understand what our rights are on the reserve. She just said that. It is true that as soon as any new changes are coming, then we run scared as Indian people
Senator Bird: Well, do you think the Council thinks it is a good idea for Indian women to lose their rights on the reserve and to have to sell off everything in 30 days and lose the rights of their children to the reserve rights? Do the majority, do you think, of the Indian Brotherhood or the Indian chiefs and the councils, do you think the majority of them feel that this is wrong when it happens to Indian women?
Mrs. Carlson: That is what I mean. I think this has been amended, and if you have not looked at your Indian Act yet, it is that there was a section in the Indian Act which states that
if you speak against the Indian Act you would be prosecuted as an Indian person. In fact, I was married in 1947, then in 1950 the Indian Act did not affect me but I put myself off the band list to fight the Indian Act so that I would not be under the jurisdiction of the Indian Act where it would not affect me, they could not prosecute me. And then therefore, this is what Indian people have always believed, and that is that you cannot speak to say that this is a law. There are many white people, there are so many white people they overpower us, and this is how the law states, throughout the years, down through the years Indian people have been telling us that.
We are not disrespectful as Indian people by speaking out, we are only speaking of the injustice. Throughout the years we have been told never to speak up, never to speak up, and this is why when they put a moratorium by the women members of Parliament and Senators and then the Minister of Indian Affairs puts it in the hands of the chiefs and council, which is I government cop out, then they turn around and they do not really want to talk about this, it has to be hush hush.
Senator Bird: Two questions, brief ones, because our time is running out. Do Indian women vote of course on the council? I know there are some women who…
Mrs. Carlson: There are some who are women chiefs, yes, there are also those who sit on band council.
Senator Bird: Some do and some do not, that varies.
Now, one final thing because I can see what you mean, that the status quo seems to be well sewed in, but when the Royal Commission recommended that the act be changed, of course, the Iroquois Women’s support was fine, but I received a great many phone calls from Alberta Indians saying how dare they do this? You are interfering with our culture. Our culture is that the men carry on, that women take a much more backward position, and how dare you make recommendations that interfere with our culture?
Mrs. Carlson: I think they are losing their culture as fast as they can by marrying white women, so therefore any transmission of an Indian belief, an Indian tradition going towards those children, it is not happening.
Senator Bird: Thank you, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Thank you, senator Bird.
I will now recognize Mrs. Hervieux-Payette.
Madame Payette: Well, I would like to comment on the excellent brief that was presented to us by the group and I thank them for appearing on such short notice. I do agree with them that the culture and traditions are more probably transmitted by the women than the men because usually they are more often with their kids at home and on that I think we share the same concern, but I would like to point out for the information of all the members of this committee, because I have been quite involved with the repeal of Section 12(1)(b) and I was in touch with your group and the previous group that actually, after meeting with Chief Riley of the National Indian Brotherhood some ten days ago, that he agreed to present to his executive a resolution that would support the
women parliamentarian. So we are expecting a positive answer and we are expecting that within the bands the repeal of Section 12(1)(b), at least the moratorium be applied.
I would like to correct, if you will allow me, Senator Bird, the number of bands who have asked the Minister to apply the moratorium is now 47, so we are close to 10 percent of the Indian Bands in Canada, and I was told by the Deputy Minister, Mr. Therrien, that this is a very high number for the time being because the communications are not the very best, the Indians may be not having their residences on the main streets of Calgary or in any big city so there is some delay in communicating, but I think actually it is very, very encouraging and I do agree that even though it is not granting any rights retroactively, I just wish that after this has been done we would be able to amend the Indian Act, alter the negotiations are on their way, to include all Indian men and women that were deprived of their rights because of the application of Section 12(1)(b).
My perhaps final remark would be that even though the funding was not very great for your participation, I must tell you that your brief does not show that lack of funding, that your brief was very good, that you spoke with you heart and that this is probably the way we should speak about the future of our country.
I have only one question and it is with regards to Section 15. Do you agree with probably some amendments that the protection that would be granted to women with regard to discrimination, would you agree or would you support any reference to not only sex but also to marital status, to make sure that we would be prevented from discriminating in the future, based not only on sex but also on marital status?
The Joint Chairman (Mr. Joyal): Mrs. Carlson.
Mrs. Carlson: Yes. I just wondered what kind of protection would be granted if they are not going to recognize retroactivity on Indian women?
Madame Payette: I think probably within the constitution the retroactivity would not be granted but legally it is permitted that the law be amended, with of course the Indian agreeing to it, that the law be amended to give back the rights because I do not think…
Mrs. Mitchell: If they can afford lawyers. Are they going to be able to afford lawyers?
Mrs. Carlson: In other words, that what you just said is that it would not protect Indian women who had married previous to 1980, that is what it is, so it would not hold any protection, any guaranteed protection on Indian women because it does not recognize retroactivity.
Madame Payette: No, I agree with you that it does not restore status but I do believe the actual motion on becoming the constitution would not deprive the government of the opportunity of changing the law and giving back the rights. Where retroactivity cannot apply, I think in terms of law, is where you deprive people of rights, but where you can give rights I do not see an opposition party opposing a law that will grant more rights retroactively and this is in connection with
the three years granted to governments to change the law. We will be obliged to remove from the Indian Act all the discriminatory clauses, and by removing the discriminatory clauses there is certainly the possibility of giving back the rights that were removed from the original bill.
Mrs. Carlson: I think Indian Rights for Indian women would be satisfied if there is a guaranteed protection on all Indian women across Canada, and that is since the Indian Act has affected them. That is the only reply I can give you.
Madame Payette: Thank you.
The Joint Chairman (Mr. Joyal): Thank you very much, Mrs. Carlson. It is my honour on behalf of the honourable Senator Hays and all members of this Committee to thank you and I would like to commend you especially for your proudness, your courage and your frankness, Those three elements have been at the roots of Indian culture and I hope that all Canadians who listen to you through television will appreciate that that is the sentiment you feel and that you expressed when you convinced us that- we should remove all discriminatory clauses in the Indian Act and that we should establish the future of this country on fairness and equality.
Thank you very much.
Mrs. Charlie: And thank you very much.
The Joint Chairman (Mr. Joyal): I recognize the honourable Senator Austin on a point of order.
Senator Austin: Thank you, Mr. Chairman. I wanted to refer to a document which has been put in front of members of the Committee under the title Communication to the Joint Parliamentary Standing Committee from the Constitution Express.
I would like to refer you particularly to the third paragraph where, after advising us that they do not wish to appear before us—and I would like to say that they have previously requested to appear and we made room in our agenda to hear them—they go on to say:
The Constitution Express brought over 700 people from British Columbia, elders, chiefs, band members. We have over 70 petitions, carefully prepared by our people. Yet, we have been advised that we have, altogether, 45 minutes to speak. We cannot submit to this mockery. We feel sad for the Canadian people.
Well, I hope what is a grave misunderstanding can be cured here, because I am not aware that any limitation of the time of people representing the Constitution Express was indicated to them. Certainly, I would like to say, with respect to the government’s side, that we have never indicated any such limitation; so that I wish, through you, Mr. Chairman, that if there is any misunderstanding with the Constitutional Express people it could be dealt with.
The Joint Chairman (Mr. Joyal): Thank you, Senator Austin.
I, myself, was astonished when I read the press communique and the same words to which you have just drawn our attention.
I am satisfied after consultation with our services staff that there was a misunderstanding. As you and all members of this Committee will remember, two weeks ago we all unanimously agreed that no witness should be granted only 45 minutes.
You will also remember that this Committee remained at the disposal of all the natives and Indian bands that wanted to appear and who were here in Ottawa this very weekend; we have postponed twice the meeting with the National Indian Brotherhood at their request, because they have not completed their discussions.
We have been very flexible, to my knowledge, with the National Indian Brotherhood, and we are as ready to be as flexible with the constitutional Express group.
After reading that this afternoon, I requested our services responsible for communications with our witnesses, to inform them that we usually go far beyond the time that is scheduled, For instance, take the last group we have just heard, namely, the Indian Rights for Indian Women; we were supposed to have heard them for an hour and a half. That was the same with almost all the witnesses in the last two weeks.
I am sure it is a misunderstanding, and I have instructed our services to inform them that we would open our meetings for at least two hours for them, and agree to continue to a later hour in the evening, as we did last night with the Inuit, when we went more than three hours with the Inuit.
As I have said, I have asked our services to get in touch with them to try and correct this wrong impression.
Of course, if that is not the only argument why they have decided not to appear, then we agree and recognize that any group or Canadian is always free to come or not to come, to change his mind according to his own decision.
But I think your point is well taken, and I have passed the same views to the honourable Jake Epp this afternoon, and please be assured that that point has been corrected.
The honourable Jake Epp.
Mr. Epp: Thank you, Mr. Chairman. What you have conveyed to me and now made public is correct. I do not wish to address the press release. I think all of that has been done, with one caveat; because I am sure that Senator Austin did not mean to convey the wrong impression, though it could be so interpreted, because he said “from the government side”. But as I understand it, I am sure correctly, all members of the Committee agreed that 45 minutes was not to be allotted to any one witness who was to appear before the Committee.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Epp.
The meeting is now adjourned until 8.00 tonight at which time we will hear the representatives of the Native Council of Canada.
The Joint Chairman (Senator Hays): Honourable members, if we can call the meeting to order I should like to introduce the Native Council of Canada, Mr. Harry Daniels, the President.
Mr. Daniels, if you would like to introduce your colleagues and then make an opening statement, then members of the Committee would like to ask you some questions.
Mr. Harry Daniels (President, Native Council of Canada): Thank you, Mr. Chairman. On my immediate right is the Vice-President of the Native Council of Canada, Louis Smokey Bruyère; on his right is Gene Rhéaume, former member of Parliament for the Northwest Territories; on my left is Vic Savino, legal counsel.
Behind me I have David Nahwegahbow, legal counsel; John Weinstein, an advisor; and my Secretary Assistant Janet Wightman; and Art Manuel, legal counsel; and myself Harry Daniels, President of the Council.
Mr. Chairman, we have a prepared statement which we will read from and then, according to your rules, field questions as your committee wishes.
Mr. Chairmen, Honourable Senators and Honourable Members of Parliament. By way of opening, let me say at once that our appearance before you is accompanied by mixed end sometimes conflicting feelings. We are first of all conscious of the historical significance of this session with a sense of history that is deep and pervasive. These feelings are accompanied by an equally profound mistrust and suspicion that is rooted not only in the past 400 years of false promises to Native people, but in such contemporary events as the broken commitment by your government to provide us with full participation in this very process.
Honourable members of the Committee, you must be as tired of listening to these complaints as we are of making them. That does not alter the fact that, speaking as sincerely and candidly as I can, we simply do not trust you, or your government, or any provincial government to properly protect our rights. If this Committee will not only “listen” to our proposals, but will actually “hear” them, then that in itself would be a breakthrough for all of us.
In a strange kind of way the Native people of Canada perhaps owe the non-native people a belated apology for several centuries of neglect. When your people first came to North America you needed, and got, our help. We shared our intimate knowledge of the country and its resources which allowed you to survive. We shared our knowledge of its geography which allowed you to successfully explore, then settle and then exploit. We shared the land and, quite often, our ancestry with you. It is obvious to us now that we did not
go far enough and that we left you on your own much too early.
For the past 200 years we have watched you make a series of startling and frightening mistakes that have brought you and your social and economic structures to the brink of self-inflicted disaster. We have let you poison the air at Thurso and Dryden and Flin Flon and Prince George. We have stood by while you turned Lake Erie into a cesspool and the Ottawa and Wabigoon and Saskatchewan Rivers into open sewers. We said nothing while you turned vast sections of the land into Sudbury moonscapes, We have seen you build traffic-congested cities in which you cannot drive by day or even walk safely by night. We have heard your tedious, indeed, childish squabbles over who should get what rake-off from each barrel of oil exported to people more intent on dominating you than you are of dominating us.
How in the name of the Great Spirit can the native people of Canada feel secure in the face of assurances that you, this very same group of people, are genuinely committed to protecting for us a quality of life that you have destroyed for yourselves? Why would we trust you?
Many generations of native people undoubtedly hoped that, given time, you would learn from your mistakes, but it is becoming apparent that you need even more help today in nation-building that you did 400 years ago.
Well, honourable members and Senators, our native people are firmly committed to a Canada built on equality and justice and respect and a willingness to share and, yes, brotherhood. We do not intend to remain “observers” while you implement a piece of legislation that will not only destroy yourselves, but will take us and our way of life with it.
Mr. Chairman, in appearing before this Committee we find ourselves once again attempting to salvage, at the last moment, some semblance of the commitments made by successive governments to native peoples for their direct participation in constitutional renewal. Other parties to this process, with much less provocation, have out of frustration chosen to bypass your Committee and proceed through the courts, We have not yet chosen this route. We still see ourselves bound by the commitments we share with governments for full, equal and ongoing participation in constitutional change. For us, such a commitment entails a process of joint negotiations with government, premised on the recognition of our special status as aboriginal peoples and conducted in a spirit of good faith.
The past few years have seen many attempts by native leaders to obtain governmental reciprocity on this commitment. All of these attempts, whether in the form of briefs to special parliamentary Committees, submissions to First Ministers, or appearances before the CCMC subcommittees, have
been undertaken in the sincere belief that at least the beginnings of participation were in the offing.
At the initial First Ministers’ conferences in October 1978 and February 1979, we were unable to obtain more than observer status. We presented a brief at the October, 1978 conference, which opposed an amendment process which did not provide for full native participation and we called for positive recognition of the special status which we have in virtue of our aboriginal rights.
As on previous occasions, we received no reply to our representations, although the agenda for First Ministers was expanded to include the item, Canada’s native people and the Constitution.
At a joint Cabinet-NCC meeting on March 19, 1979, the issue of constitutional renewal was again raised and we were given some hope that a more substantive participation would begin, first at the level of officials, then with ministers. In describing the new process, the then Minister of State for Federal-Provincial Relations, Mr. John Reid, stated that, and I quote:
It may need to be stressed that the way in which this Constitutional subject is being handled is unique. The full participation of native peoples constitutes, in our view, substantial recognition of the special place occupied by Métis and nonstatus Indians and by the status Indians and the Inuit. This was what we intended.
At this time the NCC presented the declaration of Métis and Indian rights as the principles for its position on the constitution, principles which had been approved by the NCC Board and by the National Assembly. I would now like to table this declaration.
Again, Mr. Chairman, we received no response to our submission and the promised trilateral negotiations with federal and provincial ministers were never established.
It was only in December, 1979, at a meeting with the steering committee of the CCMC, that we once more had an opportunity to address the issue of participation. We were told for the second time of the uniqueness and importance that Government placed on our participation: The chairman of the CCMC, the Honourable William Jarvis, asserted:
This is the first occasion in history where elected representatives of federal and provincial governments in Canada have sat down with leaders of the first peoples to take the preliminary steps which will, I hope, enable us to review, clarify and revise the constitution.
Now we were getting somewhere! Or so we thought, It soon became apparent that the steering committee could only listen, it could not respond. Its mandate was to carry our message to the CCMC and then to First Ministers, who presumably could respond. But they did not.
The next round of “participation” began anew following the February 1980 election, when the Prime Minister indirectly announced, at an all chiefs conference, that funding would be made available to finance the constitutional work of the three national native organizations. By July, 1980, the NCC managed to conclude a contribution agreement with the government for the purpose of preparing its position on the constitution. The funds were intended, and have been used, to establish a constitutional review commission to obtain the views of all Métis and nonstatus Indians in Canada, so that when negotiations take place their concerns will be fully known and represented. When the contribution agreement was concluded, there was no suggestion that this participation would follow patriation. We began our work on the assumption that patriation and amendment would follow the process of trilateral negotiation.
We learned in June that the First Ministers had decided to delete the item, Canada’s native Peoples and the constitution from the summer agenda. In a letter to the Prime Minister on June 25 of this year, I requested clarification of the form of our participation in the future, drawing the Prime Minister’s attention to our position that we must be involved at every step as full and equal partners, and I quote from that letter:
A promise to this effect was given us last November by the former Prime Minister, Mr. Joe Clark, and we participated in the December 3 meeting of the steering committee of the CCMC on that basis. I think I made it clear at the time that native people are not to be treated as just another interest group presenting briefs to this or that committee but part of the ratification process itself. History would condemn us if we accepted any other role.
ln his response, the Prime Minister could only state that a meeting of a CCMC subcommittee had been mandated to meet with the three native organizations.
At our meeting of August 26, 1980 with a subcommittee of the CCMC, we presented positions on the 12 agenda items. All three native groups had substantive concerns on each of the items under discussion and it was on the understanding that the First Ministers would take these concerns seriously that we addressed the subcommittee at all.
The Minister of Justice assured us that this would be the case, as did he promise to have his officials meet with our to begin the process of joint work by redrafting a new preamble for consideration by First Ministers.
Neither of these commitments were realized. At the First Ministers’ conference in September of this year, we were again only granted observer status. Beyond token reference by a few Premiers and the Prime Minister to native people, the only substantive mention made was to our supposed acceptance of the new federal draft preamble.
We saw this draft for the first time when it was tabled during the conference, and we had had no hand in drafting it.
Following the experience of the First Ministers’ conference, I wrote to the Prime Minister regarding the wholly new factor in the constitutional debate—unilateral patriation.
I said in that letter and I quote:
If any unilateral action is planned to patriate the constitution, may we have your assurance that our proposals to have aboriginal rights entrenched in the constitution separately from the proposed Charter of Rights and Freedoms be seriously considered for inclusion in a resolution placed before Parliament. It is our understanding that it would be within your ability to do so under the BNA Act, as the responsibility for native peoples lies with the federal government.
As we have made clear on numerous occasions, we do not oppose patriation, even unilateral patriation, as long as we are assured of some movement on native rights.
Now, Mr. Chairman, our journey through the history of native participation comes to the proposed resolution.
The proposed resolution as it now stands does not provide any definition of our rights and freedoms. It does not protect our supposed participation in constitutional renewal. And it does not offer to our people any hope that our rights and our participation will be enshrined in the future.
make it clear that the Charter is not intended to affect any rights and freedoms not specified in it, including those of the native peoples.
On the surface this section is aimed at the very minimal goal of avoiding conflicts between the individualistic provisions of the Charter and the collective nature of whatever rights exist for native peoples. But it fails in this goal by only protecting rights from denial, as the wording in the clause indicates. This wording would not only permit any legislative or constitutional provision nor a part of the Charter to deny the rights alluded to. It would also permit any diminishment short of outright denial by the Charter itself.
We find no comfort in the last part of the clause, which reads:
The sole mention of native peoples in the document is, of course, in Section 24, which reads:
The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada, including any rights or freedoms that pertain to the native peoples of Canada.
Aside from our dismay at not even being asked to assist in drafting the section, we view the section as an unqualified failure. It fails both in the wider sense of what must, at a minimum, be entrenched in the constitution to assure our rights will be recognized and protected and in the narrower
sense of failing even to achieve what the government would wish us to believe the section accomplishes.
The intent of the section, according to
Rights or freedoms that pertain to the native peoples.
First of all, it is not clear what rights the section refers to. By avoiding the more relevant phrasing, “aboriginal rights and freedoms”, the clause could easily be seen to refer only to rights all Canadians share. Secondly, the clause does not say how whatever rights which exist and pertain to Native peoples are to be defined and recognized. Here the sections on constitutional conferences and amending procedures might have avoided this problem by providing lo¡ our participation-but they did not. Finally, the clause suggests that a cut-off date for our rights exists, with all of the rights which might emerge out of post-patriation negotiations being subject to diminishment or even denial by the Charter.
Other than the Charter of Rights and Freedoms, the most distressing aspect of the proposed resolution is the complete exclusion of the native peoples from the procedures for constitutional conferences and for constitutional amendment. We have always argued that any amending formula must include special provisions for those sections of a new constitution directly related to native peoples, It has become clear that the amending formula as it now stands in the resolution precludes the future entrenchment of native rights in the constitution by making these rights in the constitution by making these rights subject to the approval of the provincial governments, none of which has endorsed the concept of aboriginal rights. This concern was reinforced on October 15 when Premier Hatfield of New Brunswick, to date the only Premier to agree to appear before our Constitutional Review Commission, stated that native people should be treated no differently than any other group in the constitutional renewal process. Speaking on the intent of the drafters of Confederation, the Premier stated.
Clearly the intention of the governors in that part of what is now Canada was to assimilate the Native peoples. I therefore think that in fact that did happen, and did become the fact in Canada, and I therefore cannot argue that either the Métis or the nonstatus Indians have any particular claim that is different from that of any other group of people in our own country.
With these attitudes emerging from the provinces, it becomes obvious why the recognition of aboriginal rights, our inclusion in future conferences, and the entrenchment of native consent provisions in an amending formula are so necessary.
It is with this same reality in mind that we seriously question the Prime Minister’s assurance to native leaders that,
constitutional change after patriation will become easier, rather than harder
ln fact, the recently leaked document from the federal-provincial relations office stated quite the opposite:
Entrenching (native) rights will be enormously difficult after patriation, especially since a majority of the provinces would have to agree to changes which might benefit native peoples at the expense of provincial power.
The concerns of aboriginal people extend beyond what the government has included in the proposed resolution to what the government has left out, In Section 52(1) of the proposed resolution, a list of documents appearing in Schedule 1 to the Constitution Act is referred to in a fashion which can only be interpreted so as to exclude from the constitution of Canada any document not so appended. In common with NIB and ICNI, we are profoundly distressed over the absence of those constitutional documents which have stood in the past as confirming or recognizing aboriginal rights.
Canadian history records a legal and political tradition of recognition of the aboriginal rights of mixed blood people.
In the 18th Century our aboriginal title to land was recognized in the Articles of Capitulation of 1760 and Belcher’s Proclamation of 1762.
The most important pre-Confederation confirmation of our rights is the Royal Proclamation of October 7, 1763.It stands as the cornerstone of constitutional recognition of native rights and accordingly must be included in the Schedule. As we made clear in our brief before the British Select Foreign and Commonwealth Affairs Committee, the Royal Proclamation provides the first confirmation of our special status within North America, the first confirmation of the requirement for mutual consent in altering our relationship with non-Natives, and the first confirmation of our inalienable rights to our lands.
ln the 19th Century the most prominent recognition of our rights was on the prairies where the Métis had emerged as a distinct national group and had asserted national rights against the Selkirk Colony, against the Hudson’s Bay Company and, in the Provisional Government of 1869, against the Government of Canada. The Government of Canada met with negotiators representing the Provisional Government and the terms of the Manitoba Act were drafted and agreed to. The Manitoba Act was passed by the Provisional Government, by the Canadian Parliament and confirmed by Imperial legislation.
It stands as part of the Constitution of Canada. The Manitoba Act recognized Métis land rights and provided, in addition to their holdings in 1870, for an additional Métis land base of 1.4 million acres.
We notice that the Manitoba Act is contained in Schedule I to the Constitution Act. However, we insist that the recognition of our land and aboriginal rights in this act be confirmed in the patriation resolution, because successive federal governments have consistently argued that these rights have been extinguished. The statement of claim based on aboriginal title of Métis and nonstatus Indians, presented to the Government of Canada by the Native Council of Canada in March of this year, documents the failure of the government to extinguish those aboriginal rights of Métis people recognized in the
Manitoba Act and the Dominion Lands Acts on the prairies, in North-eastern British Columbia and in the Northwest Territories. At this time, I would like to table our statement of claim of this document for the benefit of the Committee and which I would like read into the record.
ln light of this continuing denigration of our rights, rights which are constitutionally recognized, we find it necessary to include reference to the Manitoba Act in our amendment package—specifically in our proposed section 23A(3)(d). In addition, the half-breed adhesion to Treaty Number 3 in 1875 should be given similar constitutional status as requested of the treaties by the National Indian Brotherhood.
We are very concerned that unilateral amendment and patriation may have unforeseen consequences for these constitutional rights. Frankly, we do not believe that the government has given any consideration to how unilateral action will affect subsequent amending procedures for even those of our rights which have constitutional recognition, let alone how our other rights will be affected. We have certainly not had sufficient time to get a clear understanding. So I would suggest that “more time” is perhaps one of the most important amendments that this Committee can make when it returns to Parliament. I notice you have extended your hearing to February 6 and you are to be commended on that, because more time is needed.
I wish now to read through the amendments that we proposed the Committee must make to the resolution if it is to satisfy the elementary demands of justice. The Committee will recognize most of these amendments from the presentation made last night and this morning by the ICNI and you will be hearing similar amendment proposals from the NIB if and when they appear tomorrow. This is in keeping with the common rights and objectives shared by all aboriginal peoples and reflects the months of joint work we have invested in distilling the basic principles on which future negotiations with First Ministers must be built.
The overriding powers of Parliament with respect to the Charter of Rights and Freedoms are contained in Section I of the resolution proposal. We recognize the need to allow Parliament some room to respond to national emergencies but we fail to see the need for a clause which, in effect, offers as little protection from an errant majority Parliament than any common statute. We do not propose to suggest an alternate wording to the section at this time, but we wish it to be known that we cannot accept such loop-holes for capricious governments. Native people are especially versed in the pitfalls of such laissez-faire provisions and we would hope that a redrafted version of Section l, a redraft we understand is already in preparation, better address these concerns and those of previous witnesses.
Section 15, as amended, provides that:
(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.
It is obvious, Mr. Chairman, why this minor amendment must not be made to any provision for equality before the law. It would be inconceivable that our collective rights could be entrenched without explicitly protecting them from legal actions which argue that aboriginal rights are discriminatory. We are not just another disadvantaged group but a historic national minority with rights corresponding to that status.
A new section, Section 234 would provide that:
(l) For the purposes of this act, the phrase “aboriginal peoples of Canada” or “aboriginal peoples” means Métis, Inuit and Indian peoples of Canada.
(2) The aboriginal rights and treaty rights of the aboriginal peoples of Canada are hereby confirmed and recognized.
(3) 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 legislative assemblies, 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 constitutional forms of recognition and protection in the following areas, inter alia:
(a) aboriginal rights;
(b) treaty rights;
(c) rights pertaining to the aboriginal peoples 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, the BNA Act, 1871, and the confirmation of those rights in the rest of Canada;
(e) rights or benefits provided in present and future settlements of aboriginal claims;
(f) rights of self-government of the aboriginal peoples of Canada;
(g) guaranteed representation of the aboriginal peoples of Canada in Parliament and, where applicable, in the legislative assemblies;
(h) responsibilities of the Government of Canada and the provincial governments for the provision 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 identities of the aboriginal people of Canada.
(4) No aboriginal right shall be subject to extinguishment by Parliament of Canada or by any legislative assembly.
(5) No lands, waters or resources of the aboriginal peoples of Canada shall be subject to expropriation under any law of the Parliament of Canada or any legislative assembly without the express consent of those aboriginal peoples holding such lands, waters or resources.
Section 24 as amended provides for:
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 or 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 under the Royal Proclamation of October 7, 1763.
The Committee will note the resemblance of this section to the drafts of Clause 26 of Bill C-60, tabled as the constitutional amendment bill in 1978. Our strong preference for this wording has already been outlined, and is supplemented by the brief presented to you by the ICNI. A final consideration is that this new wording would ensure that all undeclared rights, non only native rights, would be strengthened.
Section 32 as amended provides that:
(1) Until Part V comes into force, a constitutional conference composed of 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 those composing the conference decide that it shall not be held.
(2) Such constitutional conferences shall include the direct participation of representatives of the aboriginal peoples of Canada for matters on the agenda which affect them.
ln light of the disparity between promises of full participation for native peoples in constitutional conferences and our experience to date, the addition of subsection (2) would entrench formally that which exists as a stated government commitment.
Amending Formula Respecting the Aboriginal People of Canada, a new section, Section 51A provides that:
(1) Nothing in Part IV and V shall be construed as permitting any amendment to any constitutional provision that makes reference to any of the aboriginal peoples of Canada without the consent of each of the aboriginal peoples so affected in accordance with rules to be estab-
lished by an appropriate person or body duly authorized for such purpose by the Governor-in-Council.
The requirements for a special, limited amending provision for aboriginal peoples has been made eminently clear in the last 113 years. The inability, or outright refusal, of government to confirm and protect the constitutional rights recognized in the Royal Proclamation of 1763 and in the Manitoba Act makes us acutely aware of the need for mutual consent in the process of entrenching or amending our rights. With this amendment we provide for this process and at the same time satisfy the requirement for Parliament to authorize the rules governing such a procedure.
Mr. Chairman, I began this brief with comments on our new role in nation building, or rather nation rescuing, about promises made and broken, and about what it would take for you to help us fulfill our commitment, and that of the government, for full participation in constitutional revision.
I would like to end on a similar looting by proposing to you one way which could assist us all in tackling the complex and very urgent issues before us. We are aware that if the door is to be kept open to us after patriation occurs then the resolution must first be altered to incorporate special provisions to guarantee native rights and participation in the future. Could not these issues be referred to a joint committee composed of Native, federal and provincial representatives duly authorized to discuss, elaborate and negotiate constitutional amendments directly related to native people? The composition of this Committee would, of course, be weighted in favour of the native peoples and the federal government to reflect the special status of the former and the constitutional responsibility of the latter, Once an amending formula were to be adopted, the amendments agreed to by the Committee could then be built into the constitution and be assured of country-wide support.
Mr. Chairman, we have been given good cause to wonder if the real intention behind our supposed involvement in the constitutional reform process, even our direct participation in a First Ministers’ conference in the future, is to drag the resolution of our rights down a long dead-end street until they reach a wall of provincial opposition. The federal government could then lay the burden of responsibility for the failure to resolve our rights on the shoulders of its provincial counterparts. Needless to say this would be a frustrating and bitter experience for our people. As I have stated to Committees such as this before, there is no such thing as selective justice. If our rights are not protected in the resolution, then neither are yours.
Thank you, Mr. Chairman.
The Joint Chairman (Senator Hays): Thank you very much Mr. Daniels. I assume that you and your colleagues are now prepared to answer questions from the Committee members and I will go right to the honourable Mr. Epp.
Mr. Epp: Thank you, M. Chairman. I want to welcome Mr. Daniels and representatives of the NCC here this evening.
Mr. Daniels, I though I saw a very similar thread running through the course of your brief this evening with that of the brief that we heard from the NCNI yesterday.
May I ask you right off, is there generally a total agreement between the NCC and the NCNI in terms of the major issues that are before this Committee.
Mr. Daniels: Almost totally, Yes.
Mr. Epp: I noticed also, Mr. Daniels, that there were in many cases similar amendments. In fact, a quick cursory glance would indicate that they are not only similar but identical to word and form. So, I take it that would show a further indication of an agreement between the two groups.
Mr. Daniels: Yes, there is a great deal of solidarity on those issues that we have come together on.
Mr. Epp: Mr. Daniels, you made a statement on page 2 of your brief in which you left the door open after having spelled out the legacy as you saw it of the promises given for participation in the constitutional renewal process and that those promises in your mind have not been met or adhered to or honoured. But you left the door open in terms of the procedure through the courts. Could you tell me why you have at this stage not chosen the court and are you in fact considering taking court action?
Mr. Daniels: We have not done it at this point in time because we have a long history of trying to deal with a great deal of decorum and diplomacy with the Canadian government. Twice, three times they sent armies to quell our diplomacy, at our door step I might add, and we are leaving of course, Mr. Epp, the door open for litigation if necessary.
We believe, however, that a political decision is needed or should be the first step taken, a recognition by the government of the day, whose ever government that might be when we agree and, of course, we have done a lot of research and there are some indications in our research that a court action would not only assert our rights for ever and all time but we would win hands down.
Mr. Epp: Mr. Daniels, you and I know each other quite well and I think we also understand each others forthrightness on some of these issues.
I would like to ask you, while politicians generally do not like to answer hypothetical questions and alter having given that caveat generally do. You, also being a politician, as you well would recognize, what actions would have to take place, which, in you. mind, would force the NCC to either launch court action or enjoin themselves to present court action.
Mr. Daniels: Just keep going in the way the government is going and we are going to have to go to court. If you pass this resolution we are going to have to go to court, as it stands. If the government of the day or whom ever is going to have to carry this to England does not encompass the resolutions and
the amendments as we have outlined in here, that we feel would adequately protect our rights, if they marched on in this chauvinistic way, that we would have to then go into the court room. It is the least desirable of options that we have.
Mr. Epp: Mr. Daniels, I know that you have travelled to England to take your case directly to Westminster.
Mr. Daniels: Yes.
Mr. Epp: To the British Parliament. Would you be willing to apprise this Committee of not only your representations but also the response or reaction you received.
Mr. Daniels: Well, no, there is a letter in here as well and there is a document that we have put before the British Select Committee.
While we were there—well, I was over there twice and I met with British parliamentarians from all parties and from the House of Lords. There are those in the House, the Labour Party and the Conservative Party who believe that they have a residual-responsibility to see that alt people in Canada are treated fairly and there are those who have a deep and abiding interest in the outcome of this, vis-à-vis, the native people, the aboriginal peoples of Canada and would fight our cause. There are those in the British House who would not support us. However, they would support the provinces if their rights were not exceeded to, so, in that way giving us tacit support.
There are members of the House of Lords that will remain nameless at this time who would support us if it did get past the House of Commons and at this point in time there is a growing swell of support in both Houses in England to support native rights. However, we are maintaining a lobby over there.
Mr. Epp: Is that lobby ongoing on a full time basis, Mr. Daniels?
Mr. Daniels: Yes, it is.
Mr. Epp: I am not asking you for names, I do not believe that is the purpose of either my questions or the function of this Committee. But I do take then that from the position that you have stated that you at least feel as the Commissioner of the NCC that you have received sufficient support in England at this time at least that should the that there would be sufficient representation both in the House and the House of Lords to seriously question the validity of the unilateral action and the removal or the potential removal of rights of Canada’s native people?
Mr. Daniels: There is enough of a ground swell of support to indicate that we would cause this government, as has been stated by some people, a great deal of embarrassment to have their dirty laundry and their inability to deal with our rights in that forum over there. We would rather see it done in this country, that is our intent. However, we must explore all avenues, we must keep our options open. I must say at this time that we have a long history of denials by provincial and federal governments of our rights. So, we are not only explor-
ing that, but other avenues in the world and in the international community as well.
I might add at this time that there was a paper given by the NIB, the NCC and the NCNI to the U.K. Commission and they have not yet responded formally. We understand that a second committee is being formulated over there.
Mr. Epp: Mr. Daniels, there are two other areas I would like to pursue with you; one is the concept of self-determination. On page 17 you refer to it as well. I for one have difficulty in trying to put it into a pragmatic form. Could you elaborate for us of what your definition of self-government is as you would relate it to the NCC and the Métis people?
Mr. Daniels: We would see it as preserving the right to govern ourselves as we see fit within the confines of what is happening in Canada now and what other people are subjected to in this country. We are not talking in a separatist way. We have never done that, we have always talked in a way of wanting to building a stronger Canada. Self-government and self-determination would mean to us that we want to decide for ourselves how we will fit into this and not have a patronizing body do the work for us, such as Indian Affairs does for the Indians or has been carried on through time. We are not trying to upset the order of the day. I might say at this time we have fought two wars against this country for our own democracy to preserve our democracy as we saw it because we where forced into it. We sent soldiers and warriors in two wars for a democracy that does not even benefit us, while members of the Parliament over there, some forgot their age and some became NBC reporters in the States who would not fight and we have tried as much as possible to defend this country and we would live within the confines of what this country predicts but we would like to govern ourselves on any lands that we might hold dear to ourselves.
Mr. Epp: Mr. Daniels, I must take issue with one of the statements you made. Quite apart from the position you have taken, which I fully allow you to have, but the statement that you make that this democracy does not benefit you, I would think is a statement that cannot be borne out in fact.
Mr. Daniels: I am sorry?
Mr. Epp: the statement that you made that this democracy does not benefit you or the Metis people for whom you speak could not be borne out in fact.
Mr. Daniels: Well, I would of course beg to differ—not of course, but I mean there are too many startling facts, that we do have rights in this country that have not been lived up to by preceding governments and the government of the day and there has been a move to indeed extinguish our rights and denial of those rights. Canada as we understand it is supposed to be a democratic country. We have tried to destroy or help destroy the two founding nations concept. We thought that our rights were inherent in the manitoba Act and in other negotiations, adhesions to Treaty Three Belchers Proclamation and in the Proclamation of 1763.
We believe that we have a special status in this country and that has been denied us and we have made representations to
previous governments since 1870, 1869. Well, it started in 1814 with Cuthbert Grant and Governor Semple.
We have as far as my people are concerned, the Métis and non-status Indians, we have been eliminated from the Canadian census since 1941 and it is another attempt at cultural genocide or the destruction of our nation as we see it.
Mr. Epp: Mr. Daniels, I must admit I still have difficulty with this self-government concept because one thing that I could not support I hope that is not what you are proposing and I take it that you are not, and that is to create divisions or territorial areas where self-government would allow you to function and yet I do not see any other way in a pragmatic sense how your plan could be brought to fruition. For example, if we go back to the Manitoba Act of 1870 and specifically Section 31. I do not think I have to repeat Section 31 to you or to your fellow commissioners, but those of us who have lived or grown up and lived in Manitoba know about 1.4 million acres.
So, I ask you, even if you have not as a people received the 1.4, just taking that as a case, as a hypothetical case, you can make no case if you have not, know in that circumstance could one even ascribe the land and in some way use a form of self-government. To my way of thinking it still has no pragmatic form that I can see as being either valid or legitimate.
Mr. Daniels: Well, in terms of the 1.4 million acres, that is not the only land. If you read the Act completely…
Mr. Epp: I have, Mr. Daniels.
Mr. Daniels: Well, Section 32 as well protects the land we did own.
Mr. Epp: Yes.
Mr. Daniels: And the hayfields behind that, plus the 1,400,000 acres. So, we are talking about much more than 1.5 million acres. We would have to develop in consultation with our people a more definitive statement of self-government and after a settlement for cash and/or land we would decide how we are going to govern it, much in the same way that other people in towns and communities do themselves, only we would like to develop that and we would like to have the government of Canada help us in doing that.
Mr. Epp: Excuse me for prevailing on the time of the Committee, I appreciate if I could have this question.
Surely, sir you are not thinking of reserves or, if I can use the unmentionable, and I will, surely you are not thinking of forms of Bantustans legalized in the Canadian system.
Mr. Daniels: No, we are not thinking of reserves or anything like that. We are working right now on a concept that we are trying to deliver to our people and get some understanding on and their concurrence with and because we have not fully developed that, I cannot really elaborate on it for you now, but there is nothing in our activities that would jeopardize or do anything to bring about the downfall or separate from Canada or anything that could perceive to be a threat to the Canadian
establishment as it exists or the established order, not the establishment.
Mr. Epp: Thank you.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Epp.
Mr. Waddell, followed by Madame Payette.
Mr. Waddell: Thank you, Mr. Chairman. I might say, Mr. Daniels, last week a national columnist wrote that I had been asking probing questions before this Committee and since this is the first time I have been before the Committee and the first question I have asked, I hope you will bear with me.
I was impressed with your brief, sir. I tried to hear it, as you used the word, not only listen but to hear it and I know the sense of history that you and your people have.
It was also noted early on in your brief that you talked about how we non-native Canadians had in many cases destroyed our environment and as a west coast MP I picked this up very quickly. As compared to what we have learned recently and many commissions and hearings in the North and so on from native people who seem to have a real concern for environment, a spiritual relationship to animals and land that we non-native Canadians have lost and it occurred to me when you were saying this that in fact if we were to recognize in this country, truly recognize special status to you people as aboriginal people that we non-native Canadians might benefit as well from that.
I would like to ask you some questions with respect to Premier Hatfield’s statement because I was rather shocked to see it.
Before I do, I gather that you are not opposed patriation, even unilateral patriation and you are prepared to support that if you get some movement by this Committee and by the government later on native rights. Is that what you are saying? You are also saying that you have not in the past been included in negotiations.
Of course, that is over with now, but you want I gather in the future to be included and be consulted on the amending formula.
Mr. Daniels: Yes.
Mr. Waddell: Now, with respect to Premier Hatfield’s statement on page I of your brief, I just want to clarify this so that I understand what I think you are saying and I quote what he said:
Clearly the intention of the governors in that part of what is now Canada was to assimilate the native peoples.
Mr. Daniels: Yes.
Mr. Waddell: I gather what you are telling us here is that that simply is not historically accurate, that is not true. I think you have pointed to the Royal Proclamation of 1763 and the Manitoba Act of 1871. You pointed to that where there are, as I gather, what you are saying to me and the Committee that in
fact there are legal recognitions of aboriginal rights in those documents, is that right?
Mr. Vic Savino (Legal Counsel, Native Council of Canada): Yes.
Mr. Waddell: Maybe Vic could give us some idea of the kind of legal recognitions there are there in those documents.
Mr. Daniels: Just before Mr. Savino does that, I would like to point out that all these people sitting back here, the majority of them and the majority of the people sitting back here are from the Maritimes and I do not think they are assimilated to this point in time, as Mr. Hatfield suggested to this Committee or to our Committee. Vic?
Mr. Savino: Yes, I think a little bit of constitutional history might be useful for the Committee on this point, I will not spend a lot of time on the Royal Proclamation of 1763 which is tire source document from which aboriginal title in this country stems from the colonization of this country. But I think it would be useful to spend a little bit of time on the documents that were enshrined in the constitution in Western Canada when Canada took over that vast track of land from the Hudson’s Bay Company known as Rupert’s Land.
Now, what Mr. Daniels was talking about before was the process of negotiation that took place between Canada and the people who resided there at that time. I think we should understand that these negotiations took place between Etienne Cartier and John A. MacDonald on the one side and representatives of Louis Riel on the other, the provisions government.
Mr. Waddell: One of our former members of Parliament.
Mr. Savino: A former member of Parliament.
Mr. Epp: My predecessor.
Mr. Savino: Now, the results of these negotiations were that Manitoba got provincial. status, there was a preservation of property and land rights of the Métis people and there was the preservation of the culture and lifestyle of the Métis people and there was the preservation of the use of the French language in Manitoba, which the Supreme Court has recently ruled on.
These successful negotiations resulted in the Manitoba Act being passed by the Parliament of Canada in 1870. In 1871 John A. MacDonald was a little bit worried about his constitutional jurisdiction to form a new province so he sent a package over to Westminster, similar to the package which this Parliament now proposes to send over to Westminster, similar in purpose. He sent over a package of the Manitoba Act and that package had four sections and those four sections merely ratified the Manitoba Act as it had been negotiated between Louis Riel’s representatives and John A. MacDonald and Etienne Cartier and their representatives.
The funny thing is the package came back with six sections, and the sixth section, ladies and gentlemen, was Section 6 of the BNA Act 1871, which I should like to refer to in detail:
Except as provided by the third section of this act, which is the section that allows Parliament to expand the boundaries of provinces, it shall not be competent for the Parliament of Canada to alter the provisions of the Manitoba Act insofar as it relates to the Province of Manitoba or any other act hereafter establishing new provinces in the said dominion. there are other provisions dealing with electors and so on which I will not get into.
However, the effect of that section was to enshrine Métis rights and French language rights in Manitoba and the rest of Western Canada. Governments in Canada, Parliaments in Canada have on several occasions amended the Manitoba Act. Those amendments are contrary to Section 6 of the BNA Act, 1871, and all I am trying to suggest to you is that there is some ultra vires legislation on the books dealing with the Métis people of this nation and I think it is very important that this Committee understand that and I think it is very important that the concerns and issues of the Métis people be dealt with by this government before that act is patriated to Canada and can then be amended by a joint resolution of the Senate and the House of Commons and the Province of Manitoba agreeing.
Mr. Waddell: Well, are you saying, then, that irrespective of what you were saying about there are guarantees in the Manitoba Act, that even under our document, and if you look at Section 34 and later Section 43, these are amending procedures, in fact Premier Lyon the Prime Minister Trudeau could in fact invalidate your land guarantees in Section 31 and Section 32 of the Manitoba Act bilaterally?
Mr. Savino: That is correct.
Mr. Waddell: So I gather, then, you feel that there is not sufficient protection of the Métis minority because of that possibility?
Mr. Savino: Yes, Mr. Waddell, and as Mr. Daniels pointed out earlier, this resolution that is going over to Westminster contains none of the preconfederation documents recognizing aboriginal title. It does contain the Manitoba Act through the BNA Act of 1871, but that is only because you cannot do it any other way, and we fear that all aboriginal rights will be extinguished by the failure to include the original documents in the new constitution and that the existing rights that are still preserved by the BNA Act, 1871, might very well, in very short order, be extinguished by a combination of the federal government and the Government of Manitoba.
Mr. Waddell: Well, let me make this I think my last question, then. Let us focus down in Section 24, that is the section that says the guarantee in this charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada, including any rights or freedoms that pertain to the native peoples of Canada.
Now, people will say: well, there is your protection there, including any other rights that pertain to the native people, but
just specifically again, I know you said it in your brief and you just said it a moment ago, but what specifically do you criticize about the so-called protection in there and how would you change it to make a real and better protection?
Mr. Savino: Well, the Charter of Rights clearly, as it is now drafted, is intended to protect civil liberties, political rights, those kinds of things. Now, the mere mention of rights and freedoms that pertain to the native people of Canada I do not think is sufficient to preserve the rights contained in the BNA Act, 1871, from amendment, through the amendment process, by this Government and the Government of Manitoba.
So I think it is vital, and it is stated in Mr. Daniels’ brief as well, that if we are going to have a Section 24 to protect the rights, the aboriginal rights of the aboriginal peoples of this country, that that section be very specific that that is what it is intended to do. What you have there is a very ambiguous section which leaves courts in the position of being able to interpret it in the wrong way. If that is what you really mean, then why do you not say it expressly?
The Joint Chairman (Senator Hays): Thank you very much, Mr. Waddell. Madam Payette.
Mrs. Hervieux-Payette: Thank you, Mr. Chairman.
I will make everyone suffer a little by speaking in my own language first.
First I would like to make the following comment to the effect that we are probably, anyway on this side of the table, like they are, slightly sceptical and pessimistic with the provinces who do not, in fact, want to join into the amendments especially to include the Charter of Rights. Some have expressed certain reservations and some have even contested this before the courts.
So I would like to ask Mr. Daniels, finally, why he is so suspicious concerning the provinces and the recognition of the Metis rights? Probably he is more competent than I am to give me and my colleagues a summary of the problems the Metis have with the provincial governments.
Mr. Daniels: Well, the provincial governments have not been that much of a problem. They would be a problem if the amending formula went through as it is. The problem that exists now and has existed is with the federal government and their denial and their unwillingness or incapability of dealing with the rights of the Métis and nonstatus Indian people of Canada. As Mr. Savino pointed out, that if the amending formula goes through as it exists, unilaterally or bilaterally, the federal government with the province at that time becoming a problem could abrogate all those rights we have. So at this point we have been shuffled from the federal government to the provincial carpet many times, and every time we get to the provinces, and in that respect they are a problem, they always say that you are a federal responsibility and are unwilling to verbalize that in public in any kind of way or support us.
The most recent problem we did have, though, was in James Bay and the province, in our experience, in the James Bay
Agreement with the Crees, the Métis and nonstatus people of Canada were to be dealt with later as interested third parties, and in that respect, in the contemporary sense, with regard to the Quebec Extension Act of 1898 and 1912, the province, with the federal government, did not fulfill the terms of that extension act, so we have experienced a problem in contemporary times.
Mrs. Payette: With regard to Section 15, I presume you are talking about, of course, how it should be drafted, but you do not put too much emphasis or do not refer too much to the draft that were put forward by some groups, like the Status of Women, for instance, and I presume that many of your members belong to the group of Métis because of Section 2(l)(b), which is discrimination by birth, of course, you might have been the children of a woman who married a non-Indian and became a Métis at the time.
So do you feel that the way you drafted the Section 15 is going to give the protection or enough protection in order to make sure that you are being recognized and that the status of Métis is not undermined? In the future, how far do we go to recognize Métis or do we go back and do we give back the Indian rights by birth?
For instance, you have two alternatives: one way would be by not only repealing Section 12(1)(b) but by granting full native rights because they were lost just by the marriage of a woman and further birth of children, or which way would you prefer that this Committee would suggest or report, is there a particular wish that you would like to express to this Committee with regard to keeping the Indian status, full Indian status, or just to remain Métis because of Section 12(1)(b) in the Indian Act?
Mr. Daniels: We have come out in support of native women to abolish this particular Section 12(1)(b). I do not think you can grant Indian status to Indians; as well, you cannot take it away. I had a good statement made at our meeting today; it said: you have decided who we are not, now do not decide who we are. That was by Peggy Rejiski, who was President of the Prince Edward Island group.
We feel that the amendment as we proposed it would protect the rights of all native people as a collectivity, but at the same time we would keep up our activities in support of native women regaining their status if they so desire under the Indian Act, and that in the case of Jeanette Lavell, the Native Council came out in support of her at that point in time and we feel that Section 12(1)(b) of the Indian Act is a discriminatory piece of legislation based on sex.
Mrs. Payette: Well, I would like to point out to you, respectfully, that children too, were discriminated against and it might have been men, boys or girls that were discriminated against, and that is why I was asking that question.
Mr. Daniels: Look at us, we are discriminated against and we are boys. Maybe we are not boys.
Mrs. Payette: Well, I guess one of these boys. So perhaps you could specify to me why you use that particular wording of aboriginal rights and do not use the wording native rights? Does it mean that you are putting an umbrella word to include Indian, Inuit, Métis and all the native people?
Mr. Daniels: Yes.
Mrs. Payette: That is why you refer to that specific term?
Mr. Daniels: Yes. We have agreed in meetings with the National Indian Brotherhood, with the ICNI and ourselves, we agreed that the term “aboriginal rights”, “indigenous peoples” or “aboriginal peoples” is a collective term, a generic term, used to identify Métis and nonstatus Indians, Indians and the Inuit.
Mrs. Payette: And in conclusion, perhaps you could clarify, when you talk about a nationality or nationhood, I would like you to specify, especially for a Quebecker who happens to be a Canadian, because I really want this to be clarified once and for all. If we share Canadian citizenship and if your term of referencing, that you want to remain in Canada and share the experience of Canadians in building this country, when you talk about nationality you refer more to your cultural heritage then having a different nationality. I just would like you to comment on this?
Mr. Daniels: Well, we are talking about, when we talk about the Métis nation, let us take that as an example, we are talking about a nation within a state, as Quebeckers are talking about a nation within a state, or sometimes they do that.
Mrs. Payette: Some of them.
Mr. Daniels: We are also talking at that time as a nation of people, the preservation of our land, of our culture, of our linguistic rights, of our economic development rights, of our social system, of our religious system, but at the same time maintaining that within a state. It was by virtue of, or at the urging of the Métis people that Section 23 of the Manitoba Act protected the linguistic rights of the French people in the west of Canada.
Mrs. Payette: Thank you.
The Joint Chairman (Senator Hays): Thank you very much, Madam Payette. Mr. Hawkes, we go now to 5 minute rounds.
Mr. Hawkes: Thank you, Mr. Chairman.
Can I first of all take you to page 9, you give us a quote from the Prime Minister on that page which says that constitutional change after patriation will become easier rather than harder. Could you tell me when and where he said that?
Mr. Daniels: Yes. It was a letter to us, I think it was October 30, a letter to the Native Council of Canada, to the NIB and INCI, that is a quote from his letter.
Mr. Hawkes: That is October this year?
Mr. Daniels: Yes.
Mr. Hawkes: After he had received advice from his officials that in fact it would be harder?
Mr. Daniels: Yes. And then there was a leaked document that said it would be harder, after.
Mr. Hawkes: So you take that as a dishonest comment?
Mr. Daniels: Very much so.
Mr. Hawkes: Very much so. Can I take you to page 11. On that page you talk about unilateral amendments and patriation may have unforeseen consequences for these constitutional rights. If you have been watching the work of this Committee, we have been treated to a succession of witnesses who have identified for us the unforeseen consequences of the wording of most of the sections of this whole proposal. Would you concur in that analysis?
Mr. Daniels: Yes, I have heard they have been doing that and from what I have seen they have been doing that.
Mr. Hawkes: You, obviously, have spent a great deal of time and attention with this proposal. You have been engaged in the process of thinking and developing your constitutional position for a considerable period of time.
You had help and advice to the tune of some $400,000 fairly recently to hire experts and so on. You have indicated at the beginning of your brief that you are willing to help us. I want to ask you if you think we could deal with this proposal, the amendments which you and others have proposed, and if we can do that, can this collection of people in this room reasonably be expected to do that by February 6 and avoid the unforeseen consequences about which you have warned us at page 11 of your brief?
Mr. Daniels: I do not know if you can or not. I would hope that you could deal with it.
It seems to me, I must say, in that context, sir, that there is a movement afoot to keep out of the constitutional documents or those appended to it, anything referring to aboriginal rights, including among others, the Proclamation of 1763.
As was pointed out, the only other document which could not be put out was the Manitoba Act.
I would think—and I am confident—that with those amendments that we have proposed, taking them as we see them to protect our rights, that we could deal effectively with it, before or after patriation; but we must have this done before patriation, and if there is an amending formula, that must be secured before patriation.
Mr. Hawkes: If we were to follow your advice, then the things that are the most important to your organization, if we put those amendments in verbatim, then your rights within the
aboriginal context you would feel would have no unforeseen consequences?
Mr. Daniels: Would you like to rephrase your question?
Mr. Hawkes: I am not sure I can.
Are you saying that you have had sufficient time to be absolutely certain that, if we were to adopt your wording, then the rights which are of most importance to you would be protected without unforeseen consequences?
Mr. Daniels: Well, as we have put them forward, they provide for ongoing negotiations, and to provide a more direct answer, no, we have not had enough time to work everything out.
But we are saying there must be entrenchment of our rights before patriation, and we must be included in any amending formula or any conference which would result from patriation, and there must be an indication that we must be involved in the whole process starting from now.
Mr. Hawkes: One final question. You leave me with the very last page of the major part of your brief on page 17 with the following sentence:
If our rights are not protected in the resolution, then neither are yours.
I can take that sentence and my imagination can do many things with it.
Would you care to enlighten me as to whether that is a deliberate insertion on your part to leave my imagination to run away with itself? Can you pin it down a little for me?
Mr. Daniels: Well, if our rights are not protected in the resolution, then you are dealing in hypocrisies. If you want to be hypocrites then so be it.
You have talked about the special rights of the French and the English as founding nations, and you will do nothing for the aboriginal people of Canada to respect and entrench our rights in the constitution, so that the very people who are the foundation of this country are being left out of the constitution.
If it were not for the Indian allies there would be no Eastern Canada; if it was not for the Métis provisional government of Louis Riel, there would be no Western Canada. We would have been all part of the Republic of the United States.
So we, at one time, were allies of you people, your forefathers; and if you do not protect our rights as an equal and sovereign nation, as you consider yourselves to be, then you are dealing in hypocrisy; you are dealing dishonestly with the Canadian public; you are dealing dishonestly with yourselves, the House of Commons, the Senate and with all covenants you have signed internationally protecting individual and human rights in the world; and you are dealing dishonestly in bringing down the reputation that Canada has built up in the international arena; in that way your rights will never be protected, because if you leave out the very people who are the foundation of this country, the original owners of this country, then you are dealing in a very hypocritical move and we should cancel this whole thing and maybe we should go back to war, I do not know.
The Joint Chairman (Senator Hays): Thank you, Mr. Hawkes.
Mr. Allmand followed by Senator Roblin.
Mr. Allmand: Mr. Daniels, in referring to the Manitoba Act of 1870, Mr. Savino said that under that. act, as well as the BNA Act, there were certain ultra vires amendments which have been passed. I am not sure whether you have answered this or not. If you have, then I missed it but have those ultra vires amendments ever been challenged in court? If they are ultra vires, why have they not been declared to be ultra vires?
Mr. Daniels: They have not been challenged in court yet.
Mr. Allmand: So the matter has been left standing for almost 100 years without challenge.
Mr. Daniels: That is correct. But new doors have been opened in terms of the interpretation of the rights of the Métis in the Province of Manitoba and westward.
Mr. Allmand: You say you recognize that the Manitoba Act of 1870 would be included in Schedule I and therefore be made part of the constitution act of 1980. But, despite that, you wanted it entrenched in your new Section 234 and I fully appreciate that. I think you are right.
But the Manitoba Act of 1870 only applies to Manitoba. As Mr. Daniels knows, a good number of the Métis descendants of Louis Riel, who lived in what is now Saskatchewan, went up into the Northwest Territories around Fort Smith and Fort Resolution which were Métis areas.
You have asked for the inclusion of the Royal Proclamation of 1763 in Schedule I, but, unlike the Inuit, you have not asked for the inclusion of the Order in Council of 1870 admitting Rupert’s Land in the Northwest Territories, which I think would give some protection to the Métis who did not live in Manitoba.
As a matter of fact, I think the Métis population in Saskatchewan is probably greater, or bigger than it is in Manitoba.
Mr. Daniels: Well, we support totally the ICNI’s proposals and that particular section they have included in their paper we have talked about and we support them in their notion to include that particular piece of legislation—the Order in Council, at least.
We would also like to have our support noted on the record on that.
Mr. Allmand: I see. So, although that is not in your specific recommendations, you do wish to recommend that the Order in Council of 1870 admitting Rupert’s Land in the Northwest Territories, be included in Schedule I along with the Royal Proclamation?
Mr. Daniels: Yes, we do.
Mr. Allmand: There is another point. I have raised this with other groups who have appeared before us, that is other aboriginal rights groups.
Several members of Parliament we have discussed this with have said that we cannot entrench aboriginal rights in the terms you have in your proposed Section 23a(2). There you say:
(2) The aboriginal rights and treaty rights of the aboriginal peoples of Canada are hereby confirmed and recognized.
Some members of Parliament have said to us that they do not know what you mean by aboriginal rights. You should define it. I have asked other witnesses before the Committee if they have a definition or whether they think it should be left to the courts to define. What is your position?
Mr. Daniels: Oh well, I must draw on the strength of the Oxford dictionary, which states in respect to aboriginal rights.
Any rights that the people held before the colonists arrived.
That implies to me, linguistic rights, land rights, the right of access to resources; cultural rights, social rights, political rights, religious rights. Those are the aboriginal rights; those are the rights of people.
Those statements or responses by government people to the effect that they do not know what aboriginal rights are, are an indication of either a great deal of ignorance of the English language or their unwillingness to accept that these people, who were a nation of people, rich in culture with linguistic differences, with a social system, with a very definite political system with dealings with each other, and a way of holding land-that is the aboriginal right; before the arrival of Europeans on these shores, whoever got here first, whether it was the Vikings or Jacques Cartier, the people operating within a set mode and in different geographical areas, and these people are now saying, “We want to continue that.” And that is our aboriginal right to do so.
Mr. Allmand: Thank you very much.
The Joint Chairman (Senator Hays): Thank you very, Mr. Allmand.
We have now Senator Roblin followed by Senator Stanbury.
Senator Roblin: Thank you, Mr. Chairman.
I think Mr. Daniels and those who have come with him have raised some matters of first class importance.
I would like to get some comment from him on one or two of them.
On page 11, as we have already observed, you have expressed concern about unilateral amendment and patriation. That, of course, in my language means action by the federal government without the concurrence of the provinces.
Throughout your brief you make a number of recommendations which specifically include the provinces in the points you want to see entrenched in the constitution.
So, apart from the fact that there is a great deal of provincial implication in the document as it stands, you would
like to increase that, reading your document, in a number of important particulars.
Now, how do you see bringing the provinces into this-first of all, do you think it is necessary to bring the provinces into this consultation, and would you recommend that we do so?
Mr. Daniels: We are saying that it is without the native peoples involvement as well, not only the provinces. Perhaps I had better let Mr. Rhéaume answer that.
Mr. Rhéaume: Without taking up the cudgels on behalf of the provincial Premiers who have had something less than starting success, we are suggesting unilateral patriation in this sense means without the full concurrence of the native people as promised by both Prime Ministers of recent memory. Yes, it would include a form of trilateral negotiation, if necessary; certainly it is not up to the Native Council of Canada to speak on behalf of the provinces.
However, we would see it as including not only the provincial governments, but also the native peoples as part of the commitments which have been made for the last three years by successive governments of this country,
Senator Roblin: Yes, I see that and I agree with you that you are here to speak for your own people and no other.
But I think you have made a very interesting proposal along those lines on page 17 of your brief, where you propose that a Joint Committee be set up composed of native, federal and provincial representatives duly authorized to discuss elaborate and negotiate constitutional amendments directly relating to native peoples. So I really conclude from putting those two ideas together, that you have a concern about unilateral amendments and you have a practical proposition as to what to do about it, so as to indicate your general attitude towards the necessity of involving other people in the federal government in this constitutional exercise.
Would that be a fair statement to make?
Mr. Rhéaume: Yes, and in that context, I think February 6 seems rather a short deadline in which to attempt to do that.
Senator Roblin: Yes, I recognize your appeal for more time on page 11, and I think that is a valuable point.
I would like to move on to another aspect of your brief. Perhaps we could turn to page 13 so as to make the point.
You refer to the aboriginal peoples of Canada and define them as meaning Métis, Inuit and Indian peoples of Canada. I will come back to that in a moment.
But you say that these people should have—and this is your recommendation 3(f) the right of self-government of the aboriginal peoples of Canada.
Can you help me with that concept? Self-government usually implies not only people, but territory. That is the way it is usually related. Yet, we know that aboriginal people are very widely dispersed throughout the Canadian society. They are not all in one place, and are not easily isolated from the rest of the community.
How far would you go in relation to this right of self-government in relation to the wide spread dispersal of aboriginal people in the country?
Mr. Daniels: Well, we included that after talks with the NIB and ICNI to shore up and support their notion of self-government.
We are mainly concerned with our self-determination in this country within the political process.
We have to support our brothers and sisters on these and other subjects which are of mutual concern.
Self-government for us would have to come through negotiation with the federal government. At that time as I slated earlier, Mr. Senator, we are working on our definition of that, and we want to get that clear in our heads before making a truly definitive statement on self-government.
But as you know the Métis and nonstatus people are still in the process of attempting to deal with the government for the resolution of all particular rights and freedoms as we see them in Canada and to enter into the negotiation stage for a settlement of land and/or compensation.
At that time once we have agreed on the process we will get further into the self-government aspect.
Mr. Roblin: What, you are telling me is that this is a negotiable item at the present time.
Mr. Daniels: At the present time.
Mr. Savino: I would like to add something to clarify the notion of aboriginal rights. Aboriginal rights, as a legal concept, is at this point in time very much a part of the Canadian constitution. That is the great part of what Mr. Daniels is saying to you.
Some of those rights have been extinguished, some have been partly distinguish, and some have not been extinguished at all.
When people are talking about self-government, I think what they are really talking about is redefining aboriginal rights in the modern context.
Yesterday a new book was released by Delia Opekokew entitled The First Nations: Indian Government and the Canadian Confederation, which, for the first time, really specifies the kind of thinking which is involved when a native people use the word “self-government”. I would strongly recommend that to members of the Committee.
Senator Roblin: Thank you. That is a difficult concept for us.
One last question, which has to do with the definition you have aboriginal peoples in Canada.
I take it you are certainly not satisfied with the definition which appears in the Indian Act these days. I take it that you are also supporting the appeal of Indian women to be treated in all respects equally with Indian men in connection with the definition of aboriginal peoples. I am glad to hear that.
But I would press you to consider a further definition, because the question of where the Métis status begins and takes off, and where the non-status Indian begins and takes off is always a very perplexing problem.
I suppose that the real answer is to say that anyone who says, “I am an aboriginal” thinks himself to be one and living in that society probably is one way of approaching it, so that it becomes a self-defining term.
But I can assure you it is going to cause a lot of trouble in defining that expression in any advance we make to improve this measure; and any help you can give us in clarifying the matter will be most helpful to me.
The Joint Chairman (Senator Hays): Thank you very much.
Mr. Daniels: May I respond to that?
The Joint Chairman (Senator Hays): Yes.
Mr. Daniels: We, Senator Roblin, have stated time and time again that we will decide who aboriginal people are.
We have been suffering with artificial definitions for so long and forced to play a silly game of who is an aboriginal person, who is an Indian, who is not an Indian, who is a Métis, an non-status and franchised Indian, a treaty Indian, a non-treaty Indian, a registered Indian or a non-registered Indian. There are about 14 definitions of who we are.
Now, in the context of identifying who the native people are, there is a simple process and I think it is one that the Maori’s have used and the aboriginal people of Australia are using, that they will decide for themselves. If you are Maori and the Maori’s accept you and you have ancestry to the Maori people, however limited your blood and the Maori people accept you, then you are a Maori. If you are an aboriginal with blue eyes and black curly hair, it does not matter to them as long as you accept the lifestyle, the culture, you are accepted by the people, you have ancestry there and you are part of the community, they will decide who the aboriginal people are, rather than have someone alien to our culture decide for us. Does anybody tell the Israelis who is an Israeli, does anybody tell the Québécois what a Québécois is, does anybody tell a Basque what a Basque is, does anybody try and tell the Walloons who the Walloons are, does anybody try to tell a Welshman who a Welshman is, does anybody try to tell an Irishman or a Scotsman; no, it is a white concept that they will tell the Indians who they are. Why us? Why tell the blacks who they are, why tell the Maori’s. We know who we are. It
does not matter the pigment of the skin if there is white blood in you. I am half white and half Indian, I have never been called white in my life. Why does not someone say, Harry, you are a white man. I have been an Indian all my life. I have chosen to be an Indian. I have been labelled as a Métis, as part of the Métis nation, but I am a Métis Indian.
My mother and I grew up, we spoke three languages at home, French, English and Cree. We had to be able to do those kinds of things. Talk about bilingualism, many of our people speak four and five languages by association of alienation cultures. We will decide who a native person is, we do not want anybody or anybody should not suggest that they have the right to decide for us who we are. We will not decide for the Québécois, we will not decide for the English, we will not decide for anybody in this country, the Ukrainians, the Romanians, anybody. We let them decide for themselves.
Does anybody tell Ray Hnatyshyn that maybe you are not if your mother married somebody else.
The Joint Chairman (Senator Hays): Thank you very much Mr. Daniels. You have probably heard the bells ringing and there will be a vote and we cannot contain the members of Parliament here any longer.
I have no more speakers and on behalf of the members around the table, the honourable members, I would like to thank you and your colleagues for being here, representing the Native Council of Canada. We appreciate very much your brief and your presence and we will take it into consideration in our deliberations.
Thank you very much.
Mr. Daniels: Just by way of thanking you, Mr. Chairman, and your Joint Chairman and members of the Senate and House of Commons. We appreciate this opportunity and it has been a long time coming and as we stated in our earlier part of our brief, we hope that you will not only listen, but you will hear what we are saying because we have a very definite right to this country that we want upheld by you people and in partnership with you people to develop a stronger country and as members of a nation who are the foundation of this country, we want to strengthen the fibre of this country and that is all we are here for.
The Joint Chairman (Senator Hays): Thank you very much. Tomorrow at 3:30 p.m. we will have the Council of Yukon Indians.
This meeting is now adjourned.
Constitutional Status of the Order-in-Council Admitting Rupert’s Land and the North-Western Territory into the Union, 1870 and the Royal Proclamation of October 7, 1763
There is no clear and unequivocable definition of which documents make up what is known as the “fundamental law”1 in Canada’s Constitution. At the same time, however, there appear to be some criteria established under constitutional law which may be of assistance in determining whether or not certain documents have constitutional status in Canada.
1 For an indepth discussion of what constitutes “the fundamental law”, see Gérin-Lajoie, Constitutional Amendment in Canada, University of Toronto Press, 1952, Chapter l.
Constitutional status may be conferred on those documents which are safeguarded by law against repeal or amendment by the unilateral action of any legislative body in Canada. In relation to Canada, such documents may be classified under three broad headings: (l) Acts of Parliament of the United Kingdom; (2) British Orders-in-Council; and (3) Acts of Parliament of Canada (sometimes passed concurrently with Acts of one or more of a number of the provincial legislatures).
In the case of the Order-in-Council of 1870 respecting Rupert’s Land and the North-Western Territory, it appears quite clear that it is a document of constitutional status under Canadian Constitutional Law. In this regard, Dr. Gérin-Lajoie in his book entitled “Constitutional Amendment in Canada” provides as follows:
Section 7(1) of the Statute of Westminster expressly mentions, in addition to the British North America Acts, 1867 to 1930, “any order, rule or regulation made thereunder”. This phrase embraces the three British Orders-in-Council of 1870, 1871, and 1873 admitting Rupert’s Land and the North-Western Territory, British Columbia, and Prince Edward Island respectively into the union. These Orders-in-Council were made under the provisions of the Act of 1867 and cannot, therefore, be repealed or amended by the unilateral action of any legislative body in Canada. They are accordingly part of the Constitution.”1 (emphasis added)
1 For a similar opinion on the constitutional status of the Order-in-Council respecting Rupert’s Land see Hogg, Constitutional Law of Canada, Carswell Co. Ltd., Toronto 1977 at page 5; Dawson, The Government of Canada, University of Toronto Press, 5th ed., reprinted 1971, at page 63.
While Schedule I includes the Orders-in-Council respecting British Columbia and Prince Edward Island, it has omitted any reference to the Order-in-Council respecting Rupert’s Land. We find such omission curious since there does not appear to be any reason for distinguishing the Order-in-Council respecting Rupert’s Land from the other two Orders-in-Council. Considering the importance of section 14 of the Order-in-Council (and reproduced in the Deed of Surrender attached as Schedule (C) to the Order-in-Council), Schedule I should be amended to specifically provide for the Order-in-Council of 1870 respecting Rupert’s Land. In respect to the
Royal Proclamation of 1763, the situation is not as certain1 but the argument favouring constitutional status may be described as follows.
1 In Regina v. George, (19ó4) 41 D.L.R (2d) 31 at pp. 36-37, McRuer C.J.H.C. stated that the Royal Proclamation may be a limitation on federal legislative power:
“I think this case (Sammut v. Strickland) leaves it open to argue that since there was no reservation of a power of revocation of the rights given to the Indians in the Proclamation of 1763, these rights cannot be taken away even by legislation…I wish to make it quite clear that I am not called upon to decide, nor do I decide, whether the Parliament of Canada by legislation specifically applicable to Indians could take away their rights to hunt for food on the Kettle Point Reserve. There is much to support an argument that Parliament does not have such a power. There may be cases where such legislation, properly framed, might be considered necessary in the public interest but a very strong case would have to be made out that would not be a breach of our national honour.” (emphasis added)
However, this view was expressly rejected in the court of Appeal (See (1964) 45 D.L.R. (2d) 709 at pp. 711-712). The Supreme Court of Canada did not deal directly with this question but the result reached does not appear to support McRuer C.J.H.C. in this regard.
As a preliminary comment, there can be little doubt that the Royal Proclamation was considered to be a document of constitutional status in 1763. The Royal Proclamation deals with such matters as the constituting of governments, establishing geographical boundaries, and providing for legislative powers—all matters which are generally seen as being constitutional in nature. This view finds some support within the federal government since the Appendices volume of the Revised Statutes of Canada includes the Royal Proclamation among its compendium of constitutional documents relating to Canada.
If the Royal Proclamation was considered to be a constitutional document in 1763, the question then remains whether this document, which has the force of law in Canada, is still considered to have constitutional status today. The documents listed in Schedule I of the Proposed Resolution share a common characteristic in that such documents are presently beyond the competence of the federal government to unilaterally amend. Therefore, in making our argument that the Royal Proclamation of 1763 should be included in Schedule I, it must be shown that amendments to the Royal Proclamation are beyond the competence of the Parliament of Canada acting alone.
Section 7(1) of the Statute of Westminster provides some indication as to the determination of the present “fundamental law” of Canada which may be amended by the Imperial Parliament:
“7(1) Nothing in this Act shall be deemed to apply to the repeal, amendment or alteration of the British North America Act, 1867 to 1930, or any order, rule or regulation made thereunder.”
However, section 7(l) is not the only restriction on the legislative power of federal and provincial governments in Canada. Section 7(3) of the Statute of Westminster provides as follows:
“7(3) The powers conferred by this Act upon the Parliament of Canada or upon the legislature in the provinces shall be restricted to the enactment of laws in relation to matters within the competence of the Parliament of Canada or of any of the legislatures of the provinces respectively.”
That is, the powers of Parliament in Canada are not only limited by the powers of the provincial legislatures, but are also limited by the terms of the Constitution. Such Constitution comprises not only the British North America Acts, 1867 to 1930 but also any other documents which may be considered hereafter as enjoying the status of “fundamental law”.1
1 See Gérin-Lajoie. Constitutional Amendment in Canada, 1952 at page 13.
In Attorney-General for Ontario v. Attorney-General for Canada, (1912) A.C.571 at pages 583-584, the Privy Council provides as follows:
“In the interpretation of a completely self-governing Constitution founded upon a written organic instrument, such as the British North America Act, if the text is explicit the test is conclusive, alike in what it directs and what it forbids. When the text is ambiguous, as, for example, when the words establishing two mutually exclusive jurisdictions are wide enough to bring a particular power within either, recourse must be had to the context and scheme of the Act. Again if the text says nothing expressly, then it is not to be presumed that the Constitution withholds the power altogether. On the contrary, it is to be taken for granted that the power is bestowed in some quarter unless it be extraneous to the statute itself (as, for example, a power to make laws for some part of His Majesty’s Dominions outside of Canada) or otherwise is clearly repugnant to its sense. For what belongs to self-government in Canada belongs either to the Dominion of the provinces, within the limits of the British North America Act.” (emphasis added)
Therefore, the powers of the Parliament of Canada are limited by the terms of the Constitution in general and not only by its few provisions which determine the legislative powers of the provinces.
We submit that the Royal Proclamation of 1763, by its very nature and scope, is a document which goes well beyond the limits of the British North America Act. Therefore, it would appear to qualify under the exception laid down by the Privy Council that certain documents may be “repugnant” to the general rule that the powers distributed between federal and provincial governments cover the whole area of self-government within Canada.
ln conclusion, therefore, Schedule 1 should specifically recognize the constitutional status of the Royal Proclamation and include it in its listing.
It is important to note that the two documents referred to above which have been omitted from Schedule I as having constitutional status are both documents in which reference to the status or rights of the Aboriginal peoples is found. These documents contain essential provisions in determining the present constitutional position of Aboriginal peoples. It is one thing for the federal government to patriate Canada’s Constitution but it is wholly another to undermine the present constitutional status of Aboriginal peoples by omitting in the process certain fundamental documents which merit inclusion in Schedule 1. Any amendments to the constitutional position of Aboriginal peoples should be done openly in accordance with accepted procedures and, as we have argued, with the consent of those Aboriginal peoples so affected.
At 9:30 a.m.
From Inuit Committee on National Issues:
Mr. Charlie Watt, Co-Chairman;
Mr. Eric Tagoona, Co-Chairman;
Mr. Mark R. Gordon, Coordinator;
Mr. Thomas Suluk.
From Government of Nova Scotia:
Hon. John Buchanan, Premier;
Hon. Edmond Morris, Minister of Intergovernmental Affairs.
At 3:30 p.m.
From Native Women’s Association of Canada:
Mrs. Marlene Pierre-Aggamaway, President;
Ms. Donna Phillips, Treasurer.
From Indian Rights for Indian Women:
Mrs. Nellie Carlson, Western Vice-President;
Mrs. Rose Charlie, Board Member;
Barbara Wyss, Treasurer.
At 8:00 p.m.
From the Native Council of Canada:
Mr. Harry Daniels, president;
Mr. Louis Bruyère, Vice-president;
Mr. Cene Rhéaume, Honorary president;
Mr. Vic Savino, Legal Counsel.