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 18 (3 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 18 (3 December 1980).
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HOUSE OF COMMONS
Issue No. 18
Wednesday, December 3, 1980
Senator Harry Hays
Serge Joyal, M.P.
Minutes of Proceedings and Evidence
of the Special Joint Committee of
the Senate and of
the House of Commons on the
Constitution of Canada
The document entitled “Proposed Resolution for a
Joint Address to Her Majesty the Queen
respecting the Constitution of Canada” published
by the Government on October 2, 1980
(See back cover)
First Session of the
Thirty-second Parliament, 1980
SPECIAL JOINT COMMITTEE OF
THE SENATE AND OF THE HOUSE
OF COMMONS ON THE CONSTITUTION
Senator Harry Hays
Serge Joyal, M.P.
Representing the Senate:
Representing the House of Commons:
Campbell (South Western Nova)
Joint Clerks of the Committee
Pursuant to S.O. 65(4)(b) of the House of Commons
On Wednesday, December 3, 1980:
Mr. Henderson replaced Mr. Allmand;
Mr. Waddell replaced Mr. Mitchell;
Mr. Côté replaced Mr. Lapierre;
Miss Campbell (South West Nova) replaced Mrs. Hervieux-Payette;
Mr. Lapierre replaced Mr. Henderson;
Mr. Ittinuar replaced Mr. Waddell;
Mr. Nielsen replaced Mr. McGrath;
Mr. Hawkes replaced Mr. Beatty;
Mr. Allmand replaced Mrs. Côté.
Pursuant to an order of the Senate adopted November 5, 1980:
Senator Goldenberg replaced Senator Lapointe;
Senator Anderson replaced Senator Stanbury;
Senator Bird replaced Senator Petten;
Senator Giguère replaced Senator Lamontagne.
ORDER OF REFERENCE OF THE SENATE
Tuesday, December 2, 1980
ORDERED,—That the Senate join with the House of Commons in amending the Order of Reference creating the Special Joint Committee on the Constitution of Canada by deleting the words “December 9, 1980” and substituting therefor the words “February 6, 1981”; and
That a Message be sent to the House of Commons to acquaint that House accordingly.
The Clerk of the Senate
ORDER OF REFERENCE OF THE HOUSE OF COMMONS
Tuesday, December 2, 1980
ORDERED,—That the Order of Reference creating the Special Joint Committee on the Constitution of Canada be amended by deleting the words “December 9, 1980” and substituting therefor the words “February 6, 1981”; and
That a Message be sent to the Senate to acquaint Their Honours thereof and to invite them to join with this House in the aforementioned action.
C. B. KOESTER
The Clerk of the House of Commons
MINUTES OF PROCEEDINGS
WEDNESDAY, DECEMBER 3, 1980
The Special Joint Committee on the Constitution of Canada met at 3:39 o’clock p.m., this day, the Joint Chairman, the Honourable Senator Hays, presiding.
Members of the Committee present:
Representing the Senate: The Honourable Senators Anderson, Asselin, Austin, Bird, Giguère, Goldenberg, Hays, Lucier and Roblin.
Other Senator present: The Honourable Senator Bielish.
Representing the House of Commons: Messrs. Allmand, Bockstael, Miss Campbell (South West Nova), Messrs. Corbin, Epp. Fraser, Hawkes, Irwin, Ittinuar, Joyal, Lapierre, Mackasey, Nielsen and Nystrom.
Other Member present: Mr. Beatty.
In attendance: From the Parliamentary Centre: Mr. Peter Dobell, Director. From the Research Branch of the Library of Parliament: Mr. Paul Martin.
Witnesses: From the Council for Yukon Indians: Mr. Elijah Smith, Vice-Chairman; Mr. David Joe, Legal Counsel; Mr. Harry Allen, Chairman; Mr. Michael Smith, 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. 1.)
Mr. Allen made a statement and with the witnesses, answered questions.
At 5:27 o’clock p.m., the Committee adjourned to the call of the Chair.
Joint Clerks of the Committee
(Recorded by Electronic Apparatus)
Wednesday, December 3, 1980
The Joint Chairman (Senator Hays): May I please call the meeting to order. This afternoon we are honoured to have the Council for Yukon Indians here represented by Mr. Harry Allen, the Chairman. On behalf of my Joint Chairman, Mr. Joyal, and members of the Committee, we welcome you here. I understand that you have a short presentation and before we have that we would like you to introduce your colleagues please, Mr. Allen.
Mr. Harry Allen (Chairman, Council for Yukon Indians): Thank you, Mr. Chairman. First of all, I would like to introduce my people to you. Immediately on my right is Mr. David Joe, legal adviser and land claims negotiator for our people. Next to David Joe is Mr. Elijah Smith who is the Vice-Chairman of the Council for Yukon Indians, responsible for land claims. Immediately on my left we have Michael Smith who is our legal counsel and adviser and also our land claims negotiator and myself, Harry Allen, the Chairman of the Council of Yukon Indians.
Mr. Chairman, honourable members of this Committee, the fact that we are here before you today speaks to the importance we attach to these proceedings. You will know how strongly we have lobbied for the chance to make a submission, and I therefore want to thank you for this opportunity to convey the views of my people.
The Council for Yukon Indians represents the approximately 6,000 Indian people living in the Yukon. In certain respects we are a unique people because we have chosen, successfully, to overcome the designation of status and nonstatus Indians designations which were created by your government.
During the last year, our 12 Yukon communities decided to amalgamate and form one central Indian government, the Council for Yukon Indians.
In terms of the responsibilities we have to our people, our most important role is to negotiate a settlement with Canada so that our aboriginal rights, our rights as the original owners and occupants of the Yukon, are clearly defined and entrenched.
In addition to this role, we are also largely responsible for improving our people’s disheartening social and economic conditions. We have a number of programs in place and we are in the process of designing and attempting to establish new ones.
Although we have made considerable progress in the last decade, Mr. Chairman, and have bright expectations for our people’s future, we are here today because the government’s constitutional proposals will, if enacted, jeopardize our hopes of establishing recognition of the rights and protections which our people deserve. Surely no one on this Committee would wish such an outcome.
I intend to elaborate on that point, Mr. Chairman, but first I think it is important to clear up any misunderstandings which may have resulted from the appearance, last week, of representatives of the Yukon territorial government. I can do it briefly and specifically:
First, with respect to Mr. Pearson’s statements concerning the nature of my people’s relationship with the Yukon territorial government, I have to say that while we are civilized people and treat each other accordingly, there certainly exist, as Mr. Pearson is fully aware, profound differences in our respective views, aspirations, and concerns.
Second, the Yukon Indian people are not opposed, as was suggested, to development. I ask the members of this Committee to re-read my letter which was tabled last week by the Yukon territorial government. It should be plain to see that I asked my counterpart, Mr. Pearson, to repeat before you the often stated policy of his government that a settlement of our rights takes priority over the attainment of provincial status. That is not a rejection of development. That is just a recognition of a truth, without which there can be no just settlement.
And, finally, last week my counterpart stated as his first position that aboriginal rights must be protected and entrenched in the Canadian constitution. Everyone here knows that we support this wholeheartedly. At the same time, Mr. Chairman, I have to point out that, regrettably, Mr. Pearson’s statement regarding aboriginal rights bears little relationship to his government’s past actions. In fact, Mr. Chairman, the discrepancy between work and deed is so great that the Yukon territorial government’s statement smacks less of principle than of public relations. Because there are other pressing matters, I prefer not to spend any more time on this item now, but if anyone is interested I would be pleased to elaborate during the question period.
I therefore turn now, Mr. Chairman, to more fundamental concerns.
Since 1973, the Counci for Yukon Indians and the Canadian government have been attempting, through consultation and negotiation, to produce a comprehensive settlement of the special aboriginal rights and freedoms of our people.
When we arrive at a final agreement, Mr. Chairman, it will have a profound impact on my people, and on the Yukon. This agreement will determine what it means to be a Yukon Indian; it will define my people’s social, political, cultural and economic rights and freedoms. As well, Mr. Chairman, it is obvious that our agreement will establish a new social and political arrangement within the Yukon territory. For, in addition to the things I just mentioned, our settlement will allow my people to work together with non-native Yukoners to build a Yukon society of which all Canadians will be proud.
As I said earlier, I am here before you today because the proposals you are considering seriously prejudice our ability to achieve those objectives.
I ask you, Mr. Chairman, members of this Committee, to show me where in the government’s current proposals there is recognition that the native people are a unique, special group of Canadians? Where does it clearly say that we have special rights which flow from our age-old status as the first nations of this country. Where, Mr. Chairman, specifically addressing the case of the Yukon, does your document of fundamental freedoms say that the rights which we are currently negotiating will be entrenched constitutionally?
The members of the Committee know that the proposed Charter does not clearly set out any of these things. The Native Council of Canada dealt with that superbly, just yesterday. Why is it so Mr. Chairman?
How is it that your government can justify your broad proposals by saying that Canadians have been waiting 113 years for a made-in-Canada constitution and, at the same time, ignore the fact that we have been waiting for much longer for a simple declaration of our rights? I think the members of this Committee should give some thought to just how long we have been waiting and, at the same time, think a bit about the immense personal and cultural costs we have incurred during that wait.
I cannot help but notice that the proposed Charter firmly entrenches the fundamental rights of Canadians, including, Mr. Chairman, the rights of future Canadians not yet born, and the rights of future Canadians not yet immigrated to Canada, I ask the members of this Committee to explain to me, and to my people, why we can not have our rights entrenched as well? Why is it that we have to wait until after patriation? Have we not already been waiting longer than anyone else?
I further noticed, Mr. Chairman, that in a recent letter to the President of the National Indian Brotherhood, the Prime Minister says that our people will find it easier, rather than this to the new found maturity and sense of generosity that a made-in-Canada constitution will create in Canadians.
Mr. Chairman, I do not wish to question our Prime Minister’s celebrated intellect, but try as I might, I fail to see the logic of his view.
It seems to me that if my people cannot convince you, today, try your hand at redrafting in order to acknowledge and protect our special status, then, Mr. Chairman, I ask you and the other Committee members to please explain to me and my people how we will find it easier after patriation.
I am sure you appreciate our dilemma: in view of the proposed amending formula, and the known attitudes of various provincial governments, how is it possible that we will find
it easier to entrench recognition of our rights after patriation? Surely, in the circumstances, it would be far more logical for the federal government to exercise its own authority, now, and amend the proposals, to give us the recognition and protection we have been waiting for since your ancestors first arrived.
Mr. Chairman, I know I can safely say that there is not a single person on your Committee, or in this room, or watching on television, who does not know that we were here first, who does not know that we have been here for tens of thousands of years.
Yes, Mr. Chairman, I think you and your Committee members will agree that you would be hard-pressed to find Canadians who are proud of the historical relationship between us, the original peoples, and you the ruling majority. Why is this, Mr. Chairman? How is it that Canadians do not care to boast about our relationship, indeed, talk of it only rarely and only when pressed.
It seems to me, Mr. Chairman, that those kinds of questions speak directly to the nature of the Constitution which you are redrafting. Either the Charter of Rights creates new relationships or it confirms old injustices. That decision is firmly in your hands.
But the outcome of your deliberations, whatever they may be, strike directly at the future of the Council for Yukon Indians. I cannot repeat it too often. The settlement which we are, in good faith, attempting to negotiate, deals with all our rights and freedoms, land claims, resources, hunting, fishing, trapping, education, social and economic policy, programs for our elders, governmental institutions; in short, our future as a people. Unless our settlement is seen to be entrenched by the protections contained in the constitution, it can be subject to later attack, political and legal.
This Committee must not permit that to happen. That is fundamentally why we are here before you.
Thank you for your attention. I will answer questions now.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Allen. Mr. Nielsen followed by Mr. Ittinuar.
Mr. Nielsen: Thank you, Mr. Chairman.
May I add my welcome to my fellow Canadians and fellow Yukoners, and my gratitude in seeing that they have finally won the right to appear before this Joint Committee to express their concerns with respect to the proposed constitutional changes. In addition to Mr. Allen as Chairman of the CYI and those that are before the Committee, they are supported by at least a dozen more Yukoners that are sitting in the public gallery. I might also point out, too, in the early development of programs that have been put in force in Yukon that Mr. Joe is one of the more recent admittees to the Yukon bar, as one of the first native born and raised Yukoners that is a member of the Yukon bar, I believe the first.
My first question has to do with remarks on page three where, towards the bottom of the page, you say that the agreement that you are negotiating now will define your peoples social, political, cultural and economic rights and freedoms, and establish a new social and political arrangement within Yukon.
May I ask you whether, in the view of CYI, any amendments which might be made to the constitutional proposals that this Joint Committee is considering should await the final outcome of those negotiations?
Mr. Allen: I think our concern in terms of appearing before the Committee was the simple fact that we are presently negotiating with the Government of Canada our claims in the Yukon territory and from those claims will flow certain rights that relate to the Yukon Indian people which we feel should be entrenched in the constitution. What we would recommend to the Committee is that provision be in the constitution to allow for entrenchment of aboriginal rights.
Mr. Nielsen: Whatever they might be when they are finally negotiated; is that the position?
Mr. David Joe (Legal Counsel, Council for Yukon Indians): I think if I can answer that question, Mr. Chairman as well, is that what we would like to see is an amendment to the current section now known as Section 24 under the patriation bill and perhaps introduce as an example an Indian Bill of Rights or Native Bill of Rights that would incorporate very generally certain principles which would allow for the entrenchment of treaty, aboriginal and rights that we are currently negotiating, so whatever those rights be at this point in time, and whatever those rights will be in the future, will eventually be incorporated.
Mr. Nielsen: In the constitution.
Mr. Joe: That is right.
Mr. Nielsen: Are you in agreement with the first recommendation that was put forward by the Yukon Territorial Government, namely the entrenchment of aboriginal rights in the constitution?
Mr. Joe: Yes.
Mr. Nielsen: As qualified by the answers that you gave to my previous questions?
Mr. Joe: That is correct.
Mr. Nielsen: May I ask Mr. Allen, you have used on page 2, towards the bottom and on page 3 at the top the expression. when referring to Mr. Pearson, “my counterpart”. Do you mean by that expression that you take a position that you are the head of a government in Yukon as Mr. Pearson is the head of a government in Yukon?
Mr. Allen: Well, that is true. I think as Yukon Indian people we have 12 different governments in the communities which
represent the Yukon Indian communities under the Chief and Band Council.
Mr. Nielsen: Do you advocate, the CYI, do you advocate a separate government in the Yukon for native people?
Mr. Joe: I have been asked to respond to that question. What we have advocated—of course I cannot get into a very precise discourse on our current negotiated constitutional models that we have presented at the bargaining table itself, otherwise we would be in breach of the confidentiality principle we have agreed on with the Government of Canada, but I can say it is logical to assume given, as Mr. Allen expressed, that we do have currently 12 Indian Band Governments, but there has to be a sense of co-ordination, a sense of a central Indian government function that can handle those matters that would be handled by a central Indian government, matters such as wills and estates, matters such as matrimonial property laws in the Indian community. Those kinds of matters.
Mr. Nielsen: Would only the native people of Yukon be entitled to vote for the people who head up this native government?
Mr. Joe: Yes.
Mr. Nielsen: Do you advocate that you should continue to have the rights to vote for the members who run for the Yukon legislative assembly.
Mr. Joe: Yes.
Mr. Nielsen: May I ask you with respect to the statement made on page 3, with respect to development, the last paragraph. I take it that you consider the construction of the Alaska Highway natural gas pipeline as development; would I be correct?
Mr. Allen: Yes.
Mr. Nielsen: Are you opposed to that development at the moment until final settlement of your land claims?
Mr. Allen: That is true.
Mr. Nielsen: So that in essence, am I correct in saying that you are opposed to development generally or just in selected instances?
Mr. Joe: Well, your question. Mr. Nielsen, was: are we opposed to the pipeline until our settlement is implemented? The answer to that is: yes, we are; but with respect to development generally, that certainly is not the question.
Mr. Nielsen: Well. let me put it this way: do you agree that the construction of the Alaska Highway natural gas pipeline is development, material development?
Mr. Joe: Yes.
Mr. Nielsen: And you are opposed to that material development until your claims are settled; is that true?
Mr. Joe: Yes.
Mr. Nielsen: Are you opposed to any other material development in Yukon until settlement of your claim?
Mr. Joe: Well, perhaps you can give us an example of other developments that may be on the horizon and we can give a more specific answer to that.
Mr. Nielsen: Well, there are between two and five mines that are almost ready to be developed. Would you be opposed to the development of the mineral industry in Yukon any further than it has gone, for instance new mines, until your claims are settled?
Mr. Joe: Well, those two to five new mines, as you put it, are certainly news to us and once we are more or less officially notified I think we would be able to respond at that point in time. You must have an inside track that we do not, Mr. Nielsen.
Mr. Nielsen: Well, let us just use a hypothesis, then. May I ask you whether you are opposed to any new mine being established in Yukon until your claims are settled?
Mr. Joe: I think it is a very difficult question to answer because it is posed in the hypothetical and it would be dangerous politically for us to respond in either the affirmative or the opposite to that, at this point in time. When it happens we will respond as we did when the Northern Pipeline Act came out publicly.
Mr. Nielsen: So I think we can conclude, then, that you are leaving the question of opposition to development an open one and as they may or may not occur you will be taking a stand from time to time, as they occur?
Mr. Joe: That is correct.
Mr. Nielsen: If they occur?
Mr. Joe: That is correct.
Mr. Nielsen: With respect to the statements on page 3 of your brief and your previous assertions on page 2 that there is, to use your words, profound differences in our respective views, aspirations and concerns, referring to the differences between YTG and CYI.
Pointing to the fact that a native, Paul Burko, is the chairman of the elections board in Yukon which is a position roughly equivalent to the chief electoral officer at the federal level, and pointing to the fact that there has been some progress, perhaps you do not think it is fast enough and perhaps l do not think it is fast enough, with respect to the development of native language training in Yukon schools, and participation of natives on school committees and so on, what other discrepancies, il you might list them for us, exist between YTG and the CYI?
Mr. Joe: I think the most recent example we have of that is, as you know, there was introduced in the Yukon House a new municipal ordinance. That new municipal ordinance did not recognize the existing powers of the local band council in the indian communities.
At this point in time I do not know what the current territorial governments position is with respect to the incorporation of common structures and a new municipal ordinance in the Yukon.
We have our own aspirations. We are not consulted with respect to the drafting of the structures which are now maintained under that ordinance.
That is the most recent example I could speak of.
Mr. Nielsen: Did you ask to be consulted?
Mr. Allen: We were not aware that they were drafting that ordinance.
The Joint Chairman (Senator Hays): Mr. Ittinuar followed by Senator Lucier.
Mr. Ittinuar: Thank you, Mr. Chairman. I welcome the Council of Yukon Indians to Ottawa. I congratulate you on your brief.
I notice in your statement to the Committee you have no specifically worded amendment such as the Inuit Committee on national issues had in their brief to the Committe.
Does that mean to say that you are going to propose such an amendment or table such amendments, or do you support the Native Council of Canada’s amendments?
Mr. Joe: The answer to your question, Mr. Ittinuar, is that the reason we did not incorporate specific amendments with regard to the sections with which we are concerned nor, is that we have tabled a written submission which speaks to some of our concerns with respect to the sections that concern us.
It is also our intentions to support the national position which may be adopted by the National Indian Brotherhood, and until they appear before this Committee, and until our own discussions with them, as part of the National Indian Brotherhood, are concluded, I think it may prejudice the tabling of a particular Indian community’s view from a certain region of Canada.
Mr. Ittinuar: Thank you.
Having said that. I do not think I could go very much further about your specific constitutional concerns.
Perhaps I could ask one more general question. What are your concerns in that proposed resolution, what sections are you concerned with?
Mr. Joe: We are concerned, first and foremost, about what we would consider to be the inadequacy of the presently worded Section 24, which one could allege, I would suppose, to incorporate existing native rights now in Canada: and that the Charter is not intended to take away from the existing rights.
There appears to be a very vague reference at this point in time to what those rights are.
The courts, certainly, have not defined what those rights are. The legislative process has certainly not defined what those rights are.
As we have mentioned before, it makes sense to incorporate a general native bill of rights section which would facilitate entrenchment of an agreement when we come to a conclusion of our negotiations.
The second area which concerns us is Section 6 of the patriation bill which speaks of the mobility rights in Canada.
As was addressed by Mr. Allen’s counterpart, Mr. Pearson, earlier, he expressed the view that there would be no preferential hiring in the Yukon. That could be declared to be unconstitutional.
At this point in time, with the Northern Pipelines Act in the regulations, there is allowance for preferential hiring for Yukoners, and that section could be struck out; that area concerns us.
Section 15, which is the equality before the law section, concerns us, as we have mentioned, because if we are to reach an agreement that is put into law by the government of Canada, there is nothing I could see in the constitution that would say that agreement which we have as per our interpretation of Section 15, would be struck down as being unconstitutional. That area concerns us.
We are also concerned about the interim constitutional amendment sections which do not allow for any participation of native groups in Canada, as suggested in, I believe, Section 32 which speaks to the constitutional conference.
There is no provision for any native input with respect to the interim amendments to the constitution; as well, there is no mention of any long-term participation of native people under the amending clause under Section 41. That, too, concerns us.
Mr. Ittinuar: I take it you are the lawyer.
These are much the same concerns that the Inuit Committee on national issues raised before this Committee. I appreciate that.
I would like to turn to something else; your settlement of claims with the federal government in the Yukon.
Most claims in the country, when negotiated go through two phases. There is an agreement in principle phase, in which principles are agreed upon by the federal government and the claimant; then the details are worked out after that.
Could you indicate generally what phase you are now at. I appreciate your concern about confidentiality of the negotiations. But perhaps, could you indicate just what phase you are at.
Mr. Joe: I think, first of all, there should be caveat to our response, and I do that by saying that we have not adopted any formal phases with the Government of Canada with respect to the settlement of those rights. We did not consciously decide, yes there would be phase one and that would be the agreement in principle, and phase two which would be the final agreement. We adopted the approach of trying to come to the table in an effort to get as many comprehensive agreements as we could. At this point in time in respect to your question, I would Say that you should give us a little bit of time, perhaps five or Six months, and allowing for good faith on both sides, perhaps an agreement in principle by the end of that period.
Mr. Ittinuar: Thank you.
Now, I would like to turn to something else which I conclude to be a very sensitive area for most of the Yukoners whether native or non native.
According to the exchange you have had with Mr. Nielsen from the Yukon last week, when Mr. Pearson appeared before the Committee he was asked a question by the honourable member for the Yukon on input from native organizations into the Yukon government’s brief. Mr. Pearson consequently tabled a document, which was a letter from the Council of Yukon Indians.
My question is: do the witnesses feel that their organization has been adequately consulted by the Yukon government on matters related to the constitution, and do they agree with Mr. Pearson’s statement to the effect that the elected government of the Yukon speaks for all residents of the territory, or, are there some areas of disagreement with that statement of Mr. Pearson’s?
Mr. Allen: I would state that the working relationship between the Yukon territorial government and ourselves is very poor. The simple fact is that there is no consultation with the Yukon Indian people in terms of drafting any proposal.
When the Yukon territorial government prepared their presentation to come before this Committee, they did not come to us or even address the question of aboriginal rights, which is a very serious and a most important issue to the Yukon Indian people. That is where a great deal of difficulty occurs.
Many times they talk about developments, new ordinances and new laws in the Yukon, and these developments do not take into account any involvement of the Indian people or any consultation with them.
Mr. Ittinuar: One more question. Mr. Chairman. I would like to ask you when the ICNI and I keep saying the ICNI because that is the group I have most closely worked with, I would like to ask you about the integration of the non renewable and the renewable resource sector. How do you see this happening. I take it that generally you are not opposed to development except perhaps in some specific cases which were discussed by you and Mr, Nielsen for reasons that may not be immediately evident to our members of this Committee. However, generally, how do you see the integration between the two. There must be hunters and trappers in the Yukon as there in the Northern Territory as well as wage earners in development projects. How do you see the integration between these two, development versus nondevelopment and renewable resource harvesting versus development, that sort of thing?
Mr. Michael Smith (Legal Counsel, Council for Yukon Indians): Thank you very much. I would like to respond to that question. As you are aware, first of all I want to more or less comment on what the YTG has been saying about our relationship with them. If you realize in the Yukon one of the prerogatives or one of the aims of the YTG is to become a province and they also want to have control over the resources, both renewable and non revewable resources, and therefore
advocating provincial status so they can acquire the ownership of the resources.
On the other hand, we also have the Indian people who are negotiating and are asking to have sufficient control over those resources in order to participate in any development and it more or less relates to your question in the sense that right now the YTG has been pushing to get control over renewable resources: hydro development, which has a real impact on our villages and has an impact on the trapping of the Indian people In the Yukon Territory. For example, if you were to build a dam. say, in Casmacks area of the Yukon which is known as the Eagle’s Nest Bluff, you would have to relocate one of the Indian villages. They would also be flooding areas in which the Indian people trap. So, those, are competing interests and we want to have land claims to have sufficient control over those developments.
Mr. Ittinuar: Thank you very much.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Ittinuar Senator Lucier, followed by honourable Jake Epp.
Senator Lucier: Thank you, Mr. Chairman. I also would like to welcome my friends from the Yukon, it is nice to see them in Ottawa and that they have a chance to present their views.
My first question, Mr. Chairman, deals with something that came out of the questioning last week with Mr. Pearson present. You state in your brief, Mr. Allen, that you have 6,000 Indian people in the Yukon. There was a question at that time that that comprises a large part of the stable population of the Yukon. Would that be a fair assessment in your opinion, and do you have a figure of what you consider a stable part of the population. Mr. Pearson could not answer this, and, rightly so, because as he stated they do not keep that kind of statistic.
Mr. Allen: Presently the Yukon Indian people make up a third of the Yukon population and according to research done by the Department of Indian Affairs, there has been shown that there is 45 per cent of the Yukon population that are transits, people who stay in the Yukon approximately a maximum of three years. So, you take that into account, I think it shows very clearly that the Yukon Indian people carry a majority in terms of the permanent population of the Yukon residents.
Senator Lucier: That leads to my next question, Mr. Chairman, dealing with provincial status for the Yukon. Mr. Pearson stated in his brief that the people of the Yukon should decide when we have provincial status, that it would be done by referendum. In reply to a question, his feeling was that the terms of the referendum for acquiring that opinion would be the same terms that are used in a federal election, which is residency. I am not sure, but I think it is one year that would be the residency for people voting on provincial status in a referendum. How would you feel about provincial status coming to the Yukon. I am not asking you about whether you agree that there should be a referendum on provincial status. I am just asking you about the method of vote. Would you agree
that one year residents should be allowed to vote in that type of a referendum?
Mr. Allen: We would be absolutely opposed to something like one year in terms of determining provincial status of the Yukon. I think there should be a residency of 5 years before any major decision like that is made for the Yukon territory.
Senator Lucier: Thank you. How long have your land claims negotiations been in progress?
Mr. Allen: Approximately 7 years.
Senator Lucier: There is no deadline, they could go on. Everyone hopes they will end next week but they could go on for several more years. It is a very complicated set of negotiations and they could go on for some time. Am I correct in assuming that?
Mr. Allen: Well, as you know, the other party is the Government of Canada so it takes mutual agreements at the negotiating table to speed up the process. Presently, our negotiations have taken a great deal of time simply because we have dealt with many ministers in the past, we have dealt with many chief federal negotiators, we have dealt with people who did not have the mandate, we ran into difficulties whith negotiations because we did not have access to the ministers or access to people who make decisions and I think presently today we have a form in our land claims negotiations whereby progress is being made, I think you could see for yourselves, by several months.
Senator Lucier: Okay. I would like to think you are right on that. I am not about to defend the federal government, I know exactly what you are saying is true, Mr. Allen. All I am saying is that on both sides it has been very difficult at this point to get together and make a good case. So, really, my point is there is no deadline, it could go on for some time. I am really leading up to the development in the Yukon, your views on development of the Yukon. Would it be fair to say that large tracts of land as yet unidentified are part of your questions, is that not correct?
Mr. Allen: That is true.
Senator Lucier: Also that nonrenewable resources, either through ownership or management, are part of the discussions, they could have an influence on the claims.
Mr. Allen: Yes.
Senator Lucier: So, if you were to agree to wholesale development of the Yukon at this time you would in effect be agreeing to something that is under negotiation, you would be in some cases giving your land away before you have decided where it is?
Mr. Allen: Well, this is true. I think if the province were to come today, it would prejudice our negotiations, because within our negotiations, many of these elements are being addressed.
Senator Lucier: Thank you. On the Charter of Rights, you make the case that it would be, in your opinion much more reasonable to have your protection included in the Charter of Rights as it is being proposed right now, rather than leaving it to later and having it done when the provinces are involved in deciding what goes into the charter?
Mr. Allen: Well, it is true. i think our concerns are very clear, that the reason we come before the Committee again is that it makes very vague reference to Indian rights. There still seems to be a hesitancy on the part of the Government of Canada to recognize Indian rights, and especially the Yukon Indian people who are presently negotiating certain rights which would flow from the settlement that would relate specifically to Yukon Indian people. Therefore, we feel the provisions presently in the resolution do not provide for future entrenchment.
Senator Lucier: So, you really are quarrelling with what goes into the Charter of Rights, but you feel for yourselves and if you can speak for other groups as well in this particular instance, that the native people of Canada would be much better protected by a charter of rights included in the resolution right now?
Mr. Allen: That is true.
Senator Lucier: Thank you.
On page 1 of your brief, Mr. Allen, you state and I will read this:
In terms of the responsibilities we have to our people, our most important role is to negotiate a settlement with Canada so that our aboriginal rights, our rights as the original owners and occupants of the Yukon, are clearly defined and entrenched.
Your position is and has been from day I on your negotiations that you own all the land in the Yukon until such time as the claims are settled and you decide who is then going to own what parts. Am I correct in that assumption?
Mr. Allen: That is true.
Senator Lucier: Now, Mr. Pearson in his brief I thought went a long way on behalf of the people of the Yukon in suggesting that the rights of the aboriginal peoples of Canada—aboriginal peoples of Canada, not the Yukon—should be recognized, I again have difficulty trying to figure out how these can be entrenched until they are determined. I am wondering if Mr. Pearson was really stating that he is in agreement on behalf of the Yukon territory to have your rights to every square inch of land in the Yukon entrenched in the constitution. is that your position, that you do own all that land, and how would we get that into legislation or into a Charter of Rights?
Mr. Joe: Well, what we suggested in the past was that what we do—there a couple of dangers here we are in the horns of a dilemma, so to speak—if we are to define specifically what aboriginal rights are, we do two things: we forego any mutual negotiation of what those rights are with the Government of Canada and with the Government of Yukon. it appears to me that is not a very attractive alternative; or, what we do is, we
build in a general provision, and I would suggest that the provision currently under Section 24 is a bit too general. It does not speak about which native rights are under consideration, are those native rights the treaty rights, are they the native rights with respect to rights under the Royal Proclamation, rights that we have under the 1870 transfer of land to Canada for Rupert’s Land and the Northwest Territories. None of those are very clear. What we suggest is that we allow the negotiating process to continue, but we facilitate that process by incorporating a provision that will constitutionally entrench whatever deals, whatever agreements we make with the Government of Canada when that golden day is reached.
Senator Lucier: I do not like to be pessimistic, but I am just wondering what happens when you do not . . .
Mr. Epp: You know the government.
Senator Lucier: I am just wondering what happens if you do not reach an agreement on lands. I think that is probably the best example. If you do not come to an agreement with the Government of Canada on lands, you at that point have entrenched that the aboriginal rights have given you all of the land in the Yukon. Where does that leave the rest of the people in the Yukon.
Mr. Nielsen: I can give you an even better example.
Senator Lucier: I think Mr. Nielsen will have another turn on the next round, Mr. Chairman, I would like to have this one.
Mr. Joe: Well, I like your definition of aboriginal rights.
Mr. Epp: I thought you would like that.
Mr. Joe: I certainly for one would like to say that our aboriginal rights give us title to all of the land in the Yukon. At this point in time, as Mr. Allen expressed, we realize that there are certain political circumstances that have occurred in the last 150 years which were beyond our control and which are now beyond our control. All we are suggesting is a process that would allow (1) negotiations to be concluded and (2) when they are concluded a possibility of taking a document, such as this, and I refer to the Canadian constitution, take an agreement that we would have with the Government of Canada, appending it to this document. That way we get entrenchment; like the terms of Union in British Columbia in 1871, like the Manitoba Act of 1870, but these rights would be incorporated in this document.
Senator Lucier: Thank you, Mr. Chairman.
The Joint Chairman (Senator Hays): Thank you very much, Senator Lucier. Mr. Epp followed by Mr. Allmand.
Mr. Epp: Thank you, Mr. Chairman.
I also want to welcome representatives of the Council of the Yukon Indians, especially it is good to see Mr. Elijah Smith again, a respected elder and World War II veteran.
What I would like to start off with, Mr. Allen, is the concept of legitimacy. I think as one looks at constitutions and the
drafting of same, there is the undergirding principle of legitimacy; is not only the action legitimate, but are also the people involved. Do they have a mandate and do they therefore have the power of the imprimatur of legitimacy on the whole process and in fact what comes out of that process.
First of all I would like to ask you, Mr. Allen, do you consider that the Yukon government speaks for all citizens of Yukon?
Mr. Allen: They do not.
Mr. Epp: Could you explain that, please?
Mr. Allen: Well, I guess an example I could give is that we have had general assemblies in the Yukon in terms of Yukon Indian people gathering together from the 12 communities at different times of the year and at different assemblies now continuously resolutions have come forward in our assemblies stating that the Yukon territorial government do not represent the Yukon Indian people.
Mr. Epp: Do Yukon Indian people vote for representatives that sit in the legislative assembly of Yukon?
Mr. Allen: Well, the thing is, we did not get that vote until 1960.
Mr. Epp: I recognize that. That was not only the ease of the Yukon Indians, that was the case right across Canada. I think all of us know those circumstances. But since 1960 have Yukon Indians, that is, members of the CYI—I am not talking about the officers but members of the CYI, have they been voting for representatives of the legislative assembly of the Yukon Territory?
Mr. Allen: Yes.
Mr. Epp: Have members of the CYI been members of the Yukon Territory Legislature?
Mr. Allen: Yes.
Mr. Epp: Are the present members of the CYI on the Yukon legislature?
Mr. Allen: Yes, there is, through individual choice.
Mr. Michael Smith (Legal Counsel, Council for Yukon Indians): I think we should qualify that point. They are saying that they are members of the CYI and the YTG Territorial Council. These individuals are Indian people who have run under their own party labels. For example, we have one member for the Liberal party and one for the Conservative Party. These individuals run under these parties. they are not running under a CYI ticket.
Mr. Epp: I understand the circumstances. All I am trying to get to the bottom of is, I am not talking about individuals, but whether the CYI is a universally held view of members who belong to the CYI, that they therefore, because they belong to the CYI do not recognize or cannot recognize the legitimacy of the Yukon government, either opposition or government.
Mr. M. Smith: The CYI has been advocating for a long time that Indian people should have a meaningful say in the governments of the Yukon. However, during the last few years, because of the relationship with the government, the cabinet ministers for the YTG, there has been a general view
that we boycott their elections. The CYI itself forbids any of its officers or employees to run for a position on the YTG.
Mr. Epp: Do you forbid them to vote?
Mr. M. Smith: No, we do not forbid them to vote.
Mr. Epp: So, it is possible that CYI officers who are, by virtue of your by-laws allowed not to run for office, are in fact voting for members of the Yukon government?
Mr. M. Smith: I do not think we have the power to prohibit anyone from voting in YTG elections.
Mr. Epp: Well, I am pleased you say that because to my way of thinking that would then recognize that you are recognizing the legitimacy of the Yukon government.
Mr. M. Smith: To an extent we do.
Mr. Epp: Do you recognize the legitimacy, and this might be somewhat sensitive but I will ask it, do you recognize the legitimacy of the election of a federal member of Parliament to sit in the federal Parliament?
An hon. Member: They do not like the results.
Mr. Epp: I am not talking about the results, that is a personal choice.
Mr. M. Smith: I do not know whether or not we had a choice in the last election.
Mr. Epp: I do not think you did, I think you elected the best person, but what I am getting to is the principle. What I am trying to get to, obviously, is that there are orders of government in Canada, to my way of thinking they are legitimate. I might have some reservations about the present government on the federal level as well but I accept their legitimacy as a citizen. and so what I am trying to point out is, is it your position that what we recognize as a legitimate government at the federal level, that we recognize as a legitimate government at the Yukon level, the territorial level, that the land claims notwithstanding, those governments are legitimate by virtue of the powers vested in the federal Parliament to, in fact, pass the Yukon Act?
Mr. Joe: I am glad that you are coming from that angle, Mr. Epp, because if, in fact, we do recognize the legitimacy as you put it of the Government of Canada and its off-spring, the Government of Yukon, albeit deformed at this point in time because of its lack of a constitutional independence, I would then say that if our answer is to be yes, and as Mr. Smith expressed, it is partially yes, then it appears to me the Government of Canada must also recognize its own legitimate laws with respect to native people in Canada such as the Royal Proclamation.
Mr. Epp: I am not arguing with the clegitimacy of your viwpoint, Mr. Joe. What I am trying to point out is that your position, where it is legitimate on the question of land claims negotiation, and also legitimate role of the Government of the Yukon, that I think it is generally accepted, and I personally accept it, that the federal government has the power in fact to
pass legislation which has given legitimacy to the Yukon government, and what I have difficulty understanding from your part is that while the land claims process, and I am pleased to see it go forward under the regime that hopefully some of us had a little bit to do with, that that is a separate question, that is a land claims question and a separate question from your argument of whether or not the Yukon goverment is legitimate or not.
Mr. Joe: That is true.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Epp. Mr. Allmand.
Mr. Allmand: Mr. Chairman, to the witnesses, how long have the Yukon Indians been able to trace their history in the Yukon Territory?
Mr. Allen: I think 60,000 years at the last count.
Mr. Allmand: Excuse me?
Mr. Allen: Sixty thousand years.
Mr. Allmand: You have actually done research to trace it back that far?
Mr. Allen: Well, not research. There has been work done that indicates we go back 60,000 years.
Mr. Allmand: All right. Before the gold rush of 1898, what percentage of the Yukon population was non-Indian? I am not asking for specific figures but I know in researching your claim, you got into some of these figures. Before the gold rush of 1898, what percentage was non-Indian?
Mr. Elijah Smith (Vice-Chairman, Council for Yukon Indians): Well, I was not alive for the gold rush but I was around when . . .
An hon. Member: Ask Stanley Knowles.
Mr. E. Smith: When there were very few white men in the Yukon and I can name them off, practicaly every one of them, because there were no more than 12 to 15 residents in the Yukon when I was a kid playing hockey there.
Mr. Allmand: What time was that, Elijah?
Mr. E. Smith: That was 1922.
Mr. Allmand: Well, I understand from history that during the period of the gold rush, from about 1898 to 1905, more or less, that 100,000 non-Yukoners came into the Yukon, most of them white, and prior to the gold rush a very small percentage of the population was non-Indian and, as you pointed out, after the gold rush, after 1910, most of those white men left the Yukon and the population was overwhlemingly Indian; is that correct?
Mr. E. Smith: That is right.
Mr. Allmand: And the next great rush of non-Indians into the Yukon was with the building of the Alaska Highway; is that right?
Mr. E. Smith: That is right.
Mr. Allmand: Right now, and Senator Lucier was getting into this, if I understand correctly, right now of those who are permanent residents of the Yukon, those who have stayed more than three years, you say that you are over 50 per cent of the population?
Mr. E. Smith: Well, if you take out Faro, Keno Hill, and Clinton Creek is gone, and the government employees, you only have less than 200 white men up there.
Mr. Allmand: Well, I do not know if it would be fair to take out Faro and the government employees, but my point is that of those who stayed more than three years, I guess from what Senator Lucier has said, 45 per cent of the population is itinerant, therefore, that would make the Indian population the majority population of those who are really permanent?
Mr. E. Smith: Well, I better tell you the statement that Mr. Pearson stated here was that there is a majority of whites. Sure, there is a majority of whites but they are also counting the nonstatus people which we are claiming, too, because they have the Indian ancestors and those people are entitled to our land claims, so therefore they are Yukoners.
Mr. Allmand: But what I want to ask you following up on these questions, number one, since they starting to elect a federal member of Parliament in the Yukon territory how many of those members have been Indians?
Mr. E. Smith: None.
Mr. Allmand: Of the present legislative assembly in the Yukon, I think it is 15 members…
Mr. Allen: Sixteen.
Mr. Allmand: Sixteen, excuse me. How many are Indians?
Mr. Allen: Two.
Mr. Allmand: Two out of 16. Among what might be called senior civil servants, let us say all those that work in the nice new Yukon government building, how many would be Indians?
Mr. E. Smith: Well, I have never checked on them but if there was ten in the Yukon I would be exaggerating.
Mr. Allmand: Mr. Allen, do you think that the senior civil servants . . .
Mr. Allen: Well, it is true. I think the numbers are very small in terms of the Indian people, if any, I do not think there is anyone at the senior level.
Mr. Allmand: To be a bit more specific, and some people have asked you questions about this, about how you would like to see us amend the constitutional resolution so that it would protect Indian rights and aboriginal rights, if I understand correctly you would like to see included in those proposals a protection for aboriginal rights, you answered that earlier. What about a section that would protect treaty rights in those areas governed by treaties?
Mr. Allen: Well, I think David Joe’s response earlier was we see the new section being added to the resolution which would take into account aboriginal rights, and these rights would
include treaty, aboriginal rights, any agreements that are to be negotiated with the government of Canada in the future would all fall under that umbrella.
Mr. Allmand: What about a section that would say rights confirmed by any other aboriginal settlement?
Mr. Allen: That is true.
Mr. Allmand: What is your answer to that?
Mr. Joe: The rights to be included from any other aboriginal settlement?
Mr. Allmand: Yes, rights that are confirmed by any other aboriginal settlement?
Mr. Joe: I think you are probably using words from your own private members bill at this point in time?
Mr. Allmand: Right, I am.
Mr. Joe: And that may certainly be broad enough.
Mr. M. Smith: May I add that however we would still be subject to section one of the resolution which states that it is subject to such reasonable limits as are generally accepted in a free and democratic society. In other words, while you do put that in it would still have that major limitation of the first section of the resolution. So it would still leave it wide open for Parliament to go ahead and still override any of the rights we would enjoy.
Mr. Allmand: Well, I understand that you are recommending that section one be tightened up.
Mr. M. Smith: Certainly.
Mr. Allmand: That is all, Mr. Chairman.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Allmand, Mr. Hawkes, followed by Mr, Ron Irwin.
Mr. Hawkes: Thank you, Mr. Chairman, and thank you for coming today.
On page 5 of your brief you point out the Prime Minister’s letter to the Indian Brotherhood on October 30 in which he claims that subsequent to patriation it will be easier for native people, aboriginal people to entrench their rights in the constitution, and you take specific issue with that assertion on the Prime Minister’s part. Last night the Native Council of Canada told us that they felt the Prime Minister was being dishonest in making that statement on October 30, and they said that in light of the fact that they had a brief prepared by the federal-provincial relations office, by Michael Kirby, I think, is the reputed author of it, in which the advice from officials indicated clearly that in fact it would be more difficult to entrench native rights subsequent to patriation rather than before.
I assume that you put that example into your brief as an example of the fact that over time people have said many things to you, in letters or verbally, and that in fact those things frequently do not work out to be real and that your concern about the constitution of Canada is that you not be left with a series of premises but that if this constitution, if it is to be revised. then there be sets of words inside the constitution that give you some status in court, some protection from one of the institutions of government, and that is really what you are
concerned about, the specifics of the words that will go into the constitution.
Am I correct in that assumption?
Mr. Allen: That is true.
Mr. Hawkes: When you responded to Senator Lucier earier, he asked you if you were in favour of a Charter of Rights. I would like to be a little more specific and just get it on the record. Are you in favour of this Charter of Rights as it sits before us?
Mr. Allen: No.
Mr. Hawkes: Part of why you have said you are not in favour of it, as I read your brief, is that you believe, and I think perhaps the phrase that might serve us best is on page 6, you have a number of phrases but you say:
Either the Charter of Rights creates new relationships or it confirms old injustices.
As the Charter sits would you conclude that it basically would confirm old injustices?
Mr. Allen: That is true.
Mr. Hawkes: That is true.
Mr. Allen: Yes.
Mr. Hawkes: Could you just identify for us the major injustices, or one or two major injustices that you would like to highlight, that you think would be confirmed by this Charter?
Mr. Joe: Well, I think, first of all, with respect to something as simple as membership, who decides who will be a member of your Indian government, of your band. Presently that decision is left up to certain sections of the Indian Act itself, which speak to it. and currently that removal of local decision making, of deciding who is to be a member of your band based on either very precise, objective criteria, or as well consideration of subjective criteria within the locale. and if one were to now impose in this constitution Section 15, which speaks to equality in the community, certainly in the Indian community in Yukon, you are imposing a system of equality in that community which flies in the face of the desire of Indian people to decide who is one of them.
Mr. Hawkes: Now, one point which I do not think has been properly emphasized, it is in your brief, and I think it has been in other briefs but I have not heard a series of questions on it, but I think it is important to identify that in your brief you say to us that the federal government has the jurisdiction to work with the Indian people and to change the constitution of Canada without the concurrence of any other government in Canada, that it not only has the right but I think you go one step further and indicate it probably has the responsibility, that the constitution of Canada without patriation could be amended by this one level of government if it was sincere about those new arrangements, about getting rid of the past injustices?
Mr. Allen: That is true.
Mr. Hawkes: You say that is true and that is your perspective. Can you tell us why you believe that after all these years the federal government has not moved to make those kinds of
constitutional changes to entrench the kinds of things that would provide you with protection?
Mr. Joe: Well, we tend to learn from experience and we look at our brothers to the south who have made specific agreements with the government in the past, and none of those agreements, to my knowledge, have been lived up to fully. The spirit of these agreements have been avoided. We look at that.
As well, we look at some things perhaps as small as an agreement with respect to a big company like Cyprus Anvil coming up to the Yukon under the pretext, and with the support of the federal government, to give employment to native people, an agreement that approximately 25 per cent of the work force be constituted of native people to work in this mine, and to date that agreement has not been forced upon or made binding upon that company to do it, and there is just a number of things like that that have happened.
We just do not believe the word of the Government of Canada. If we come to an agreement, we would like to take our chances given some kind of a restrictive—I am anticipating a very restrictive amending formula in the future—we would like to take our chances and incorporate whatever agreements we get with the Government of Canada.
We just cannot trust the word of the Government of Canada. Word is one thing and deed is something else, and so far we have not seen the deed.
The Joint Chairman (Senator Hays): Thank you, Mr. Hawkes. Your time is up.
Senator Lucier: Mr. Chairman?
The Joint Chairman (Senator Hays): Yes.
Senator Lucier: If I could get a point of clarification. Something that Mr. Hawkes said made it sound like I was espousing the Charter of Rights as it was written and that was not my question. My question related to whether the native people of Canada would be better protected by a charter of rights, not necessarily the wording in this Charter of Rights. I also agree that some of the wording in this Charter should be rewritten and will be rewritten. My question dealt with whether they would not be better protected by a charter of rights.
The Joint Chairman (Senator Hays): Thank you very much. Mr. Irwin.
Mr. Irwin: Mr. Allen, you have indicated there are 16 members of the legislative assembly and that two are Indians and there are very few civil servants who are Indian. What is the breakdown between parties of the 16 in the legislative assembly?
Mr. Joe: There are 11 Conservatives, two Liberals, one vacant, one NDP and the other is independent.
Mr. Irwin: Now, on your negotiations do you find the assembly of the government generally supportive, indifferent or generally opposed to your aims?
Mr. Allen: Well, we find they are generally opposed to the aims of the Yukon Indian people.
Mr. Irwin: Why is that?
Mr. Allen: Well, it is difficult to say but I think it is the attitude they have as the Yukon territorial government in
terms of not sitting down and dealing with the issues that relate to the goals and aspirations of the Yukon Indian people. I think they have avoided that, they do not seem to want to sit down and recognize there are Indian bands. Indian governments. Indian communities. There are special means that the Yukon Indian people have in terms of programs, that there are different types of funding that are required to meet the needs of the Yukon Indian people. They seem to avoid the whole issue.
Mr. Irwin: Now, as between the provincial Conservative Party and the national Conservative Party, what is the relationship? Is it close or is it arms length?
Mr. Allen: I would not know. I do not know.
Mr. Irwin: Now, on mobility, you have indicated that you have serious reservations. You are opposed to having the mobility rights enshrined so that Southern Canadians can go north to work. How about the reverse? How would you feel if, say, Saskatchewan, Alberta, Ontario or any of the provinces said that you had to be a resident for two or three years in that province or you could not work there?
Mr. Allen: Well, I guess a lot of it depends on the political situation. I think in the Yukon, the needs and aspirations of the Yukon Indian people in terms of making decisions, I think the Yukon Indian people have to play a major role. In terms of right now I think our people, around approximately 80 per cent of our people are unemployed. This lack of economic development in the Yukon Territory, the training in terms of our people is very low. So taking all these circumstances into account I think that we have to have some type of clause of residency in terms of the Yukon Territory to ensure that the Yukon Indian people get some of the benefits of employment, the training and some of the benefits that come from development or whatever occurs in the Yukon.
Mr. Irwin: All right. You make an economic argument but I would like to deal with the cultural argument. I know that from a recent report, that by intrusion of television, basically from Southern Canada, and mostly American, it has changed significantly the culture of the North. For instance, Indians who are usually peaceful one to one, even though they are in a very hostile environment, are fighting more and the report I saw says there is a direct relationship to the violence they are seeing on the television that is coming in from the South, Hockey Night in Canada, Starsky and Hutch and this type of thing.
Would you agree that there is a cultural intrusion into the north from the south? What is it doing to your own culture?
Mr. Joe: The answer to that is yes, there is a cultural impact. There would be a devastating cultural impact if you were to leave the mobility clause as is; and as I can recall, in our participation before the Lsysk Inquiry, which was an inquiry established to determine the social and economic impacts which would accompany the construction of a pipeline with the capital costs of approximately six billion dollars, we were told there would be approximately 2,000 people on a daily basis during the construction period that would be coming into the Yukon.
I cannot imagine—and I shudder to think what would be the cultural impact of those transients coming into the Yukon.
We can appreciate the sensitivity that different provinces have with respect to their own respective aspirations, whether or not they want a shifting work force in this country or not. But we, as Yukon Indian people, do not feel that our cultural values should be left unprotected when there is an industrial onslaught through a transient work force which would come up for a very short period of time and make demands on the infrastructure up there which we are not, at this point in time, totally sure could secure and provide the kind of services that southerners generally desire.
Mr. Irwin: This makes more sense to me.
I can understand the cultural onslaught. But it is very difficult to explain to someone in Alberta, Ontario or Newfoundland, why they cannot work out of their province.
Canadians generally, I think, would accept the proposition that we are destroying a culture in the north, in fact several fragile cultures in the north. Perhaps a discrimination clause based on that type of proposition would be acceptable to Canadians at large, and, as has been said, you should not confuse unity with uniformity.
It is important to all of us, as Canadians. that your culture should survive.
But I have a great deal of difficulty with the aboriginal rights, especially when they throw in phrases “aboriginal rights from time immemorial”. What is your concept of aboriginal rights?
Mr. Joe: It could be put very simply. We are the original owners of the land. We own the land, what is on the surface and in the subsurface.
We have amassed ourselves into certain societal arrangements; we have governed ourselves according to our own societal and cultural values; we have our own languages—all of these things are our inherent aboriginal rights. We own all of this.
Mr. Irwin: Do you differentiate between ownership and occupancy? “Ownership” is a white man’s term, and I have never heard it in terms of aboriginal rights. I thought we were talking about rights of occupancy.
Mr. Joe: Well, if we have occupied the land and there is no one else there, then we own the land.
There appears to be imposed upon us a British system of property rights which says that by right of discovery the government of Canada now has sovereign dominion over those lands, just by some magical stroke of the pen.
Mr. Irwin: Do you suggest that matrimonial and criminal concepts be involved in aboriginal rights?
Mr. Joe: Yes, of course.
Mr. Irwin: Thank you.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Irwin. Mr. Nystrom.
Mr. Nystrom: Thank you very much, Mr. Chairman.
I would like to welcome Harry Allen and the Council of Yukon Indians here today. I really appreciate your brief and your answers to questions.
I would like to say, at the outset, that I am very supportive of your position. I think the aboriginal people of our country are special and very distinct. Your people were here many thousands of years before my people, and there should be a special constitutional arrangement for them.
I think aboriginal treaty rights should be enshrined in our constitution, and we should be looking for some way of involving the aboriginal people in the amending formula and of accomplishing a bit more responsible self-government for the aboriginal people of this country.
I very much appreciate the comments you have made. I also appreciate the questioning and the answers you gave to Mr. Warren Allmand about the number of Indian people in the Yukon, the number of white people, and transient workers. That information is very valuable for the purposes of this Committee.
I would like to follow up on some other problems that you have indicated that you are having in the Yukon as Indian people.
You say at page 3 of your brief—and I quote:
I have to point out that, regrettably, Mr. Pearson’s statement regarding aboriginal rights bear little relationship to his government’s past actions. In fact, Mr. Chairman, the discrepancy between word and deed is so great that the Yukon territorial governments statement smacks less of principle than of public relations.
Would you care to elaborate a little bit on what you mean by that? Could you give us a few examples as to how your people are treated by the Government of the Yukon?
Mr. Allen: This can be very clearly and simply explained by the fact that the working relationship with the Yukon territorial government has been very poor.
The Yukon territorial government has very strongly opposed a land claim settlement, the means by which the Yukon Indian people are attempting to determine their goals and achieve their aspirations as well as their involvement in the future.
By way of further explanation, you have seen what the Yukon territorial government has been doing to the Indian people of the Yukon. The Yukon territorial government are continuously prosecuting the Indian people for hunting—an activity which relates to their way of life.
For example, take the case of Joe Henry, an 80 year old Indian: he was charged by the Yukon territorial government for discharging a rifle.
Mr. Nystrom: Charged by your own government?
Mr. Allen: By the Yukon territorial government. That demonstrates further that they still have not accepted the
Indian way of life, people still living off the land, with their own life style, a distinct culture and, as I have already said, a way of living. They have not taken these things into account. They have not taken us into account. Continuously we are being prosecuted by the government of the Yukon territory, and we are strongly opposed at different times when various things are being proposed.
A further example would be that the Yukon territorial government made an arrangement with the Pawnee Tribal Brotherhood, so that people could go into the game sanctuary in the Yukon to pursue their traditional cultures, and to take their young people back into the areas that they have traditionally used and occupied.
There is a letter of understanding between the Yukon territorial government and the Pawnee Tribal Brotherhood. What happened was that there was a breach by the Yukon territorial government, and charges were laid against members of the Pawnee Tribal Brotherhood for being in the game sanctuary. This goes on continuously, day after day in the relations between the Yukon territorial government and the Indian people, and demonstrates very clearly that that relationship is still very poor.
When we do meet with the Indian people to discuss our land claims goals and aspirations as Yukon Indian people, you will see people at our assemblies coming in from the 12 communities making statements—and they also go to the press—to the effect that the Yukon territorial government does not represent Indian people. These are the reasons why.
Mr. Nystrom: Are there any problems with trap lines or trapping?
Mr. Joe: The position is that the territorial government in terms of trap lines, have not recognized our culture. They have always discussed their ordinances and the trap line regulations and matters of that sort, but they do not take into account the basic life style of Indian people. Many times, when you look at the regulations, on the question of redistributing trap lines in the Yukon territory, you will find that they seem to be removing areas traditionally used by families and are making these families much smaller than they should be.
Mr. Nystrom: I wonder if you would elaborate on why you are so opposed to a pipeline until settlement? l suspect it has a lot to do with your hunting rights, your trapping and fishing rights, and perhaps some of the land where the pipeline is going would be over those very lines in question. Can you elaborate why you are so opposed to a pipeline before a settlement? It would be very useful for us to know?
Mr. Allen: We are strongly opposed to a pipeline because if you look at developments in the Yukon in the past, native people have had very little involvement or benefit coming out of it. As Indian people, we have very little in terms of an economic base. Looking at all the things that are happening in the Yukon, what is the surest means by which we can obtain some form of involvement and an economic base? Look at the new programs for our people; look at the political participa-
tion; look at the political structures in terms of protecting Indian rights today. We strongly believe, as Indian people: “Together today, for our children tomorrow”, so that the rights and compensation we agree with the Government of Canada would be there for the benefit of future generations.
These types of issues clearly indicate why we strongly oppose pipeline development.
The land claims we see as a means of achieving once and for all the type of participation promised to us by government in the past.
We do not see that type of participation coming from pipelines or any other major development until our claims have been settled.
Mr. Nystrom: How long have the negotiations being going on?
Mr. Allen: For approximately seven years.
Mr. Nystrom: For seven years?
Mr. Allen: Yes.
The Joint Chairman (Senator Hays): Thank you. Mr. Nystrom. You are a little over time.
Mr. Mackasey, followed by Mr. Neilsen.
Mr. Mackasey: Thank you, Mr. Chairman.
I want to say at the outset, Mr. Allen, that sitting here for the last few days listening to aboriginal representation, that it has become fairly obvious to me that in too many countries there has been terrible harm done to people who have been here many, many thousands of years before the first Irishman arrived in this country.
I hope when you go back past those 15,000 years that Mr. Allmand talked about, that, maybe, there is found to be some link between the Indians and the Irish; maybe we came from the same piece of land.
But I would like to advance a premise which appears to have been forgotten: you really have two sets of rights, and we tend to forget in our discussions that rights which would be enshrined in the charter, which unite all Canadians, are rights which would apply to you as well. Do you agree with that?
Mr. Allen: That is true.
Mr. Mackasey: Then, there is another set of rights, which can be clearly identified as special rights, by virtue of the fact that you were the first people on this continent, and your rights, through the centuries, have been flagrantly disregarded. Am I right about that?
Mr. Allen: That is true.
Mr. Mackasey: So you have no objection to the basic rights that should be enshrined for all Canadians, including yourselves?
Mr. Allen: Yes.
Mr. Mackasey: You are very much Canadians. And the fact that some of your members vote should not in any way jeopardize your negotiations or the position that you are taking that you are a separate identity here.
Therefore, the whole thing comes down to the second set of rights, the aboriginal rights, if I may use that expression. You have outlined them almost poetically at page 3, where you say that negotiations once finalized, forever will define whether the Yukon Indians—well, I am paraphrasing, and I know it is somewhere in there.
But, perhaps, I should ask a question, stressing the dilemma I have, as one who is very sympathetic with your views. it seems to me that at present there is an option, namely, whether to negotiate or continue to negotiate the definition of these rights, or to take the short out which some other groups have suggested and enshrine a very broad definition of aboriginal rights, and then run the risk of aboriginal rights being defined or clearly spelled out by a court. Do you find that a dilemma?
Mr. Joe: Well, we would not be running so much of a risk, if, for example, we may have overlooked a right which may not have been enshrined.
I say that because if we are truly going to be participating in Canada, we have to be part of the amending formula in the future, and if we are part of that, then it makes sense that we should have a political base in which we could advocate the inclusion of additional rights which may have been left out initially.
But there is a great danger if the current trend—and reading the patriation bill, the current trend is to exclude us from any amendment; if that is the case, then the answer is yes, there is a great danger.
Mr. Mackasey: I am afraid, once again, in our willingness to rectify some of the injustices we tend to create new ones, which has been the history of the so-called white community in their dealings.
In the first category, Canadian versus special status, you would have some input in the amending formula in the sense that you would be, under the present formula, voting, if, perchance, we had to go to a referendum; you would be voting as a Canadian, rather than as a Canadian with special status.
When you want both it becomes very difficult; and this is my way of saying that the ideal solution to the problem would be if at some time in the foreseable future you could see a satisfactory end to negotiation, then, theoretically, you would be like any other Canadian; that, of course, poses a cultural threat.
I do not pretend to talk for the other party, and there is no party line at this moment; but I could see an advantage of a subsection (b) of Section 24 as a means of reminding Canadians and, perhaps, the Supreme court that if, and when, negotiations are finalized they become automatic, a kind of opting in process to the constitution. Is that what you are suggesting?
Mr. Joe: Yes; what we are suggesting is that, in fact, whatever agreement we come to will be somehow enshrined, entrenched in the Canadian constitution. That is absolutely true.
Mr. Mackasey: Preferably by an addition to Section 24, possibly.
Mr. Joe: Or creating a new section.
Mr. Mackasey: A new section to Section 24, right, a subsection.
Finally . . .
The Joint Chairman (Senator Hays): Your last question, Mr. Mackasey.
Mr. Mackasey: Yes, I anticipated that. That is why I said “finally”, Mr. Chairman.
The Section 15(2) on affirmative rights, do you think that that is sufficiently powerful or well written or clearly ennunciated? Do you think that section on affirmative rights would somehow alleviate your fears of a mass influx of transients and once again you people will be asked to step aside for the temporary jobs. Would you find any objection to using that section to protect your legitimate position as residents of that area on the expansion that will go on, let us say, on a pipeline project?
Mr. Joe: Well, Section 15(2) is not broad enough at this point in time. It speaks of programs for disadvantaged groups. To include our settlement in that, our settlement has to be a program for a disadvantaged group. It appears to me that that is certainly not the intent of our settlement. Our settlement is intended to entrench certain rights into Canadian law and Section 15(2) is not. . .
Mr. Mackasey: I am talking in the transition period, in the period while you are still negotiating the rights which you eventually want entrenched.
Mr. Joe: If you accept that, one, native rights in Canada has to be enshrined then you are going to have to make amendments to the current proposed resolution.
Mr. Mackasey: Thank you, Mr. Chairman.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Mackasey. Mr. Nielsen followed by Mr. Epp.
Mr. Nielsen: Thank you, Mr. Joint Chairman. I could not agree more with the last statement that was made by Mr. Joe. I have two observations to make before I put additional questions, one which arose as a result of Mr. Irwin’s questioning with respect to the mobility rights. Mr. Joe is very modest when he answered with an estimate of 2,000 people on a daily basis in migration as a result of pipeline construction. It has been estimated there is anywhere between 2 and 10,000 people and the impact on the culture of not just the Indian people but the impact on the whole of the population of Yukon is extremely serious. Consider those members and senators from the Province of Quebec in the community of Rouyn, a community of 18,000. All of a sudden you had 2 to 10,000 anglophones descend on that community; similarly Granby with a population of some 27,000 and an influx of between 2 and 10,000 anglophones on that community. The cultural impact would be somewhat similar to that described by Mr. Joe.
The observation that I want to make has to do with Mr. Allen’s responses concerning the Yukon Territorial government, and I took his words down. The Yukon government opposes a land claim settlement. With respect to Mr. Allen, and to be fair, it is my conviction that that is not accurate and the Yukon territorial government earnestly wants a fair and just settlement to Yukon land claims. For those members of the Committee who are not aware of the fact it should be noted that the Yukon government is involved in the negotiating process and I believe are negotiating in good faith and I believe are negotiating in the spirit of cooperation to achieve that deadline which could be achieved, as Mr. Joe stated, perhaps in six months time. But they are involved and they are earnest and they are negotiating and participating in good faith.
With respect to the constitution itself, and I will direct this question to Mr. Joe as a barrister and solicitor, what sections of the Indian Act, an act which I know he is very familiar with, could be deemed of no force or effect, given Section 25 of the proposed charter. Have you done an analysis?
Mr. Joe: I personally have not done one such as that, but I would suspect that the membership sections of the Indian Act themselves—I think the National Indian Brotherhood, when they appear, should they appear before the Committee, would have more precise answers on that.
Mr. Nielsen: With respect to the observation of Mr. Mackasey, Section 15(2) is almost word for word lifted out of the same section number, Section 52 of the Human Rights Act. So, that is your interim provision, if that is necessary.
Mr. Mackasey: Except you will have more weight coming from the constitution than you would have out of the Bill of Rights, otherwise, you would not be putting any in the constitution.
Mr. Nielsen: But that is precisely what Mr. Joe is saying, that has to be broad, it is not good enough to have it in the Human Rights Act only.
With respect to language rights, there has been, as I said in my preliminary questions, some progress made in Yukon, perhaps indeed more than in any other jurisdiction in Canada concerning the accommodation of native language rights in Yukon and further progress is being conscientiously undertaken by the Yukon government, as is my understanding.
Do you feel that we could make provision now, even prior to final settlement of your negotiations, for entrenchment of native language rights in the constitutional package which is before this Joint Committee at this stage?
Mr. Joe: I do not see any difficulty with doing that at all.
Mr. Nielsen: Have you considered a draft at all? Do you have one to propose to the Committee?
Mr. Joe: No, we do not.
Mr. Nielsen: The Tahlton native people in the Province of British Columbia are making land claims which extend to areas within the juridical boundaries of the Yukon Territory. Are you opposed or for the Tahlton claim as it affects Yukon?
Mr. Joe: Well, of course we are for the Tahlton claim because we, like the Tahltons have claims in Alaska, the Northwest Territories and British Columbia. Of course, we respect the fact that other Indian tribes have claims in the Yukon Territory. What we would like to do is decide mutually between the Government of Canada, the Tahltons and any other native groups that have claims that may overlap our interests in the Yukon and developed a mutual policy that speaks to how we are going to address that very difficult question in the future. Presently, there is not in existence any such policy.
Mr. Nielsen: That is what I was getting at by leading into that matter with that last question.
Mr. Joe, the government, it appears to me, needs some assistance in developing such a policy.
The Joint Chairman (Senator Hays): Last question.
Mr. Nielsen: Do you feel that extra territorial claims of native people, claims that extend beyond jurisdictions in which they find themselves into other jurisdictions, could be satisfied by a monetary settlement as opposed to a territorial settlement?
Mr. Joe: I think that question could be better put to those particular individuals that are involved, as one option. I really cannot speak to that at this point in time.
Mr. Nielsen: On behalf of CYI on their extra territorial claims.
Mr. Joe: My instructions presently are no.
Mr. Nielsen: One more question, Mr. Chairman, please. Were you led to believe, CYI, that you would be involved in any way in the First Ministers’ conferences and/or in the development of the existing constitutional package before this Joint Committee?
Mr. Joe: No.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Nielsen. Mr. Hawkes, you have a question?
Mr. Hawkes: Just a couple of confirmatory questions. Your concern about mobility is on two sides, is that correct? You want to protect yourself against invasion, large influx of people, but to redress the disadvantage economic conditions there must be provision in the constitution for preferential hiring and training and programs of that kind and those should be clear and specific; those were the two major . . .
Mr. Allen: Yes.
Mr. Hawkes: Okay. There was another thread that I would like you to address. One of the statements I underlined was that you say on page 3
Clearly there exists no honourable justification for rushing towards such a constitutional milestone
This is in your major brief rather than your opening statement. There is also the idea that you want this agreement entrenched and you said that you anticipated in a shorter
period of six months that you might in fact be able to reach the kind of agreement you have been working on for seven years. I am just wondering if what you are trying to say clearly to us is that from your persepective it would be helpful if we waited a while before we patriated, that at least your concerns could be straightened out in large measures through the passage of just a little more time. Could you give us some estimate of the kind of time that you think. Is the six month figure fairly firm or would you urge us to wait a year or eight months?
Mr. Allen: I think it is a reasonable time we could look at.
Mr. Hawkes: Okay. And then the last thing I want to say, to just make clear. Do you feel that any constitutional change affecting aboriginal people, Yukon Indians specifically, should be agred to by those people and that for ever after in the future constitutional change as it affects all Canadians or constitutional change as it affects aboriginal people should be agreed to by aboriginal people?
Mr. Allen: The latter part.
Mr. Hawkes: That constitutional change as it affects aboriginal people should be agreed to by those people through some mechanism of arranging representatives and involving them.
Mr. Joe: That is right, but it will not work vice versa; that is to say, for example, if there is going to be amendments to the constitution in the future that affects a certain provincial right and that affects those charter of rights that Indian people have in that province, it appears to me that we are going to include an Indian charter of rights, only the native people that are concerned about that charter should be consulted, have to be consulted, and agreement has to be reached before that amendment can come through. With respect to a provincial right that is granted or taken away in the future, if it affects native people, they too should be consulted in that amending form.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Hawkes. Do you have a question Mr. Nystrom you wanted to ask?
Mr. Nystrom: Yes, just a couple of short ones if I may. I would like to ask Mr. Allen once again if he shares the idea that many people have advocated that if aboriginal rights are not entrenched now in our constitution, they may never be enshrined because one has to then go through an amending formula where you have many different combinations that are vetoed either by the Government of Canada, the Government of Quebec, the Government of Ontario, two western provinces or two Atlantic provinces. Are you of the opinion that if your rights are not enshrined now, if we were to patriate with whatever else, and not enshrine your rights, that it would become very, very difficult to do so in the future?
Mr. Allen: It is true. I think if you look at the political circumstances today and the way government deals with Indian Rights and promises and commitments and also decisions made by the courts, I do not think we can just leave it open for someone else our future promises in terms of negotiating Indian rights.
I think there has to be a degree or recognition of aboriginal rights and there has to be entrenchment of aboriginal rights. So, there is continuous commitment by government to deal with Indian people. I think if that commitment is not there, the government will not deal with Indian people. it is that clear from our past experiences.
Mr. Nystrom: Well, my last question is, if from what you said earlier that the Royal Proclamation of 1763 is very important and it should be enshrined as part of our constitution for your protection, for your land claims and your constitutional rights. Is that the case? I am talking about the proclamation of 1763.
Mr. Joe: Yes. It is not only the Royal Proclamation. but there are a number of constitutional documents that are not even referred to as a part of Section 24. For example, the June 23, 1870 Order-in-Council that transferred the Yukon and Northwest Territories as a part of Canada, the Manitoba Act. Those documents it appears to me would have to be incorporated to ensure the continuance of whatever rights they would have given to the native people in Canada.
Mr. Nystrom: Thank you very much.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Nystrom.
Mr. Allen and Mr. Smith, Mr. Joe, Mr. Smith representing the Council of Yukon Indians, we were pleased that you were here and on behalf of the Committee I wish to thank you. We will take your brief into consideration when we are making our report and I am sure the Committee have learned a great deal this afternoon. We do want to thank you and, on behalf of my Joint Chairman, thank you very much for being here.
Mr. Allen: Mr. Chairman, I would just like to express to yourself and to the Committee members we thank you deeply for giving us the opportunity to represent the views of our people and we thank you again because it is most greatly appreciated.
The Joint Chairman (Senator Hays): Thank you very much.
Members of the Committee, tomorrow at 10:30 am. we will be meeting the Canadian Catholic Trustees Association; at 11:30 am. the Canadian Council on Social Development, that is tentative, and at 3:30 p.m. the Government of New Brusnwick, Premier Hatfield and 9:30 a.m. on Friday, the Saskatchewan Human Rights Commission.
This meeting is adjourned.
From the Council for Yukon Indians:
Mr. Harry Allen, Chairman;
Mr. Elijah Smith, Vice-Chairman;
Mr. David Joe, Legal Counsel;
Mr. Michael Smith, Legal Counsel.