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 27 (16 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 27 (16 December 1980).
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HOUSE OF COMMONS
Issue No. 27
Tuesday, December 16, 1980
Senator Harry Hays, P.C.
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
OF COMMONS ON THE CONSTITUTION
Senator Harry Hays, P.C.
Serge Joyal, M.P.
Representing the Senate:
Representing the House of Commons:
Campbell (Miss)(South West Nova)
Joint Clerks of the Committee
Pursuant to S.O. 65(4)(b) of the House of Commons:
On Tuesday, December 16, 1980:
Mr. Hawkes replaced Mr. Oberle;
Mr. Dantzer. replaced Mr. Fraser;
Mr. Hargrave replaced Mr. Beatty;
Mr. Allmand replaced Mr. Lapierre;
Mr. Gingras replaced Mr. Irwin;
Mr. Riis replaced Mr. Nystrom;
Mr. Wright replaced Mr. Epp;
Mr. Gimaïel replaced Mr. Henderson;
Mr. Epp replaced Mr. Hargrave;
Mr. Beatty replaced Mr. Wright;
Mr. Irwin replaced Mr. Gingras;
Mr. Manly replaced Mr. Riis;
Mr. Nystrom replaced Mr. Waddell;
Mr. Schellenberger replaced Mr. Dantzer;
Mr. Henderson replaced Mr. Irwin;
Mrs. Hervieux-Payette replaced Mr. Corbin;
Mr. Keeper replaced Mr. Nystrom;
Mr. Fulton replaced Mr. Keeper;
Mr. Irwin replaced Mr. Allmand.
Pursuant to an order of the Senate adopted November 5, 1980:
Senator Connolly replaced Senator Stanbury;
Senator Rousseau replaced Senator Lamontagne;
Senator Rizzuto replaced Senator Rousseau;
Senator Williams replaced Senator Goldenberg.
MINUTES OF PROCEEDINGS
TUESDAY, DECEMBER 16, 1980
The Special Joint Committee on the Constitution of Canada met this day at 9:36 o’clock a.m., the Joint Chairman, Mr. Joyal, presiding.
Members of the Committee present:
Representing the Senate: The Honourable Senators Asselin, Austin, Connolly, Goldenberg, Hays, Lamontagne, Lucier, Roblin, Thériault and Tremblay.
Other Senator Present: The Honourable Senator Bielish.
Representing the House of Commons: Messrs. Allmand, Bockstael, Miss Campbell (South West Nova), Messrs. Corbin, Dantzer, Epp, Gingras, Hargrave, Hawkes, Irwin, Joyal, Mackasey, McGrath, Riis and Wright.
Other Members present: Messrs. Beatty, Munro (Esquimalt-Saanich) and Oberle.
In attendance: From the Parliamentary Centre: Mr. Peter Dobell, Director. From the Research Branch of the Library of Parliament: Messrs. Hugh Finsten, John McDonough and Louis Massicotte, Researchers.
Witnesses: From Canadians for One Canada: Honourable James Richardson, P.C., National Chairman. From Alberta Chamber of Commerce: Mr. Reinhold Lehr, President; Mr. Duncan McKillop, Chairman of Task Force on Constitutional Change and Miss Maureen Mahoney, Public Affairs Manager.
The Committee resumed consideration of its Order of Reference from the Senate dated November 3, 1980 and its Order of Reference from the House of Commons dated October 23, 1980, both relating to the document entitled “Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada” published· by the Government on October 2, 1980. (See Minutes of Proceedings, Thursday, November 6, 1980, Issue No. 1.)
Mr. Richardson made a statement and answered questions.
The witnesses from the Alberta Chamber of Commerce made statements and answered questions.
At 1:30 o’clock p.m., the Committee adjourned to the call of the Chair.
The Special Joint Committee on the Constitution of Canada met this day at 3:36 o’clock p.m., the Joint Chairman, Mr. Joyal, presiding.
Members of the Committee present:
Representing the Senate: The Honourable Senators Austin, Connolly, Goldenberg, Hays, Lucier, Roblin, Rousseau, Thériault and Tremblay.
Representing the House of Commons: Messrs. Allmand, Beatty, Bockstael, Miss Campbell (South West Nova), Messrs. Corbin, Dantzer, Epp, Gimaïel, Hawkes, Henderson,
Mrs. Hervieux-Payette, Messrs. Irwin, Joyal, Keeper, Mackasey, Manly, McGrath, Nystrom and Schellenberger.
Other Members present: Messrs. Greenaway, Hovdebo, Munro (Esquimalt-Saanich) and Robinson (Burnaby).
In attendance: From the Parliamentary Centre: Mr. Peter Dobell, Director. From the Research Branch of the Library of Parliament: Messrs. John McDonough and Louis Massicotte, Researchers.
Witnesses: From National Indian Brotherhood: Del Riley, President; Sykes Powderface, Vice-President; Doug Saunders, Legal Counsel; William T. Babcock, Legal Counsel and Wallace LaBillois, Elder.
The Committee resumed consideration of its Order of Reference from the Senate dated November 3, 1980 and its Order of Reference from the House of Commons dated October 23, 1980, both relating to the document entitled “Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada” published by the Government on October 2, 1980. (See Minutes of Proceedings, Thursday, November 6, 1980, Issue No. 1.)
The witnesses from the National Indian Brotherhood made statements and answered questions.
At 6:40 o’clock p.m., the Committee adjourned to the call of the Chair.
The Special Joint Committee on the Constitution of Canada met this day at 8:09 o’clock p.m., the Joint Chairman, Senator Hays, presiding.
Members of the Committee present:
Representing the Senate: The Honourable Senators Austin, Connolly, Hays, Lucier, Rizzuto, Roblin, Thériault and Williams.
Representing the House of Commons: Mr. Bockstael, Miss Campbell (South West Nova), Messrs. Epp, Fulton, Hawkes, Mrs. Hervieux-Payette, Messrs. Irwin, Joyal, Mackasey and Manly.
Other Members present: Messrs. Corbin, Dantzer, Nystrom, Robinson (Burnaby) and Waddell.
In attendance: From the Parliamentary Centre: Mr. Peter Dobell, Director. From the Research Branch of the Library of Parliament: Mr. Louis Massicotte, Researcher.
Witnesses: From Nuu-Chah-Nulth Tribal Council: Mr. George Watts, Chairman; Mr. Jack Woodward, Legal Counsel and Mr. Paul Rosenberg, 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 for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada” published by the Government on October 2, 1980. (See Minutes of Proceedings, Thursday, November 6, 1980, Issue No. 1.)
The witnesses from the Nuu-Chah-Nulth Tribal Council made statements and answered questions.
At 9:50 o’clock p.m., the Committee adjourned to the call of the Chair.
Joint Clerks of the Committee
(Recorded by Electronic Apparatus)
Tuesday, December 16, 1980
The Joint Chairman (Mr. Joyal): Order please, [Text] if you please, may I request the honourable members to take their seats so that we can proceed with our debate.
It is my pleasure this morning to welcome on behalf of Senator Harry Hays, my Joint Chairman, and honourable members of this Committee the Honourable James Richardson, the National Chairman of the group called Canadians for One Canada. As our guests understand, we will ask for him to make an opening statement and I understand that he would be ready to answer questions, and the colleagues of his group, too, put by honourable members of this Committee. Mr. Richardson.
Hon. J. R. Richardson (National Chairman, Canadians for One Canada): Thank you, Mr. Chairman.
I welcome the opportunity to appear before your Committee on behalf of the more than 30,000 members of Canadians for One Canada. Mr. Pat Newbound, our organization’s President, is on my right and Mr. Bill Scandrett, our Executive Director, is on my left.
For my own part, Mr. Chairman, I appreciate very much the opportunity to speak to your Committee primarily because of the vital matters that you are considering but also, because, as a member of Parliament for 11 years, I am back today in familiar surroundings and for the most part, among familiar faces.
I see that my old colleague and friend, Mr. Mackasey is here to hear what I have to say, so the day is off to a good· start.
While I have been watching the proceedings on television, 1 have heard one of your Joint Chairmen, M. loyal, who, I must say, as seen on TV, has been doing an outstanding job of leading this Committee. I have heard him say that Canadian politics is made up of men and women with strong convictions, and it is in that spirit that I appear before your Committee today.
Time has passed quickly and it is hard to realize that it is more than four years since I resigned from the federal Cabinet in fundamental disagreement with the plans for constitutional amendment that Prime Minister Trudeau was, at that time, planning to place before the federal-provincial conference on the Constitution in Ottawa on December 15, 1976.
In my letter of resignation from the Cabinet in October 1976, I said to Prime Minister Trudeau:
I believe it is important that Canadians everywhere be made aware of the far-reaching implications for Canada contained in some of the proposals concerning the constitution that will be considered at the forthcoming conference of First Ministers …
Although I believe that we should bring the Canadian constitution to Canada, I want to speak about the danger to Canada’s future that I see in some of the proposed additions to the constitution at the time of patriation, and
about my strong opposition to the “single-province” veto in the amending procedure that has been proposed.
Very little has changed since 1976. I could have written those words yesterday—not four years ago.
My deep concern about what is taking place has not diminished, except that today I am encouraged by the number of provincial premiers, and the increasing number of Canadians from all parts of Canada, who have serious doubts about the merits for Canada of Prime Minister Trudeau’s constitutional proposals.
Even without the confirmation of the recent Gallup poll, it has been apparent for some time that growing numbers of Canadians are opposed, not only to the unilateral process of constitutional change, but also deeply concerned about the content, and the substance, of the fundamental and far-reaching amendments which the government intends to ask the British Parliament to make to our constitution.
Our tradition as Canadians has taught us to believe in the supremacy of democratically elected Parliament and legislatures, and not in the supremacy of written constitutions.
We believe that in future years Prime Minister Trudeau’s proposed constitution, with its rigid and inflexible amending procedure, could become a dictatorship of words, over-ruling the parliamentary system that bas for centuries guanteed our freedom.
The essential weakness of written constitutions is that they are inflexible. The courts that interpret a constitution must look at what the constitution says, and not at the political and social reality of the times in which the judgment is being made.
Your Committee, Mr. Chairman, composed of members of the House of Commons and members of the Senate, knows better than anyone else that Parliament responds to social and political realities. Parliament responds to human needs in a way that a court can never do, because a court is not being directed by human needs but by the dead band of a written constitution.
I ask you, why are we today trying to lock up Canada’s future in a written constitution? Why do we in this generation, in this day, in this brief span of Canada’s history, believe that we have the answer for all time?
With Canada’s future generations in mind, my warning to all Canadians continues to be: do not give up the flexibility of statutory Iaw for the inflexibility of constitutional law. Do not give up the supremacy of democratically elected Parliament in exchange for the supremacy of a written constitution.
Mr. Chairman, your Committee has had many representations about the amending procedure so I will limit my remarks, except to say that I was opposed to the Victoria amending formula now set out in Section 41 of the proposed resolution, from the very first day I saw it, which was when it first came to Cabinet 10 years ago, before the Victoria conference of 1971.
It was not until I had resigned from the Cabinet in October 1976 that I expressed my opposition publicly. ln my letter of resignation to the Prime Minister, and in my statement issued the same day more than four years ago—I said:
I believe it is wrong for two provinces, Ontario and Quebec, to each be given a perpetual veto over changes in the Canadian constitution. This is the most obvious kind of discrimination, because. it creates for all time two classes of provinces—first class provinces that have a veto, and second class provinces that do not have a veto.
How can we say that we believe in equality when two provinces are each to have a veto in perpetuity, regardless of the size of their future population relative to the other provinces?
In Western Canada and in the Atlantic provinces there is a widespread impression, whether true or not, that Ontario and Quebec run the country. We must not confirm that impression for all time, not only to ourselves, but also to the whole world, by giving Ontario and Quebec each a perpetual veto over changes in the Canadian constitution.
We hope, Mr. Chairman, that your Committee will recommend to Parliament that Section 41 of the proposed resolution be rewritten to provide an amending procedure that treats all Canadians as equals and that enables Canadians, when amending their constitution, to express the national will.
Although we still have some reservations about the opting out provisions, we think that the Vancouver amending formula, requiring the approval of Parliament and seven provinces containing 50 per cent of the population of Canada, is the best possible formula for amending our constitution when it is finally here in Canada.
Throughout all that I wish to say today, I want to make it clear that I believe I am as aware as anyone of the very great contribution made to Canada by Canadians of French origin. My purpose and my hope is to recognize that contribution, together with the contributions made by all Canadians, contributions made in building Canada together. I believe that Canada is a partnership of all Canadians and not a partnership of two peoples or two founding races.
We should remember that the whole process of constitutional reviews was started because we were told that it was necessary in order to achieve national unity. We have to ask ourselves what we have been doing. or what we have been doing wrong, because the country is now much more deeply divided than when the constitutional process began.
We started out on constitutional reform because it was said that Quebeckers were not happy in Canada—now no one seems happy in Canada. Quebec is still unhappy; the native people are frustrated; Newfoundland is enraged; Ontario is bewildered; Alberta is furious; and the whole West is fighting mad.
why are so many Canadians angry? I believe that one main reason is because the government is planning to ask the British Parliament to make fundamental and far-reaching amendments to the Canadian constitution without adequate consultation, to say nothing about the approval, of the Canadian public.
Canadians are angry because these amendments could never be made in Canada using any of the proposed new amending procedures.
The fact that amendments contained in the proposed resolution could never be made in Canada was confirmed recently by Prime Minister Trudeau when he was speaking in Quebec City on October 22. On that occasion he said:
“Speaking to you … as a Quebecker, I can safely say that if we do not today entrench fundamental language rights in education, and in other fields, in the constitution, those rights will never become part of our Constitution. I know this because several provincial premiers have told me so, and have asked that these measures be imposed on the provinces because the necessary legislation could never be passed in provinces with small francophone minorities … ”
On that same occasion the Prime Minister had other revealing things to say. At a time when this Committee, and the whole nation, are trying to determine the merits of enshrining human rights in our constitution, it is fascinating to learn from the Prime Minister why the whole package of fundamental rights was included in the proposed resolution in the first place. This is what Mr. Trudeau said to his Quebec City audience:
I will tell you something else; we also wanted to entrench language rights; unfortunately, I think it is true that, if we had done so, we would have seen certain people in the country fighting the project saying, “There goes that French power government again, which only wants to help and protect francophones”. It was to broaden the debate that we wanted to entrench fundamental rights.
We knew that neither Mr. Lévesque nor Mr. Ryan would oppose the substance of the move, and they did not, and that the other provinces would be more likely to support the substance of bilingualism if they had fundamental rights protecting them in the fields of non-discrimination, democratic liberties and so on. That was our thinking on the subject.
It would appear from what Mr. Trudeau says that fundamental human rights were included in the proposed resolution as a kind of decoy to attract attention away from language rights, and to gain support for what the Prime Minister calls the substance of bilingualism.
Again, on the same occasion, white speaking about entrenching the Official Languages Act in the Constitution, Mr. Trudeau asked his Quebec City audience this question:
Do you know that the bill before the House proposes entrenchment of the essential part of our act on bilingualism?
And he went on to say:
We want to entrench in the constitution, since Quebec will have a veto, the fact that this country will be bilingual from sea to sea.
After reading the Prime Minister’s Quebec City speech it is necessary for all of us to ask: Is the proposed constitution trying to protect minority language rights, or is it trying to create a bilingual country from sea to sea?
If we are trying to protect minority language rights there will be general approval and, I would hope, very little opposition. But if we are trying to create, in Prime Minister Trudeau’s words, “a bilingual country from sea to sea”, reaction of most Canadians will be quite different.
In this respect I would like to ask the Committee and the Canadian public to consider carefully the wording of Section 16(1) of the proposed resolution. It says, as you know, that French and English are to have:
equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada.
When your Committee comes to Section 16(1) in your clause by clause examination of the resolution I hope you will give full consideration to the meaning of the -words “all institutions”. There are more than 400 major federal government institutions operating in all parts of Canada and employing, when the Armed Forces are included, more than 600,000 men and women. When considering this matter it is vital for us to realize that a country expresses itself to the world and, in a very significant way, identifies itself at home, through its institutions. If Canada’s institutions are bilingual under its constitution, Canada is bilingual under its constitution. This means there are serious questions that all Canadians must now be asked to answer: Is Section 16(1) really what you wish to say in your new constitution? Have you really been consulted and info.-med about this most fundamental and far-reaching amendment to your constitution? Is there anything close to a consensus confirming that you want Canada to become a bilingual country under its fundamental law?
Until these questions have been thought about and answered in the affirmative by Canadians from coast to coast, Section 16(1) should not be entrenched in Canada’s constitution.
Mr. Chairman, my purpose in being here today0 is to add my voice and the voices of more than 30,000 members of Canadians for One Canada, to the countless numbers of Canadians who are asking your Committee to recommend to Parliament that the Canadian constitution be patriated without amendment. I repeat—without amendment—other than the inclusion of an amending procedure that treats all Canadians equally, and which enables Canadians to express the national will.
When that is done, we can then continue, here in Canada, to negotiate the substance of our future together. I believe that we will continue to be one country, and that it will be a great country.
To conclude, let me describe the kind of Canada we believe in—the kind of Canada that we are for.
1) We are for the supremacy of Parliament.
2) We are for one Canada, built on the grand design set out by the Fathers of Confederation.
3) We are for a nation where minorities, large and small, are respected and their rights are protected.
4) We are for a nation that is united around its majority, and around the unifying symbol of its flag.
5) We respect diversity and duality, but we know that if we enshrine diversity and duality in our nation’s constitution, we do so at our nation’s peril.
Our constitution should be an inspiring document, reflecting the reality of Canada and expressing our pride in being Canadian.
Our Constitution must enshrine our unity. It must enshrine our vision of a Great Northern Nation. It must enshrine our vision of a Great Northern People, who call themselves The Canadians.
Our constitution should be an inspiring document, reflecting the reality of Canada and expressing our pride in being Canadian.
Thank you, Mr. Chairman, for Ietting me address the Committee on this subject which is of so great importance to us all.
I would now welcome comments or questions.
The Joint Chairman (Mr. Joyal): Thank you very much, Honourable James Richardson.
I would like to invite now the Honourable Senator Duff Roblin, followed by Mr. Lorne Nystrom to open our discussions with our guests this morning.
Honourable Senator Roblin.
Senator Roblin: Thank you, Mr. Chairman.
I know Mr. Richardson appears here today as a representative of a national organization. But I suppose I have been given the privilege of commencing the dialogue as he and I both come from the province of Manitoba.
I would like to express my pleasure at seeing another citizen of my province before this Committee today.
Mr. Richardson, before I begin any reference to some of the details of your presentation this morning, I would like to raise the great question of legitimacy.
It seems to me that in the construction of a constitution, much more is required than the temporary will of the majority in one of the legislatures of the country. It requires sufficiently wide support that it would conform to the principle of legitimacy. By that I am not thinking of any mere legal legitimacy, but of constitutional legitimacy, of political legitimacy, political wisdom.
Combined with this concept of legitimacy, there is the notion of consensus, that is, that a constitution cannot succeed unless it is able to attract the support or at least the passive consent, if nothing more than that, of a considerable group in the nation; one would say a decided majority; and also, if it is to attract the necessary support to be a real constitution, if the nation bas significant regions, then those regions must be included in this concept of consensus.
We add to all that the principle of a mandate. I recall that we have had two federal elections in the recent past and I do not think that in any of them the question of the constitution was raised in such a manner as to allow the winning party in that election to claim to have a mandate to reform it along the Iines that we have now before us.
Sir, you are or have been a politician and you have also been a member of our parliament and a cabinet minister; I suspect that you have considered these questions of legitimacy, consensus and of mandate in dealing with the constitution of our nation.
I sense through your document here that you do not think that the policy of the government today bas achieved a passing mark in either of these three considerations.
I would invite you to tell me whether I have assessed your opinion correctly and that of your members correctly and to make a comment on that approach to the question of constitution building?
Mr. Richardson: Yes, Mr. Chairman. I find myself in full agreement with the observations of Senator Roblin. I believe 1 have already covered the area of consensus in my brief.
I have made it clear that, in my view, we must find, and ask the Canadian public if there is a consensus for what is in this proposed resolution. I do not think it is there.
I believe the way we find it is by asking. We must ask the Canadian public if they wish to see the fundamental changes which are being proposed.
I also agree that the mandate, really, is not there. There is a majority. This, perhaps, is one of the only weaknesses of the Parliamentary system, that a government can win a majority for one reason, perhaps because people do not want to pay 18 cents for gasoline or some other reason and then to turn around and use that majority for something else which was not really discussed at the time of the election.
I agree with you that there is no mandate for the kind of fundamental change that is being proposed in this constitution, particularly when it is fundamental change that is being asked for, and ready to go through the British House, and, as I have already pointed out, could not go through any of the amending procedures which have been talked about to be used in Canada once the constitution is home.
Senator Roblin: I thank you for that. I would just make the observation that I do not think that a government has to present every item of its policy for four years in an election in
order to be entitled to proceed, but on a question of this magnitute the matter of mandate does assume considerable importance.
Associated with that whole idea of the right of the federal government to proceed as they are doing now is the question of unilateralism, that is, can they go ahead without the consent of the provinces in areas which the constitution presently assigns to the provinces. I have been one of those who think that is a questionable proposition and I would like to get your views on the matter.
Mr. Richardson: I believe, Mr. Chairman, it is totally wrong for the federal government to proceed unilaterally. I am amazed that there are statements in this proposed resolution that is before you calling on provincial legislatures to take certain actions and do certain things. That is true in the case of equalization. It is even worse in the example of education. If there is anything that is clear in our present constitution about the division of powers it is that education belongs to the provinces and here we have the federal government moving into the area of education unilaterally. It is totally wrong.
Senator Roblin: One of the problems in Canada in getting a constitution of course is this whole subject of the amending formula, and I note that you have raised certain objections to the amending formula that the government are proposing as their number one choice, although it is certainly not their only choice, they can do anything they like under this bill when it comes to amending formula; but on the grounds that it is unfair to some provinces; and you referred to the Vancouver Formula which seems to have some promise of attracting pretty well universal support from the provinces, in my opinion. One of the problems that is often raised in connection with the Vancouver Formula is this. It is true that you can go ahead if you can get two thirds of the provinces representing one half the population to agree you can proceed but the safety check is that on certain selected items like provincial law-making powers a province not agreeing to the proposition can opt out. Some people say to me that is dangerous.
Well, Mr. Richardson, you have been in politics for some time and is it not true to say taht we really have been in a defacto way amending our constitution for as long as you and 1 have been around in public life on that principle of opting out and we have managed to survive. The great social constitutional changes of the last 20 years in connection with hospital insurance, in connection with Medicare, in connection with the 1 Canada Pension Plan which have really been significant in the lives of every Canadian and which in fact have been constitutional changes, have been arrived at under an opting out formula and we are all around here to say that we not only continue to exist as a nation but it has done us no harm, and it has been a highly practical way in dealing with regionalism in getting significant changes in Canada.
I put it to you that the Vancouver Formula with all its defects is a good one because if one were to object to it on the opting out basis it would fly in the face of our own practical experience in constitution making in Canada. Would that be a sound argument?
Mr. Richardson: I agree that the Vancouver Formula is the best that has been brought forward in all of the formulas that we have discussed. I would prefer to see some kind of limitation on opting out. I do not think it should be over-all possible because I think that does lead, perhaps more than we are now, to what has been called the checkerboard constitution and 1 would prefer to limit the opting out, but I accept your point that we have done that in the past. I do not know that it has always been right to do it.
Senator Roblin: It has worked, I put it to you that way; and of course the Vancouver Formula I will agree that it is not perfect, I will certainly agree with that. It does limit opting out to four specific categories and I think if we examine them we might find that they would not be too bard to live with.
Now I want to move on to another matter which you dealt with to some considerable extent, and that is the language question; and I would like to start off with the question of the British North Ameirca Act and indeed the Manitoba Act because in Section 133 of the British North America Act and in Section 23 of the Manitoba Act the provinces of Quebec and Manitoba are constrained in the language field to recognize a bilingual character in respect of the proceedings in the Parliament and the Legislature and in respect of proceedings in the courts and all the matters that are associated with that and, roughly speaking, that is the impact · of those two Sections.
Now we have had some witnesses before the Committee, indeed we have had some members of the Committee say that those two acts should be imposed on both the province of Ontario and the province of New Brunswick. In fact, the Premier of New Brunswick said he would like to have it imposed upon him.
I would like to get your view as to what attitude the Committee shold take toward that problem.
Mr. Richardson: I would say, first of all, that Section 133 of the British North America Act is right and should remain in our constitution. I do not think there is any question about that.
I think that there is or could be some difficulty in extending that to other provinces. I have to put this in a way, hypothetically, to make the point that I would like to make, and show, as I was saying earlier, the rigidity and inflexibility of a constitution.
Supposing for instance in the case of Manitoba there would only be instead of the present five and one half per cent French-speaking Manitobans that there was one half of one per cent or one quarter of one per cent or perhaps no people who claim to be or said they were French speaking. The court would have made exactly the same decision that it did because the court does not look at the numbers of people, it looks at what the law says, the law that was made 100 years ago, and 1
think that that is a kind of rigidity and inflexibility that we do not want to extend.
My whole position really is that we must not lock the country up. l believe our Parliamentary system and our Legislatures can make the laws that will be appropriate to the times and it is wrong to lock up the future any more than it is now under a constitution.
Senator Roblin: You are homing in here on one of the central problems that we have before us because while the appeal of flexibility, and you have expressed it well, is a strong appeal, practically every one of the minority groups that have come before us have said that that is all very well in theory but in practice we would feel safer and more comfortable if we felt we had something of a more permanent character to rely on than, as they describe it, the temporary decision of the legislative or parliamentary body which can rescind tomorrow what they approve today. That is one of our central problems how do we reconcile this need that minorities feel so strongly to have some better protection than they have now and at the same time assure a measure of flexibility so we can deal with the future.
If you had been here to listen to the Japanese Canadians, for example, you could not help but be moved by their desire to secure their proper place in the Canadian nation.
Mr. Richardson: I think the answer to that is for our Parliament and our legislature to be more responsive. I do not think the answer is to limit the legistures and Parliament by a constitutional provision.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Roblin. I would like to invite now the honourable Bryce Mackasey. I understand that Mr. Nystrom as a matter of courtesy. Mr. Mackasey being a past friend and still a good friend of our guest this morning, would be invited to speak next.
Mr. Mackasey: Mr. Chairman, we are very close friends, but I am rather suspicious of Mr. Nystrom’s motives. He has never shown that kind everybody who comes here is a friend of mine, and any time you want to give me your time I will accept it, Mr. Nystrom.
Mr. Nystrom: Last night you said you were a nonstatus Englishman.
Mr. Mackasey: That is right. That is as good a definition of an Irishman as you are going to get.
I want to say, Mr. Chairman, that Jim Richardson and I are very close friends and our friendship goes back for a long period of time. Frankly I think many of the things he said about the West has stood the test of time; his efforts, as I recall; to create a federal presence in the West, in the mint, in air bases and things of this nature reflect I guess the policy of the government today, and our so-called discovery, if you like, of western alienation and how you can somehow offset it.
It is also an open secret that Mr. Richardson and I have disagreed in a very friendly manner about how we see this country. We disagreed. I might just say, right across the
Virgin Islands. we wasted a lot of good money on a holiday two years ago, to the chagrin of our wives when all he and 1 could talk about was Canada and the constitution and the role of the minorities. I might say at the outset of my remarks that Jim Richardson does see Canada I would say 90 per cent of the way I do and that includes the role of the minorities. We differ perhaps in the last 10 per cent, I reflecting, perhaps over reflecting at times, my experience as very much part of a minority in a province where, because certain rights which may have been privileges and became rights, I think that is fair to say, over a period of time, were removed by an act of Parliament.
I am not saying that the act of Parliament was not what the majority wanted, I am simply saying what the majority wanted was not in the best interests of the minority and I woke up one day to find that my language was no longer official in a province. Whether it should have been in the first place or not is unimportant. It was. It is not any longer. And that much as anything assured me that certain fundamental rights in this country should be placed beyond the effect of provincial legislation.
Mr. Chairman, listening to the eloquent brief of Mr. Richardson I might ask him if I am fair in summarizing his brief that he believes that the constitution should be patriated with an amending formula, but without changes.
Mr. Richardson: That is exactly the summary of my position. We must bring the constitution to Canada. It must have an amending formula that will work in Canada, which we have been discussing, but until we do that I do not think it is right for the government to put in amendments which it asks the British parliament to pass before it sends the constitution back to Canada.
Mr. Mackasey: But you would agree it should have an amending formula.
Mr. Richardson: It has to have an amending formula.
Mr. Mackasey: I think all of us agree that it has to have an amending formula. The question is that for 50 some years a suitable, acceptable amending formula has escaped the best intentions of the provincial Premiers and the Prime Ministers of this country. Would you agree with that?
Mr. Richardson: I would agree that we have not agreed on an amending formula. I think that is because there has been too much rigidity at the provincial level. There has been this demand for vetoes and that is where the whole thing has broken down.
Mr. Mackasey: We bath agree what you have said in effect one of the reasons why we have not been able to get that amending formula is a certain intransigence if you like on the part of the provinces, that they have been too inflexible. Am 1 right in saying that.
Mr. Richardson: Yes, and I would say too because I said it in my remarks that the two major or largest provinces in Canada, Ontario and Quebec, and some people have said to
me it is not provinces we are giving a veto to, it is population, it is that big population, and I would say that you cannot count people twice.
Mr. Mackasey: But you are ahead of me, excuse me. That is not what I asked you.
Mr. Richardson: I just want to finish this briefly. Ontario and Quebec have 60 per cent of the seats.
Mr. Mackasey: That is not what I asked you.
Mr. Richardson: I know, but …
Mr. Mackasey: I would like you to answer what I asked and what I asked you is just to repeat so that you are on record properly, when you said categorically that one of the reasons, in fact the reasons why we have been unable to reach amending formula, and this is a refreshing statement and an honest one, is that in fact it has been the provincial premiers who proved not to be cooperative or rather I think you used the word inflexible.
Mr. Richardson: I say it is the demand for a single province veto over the constitution of Canada. No federal state in the world has ever done that.
Mr. Mackasey: What the federal government is proposing to do in the light of what you have just described is to include in the Charter a proposed amending formula with the provision that if in the next 24 months an alternative could be devised that is suitable, that that suitable amending formula would prevail. Am I right or wrong in that?
Mr. Richardson: You are partly right but you are mostly wrong on that one.
Mr. Mackasey: That is better than usual.
Mr. Richardson: Because in that interim period there is also an Ontario and a Quebec veto because it has been very cleverly worded to say that the provinces may think up any kind of amending procedure they like provided there are eight provinces and provided that they contain 80 per cent of the population of Canada, which means that Manitoba may not have to agree but it means that Ontario and Quebec each have to agree, and what incentive would there be for Ontario and Quebec to ever change from the Victoria formula, give up their veto.
Mr. Mackasey: You are telling me that the Victoria Charter is not acceptable because it provides veto to two provinces.
Mr. Richardson: That is right.
Mr. Mackasey: I will not get into that argument for the moment because then we are arguing the substance of that but is that not the formula, 1971, that all Premiers of this country agreed to.
Mr. Richardson: I do not think it was really seriously considered. I know it was on the table at Victoria but there was so much other discussion on the division of powers which finally broke the Victoria Conference that the amending formula was just really not—I do not think it was adequately considered and. certainly when the whole conference broke down the amending procedure broke down.
Mr. Mackasey: Regardless of why it broke down, it was agreed to. There was a period of several weeks where to all intents and purposes every Premier including Mr. Bourassa had agreed to it. I recall the incident very well, but there are other areas I want to get into.
In the alternative you suggested Victoria.
Mr. Richardson: Vancouver.
Mr. Mackasey: Mr. Roblin has talked quite knowledgeably of it, but even you express reservations on the Vancouver formula. You suggested that even that is not acceptable to you because of the opting out provision.
Mr. Richardson: I did not say it was not acceptable. I said that I had reservations on the opting out and I would like to see that tightened up in the final formula.
Mr. Mackasey: How strong are your reservations on the opting out?
Mr. Richardson: I still think it is the right formula, it is the best formula.
Mr. Mackasey: That formula without opting our provisions is not that formula, that is how precise a constitution is. What you are really saying is that you are looking for another amending formula other than the one …
Mr. Richardson: What I am saying is that I agree with the constitution of Canada should be amended with the agreement of Parliament, with the agreement of seven provinces that contains 50 per cent of the population of Canada and then I want to have further discussion on what the opting out of any three provinces, on what basis they could opt out.
Mr. Mackasey: I think the point I am trying to make is that your formula may be. the best formula. It may be better than Victoria. It may be better than Vancouver. It is not one or the other. It may be an improvement. The fact still remains that you do not agree with the formula of the Prime Minister nor the formula proposed by the provinces. You still come back to the tantalizing problem of what is an acceptable formula. It has escaped the best minds for over half a century.
Mr. Richardson: What I say is that the Vancouver Formula is very, very close. it is far better than the Victoria Formula.
The Victoria Formula is impossible for the reason I have already mentioned, namely the single province veto. That is ruled out automatically, to my mind.
The Vancouver Formula, which I have just described, is very, very close. I could quite accept it totally with the opting out.
Mr. Mackasey: Could I move to another area of your presentation. You were here. when the Official Languages Act of Canada was introduced in Parliament. As I can recall, you voted for the Official Language Act.
Mr. Richardson: I was a member of the Cabinet. I could have chosen to leave the Cabinet at that time or to vote for it. I
voted for it, because it was the early days of my career, and I wanted to see how it would work.
Mr. Mackasey: You are apologizing for voting for it.
Mr. Richardson: I wanted to see how it would work.
Mr. Mackasey: I would not back off from the fact that if it were not your early days you would not have supported it. You supported the Official Languages Act of Canada. Is that right?
Mr. Richardson: That is right, and I would support any legislation that is passed by all of Parliament. That is not what I am opposed to.
What I am opposed to today is not legislation or the Official Languages Act which is passed by Parliament. I am opposed to the principles of the Official Languages Act being locked into our fundamental law, and that is what I am opposed to.
Mr. Mackasey: You have jumped to a conclusion I did not stress. I only asked you if you had supported the Official Languages Act?
Mr. Richardson: And my answer to you was that I voted in favor of it. I voted for it and I wanted to see it work and I do not think it has worked, and, therefore this is not the moment to entrench it.
Mr. Mackasey: Well, that can be discussed at another time.
Mr. Richardson: Well, I think it has to be discussed right here. This is a central issue.
Mr. Mackasey: We are not discussing the Official Languages Act.
I am simply asking you whether you had supported it at the time.
Mr. Richardson: Well, we are discussing the entrenchment of the Official Languages Act.
Mr. Mackasey: I am leading up to Section 16(1) about which you have expressed very strong reservations. What 1 wanted to know precisely is what concern you now have which you did not have 10 or 11 years ago?
Mr. Richardson: I have seen the Official Languages Act working. I have seen the results of it. I have read what the Commissioner of Official Languages has had to say, and he is full of doubts about how it is really working out, hoping it will work out; it is still full of good intentions, but really the evidence is overwhelming that the Official Languages Act has done more to divide the country than to unite it.
So that is why I say this is not the time. At least we should wait until we see that it is working before we entrench it. I think the 10-year period has given us an opportunity to really see that it does not work.
Mr. Mackasey: Perhaps I should say this, as I have only more question. I am rather pleased at your strong, without reservation, endorsement of Section 133 of the constitution as it applies in the Manitoba Act—in Manitoba.
You are suggesting that the extension of French or the official recognition of French in your courts and the legislature has not been the divisive element in Manitoba?
Mr. Richardson: No, it has not. The Supreme Court made the only decision it could. But, as I say, it is an example of the rigidity.
Mr. Mackasey: Never mind the rigidity. f am asking you whether Section 133 in Manitoba at the time was a disruptive factor?
Mr. Richardson: It is not.
Mr. Mackasey: Why would it be in Ontario or New Brunswick, then?
Mr. Richardson: It is not seriously. Ontario and Quebec are making very good progress, Ontario in particular.
Mr. Mackasey: I am asking you if Section 133 were included in the constitution, based upon your experience of the provisions of Section 133 in Manitoba, which you said was not divisive, why would it be divisive in Ontario?
Mr. Richardson: You know that Section 133 only affects the legislature and the courts and does not affect anything that is more meaningful to people who want, say, education rights.
Ontario is moving ahead. I have heard around this table a number of students in Ontario who were in French schools—over 100,000, 90 per cent of those who are eligible.
I think there is evidence that progress has been made under the legislative process, and you do not need to entrench.
Mr. Mackasey: Thank you, Mr. Chairman, and I hope you will give me a second round.
The Joint Chairman (Mr. Joyal): I will keep your name on the list, Mr. Mackasey.
I would like to call now on Mr. Lorne Nystrom.
Mr. Nystrom: Thank you, Mr. Chairman.
It is always a pleasure to follow my good friend, Mr. Mackasey. I see Mr. Allmand laughing.
I would like to pursue some questions with Mr. Richardson which Mr. Mackasey was pursuing.
I would also like to welcome him to the Committee as an old parliamentary colleague of mine, and to welcome you back to Ottawa.
I wanted to ask you, in order to clarify the position again on Section 133 of the British North America Act, what is your recommendation to the Committee? Should we recommend to Parliament that Ontario be bound by Section 133?
Mr. Richardson: No, I think that Section 133 obviously should go into the constitution as it is as written in the resolution; but I do not think it should apply to Ontario. I do not think it is necessary.
Mr. Nystrom: If it does not apply to Ontario, then, following your theory that all the provinces should be treated in the same way, will you recommend that the Committee should recommend to Parliament that we have Section 133 not apply to Quebec, in other words, just treat Ontario and Quebec the same?
Mr. Richardson: Well, I do not think we should just look at this as Ontario and Quebec. I think that was a principle which was put into the British North America Act in 1867. I see no reason to take it out.
But I think that there is reason not to extend the entrenchment.
That is what my whole presentation is about. Do not lock us up anymore than we are.
Mr. Nystrom: You said, Mr. Richardson, that you were prepared to accept an amending formula where there was an opting out formula. Would you be willing to accept Section 133 where provinces could opt in, if provinces decide to opt in?
Mr. Richardson: Provided that they could opt out. I do not like this plan where you can opt in, but once you are in, you are then in the constitution and you can only get out through the amending procedure.
Mr. Nystrom: Well, then, why should not Quebec have the right to opt out if the other provinces have the right to opt in and opt out? Would not the same rules apply to Quebec? Will you suggest to the Committee that, if the other provinces could opt in or opt out, the same rules should apply to Quebec?
Mr. Richardson: It is not something I have really considered very seriously. But it would not concern me greatly if that privilege was given to Quebec, if Quebec wants to opt out.
Mr. Nystrom: An argument was made by Mr. Claude Ryan, the Leader of the Liberal Party in Quebec and also by Mr. Hatfield, the Premier of New Brunswick, before this Committee a few weeks ago, and both of those gentlemen, of course, support Section 133 being in Quebec and also in Ontario as the province with the largest francophone minority. I wanted to ask you about your stand on language.
I appreciate the line you are drawing between the Official Languages Act and the question whether or not it should be enshrined in the constitution; you are differentiating between legislation and the constitution. I understand that.
There is an argument in our country whether or not a charter of rights should or should not be enshrined. Our party, historically, has supported enshrinement of a charter of rights, although a number of people in our party, such as the Premier of Saskatchewan, has opposed it, though in his case the exception has been language; he has always said he feels linguistic rights are part of the Confederation bargain.
But I will not speak for him, because he will be before this Committee on Friday morning.
But the question I wanted to ask you is this. Do you think there would be a promotion of unity in this country if we did not enshrine rights for francophones and anglophones? Do you feel Quebeckers would feel more at home in a country where these rights were not enshrined in our constitution?
And I say that, Mr. Richardson, looking at a poli, not merely in Quebec or Ontario, but a poll done by Canada West
Foundation in Western Canada asking a number of questions—over 100, and one of them was the question whether or not people would favour the enshrinement of linguistic rights in our constitution.
In Western Canada 53 percent agreed, so that the majority of the people in the region according to the Canada West Foundation, agreed that we should have two official languages.
In the same poll, of course, it was pointed out very clearly by the Canada West Foundation, that a lot of people felt very, very alienated; the majority of people in Western Canada, fortunately, said they felt closer to the western United States than to central or Eastern Canada.
Twenty eight percent of them said they would even consider the possibility of independence for the west. So that we had a very strong feeling of alienation.
But, on the other hand, we had a majority of people in our region and your region of the country saying, “Yes, we should have linguistic equality and it should be enshrined in our constitution.”
Now, in the light of those feelings, do you not think it may be doing much more to promote unity in this country if we do enshrine in our constitution the essence of the Official Languages Act?
Mr. Richardson: I cannot speak for Quebec. I understand that there is widespread opposition in Quebec to the entrenchment of any language rights. That was certainly led by the Government of Quebec, which has made representations opposing the entrenchment of language rights.
My position is the same with regard to the rest of the country. I simply do not think our language legislation has demonstrated that it is in fact achieving unity.
If it was achieving unity, then I would be the first to say that we should do more of the same. I would not, in principle still want to entrench, but I would not have the same objection.
But when I am uncertain about whether it is really achieving unity, then I think that is not the right time to lock it up for all time.
Mr. Nystrom: Perhaps, Mr. Richardson, Mr. Tremblay can correct me, or perhaps Mr. Lapierre—though I am not sure he is here at the moment.
But my understanding of the situation of the Quebec government is that they oppose the enshrinement of linguistic rights as it pertains to education, because that is something which comes under provincial jurisdiction; that the opposition in Quebec towards the enshrinement of linguistic rights at the federal level is a different story, because we as a federal parliament can amend the constitution and it affects only the powers of the federal jurisdiction. So I do not think you have much opposition in Quebec towards the enshrinement of linguistic rights federally.
Is this your reasoning as well.
Mr. Richardson: No. I do not have the paper before me; but I can remember making statements at the time of the federal-provincial conferences in September, and the Quebec opposition was very strong, and they made statements which were general, and not just related to education, but the whole concept of locking up the future was stated very clearly in the Quebec position in opposition to the entrenchment of language rights.
Mr. Nystrom: I have got the signal from the Chairman. So I wonder if I could ask you this. You were talking very strongly about your objections to the amending formula, Mr. Richardson. You use the words “rigid” and “flexible”, and you say it could become a dictatorship of words, overwhelming the parliamentary system which for centuries guaranteed our freedoms.
In using that type of language, are you referring strictly to Section 41, which is the Victoria Charter, or are you also talking about the referendum procedure in the resolution, as we have it?
In other words, do you favour referendum, and if so, what do you think about the way the referendum legislation is written?
Mr. Richardson: No, I am referring there primarily—in fact, entirely to Section 41 of the Victoria Formula with the single province veto.
Mr. Nystrom: What is your position on the referendum procedure as part of the amending formula, which is really that if there is a deadlock there could be a national referendum? “Deadlock”, of course, as defined by what is written in the resolution?
Mr. Richardson: If it was only to establish the amending procedure, I would approve it.
If it is going to go beyond that, and start using referenda to establish a whole lot of other things which legislatures or governments could not agree on, I think that would be wrong.
It would be wrong for the federal government to be able to call a referendum and over-ride the provincial jurisdiction. But if, as I say, it is only to deal with the amending procedure, then a referendum would be all right.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Nystrom.
I still have five speakers on my list. I would like to request honourable members to try as much as possible to stick to the 5-minute rules so as to allow each one of them to discuss and hold a dialogue with our guest this morning.
The Honourable Jake Epp.
Mr. Epp: Two questions, Mr. Chairman. I will try and respect the time restrictions you have placed upon us.
First, Mr. Richardson, I agree with you on Section 41 that it does create different classes of provinces and once you have enshrined inequality, the difficulty you have in a country is immeasurable.
I would like to ask you to give us the position of Canadians for One Canada on Section 42.
Does a referendum have a place in the constitution and a framework of government such as we have?
Mr. Richardson: If that referendum is only to help us decide between two amending formulas, one put forward by the provinces and one put forward by the federal government, then I would agree with it.
But I do not agree with it for any other purpose.
Mr. Epp: All of us around this table recognize the need for constitutional renewal, though it has been very pronounced in Western Canada and Atlantic Canada—and well before that recognition so many of our complaints, if I may use that word, were based more on structure, institutions and regulatory agencies than the constitution per se; but not so in Quebec.
In Quebec there was a different issue. That has not become the issue, I suggest, almost across the country.
Can you give us the views of your association as to how do you or what do you see as Quebec’s place in Confederation in the Canada of tomorrow, especially in view of the history that they have been through, the quiet revolution, the election of the PQ government, the referendum, the pressures which come from that province and the demands which come from that province, and I do not mean demands in a negative sense, but in their place in Confederation. Can you give us your view in relation to their place in Confederation.
Mr. Richardson: When you refer to the demands of Quebec—and we have talked earlier about the demands from other parts of the country—I would like to say in an over-all view, I believe that the time has to come when we stop asking what does the West want; what does Quebec want? It should be what does the West want to give to Canada? What does Quebec want to give to the building of Canada?
I think a great nation is made by people who give, not by people or regions who take.
That is our over-all position.
I think that we see Canada as a partnership of all Canadians, as I have already said, an equal partnership, and not a partnership of two groups or two linguistic groups or two nations or two founding peoples.
I think that duality concept is the one that we must not entrench, because I think that will lead, as it has been leading, to deeper and deeper division in Canada.
Mr. Epp: Thank you, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Thank you very much, Honourable Jake Epp.
I would like to invite Senator Goldenberg.
Senator Goldenberg: Thank you, Mr. Chairman.
Let me say, at the outset, in the light of the criticisms that I am going to make, that Jim Richardson and Bryce Mackasey are not alone in being friends. We have been friends for many, many years. It is in that spirit that I am going to put my questions.
Mr. Richardson: Well, I will defend myself from my enemies.
Senator Goldenberg: I knew Jim Richardson as a kid in Kenora in the late thirties.
Mr. Richardson, I am interested and was always interested in the name you have given to your organization—Canadians for One Canada.
I like that, because I interpret that to mean Canadians for one country and not for two or three or four countries. But when I read your brief and see terms like “a nation that is united around its majority”, and “we respect diversity and duality”, I am wondering whether you are really not talking in terms of a homogeneous nation?
Mr. Richardson: I would not use that word. I think, though, that it is necessary to emphasize what unites us, to emphasize our unity as much as we can.
There will always be diversity. But, I believe it is wrong in nation building to keep emphasizing diversity; and it is wrong to keep emphasizing duality.
I do not believe that you can build unity by emphasizing duality. That is what our organization has been saying, and what we believe.
We are talking about one Canada. I do not believe you can build that—I am repeating myself—if you go on emphasizing the diversity of the country. That is going in the wrong direction to towards the achievement of national unity.
Senator Goldenberg: You do not think it is easier to build national unity by recognizing the fact of diversity and of duality?
Mr. Richardson: Those facts are there and do not require emphasizing or to be made the basis of nation building. That is my position.
They are there; but we should try to some degree to overcome them, by thinking about all that unites us, which I was speaking about a moment ago in my brief, rather than the overemphasis of what divides us.
Senator Goldenberg: You do not think that a charter of rights setting out our common values would help unite us?
Mr. Richardson: I think if we could do that, it would help us, but there is nothing in what is proposed or that is before us that does that.
We have not set out any inspiring words about our common values in this proposed resolution. Senator Goldenberg: Finally, you began by stressing the supremacy of democratically elected parliaments and legislatures, and comparing that with the supremacy of written constitutions.
You ask: why are we today trying to lock up Canada’s future in a written constitution?
Do you not consider the British North America Act a written constitution which has governed us since 1867?
Mr. Richardson: Well, this will surprise you, Senator Goldenberg, Mr. Chairman, I think that the BNA Act is really a framework of government. I think it was never really intended as, quote, a constitution: otherwise it would have had the characteristics of a constitution; it would have had a preamble; it would have talked about rights; but the BNA Act, if we recall, was passed in Westminster and England did not have, and does not have, a written constitution. It would be rather surprising to think that in setting up its colonies into a nation that it would have given a constitution to the colonies when it did not have one itself. And, therefore, I think that we have really been using the words wrongly to call the BNA Act a constitution. What we do need, because we are a federal state, is obviously a piece of paper that sets out the division of powers. And we also need to say how often Parliament should meet and those kinds of things.
But that is not really a constitution: that is a framework of government. I think that that is all we should have, a framework of government that sets up Parliament, sets up the legislature, gives them their responsibilities and then let the democratic process, let the elected representatives of the people make the laws that govern and guide the country.
All that is over and above that, trying to be put down in a constitution, is, I think, where we are making the fundamental mistake. I think Canada can be united under the BNA Act. I do not think it can be united under this proposed new constitution.
Senator Goldenberg: Well, as a constitutional lawyer, Mr. Richardson, I can tell you that you have defined a constitution very properly in what you said about the BNA Act. The BNA Act is our constitution; it is not the only part of our constitution. You said that you object to a written constitution because it leaves to the courts the interpretation, that the courts lock us up in language used in 1867.
If you are familiar with the judgments of the Supreme Court on the BNA Act, you will find that we have by no means been locked up. I will just refer to the aeronautics case—there was no such thing as an airplane in 1867, the radio case and any other number of cases. The court, as the United States Supreme Court, has adapted itself to what you refer to as the political and social reality of the times in which the judgment is being made. There is that mistaken impression, we heard it last night, that the courts are inflexible; that the courts do not change with the times; that they try to interpret language as it meant at the time the law was enacted and I think it is well to realize that we have lived very well with the BNA Act to date. It has adapted itself and to say, I repeat, that we do not have a written constitution, I think we have lived under a written constitution ever since 1867.
The Joint Chairman (Mr. Joyal): Any comment, Mr. Richardson?
Mr. Richardson: Do you want me to respond, Mr. Chairman?
I would only say that the kind of rigidity that I am referring to I gave briefly in an example a moment ago in the Supreme Court’s decision in Manitoba where the Supreme Court unheld the Manitoba Act, the authority of the Manitoba Act of 1870 over the provincial legislation of 1890. And the Supreme Court did the only thing it could do. I agree with the Supreme Court decision. But what I want to point out is that, if the French speaking population of Manitoba instead of being 5.5 percent, which it is, was only a quarter of I percent, that the Supreme Court decision would have been exactly the same. That is the kind of rigidity; the Supreme Court only looks at the law that was written 100 years ago, not at what the reality is in the day in which the judgement is being made.
You can actually have the ridiculous position—and I am not now speaking of Manitoba—but hypothetically you can have a Supreme Court decision that says that you must use a language in the legislature when nobody in the province speaks that language. That is absolutely possible under a constitution- and that is the kind of lock up and rigidity that I am talking about.
The Joint Chairman (Mr. Joyal): Thank you very much, Senator Goldenberg. Honourable James McGrath.
Mr. McGrath: I just have one question, Mr. Chairman, and it is prompted by the fact that your brief has a kind of a republican tone to it. For example, you talk about one unilingual nation, based on supremacy of the majority and united around its majority and around the unifying symbol of its flag and that prompts my question because I notice you make no reference in your brief to the monarchy.
And my question, very simply, is: do you support the monarchy and the continuation of the kind of constitutional monarchy that we have in Canada today?
Mr. Richardson: Yes, without question. That was not included because we are not trying to write about everything, and that is not an issue in the proposed resolution that is before this Committee.
Mr. McGrath: Well, it was merely prompted by your reference to the “unifying symbol of its flag” and that is a direct quotation.
Mr. Richardson: Well, it would have been a very good addition to add as another unifying force.
Mr. McGrath: Thank you.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. McGrath.
Mr. Ron Irwin.
Mr. Irwin: Mr. Richardson, coming from Northern Ontario, and you, coming from Kenora at one point, you probably realize that we have a hard time accepting Manitoba as “the West”. From Kenora the TV comes in from Winnipeg and the shopping is done in Winnipeg and you holiday in Winnipeg rather than Thunder Bay.
An hon. Member: Hear, hear.
Mr. Irwin: Mr. Richardson, as I have moved across Canada from Newfoundland, places like Cheticamp and Moncton, where there is almost an equal French-English population, up through the Acadians, Sudbury, where you have a French-English fact, Kapuskasing and St. Boniface in your own province, which matches off with Winnipeg proper, I have a different conception of Canada and I must say I am neither French nor English. When I was in B.C. I was reminded that Simon Fraser, who got the university named after him, and the river, that in his canoe of 10 people people, 9 were French Canadians. And they received nothing except sore backs paddling Simon Fraser to the West coast.
But you know, you are a man who also held a prominent position and you came to a certain conclusion about Canada that I did not. And I quite frankly feel, quite deeply, that your conclusion about what this country is all about is wrong and dangerous and I thought we might have learned that earlier on in the year in the Quebec referendum.
I notice today the official oppositions, plural, you notice that, are very, very quiet, very timid about their examination of you and yet you support them in part. I think they have come to the same conclusion. And when I see the Mayors of the Municipalities coming here, and the Canadian Bar Association and people like Mr. Crombie supporting Section 133 and Mr. Nystrom supporting Section 133, and the former Premier of Manitoba speaking at least partially sympathetically about Section 133, and Premier Hatfield coming here and talking strongly about Section 133, I am now convinced that you are wrong, and that groups like the Italians who came from Quebec have a better conception of Canada than you do.
They feel that there is an English-French base upon which we will build multiculturalism.
Now, in your submission you state, at page 9:
Is the proposed constitution trying to protect minority language rights, or is it trying to create a bilingual country from sea to sea?
In this constitution that we have the government is going for very narrow rights, specifically in language “only where numbers “warrant”.
I suggest to you, Mr. Richardson, that this is a mis-statement of the facts and a mis-statement to suit your own purposes. Do you have any comment?
Mr. Richardson: Well, I am trying to make the distinction between legislated language rights, minority language rights and the concept of language equality in a bilingual nation from sea to sea. I think that there is a difference and a very clear difference. I would think that if Section 16(1), which we talked about, talked or asked for or placed in the right of receiving federal government services in French or in English, that there could not be any objection other than the over-all objection that we have of a constitution. But if we are assuming that there is going to be some additions to the constitution, that would be, I would think, fair; it would be reflecting the reality of Canada.
But that is not what Section 16(1) says. The little explanation book that the government put out about Section 16(1)
says that the purpose was to “provide the right of the public to receive federal government services in both languages and to communicate with the federal government.”
Well, as I say, I agree with that but why not say that in Section 16(1). Why go to, as Section 16(1) does, and talk about the equality of status, equal rights and privileges, as to their use for French and English in all institutions of the Parliament and Government of Canada.
That is what I am talking about, is how this new constitution is in fact going to really express the just and appropriate language rights.
Mr. Irwin: Okay. Mr. Richardson, I have one last question.
Unless the francophones of Canada cannot speak in a legislature in his own tongue or receive education where numbers warrant or go to court in his own language, or receive federal services—not even provincial services—in his own Ianguage, it is nothing more than a multiculture, do you agree with that?
Mr. Richardson: Well, I would say that it would be more because there are clearly more rights. The rights for French speaking Canadians are in legislation. Even in the Official Languages Act, which I have not argued against, are far greater rights than the language rights for other groups, so it was totally wrong of you to suggest that it would be just multiculturalism.
Mr. Irwin: Well, do you agree or disagree that unless they have at least those four things, we are only paying lip service to the francophones of Canada?
Mr. Richardson: I do not think the Official Languages Act is just paying lip service.
Mr. Irwin: I am not talking about the Official Languages Act …
Mr. Richardson: Well, I am.
Mr. Irwin: … I am talking about four specific things which combine the Official Languages Act and part of Section 133 and part of a tradition—the right to speak in the legislatures of this country; the right to get an education, where numbers warrant; the right to go to court and the right to federal government services.
I suggest to you that these are minimum requirements. would like to have your own theory about that.
Mr. Richardson: Well, we would have ta look at them, each one. I would think that the right to speak in the legislature in Newfoudland or in British Columbia, in French, where there are something like half of I per cent of the population, I do not really think that that is necessary or desirable.
The Joint Chairman (Mr. Joyal): Honourable Warren Allmand.
I might remind our honourable members that time is overextended. Honourable Warren Allmand.
Mr. Allmand: Well, Mr. Chairman, while I also have been on friendly terms with Mr. Richardson over the years, I must say that I have not seen any brief before this Committee with which I disagree more, and which I find so confusion.
On page 12 of the brief it says:
We are for the supremacy of Parliament …
And I want to point out that under the present constitution, which Mr. Richardson also seems to agree with, in great part anyway, Parliaments are subject to many restrictions that are written into that British North America Act of 1867 and by other constitutional documents.
He goes on to say,
We are for one Canada built on the grand design set out by the Fathers of Confederation.
Well, the Fathers of Confederation entrenched language rights in Section 133. They entrenched religious rights in Section 93. They entrenched responsible government in Section 20 and Section 53. They entrenched democratic rights in Section 37 and Section 50. They entrenched the division of powers in Section 91 and Section 92. So, if you are for the Canada built on the grand design set out by the Fathers of Confederation, you should be for, in principle at least, the entrenchment of basic rights. The Fathers of Confederation entrenched those rights which were important in 1867.
You go on to say:
We are for a nation where minorities, … are respected and their rights protected.
And then, in another part of the brief, you seem to oppose the entrenchment of those minority rights.
And then you say:
We are for a nation that is united around its majority.
I do not know, who is this majority? Canada is a country made up of one third people from Britain, one third people from France and one third people from all nations of the world, and all those coming here after our aboriginal peoples, about I million persons of aboriginal descent. So, you know, when I read this brief it is a brief of contradictions and I must say that it, if you think there is difficulty in the country now, if we were to try and do some of the things that you suggest here, I think we would be returning to the turmoil we had in the early seventies where there were terrorist groups, and I would like to see how you explain these very patent contradictions in your brief.
Mr. Richardson: Well, I would have to say again all that I have been saying for the last hour. I am talking about the protection of minority rights through legislation, not in a constitution.
Mr. Allmand: But how are they protected, Mr. Richardson, by that?
Let me give you an example: governments in the history of Quebec, where I live, have taken away the rights of Jehovah’s Witnesses, a religious minority; they have taken away the rights of a political party by imposing very severe restrictions on them. In the provinces of Ontario and Manitoba provincial governments took away language rights. The federal government, and we apologize for that now, took away the rights of Japanese Canadians. Those rights were supposed to be protected by ordinary legislation. Obviously any majority parliament can take away those rights if it feels they wish to do so. What protection is there?
Mr. Richardson: Do you think that we are in fact becoming a more united country as we proceed clown this road that we are on? Is the evidence there that Canada is achieving its destiny?
Mr. Allmand: If you are asking me the question, I would say we are in the midst of a lot of turmoil right now but the turmoil is a result of trying to entrench rights and advance the rights of people, unfortunately perhaps sometimes in good faith our tactics and our procedures in going about it and the way we do things causes dissension, but I think of all the groups that have appeared before this Committee, and I have been counting them, there are over 30 groups, I would say that the overwhelming majority have been in favour of an entrenched bill of rights to protect minority groups but they want it improved, they do not want it withdrawn. They want to make it better.
So, despite the results of the recent polls I would say that of the groups that have come before this Committee, they want a bill of rights entrenched in the constitution but they want a better one than we have proposed so far, they want to improve upon it.
Mr. Richardson: Well, all I say is that they should be given those rights through the democratic process, through legislation which can be amended, changed and improved, and not locked up in a constitution with a rigid amending procedure, so that this country will really not be able to develop and grow at all. It will be tied up and locked up.
Mr. Allmand: Well, Mr. Chairman, my final word is that the Fathers of Confederation believed in the entrenchment of certain rights and our present amendment formula, by tradition, is much more inflexible than what is being proposed in these proposals.
Well, no, the present tradition in Canada—well, not tradition, it is not written in, but what we have been doing for the last 20 years at least is looking for unanimity and even in the proposals for the next three years there will be unanimity, and that is even more inflexible than the Victoria Charter s 91 really do not understand Mr. Richardson’s brief at all.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Allmand.
Mr. Frank Oberle to conclude.
Mr. Oberle: Thank you very much, Mr. Chairman.
Just briefly, I am sure, Mr. Richardson, that people throughout the country watching these procedures must be very puzzled by parliamentarians sitting around this table here expressing so little confidence in themselves to protect what is tradition and history and democratic institutions, or else they probably get the impression that they think they are so perfect that never again in the future will it be necessary to make any improvements on the things that we enjoy now, like the Bishop that hired a man to build a dock into the Cathedra) in Strasbourg; when he was finished he thought it was so perfect that it could never be improved upon so he carved the man’s eyes out so he could not build another one.
I just have one question because I am puzzled about ,something you said with respect to the amending formula. You said that, for obvious reasons that we probably all share, that referendums are not a good way to legislate and to govern, but you said that you would think a referendum with respect to breaking a deadlock on an amending formula would be all right, but at the same time you expressed concern earlier that the Victoria Charter would prevail in this two-year period. I do not see that a referendum would result in anything else than a discussion among the Premiers as long as the veto powers of the two central provinces exist.
I am referring to Section 39 where it says that it was necessary to incorporate the proposal approved by the majority of persons voting in the referendum. Would it be a simple majority in all of the country, and if it were, then of course the majority of people in Central Canada would opt for the Victoria Charter and it would defeat your purpose.
Mr. Richardson: I simply repeat that a referendum to establish the difference between the formula put forward by the provinces and the formula put forward by the federal government would work. It is the only way that you can break that deadlock.
Mr. Oberle: But if, as you suggest, that people will, be they provincial premiers or people residing in certain areas of the country, if they would in a referendum pursue their selfish interests, the end result would be the same because the majority do live in Ontario, obviously they would opt for the Victoria Charter, or do you consider that a referendum should be held in each province …
Mr. Richardson: Well, I think the way this is worded the referendum ‘would be held regionally in the same way that the Victoria Formula is intended to work with provinces, it would also work by regions in this referendum, so that the West could veto, the maritimes could veto.
Mr. Oberle: That is not the way that is written, Section 39. 1 do not read it that way, though I might be corrected. The majority of people, it does not put a regional component to it. It is just a point you might want to consider.
Mr. Richardson: Well, the main thing is that we do not end up with single province vetos and that must be the guiding
principle for Canada because there is no federal state in the world that gives to one of its constituent parts, whether it is a state, canton, or a province, the same right to approve or disapprove changes in the constitution that belong to the nation itself.
Mr. Oberle: Thank you, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Oberle.
Honourable James Richardson and members of the group Canadians for One Canada, l would like on behalf of the honourable Senator Hays and on behalf of all of the honourable members of this Committee to thank you and especially, Mr. Richardson, I would like to pay tribute to you.
Unlike some of my colleagues around this table, the honourable Warren Allman or the honourable Bryce Mackasey or the honourable Senator Goldenberg, I did not have the opportunity [Text] to know you as closely as they did in the years that you were in Parliament with us, but nevertheless I had an opportunity to participate in caucuses where I was witness to your strong views about the West and all the effort you have made during those years to present the Western point of view in our caucus, and I think that has set an example, an example in the way that the first responsibility of the federal member of Parliament or of an honourable Senator is to put forward the views of his regions and the province where he comes from, but on the other hand, as you have said very well and very eloquently in your presentation this morning, it is his responsibility, too, to express his views about our country,
There is in painting a school of art called hyper-realism, and I think that your contribution this morning has been just such kind of an expression, to induce us to think over the consequences of what we are doing, and in so doing by making a choice which will be a very responsible choice, meaning by that that we will be informed of the implications of what we will be doing when we are so voting in the forthcoming weeks, and for that l would like to thank you very much because not only are you a man of strong convictions, but you are using the democratic steps of forming in groups, of open membership to all Canadians, and coming to us to put forward your views, and that I think has to be commended and I would like to thank you very much.
Some hon. Members: Hear, hear,
Mr. Richardson: Thank you very much, Mr. Chairman. I appreciate those concluding remarks very much, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Thank you very much, I would like now to call the representatives of the Alberta Chamber of Commerce and invite the honourable Senator Hays to welcome them.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Joyal.
On behalf of the Joint Chairmen and all the members of the Committee, I should like to welcome the Alberta Chamber of Commerce, if they would not mind coming forward, please.
Mr. Lehr, Mr. McKillop and Miss Mahoney, on behalf of the Committee we welcome you here this morning. We feel kind of badly that you did not bring some of the good weather in Alberta down here this morning. I understand that it was 68 above in Calgary yesterday and I think that we could have done with a little of it here.
I apologize for the delay but you were here during the proceedings and you could see how important the brief was and the great interest of the Committee members insofar as their brief was concerned and we will not infringe on your time. We will run over, if that is the wish of the Committee.
You know the procedure, and I understand Mr. Lehr is going to make the opening statement.
Mr. Reinhold Lehr (President, Alberta Chamber of Commerce): Thank you, Mr. Chairman.
We maybe could not bring the warm weather with us that hopefully we bring some warmth to Ottawa and this Committee.
I would like to say good morning, Senator Hays and Mr. Joyal, and the honourable Committee members. My name is Reinhold Lehr, I am the elected President of the Alberta Chamber of Commerce. Accompanying me are Mr. “Duncan McKillop, to my right, a lawyer from Turner Valley, Alberta, who is heading our Committee on the constitution, and Ms. Maureen Mahoney.
Mr. McKillop is a member of our Chamber’s Executive Committee and chairs our Task Force on Constitutional Change. Miss Mahoney, who staffed that Committee, is our Chamber’s Public Affairs Manager, a political science graduate of the University of Alberta, and an expert in the field of intergovernmental relations.
The Alberta Chamber of Commerce is a federation of 121 community Chambers in Alberta. While some of our member Chambers are very large associations, such as the Edmonton and Calgary Chambers, each with more than 3500 members, the majority are medium to small sized associations of about 50 to 300 members across the province. We estimate that the membership of these Chambers totals at least 14,000 businesses.
We are proud of the Chamber movement in Alberta because the employers and employees of these 14,000 businesses are active citizens, not just in business associations, but in community leadership throughout the length and breadth of the province.
It is an honour for Mr. McKillop, Miss Mahoney and myself to represent these 121 Chambers and their members in appearing before your Committee this morning. We are pleased that the Committee decided to extend its deadline for presentations. so that the many parties who, are deeply concerned about the country’s future could be heard.
Since I realize that each of you have already received a copy of our submission, I will confine my address to the key points presented in that document.
Number one, patriation, together with an amending formula. The Alberta Chamber supports patriation of Canada’s constitution as a symbolic confirmation to Canadians of their government’s commitment to renew Canadian federalism. However, the Chamber cannot support unilateral federal .government action that would at the same time introduce fundamental changes to the constitution. Such unilateral action by the federal government is contrary to the long-standing Canadian tradition that constitutional changes into areas of provincial responsibility require provincial consent.
Recommendation one is that the Alberta Chamber recommends that the governments first proceed with patriation of the constitution together with the unanimously agreed upon amending formula based on the principles of the Vancouver consensus draft, and then continue as soon as possible to renew Canadian federalism.
Number two, the equalization and regional disparities. The Alberta Chamber favours constitutional recognition of the commitment felt by Canadians to share with one another. However, we feel that some revisions would be necessary in this respect if this provision were to be included in the proposed Canada Act 1980. The Alberta Chamber recommends that the principle of equalization not be included in the constitution at this time. We suggest that governments concentrate first on achieving agreement to patriate the constitution with the unanimous agreement on an amending formula and then work towards including equalization in the constitution as a subsequent amendment.
On constitutional conferences, the Alberta Chamber agrees that meetings of Canada’s First Ministers should be recognized in the constitution, providing such meetings are not limited to constitutional issues but, rather, is expanded to include all issues of national concern.
The Alberta Chamber recommends that provisions for annual meetings of the First Ministers to discuss issues of national concern be included in the constitution after it has been patriated, with a unanimously agreed upon amending formula.
Number four, protection of Canadian rights and freedoms. The Alberta Chamber fears that inclusion of the proposed Charter of Rights and Freedoms in Canada’s constitution without the agreement of all governments would be divisive for Canada. Such action would also contradict the Canadian tradition of obtaining provincial concurrence to constitutional amendments which affect areas of provincial responsibility. We recommend that, as Canadians’ rights and freedoms are
already protected through existing federal and provincial Bills of Rights and other comprehensive legislation, the proposed Charter of Rights and Freedoms not be included in the · constitution.
The Alberta Chamber, together with most Canadians, wishes the constitution brought home but we submit that few Canadians would wish patriation to occur in an atmosphere of adversity, and the Alberta Chamber is extremely concerned that unilateral constitutional amendments such as those proposed by the federal government in the Canada Act 1980 ignore established Canadian constitutional tradition and could well divide Canada and Canadians. We recommend that all governments work together to achieve early agreement on patriation with a unanimously agreed upon amending formula as a first step towards renewal of Canadian federalism.
I would just like to mention that the Alberta Chamber of Commerce has also forwarded its views with respect to these constitutional proposals to the Select Committee on Foreign and Commonwealth Affairs in the United Kingdom. We are deeply concerned that the United Kingdom has been asked to make changes to Canada’s constitution which go far beyond changes that would be agreed to by Canadians if the constitution were already patriated.
Mr. Chairman, I would now like to call on Mr. McKillop to further supplement what I have said in the areas of repatriation of the constitution and constitutional amendments.
The Joint Chairman (Senator Hays): Mr. McKillop.
Mr. Duncan McKillop (Chairman, Task Force on Constitutional Change, Alberta Chamber of Commerce): Ladies and gentlemen, I am not produced today as a constitutional expert. I am here, a country lawyer practicing law in a small town in Alberta. I was part of the Committee that examined the proposed constitution and it was my function to try .and explain in a general way the provisions of the proposed constitution to the members of the Alberta Chamber of Commerce, perhaps to look at some of the expert witness opinions that have been created over the years, and perhaps also to distinguish between those opinions that seem to have merit and those that perhaps do not have merit.
I propose to speak this morning to two questions: the first one is the participation of the provinces required in any proposed changes to the constitution of Canada which will or may affect (a), their rights either as proprietors of assets or, (b), their power to legislate pursuant to Section 92 of the British North America Act. I also propose to direct some observations towards the question: what form should an amending formula for the constitution of Canada take? With respect to the first question, I would suggest that in order to determine the rights and powers of the provinces in this regard it is necessary, of course, to refer to the relevant statutes or
portions thereof. Initially, the British North America Act of 1867 provided for the union of Canada, Nova Scotia and New Brunswick, and granted certain rights to Parliament and the provincial legislatures. There have been numerous amendments since that time, the details of which are set forth in a white paper published in 1965 under the authority of the Honourable Guy Favreau, the then Minister of Justice for Canada, and referred to with approval by the Supreme Court of Canada in the Senate reference case with which I imagine you are all familiar.
This publication, of course, does not include all the amendments to the British North America Act of 1867, and it is perhaps useful to note that, particularly as concerns Alberta, pursuant to the agreement between the government of the dominion of Canada and the Province of Alberta, that is relating to the transfer of natural resources to the provinces, and there were a number of agreements at that time as you will remember, this was confirmed by the British North America Act, 1930 and the dominion and the provinces by Section 24 were granted the power to vary these agreements confirmed by concurrent statutes of the Parliament of Canada and the legislatures of the provinces. This was done in 1931, 1938, 1941, 1946, 1951 and 1960. One of these amendments, it is interesting to note, dealt with the conservation of oil and gas.
In addition, the boundaries between Alberta and British Columbia, as well as Alberta and Saskatchewan, have been defined and confirmed by acts of Alberta, British Columbia and Saskatchewan and Canada as contemplated by Order in Council of the Canadian government.
In short, then, gentlemen, any list of constitutional documents, particularly legislation, which are normally referred to by the courts and academic writers, are certainly not, nor are they intended to be, exhaustive, even in so far as the division of powers and authorities that might exist between the federal and provincial governments and as to the amendments to the British North America Act of 1867.
I suppose it is fair to say that lawyers normally interpret the law based on the statute law of the legislative bodies, acting within their legislative competence, as well as provisions of Orders in Council, regulations both of the legislatures and their duly constituted agencies, for example, municipalities. I am not aware of any case law directly dealing with the rights of the provinces to participate in proposed amendments to the constitution which might affect their rights or powers. This matter, of course, has been subject to considerable discussion by the members of the Senate and House of Commons and various academic writers, among others you might refer to Mr. Justice Laskin on constitutional law, perhaps the most useful work of Mr. Gérin-Lajoie on constitutional amendment in Canada published in 1950; Dawson, of course, on the Government of Canada is a useful text in describing the history of the amendments to the constitution, and of course, Hogg on constitutional law in Canada.
There are many other writers of books and articles regarding this matter to which reference might be made. However, perhaps the most compelling authorities are those speaking in our House of Commons. The matter has arisen for discussion on various occasions and Mr. Gérin-Lajoie has selected many of these observations, describing them as statements of leading public men in Ottawa since Confederation respecting the amendment as found in his text.
Now, there are numerous statements made by numerous members of our Parliament, numerous Prime Ministers, numerous Ministers of Justice, but I will refer to perhaps two. The Right Honourable Sir. Wilfred Laurier in January, 1907 stated:
Confederation is a compact made originally by four provinces but adhered to by all the nine provinces who have entered it and I submit to the judgment of this House and to the best consideration of its members that this compact should not be lightly altered. It should be altered only for adequate cause and after the provinces themselves have had an opportunity to pass judgement on the same.
Or I could refer to others. How about the Minister of Justice, Lapointe, in 1924, in referring to the British North America Act he said:
It is the result of a treaty, as my honourable friend from Lotbinière, Mr. Viens, said; it is a treaty between various colonies which entered into an agreement, they fixed what the powers of the central government should be and they also fixed what the powers of the various provinces which succeeded the colonies at that time would be and this was ratified and accepted by the Imperia! Parliament of that time. Everything we have or have not is because we wanted it so. Now this treaty cannot be changed. It has been the contention of many constitutional authorities, and I think it is only fair that no change should be accepted without the consent of all those who were parties to it.
That is the original provinces, there were three, or the original colonies. There was Canada, Canada being Ontario and Quebec, New Brunswick, Nova Scotia and the additional provinces that have joined Confederation since that time.
It is a sacred treaty just as is any other treaty. It is no scrap of paper. Our Prime Minister recently has also affirmed the view that they should not proceed unilaterally and such procedure would be only with great regret, which is perhaps a weakening of the position of all of these authorities, and 1 would like to just refer to two of them, and these are people speaking in the House of Commons. Mr. Louis St. Laurent, you will remember, gave an address to the Canadian Bar Association in 1931, I believe it was, when he was President of the Canadian Bar, along similar lines.
The Honourable Guy Favreau in his white paper reviewed at length the amendment of the constitution of Canada, and after reviewing the history of the amendments to the Canadian constitution gleaned several general principles, and his fourth general principle was: the Canadian Parliament will not request an amendment directly affecting federal-provincial relationships without prior consultation and agreement with the provinces.
In discussions concerning constitutional amendment particularly with respect to changes of the rights and privileges of the province and the requirement of their consent to such change, I guess Sir George Ross in 1914 said it as well as anybody.
The doctrine of consent stands at the threshold-is in fact the flaming sword of the constitution.
What then ladies and gentlemen is the view of the Alberta Chamber of Commerce representing the businessmen of Alberta with respect to the unilateral action of the Canadian government in seeking to patriate the constitution in the terms set forth. Part I of the constitution act 1980 being the Canadian Charter of Rights and Freedoms represent in our view a massive intrusion of the federal government in the classes 7, 10, 13, 14 and 16 of Section 92 of the British North America Act 1867. That is the right of the provinces to exclusively make laws in relation to the establishment of hospitals and charitable institutions, local works and undertakings, property and civil rights in the provinces, the administration of justice in the province and, 16, generally all matters of merely local or private nature; as well as Section 93 of the British North America Act which provides for the province having the right to make laws in relation to education.
We submit this is a recognized infringement of provincial powers sufficient to require the consent of all of the provinces to its enactment by the United Kingdom.
Just in passing and I might stress because we feel that the first part of the proposed act is unconstitutional and does require the consent of the provinces, I would like to make the observation that the Charter itself is piecemeal. I would not say it is poorly drafted. I think it has been well drafted, but 1 would say that those people who instructed the persons drafting the legislation deliberately omitted certain rights when they asked that the Charter be drafted, and I specifically refer to the right to enjoyment of property and the right not to be deprived thereof except by due process of law. This happens to be among the first rights recognized by the Canadian Bill of Rights and it is certainly part of the fifth amendment of the American constitution.
Now, I practice law in a small town in Alberta. 90 per cent of my practice deals with the interest people have in property; they buy it, they sell it, they will it, they fight over it. 10 per cent of my practice involves criminal law. I am not alone in doing this. The large firms, 90 percent of their practice relates to property rights while only 10 per cent of their practice or
perhaps even less relates to the area of criminal law. We have deliberately ignored the single most important right that the people of Canada wish to enjoy, that is the right to have and own property.
I suppose you could find, if this was not in the constitution, you could find a governement that might be elected that would seek to intrude upon these rights of property, they might wish to grab resources, they might wish to take away the rights of people to own property. This is an unlikely event, gentlemen, and I am sure that no Parliament in Canada would seek to do that, but perhaps if we had this firmly entrenched in our constitution we could preserve these rights of property.
The Alberta Chamber of Commerce does agree in principle with the sentiments expressed in Part Il of the act but it is of the opinion it falls for the same reason as Part 1.
Now the proposed amending formula which does not have the agreement of at least 6 of the 10 provinces at the present time also, if enacted, would create the possibility of a very consequential amendment to the constitution affecting the legislative authority and proprietory rights of one or more of the provinces, or consequential amendments to some other protected areas of the constitution, with the consent of only 6 of the 10 provinces and with no right being given to the province or provinces affected to object. This amending formula therefore requires only one additional step before changes might be made to the constitution which are not possible now.
Simply, gentlemen, with respect to the proposed unilateral patriation of the constitution, we have a situation where in 1867 and in fact prior to 1867, I believe, there were five colonies met from time to time to discuss the possibilities of Confederation. Three of these, Canada, New Brunswick and Nova Scotia did agree; they made a deal in 1867 and they set out the terms of the deal. They have asked oth.er people to come in on this deal on those terms.
Now, it is a principle of contract law, I do not think anyone can deny this, that if you have IO or 11 parties to a deal in order to come to an agreement to change that deal you have to have the agreement of all the parties to. the arrangement, in the absence of an amending formula. Now if those people decide they are going to insert in this agreement an amending formula, they can get together and decide on an amending agreement; then when an amendment is proposed and it comes within the terms of the amending agreement they will change the deal, or they could provide for arbitration. You will find that in many agreements.
I have dealt then I hope with the views of the Alberta Chamber with respect to the proposed unilateral patriation of the constitution of Canada to Canada.
Now we have an amending formula here and I think we should consider what form that amending formula should take. To provide a little background for myself and for the members in the brief time that I had to do this, I thought it worthwhile to take something of the comparative approach and a lot of the comparative approach is to be found in Favreau’s document as
well as the document of Messrs. Lalonde and Basford which was published I believe in 1978.
These people, Mr. Favreau and Messrs. Lalonde and Basford examine the constitution of the United States and they state:
Amendments to the constitution have not been frequent. While there have been over 5,000 proposals to amend the constitution introduced in the House of congress since 1789 only 31 of them have received the required congressional support and been referred to the states for ratification. Of these 26 have been ratified.
and with respect to Switzerland:
From 1874 to the end of 1973, the people and the cantons approved 83 partial revisions of the constitution. During the same period the people and the cantons rejected 73 proposals for partial revision;
That is somewhat more than 50 percent were approved.
With respect to Australia:
Since 1900, 16 constitutional referenda have been held, some dealing with several subjects. Of the 36 proposals put to the people only eight have obtained the requisite majorities.
and with respect to the Federal Republic of Germany:
Up until 1976, that is from 1949, the basic law has been amended 34 times. A large number of proposed amendments have been rejected.
McWhinney in Judicial Review, published in 1968, discusses the direct amending powers of the Commonwealth Countries, that is Canada, Australia, Union of South Africa, New Zealand, India, Ceylon, and Pakistan, and he concludes:
In spite of the hopes and expectations of the constitutional drafters, the machinery for amendment of the constitution, in the case at least of those Commonwealth countries where there has been any extended. experience of its working operation over a period of years has not been very productive of actual changes.
Thus it is fair to say that of the 11 countries whose constitution I have in a very casual way, considering the limited time available, considered to have provision for constitutional amendment by referendum, Australia and Switzerland. The latter has enjoyed some success, however in Australia as noted by McWhinney:
The public referendum which has been so productive of constitutional changes in the case of Switzerland, has been the principal rock on which the national government’s hopes in Australia have foundered.
It is probably fair to say that the referendum approach to constitutional amendment has not been popular in the Western World and where tried, except in Switzerland, unsuccessful.
Furthermore, constitutional change in all stable countries has been infrequent and perhaps wisely so.
Now, what is the history of efforts to find amending formula in Canada? Mr. Favreau and Messrs. Lalonde and Basford do discuss this history and P. MacGregor Dawson also as well as Gérin-Lajoie.
Constitutional amendment was not something that was totally ignored at the time of Confederation. It was ignored insofar as the provisions of the BNA Act were concerned but certain members of the various Houses did address themselves to the problem and it, I submit to you, was a deliberate omission at the time. I think it was felt and it has been suggested by these legislatures that the parties to the original compact felt that the necessity of going to the United Kingdom for changes to the constitution gave protection to the parties to the agreement.
There was lots of discussion about it from time to time but probably it gained some impetus after World War I and I believe it was in 1927 it was placed on the agenda of the dominion provincial conference and many people that the major discussion on amendments to the constitution really started at that time.
In any event, in 1935 Ontario proposed an amending procedure. As far as I can make out it appears that we have examined proposed amending procedures five times, I will submit. That was in 1935 Ontario came up with a proposal; Mr. Fulton came up with a proposal and Mr. Favreau changed it slightly, maybe that can be described as just one time; we have the Victoria Charter and we have I would suggest the Vancouver concensus of the Premiers; but in 1935 Ontario did come up with a proposal and essentially they suggested that if you are going to have amendment to the constitution you would require two thirds of the provinces representing at least 55 per cent of the total population. Certain matters were dealt with differently, and I will not go into those, except to say that a lot of the feelings expressed in a general way in those resolutions which were eventually agreed to by the provinces find expression in the Fulton-Favreau documents as well as the Vancouver concensus.
Now, as I indicated to you in recent years we have the various meetings and negotiations between the federal and provincial governments which result in the Fulton-Favreau Formula, and many of you here were engaged in those discussions. In this Act to provide for the amendment in Canada of the constitution of Canada we have certain proposals representing some sort of concensus. It provided for amendment to the constitution of Canada by the Parliament of Canada providing two thirds of the provinces representing at least 50 per cent of the population of Canada concurred. However all of the provinces must agree to laws affecting the proposed amending formula, province’s entitlement to members of the House of Commons being not Jess than the number of Senators to which they are entitled; the powers of the legislature of a province to make Jaws; the rights or privileges granted or
secured by the constitution of Canada to a legislature or government of a province; the assets or property of a province or the use of the English or French language. When enacting laws relating to one or more but not all provinces the consent of the legislatures of those provinces must be obtained by Parliament. As you will remember this formula had the unanimous support of the governments of Canada. However, subsequently, as you will remember, Premier Lesage of Quebec withdrew this support.
Subsequently, the various governments met from time to time until the Canadian constitutional Charter was presented in Victoria in mid June of 1971 and accepted by the government there represented.
In passing, as I recollect, the Alberta government had a new Premier at that time; the current Premier was not there.
All governments, except for Quebec and Saskatchewan, indicated their approval and subsequently there was not approval.
You will remember that the Prime Minister of Canada circulated a form for proclamation by the Governor General in March of 1976, which was a qualified form of the Victoria Charter, which appears to a large extent in the current Canadian constitution of 1980.
Finally, all 10 provinces approved the Vancouver consensus in terms with which you are all familiar in September, 1980. This formula was based upon the fondamental principle that all provinces have equal constitutional status with variations similar to the Fulton-Favreau proposal, a part from Part II of that proposal.
In conclusion, then, the Alberta Chamber of Commerce is of the opinion that the Fulton-Favreau proposal of 1964, as varied by the Vancouver consensus and approved by all 10 provinces, represents the best approach to providing a worthwhile amending formula.
This formula protects the rights and powers and assets of all provinces and the federal government, and also provides for a simple amending formula for amendment outside of certain sacrosanct areas, and even in those areas amendment can be obtained upon unanimous consent.
Gentlemen, businessmen and the people of Canada need and are entitled to stability and certainty and should not be subject to the whims and caprice of their Parliament and legislature.
The Joint Chairman (Senator Hays): Mr. Lehr.
Mr. Lehr: Mr. Chairman, I would now like to ask Miss Mahoney to make a few comments on the views of Albertans.
Miss Maureen Mahoney (Public Affairs Manager, Alberta Chamber of Commerce): Just a few comments, Mr. Chairman.
The Alberta Chamber firmly believes that the proposals before this Committee could change the very essence of Canada’s federal system.
We are convinced that the process by which we patriate our constitution is extremely important and will determine the whole direction of Canada ‘s future as a nation.
Ultimately it is a question whether the people of Canada want Canada to become a more centralized state. Albertans do not.
We submit that this feeling is true of most Canadians. The result of the recent Gallup poll attests to this belief. On a national basis, 58 per cent of Canadians disapprove and only 20 per cent approve of federal government’s unilateral action to patriate the constitution.
Of even more significance are the results on a regional basis, with the majority of the people in each of the regions being opposed to such action.
It is interesting to note that if these were the results of the constitutional referendum held under the system proposed by the federal government it would not pass.
To us this poll means that it is not only Albertans, who have grave concerns over the federal governments actions, and who do not want a constitution which creates first and second class provinces and first and second class rights, and who do not want the federal government to do, indirectly through the United Kingdom’s Parliament, what it could not do directly in Canada, even if the constitution was already patriated and the proposed amending formula was in effect.
I believe that patriation should be a positive, unifying step, for Canadians and not one which creates more division within our country, and between our governments and one which tries to take the Canada that we know away from us.
The Joint Chairman (Senator Hays): Does that complete your presentation?
Mr. Lehr: I would just like to make a couple of closing remarks, if I may, Mr. Chairman.
The Joint Chairman (Senator Hays): Yes, go ahead.
Mr. Lehr: In conclusion, I would say that most Canadians want the constitution brought home. We are agreed on that.
But we do feel that most Canadians do want patriation not to occur in an atmosphere of diversity and suspicion.
We have a great country from the Atlantic to the Pacific which has peacefully prospered for over 100 years. The people of Alberta are closing off this year by celebrating their 75th birthday in terms of being a province.
As a country, in history, that is a relatively short period of time. Westerners, and in particular Albertans, are very concerned about our country. People are talking about separation. These people are not the radicals you would expect to join this type of movement. The talk ranges from the coffee crowd to the board rooms of business. The Alberta Chamber of Commerce believes that, while separation is front and fore. in Western Canada, people do not really want to separate, and this is really their way of expressing their frustrations.
These frustrations have to be addressed, otherwise the very future of Canada as a nation is at stake.
Please, when you place your recommendations before Parliament, please recognize that if the constitution is unilaterally repatriated under the present proposals, we will have rifts in this, a most bountiful country, which may never be repaired.
The Joint Chairman (Senator Hays): Thank you. Mr. Hawkes.
Mr. Hawkes: Mr. Chairman, I would like to begin briefly with a point of order concerning the time. I have been sitting here recognizing clearly that the liberal caucus and the NDP caucus do not have an elected member sitting in their caucus.
I also recognize that they may not be familiar with the composition of the Alberta Chamber.
But in the introductory remarks it was made clear that this group represents community leadership, the Boy Scout leaders and the hockey coaches and so on throughout our province, and may in fact be the only witnesses which substantially represent the citizens of Alberta that appear before us.
I would like to make sure that we have ample time and opportunity to explore what they have said and to ask whatever questions we might want to ask in order to get behind the thoughts which have led to these recommendations.
I raise the point of order to ensure that we will not prematurely terminate these witnesses, because I do think that the point they have just made that our decision relative to their request is important in the unity context.
Therefore, I would like to see that we have sufficient time.
The Joint Chairman (Senator Hays): I appreciate your point of order, Mr. Hawkes.
I thought I had indicated at the very beginning that we would not take any time away from the Alberta group and that we would give them all the time and treat them just as we have treated all other groups that have appeared before us.
You may proceed.
Mr. Mackasey: On the same point of order, Mr. Chairman. Has there been any occasion when we have taken time away from any particular group?
The Joint Chairman (Senator Hays): I think I can speak for Mr. Joyal as well. We have tried not to take away time from any group, and often we have gone over an hour.
Mr. Mackasey: My point of order is no more valid which has been heard. We are talking about something which has not been practised here and it was never intended to reduce the time of a very important witness.
I deplore those types of tactics, and I make my point. The Joint Chairman (Senator Hays): Would you like to comment Mr. Joyal?
The Joint Chairman (Mr. Joyal): Yes. I would like to add that usually I send out the list of speakers, and I always inform honourable members of this Committee how many more speakers we have on the list and we are always in the hands of the Committee.
Honourable members will have noticed that usually we go far beyond the hour usually reserved for one group of witnesses.
So I do not see any reason why we should not apply the same rules with our guests this morning.
The Joint Chairman (Senator Hays): Thank you. In addition to that, Mr. Hawkes, I would be the last to take time away from Albertans.
Mr. Hawkes: Thank you, Mr. Chairman.
I say welcome to our witnesses. Thank you for the time and thought you have put into your presentation.
Can we begin with a general question. Can you describe for us the process that the Chamber went through to prepare this brief? How much consultation and in what form did it take?
Mr. Lehr: As I said, we had a committee which structured the fundamentals of our brief. This then went to the executive of the Board and was circulated to the 121 Chambers for input, and that input was taken into account. That is the consensus behind our brief.
Mr. Hawkes: Would you describe it as a true consensus? Did you have much disagreement with the form and substance of your presentation?
Mr. Lehr: Not in substance; there was some disagreement as to the grammar or wording, but not, really, in what I would call substance.
Mr. Hawkes: In your view, would your brief be consistent at least in its main thrust with the views taken by—and there are 100 people elected in the province of Alberta to serve in the House of Commons or the provincial legislature; and I have said on previous occasions that at least 99 of that 100 object to the process. Do you have any information which is contrary to that, or can you confirm that fact, that the elected representa-
tives are basically congruent with the thrust of your brief as well?
Mr. Lehr: No, I cannot really confirm that; because the Alberta Chamber of Commerce is a separate entity and is not part of the government, nor is it necessarily influenced by the elected representatives or government.
I am sorry, but if our views are similar, that is only coincidental, and was not done from the Chamber’s point of view t.o accommodate or bring into the Chamber’s presentations the point of view of the elected representatives.
Mr. Hawkes: Thank you.
I have summarized your brief into three areas, the governmental traditions, legal traditions and economic traditions. Maybe we could deal with these three. You have said that the unilateral process that is being engaged in at the moment for constitutional revision is—and I quote from the first page of your brief:
Such unilateral action by the federal government is contrary to the long standing Canadian tradition that constitutional changes to area of provincial responsibility require provincial consent.
Am I correct in assuming that that sentence ad the thrust of your brief is an indication that you think the unilateral process is separating Canadians from their previous governmental tradition?
Mr. Lehr: The answer to your question is yes. As Mr. McKillop has pointed out, it has been a tradition, not only of Canada, but other governments in the world, to get close to unanimous consent.
I would say that the recent polls would indicate that if the constitution were repatriated under the present proposals we would be causing controversy in our country.
I think we have to confine our remarks more or less to Alberta, and I can certainly say Alberta is definitely opposed.
When I say Alberta, I mean, the Alberta Chamber of Commerce—they are opposed to repatriating the constitution under the present formula. I would add that, if the polls are anywhere near correct, that would be the feeling throughout Canada.
Mr. Hawkes: I have two other examples out of your brief which I thought related to the issue of this proposal trying to separate us from our governmental traditions. One was related to your comments on the referendum which, in fact, is a complete break with past tradition. The other was the use of either the Victoria Amending Formula or the referendum in the sense that it also by-passes provinces, which is a separation from past tradition. So there is the over-all unilateral process, plus the amending sections—all constituting a separation from tradition as far as the way in which we are governed. Am I · correct in saying that?
Mr. Lehr: You are correct.
Again, referring to Alberta, it really puts Alberta in a third-class position.
Under the present formula, Alberta would have to have the consent of British Columbia to put their views into the repatriation.
If the consent of British Columbia was not forthcoming, we would need the consent of both Saskatchewan and Manitoba. So our point is that, really, under the proposed amending formula, which gives priorities to two of the provinces and as part of the western block, if you wish, that puts Alberta in a third rate position.
Mr. Hawkes: The principal underlining that is the conviction in Albertans that provinces are equal and that there should not be any superior or inferior province; but that they are equal in a confederation.
Mr. Lehr: That is right.
Mr. Hawkes: The point you make concerning the Charter of Rights, the essential nature of the point is that it seeks to separate us from our legal traditions; that in fact we are going towards increasing the powers of the courts and decreasing the responsibility of the people who we choose to elect.
That, you see, as a separation from the traditional way in which the country has been operating?
Mr. Lehr: That is right.
We emphasize that the most important thing we feel is the repatriation of the constitution under the formula that we suggest, or the Vancouver Formula; but after the constitution has been repatriated on those bases, and in compliance with the suggestions we have made, the Charter of Rights then should be discussed and perhaps implemented.
We feel that the entrenchment of the Charter of Rights should not be aimed at at this particular time.
Mr. Hawkes: Finally, the economic traditions. You deal specifically with the equalization part of the Charter.
I see the fear behind that. It is that it might centralize more economic power in the Parliament of Canada or the Government of Canada in that they could by-pass the provinces in the delivery of money and services.
Is that part of what is there?
Mr. Lehr: Yes.
Mr. Hawkes: That is a separation from past practice.
Mr. Lehr: Yes.
Mr. Hawkes: You did not deal at length with the additional amendments after the patriation section of their brief, at least in your oral presentation.
But I have tried to look at those seven proposals and see what lies behind them.
But it seems to me that you are saying in those seven proposed recommendations that the Chamber and the 14,000
members believe that the provincial governments in an economic sense in the province of Alberta, and I suggest perhaps in the Western Canada generally, have the kind of expertise and sensitivity to the major economic factors in our world that a centralized government cannot have and does not have.
That relates specifically to resources and transportation, which are two primary examples in those recommendations. Also, that from your view, the economic health of our region of the country would be better protected if in fact more of the decision-making power was clearly left in the hands of the governments responsible to and responsive to the people of that region, and that in fact those parts of the current BNA Act which would allow a central government to take those things away from the regions are the parts which be modified, so that that power cannot be used except under the most extraordinary set of circumstances.
Is that an adequate summary of some very complex ideas, expressed in the seven recommendations?
Mr. Lehr: The western provinces, in particular Alberta, are very concerned that the powers which were given to them in the Act and I believe it was in 1931 when control over resources was given to the provinces—they are very concerned that those rights—and you can see that we say in 5.1 that there should be a reaffirmation, a strengthening clarification of all aspects of the provinces’ control over natural resources. That is one of the fundamentals. That is one of the fundamentals in Alberta.
I did not deal with the recommendations following repatriation, because our presentation was fairly long. But I am glad that you have taken cognizance of their presence.
They are certainly some of our concerns. I did not omit them in my opening presentations. I knew these recommendations were before you.
But I would reaffirm that is one of the areas that Albertans in particular are very concerned about.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Hawkes.
Mr. Riis: Thank you very much, Mr. Chairman.
Perhaps to begin with, to reply to Mr. Hawkes’ concern, as a member of the Chamber of Commerce of British Columbia I found your presentation to be very informative, very interesting and can certainly guarantee that it will receive a very thorough airing in the New Democratic Party caucus when we deliberate in the next number of weeks.
I must say that I think that as participants around this table we have a great deal to learn from what is going on in Alberta. In terms of consensus building, there seems to be an incredible degree of unanimity between your independent position and that of the Tory caucus from Alberta, as well as the provincial caucus, so whatever you have got going out there in terms of
building and coming together, perhaps we could all learn a great deal from you.
One of the interesting points that you raised is the willingness of the Chamber of Commerce from Alberta to support the idea of sharing, the sharing of resources and so on from one part of Canada to another, to indicate that you favour constitutional recognition of the commitment to sharing, but you have a very important concern and that is, I suppose, that without equalization payments going directly to the provinces, do I take it that you people are somewhat concerned about the potential, and I emphasize only the potential or possibility of patronage or the pork barrelling approach to funding certain things in Western Canada or, precisely, Alberta.
Mr. Lehr: Yes. I will ask Maureen to answer that.
Miss Mahoney: Yes, I would agree with that. I think Albertans are very committed Canadians and more than willing, they have always agreed with the principle of equalization, that has been in effect for a long time. So it is just a matter of the wording, really, for it.
I think there is general agreement across the country with that, it is a very good idea, and I think the point is there we just want to make sure that it is our provincial governments that are actually dealing with those issues when they are receiving the funds and being able to use them towards the general good.
Mr. Riis: As Mr. Hawkes indicated earlier, often the provincial governments are perhaps more tuned to the precise needs of a particular part of the country. If you feel as strongly as you indicate now and in your brief that if the present Canada Act was amended to ensure equalization payments be made specifically to provincial governments, would the Chamber of Commerce of Alberta favour the inclusion therefore in the constitution?
Miss Mahoney: Oh, yes. In our brief we say that we are in agreement with entrenching the principle of equalization but not right now. We think that the government should be concentrating on patriating with an amending formula and then including other issues after you get governments back together to agree on them.
Mr. Riis: But if you agree with the wording, and if Canadians per se agree, as you say they generally do but it is just concern about this wording, if it was to everyone’s satisfaction would there be any hesitation to include it, presumably? Miss Mahoney: No, I do not think so.
Mr. Riis: One of the number of points that I find most interesting is perhaps not so much what you direct your attention to in the brief but what you have not commented on in terms of the resolution, and that is in Alberta there are great amounts of land that are set aside for the native people of Alberta, and in your comments regarding the necessity of holding on-going meetings with the first Ministers once this process is under way, would you people support expanding the membership of these annual meetings to include representations from native groups?
Miss Mahoney: Well, that is a point that the Alberta Chamber has not really considered. I think that is up to governments to determine that, but I think for myself that I would rather just see the elected representatives making those kinds of decisions rather than opening up the doors to other interest groups and then having a lot of problems determining who in fact is going to be speaking.
I guess the problem with that situation is who makes the final decision when you include minority groups like that at the table.
Mr. Lehr: If I might make a further comment on that, what we are faced with in Alberta in particular are many groups, many nationalities, and they all have a voice in electing our government and if we open that type of debate away from the provincial aspect, I believe there would be too many problems because there would be too many voices, and the people you speak of as well as the other people then have their voice in the elected representatives.
Mr. Riis: I appreciate what you are saying, Mr. Lehr, and from those comments do I take it that you see the native peoples in the same category essentially as another minority group, as we view the Italian Canadians or the Ukrainian Canadians or whatever?
Mr. Lehr: In the context of representation on a provincial basis, yes.
Mr. McKillop: I think we go further and recognize that our aboriginal groups do have a rather unique position. It is recognized in the acquisition of Rupert’s Land in the Northwest Territories, that type of thing, we have obligations there to settle their claims. They are a little bit different from the other people, they are certainly a minority but they should be recognized as the original people here.
Mr. Riis: Perhaps if I can take off on that last point, Mr. McKillop, that you raised, we have obligations in recognizing certain claims. Does the Chamber of Commerce recognize the concept of aboriginal rights?
Mr. McKillop: Well, we have not directed our attention to it, we have not discussed it. It is hard to deny, though, that the natives, all natives perhaps including the Métis, have aboriginal rights and that they should be dealt with.
Mr. Riis: In Alberta, I suppose as most other provinces, as a geographer one can recognize the existence of the French belt that stretches across Canada, certainly including parts of your province. You mentioned that the proposed Charter of Rights and Freedoms should not be included in the constitution. Does this imply, then, that French speaking minorities in the West have enough protection today or do you see them as simply another minority group?
Mr. Lehr: I would like to refer that question to Miss Mahoney. I think that Alberta has gone perhaps farther than most of the provinces in that area and I would ask Ms. Mahoney to give you some statistics in that area.
Miss Mahoney: I think if I might just clarify your question again, it was: did we consider the French community another minority group in Alberta?
Mr. Riis: That was one, but you indicated in your presentation that you felt the Charter of Rights and Freedoms ought not to be entrenched in the constitution and that the existing legislation would take care of their rights. Do you feel, then, that this is the case, that their rights are taken care of under existing legislation in the province of Alberta, and secondly, do you consider them to be essentially another minority group that you find in the province?
Miss Mahoney: I would say that Alberta is taking care of the French speaking people’s rights in Alberta. We have a very good program of minority language education where a variety of languages are provided by the Alberta school system, voluntarily, on demand, according to the demand and that is determined by the local school boards.
So we have or we are teaching currently people in French, German, Italian, Ukrainian, native languages, etc., so I think there is a fair degree of protection there by the legislature in recognition of the need to have French language as an opportunity there for people.
Mr. Riis: Presumably you feel that same protection would exist in other western provinces as well?
Miss Mahoney: Yes, I think so. As you probably remember, I think it was in 1978 at the annual Premiers’ Conference, the unanimous agreement of the premiers that they would undertake their best efforts to provide minority language education within their provinces and I think they are trying to do that.
Mr. Riis: Along these same lines, Mr. McKillop, just in his very interesting closing comments, rather moving, mentioned that Canadians should not be at the whim of Parliaments and legislatures, and presumably in your brief you suggest that the Charter of Freedoms and Rights not be entrenched in the constitution which would essentially then make the stage of last resort to be the legislatures or Parliament, and I suggest that when one looks at the past record of the past administrations in the province of Alberta, that the track record is not all that positive when you consider the way certain minority groups have been treated in the past, and perhaps there is no need to elaborate on what those groups are but to feel that the legislators of Alberta would guarantee the rights of citizens in that province leaves, I know, some of us a little cold.
Mr. McKillop: Might I answer that?
Certainly one of those minorities bas been the press in Alberta, in the late 1930’s. However, we are opposed at this time to the entrenchment of a Charter of Human Rights. I think the position taken by the province of Alberta is that we are going to patriate the constitution and provide an amending formula. You. have had many people addressing you with respect to what rights should be included in the constitution. I today spoke about property rights. There is a lot of discussion that can center around the proposed Charter of Rights. It is a
very divisive thing, we are going to have lots of discussions and it may prevent patriation of the constitution because we cannot agree on a Charter of Rights. So why should we at this time deal with that when, if we establish our priorities we say today in Canada we want to patriate the constitution. Perhaps at other times in the history of our country we have not felt that we wanted to patriate the constitution, many felt that their protection lay in the United Kingdom Parliament. I think today we want, it is universally accepted throughout Canada, I think the poll was released the oter day that was taken in September which indicated that the people of Canada wanted the constitution patriated to Canada on that basis, therefore let us patriate it, let us come to some conclusion on an amending procedure which has the approval of all the provinces.
There are just too many areas in the Charter of Human Rights that you are going to argue about. Let us get on with it, let us deal on a priority basis with patriating the constitution to Canada and we will deal with those other matters at a later date.
The Joint Chairman (Senator Hays): Thank you, Mr. Riis. Senator Austin.
Senator Austin: Thank you, Mr. Chairman.
I join in the welcome of the Alberta Chamber of Commerce to our Committee, and . if I may add that I do have some Alberta credentials, although I am a Senator from British Columbia I was born and raised in Calgary, went to Crescent Height High School and have my father and my sisters and all my family there, and my wife’s family there as well, and I spend a lot of time in Alberta.
I appreciate the deep study that you have given this issue and I appreciate the positive premises that underly your presentation. I think that one of the most devisive and unnecessary quarrels that seems to be rising in this country, particularly in our part· of Canada, the western part of Canada, is the argument about who is a good Canadian, who is a bad Canadian. I think that nothing can be more useless than to divide over a kind of reverse McCarthyism in this country. We are all good Canadians and we are all working with extremely difficult problems.
I make the remark not directed at your brief at all but at one of the remarks made earlier in your presentation when you raised the question of separatism, Mr. Lehr, and referred to that particular comment. I certainly do agree with you.
With respect to your presentation, I would like to make two or three comments and then ask for responses. I would like to start with one of the premises of your presentation relating to the question of property rights in the document. This is an issue that seems to be rising in the concern of some people and is a matter of really grave confusion more than it is of any kind of diametric opposition. I think in principle we would like to enshrine the concept of property in a constitution, the problem is that in the discussions that went on at the first Minister’s level the provinces universally opposed the insertion of property rights in a Charter of Rights and the reason was
not that the provinces opposed the concept of individuals having rights of property, but the provinces requested the federal government to drop any insertion because of their concern that individuals would use the concept of property rights to argue for compensation when legislatures made changes in the use of property in the community for the general interest.
For example, a decision with respect to highway choices or zoning choices, and here we run into, as we do in many. of these areas, conflicts of public policy. So, for that reason, the problem being not resolvable in the timeframe of the negotiations with respect to the constitution, the provinces requested it be dropped and it was dropped.
In addition, I might add there was a serious concern on the part of provinces like Prince Edward Island, which has laws with respect to ownership of property and does not seek to be owned by absentee landlords even if Canadian, that unless the definitions were very, very clear there would be an erosion of local responsibility and of course this is something we are familiar with in Western Canada with respect to agricultural property. So the question of property rights is not something where the federal government is denying the recognition of a principle, it is a question of difficulty.
I found, Mr. McKillop, in your last comment something very interesting and very challenging. You said that, ·and I cannot quote you exactly, but you said something to the effect that unless we could solve all of the problems that we had to deal with, we should not salve any. Now, that is in terms of the Charter and that problem was addressed to us by Mr. Gordon Fairweather when he came to speak to us and his answer to the same proposition was that the best is often the enemy of the good and that we should proceed with what we can agree to, where there is a consensus, and we do have a consensus of a kind. We have a consensus with the Ontario Conservatives and Premier Davis, with the New Brunswick Conservatives and Premier Hatfield, with the federal New Democratic Party, that this is a process we should endeavour to launch and improve incrementally.
So I wanted to put those particular comments on the record and I would be glad if Mr. McKillop in particular might respond because I have addressed some of them directly to him.
Mr. McKillop: Thank you, Senator Martin.
Just in passing I might note that in fact we were raised in the same district in Calgary. I can remember you.
Senator Austin: Really.
Mr. McKillop: You were older than I was.
Senator Austin: Well, at least you have proved my bona fides, I appreciate that.
Mr. McKillop: Now, you have indicated the matter of property rights certainly has been raised. I was not aware of the universal approval of the provinces that they should be included. I was aware of the objections of Prince Edward Island. That points out, however, the problem in creating a
Charter of Rights, we are whole heartedly behind that idea but it has certainly been divisive and it certainly creates a further problem with respect to patriating the constitution.
Now, to get into the merits of a Charter of Rights, and I do not want to get into that too extensively, but just to make an observation if you imbed in the constitution a Charter of Rights and in that Charter you specify certain rights and omit others, then what you have done is strengthen those rights in the Charter and simply by ignoring other rights you have weakened them and perhaps denied they exist at all.
I raise that point, I think the courts might well, in interpreting the proposed Charter, would at least listen to that argument, and that was the concern that the proposed Charter was piecemeal and certainly did not deal with that one right.
Senator Austin: Well, I would add by way of footnote to your comment that in the American experience, when the U.S. constitution was put together, it was agreed that they needed to do things within a certain time and they put their constitution together, I think effectively 1783, but in the 12 or 14 years following they made 10 amendments, and those 10 amendments were fundamental to what Americans now consider their basic rights, and I am hopeful that if we can make a partial start now we can keep the momentum of change going.
We have many, many issues that we cannot solve now. For example, Mr. Rice referred to native rights, and those are excruciating problems. If you stay this afternoon you will hear the presentation of the National Indian Brotherhood and you will share with us the grappling of a very, very difficult subject.
I would like to turn to the question of patriation which was another key issue in your brief and tell you that I believe that your confidence in the unanimity of the provinces agreeing to any particular Vancouver formula really is not well founded. We had Premier Hatfield come before us, he was present at the meeting, and Mr. McKillop and I are lawyers and we like the best evidence rule as to what happens, and he said in answer to a question by Mr. McGrath, and I am reading from the December 4 transcript of this Committee, page 19:69, Mr. McGrath is speaking and I quote:
If I understand it correctly, for example, on the Vancouver consensus there was agreement by all the provinces last fall.
And Mr. Hatfield’s reply is as follows:
I think it is important that I place on record my own opinion with regard to this question that there was unanimous agreement by the provinces.
I think there were two kinds of agreements that the provinces reached from time to time. One was an agreement with which they would not break nor depart from under any circumstances; those kinds of agreements, let me tell you, were very, very few. I believe I can think of one, and I am not even sure about that; but I think it was the agreement with regard to provincial jurisdiction over off-shore resources. I am not even sure if it came down to a final test that agreement would have stuck. But in any event, that was one of the best over-all agreements.
Then there were other agreements—consensus, if you like—which were, up to a point, conditional.
I made it very clear-at least I thought I made it very clear; I understood what I said anyway; I knew what I meant-that unless we faced up to the question of language in our country, that we would not have a constitution which would be acceptable to the people in the various parts of this country.
What I was trying to say, and what I said more directly in private than in public, was that that had to be done. It had to be done, and there was no point in our trying to proceed with some kind of very loose consensus unless we did, in fact, face up to that.
And when Premier Buchanan appeared before us, and I do not have the transcript in front of us, he also told us he believed the consensus might have been achieved if there were further negotiations but he acknowledged there was not a consensus and, indeed, he expressed his appreciation for the Victoria formula, so I would like to ask you this question:
Certainly we on this side believe that a provincial consensus was some long distance from being achieved but we do know of one and that was the consensus that was achieved in Victoria in 1971, where all the provinces agreed to what is now known as the Victoria formula and I wonder why you do not find that piece of evidence important. Mr. McKillop mentioned many evidentary items but did not mention the Victoria formula in the agreement at that time which is embedded in this proposed joint resolution?
Mr. McKillop: May I answer that?
With respect to the Victoria Charter, it is interesting that you make the observation that there was total consensus there but you are not prepared to concede that there was total consensus in Vancouver. You suggest there are two types of consensus in Victoria, and in fact I believe two provinces did not, when they returned, did not approve of the Victoria consensus, that is Saskatchewan and Quebec. At least that is my recollection.
Senator Austin: Well, let me be clear that they agreed in Victoria, Premier Bourassa when he went back to Quebec announced that there would have to be an additional concession in terms of social policy arrangements before he would proceed. He never disagreed with the Victoria formula. Saskatchewan had a change of government intervening and the new government never addressed itself to the problem of agreement with the old Saskatchewan government for the reason that Quebec had put a new policy proposition on the table unrelated to the amending formula.
Mr. McKillop: And with respect to Mr. Hatfield, I believe he is probably the only Premier tha was at the Victoria conference that is still a Premier. I could be wrong about that. I watched the night when Premier Hatfield was here and I had the distinct impression that apart from preserving the rights of
the French-Canadian minority in his province, which represents a very substantial portion of his province, he had grown tired of the constitutional debate and he felt that rather than these endless discussions, that maybe we should get on with the job. That was the feeling I had in listening to him; I do not know the feeling you people had in that regard.
The Joint Chairman (Senator Hays): Thank you very much, Senator Austin.
Senator Austin: One last question, please.
The Joint Chairman (Senator Hays): Sorry, but you have used about 14 minutes. Mr. Lehr would like to some comment-
Mr. Lehr: Yes, please, Mr. Chairman.
Now that the lawyers have had a go at it, I am a rancher and probably look at this issue from a more practical point of view, as representing the Chamber of Commerce of Alberta, and I would say this, that in our opinion the Vancouver amending formula was perhaps the closest to unanimity that the Premiers came to; and then I would like to· add that in view of the things that have happened since Canada Act 80 has been presented and the dissension that is going on across our, country, I would suggest that the Premiers and the government of Canada again make a very strong effort to come up with an amending formula to amend the constitution, to add into the constitution and repatriate it and under the Vancouver formula we believe that the people can live with that formula and then go with bringing up a constitution that the people of Canada can live with.
Miss Mahoney: Might I make one comment?
The Joint Chairman (Senator Hays): Yes.
Miss Mahoney: I would just like to add that where at one point in time all governments may have agreed temporarily to the Victoria formula, I fail to see how the federal government when there was I am sure—there was a temporary unanimous agreement about the Vancouver consensus and now we are faced with the situation where we. have got the Victoria formula, modified version, back onto the table and we have six provinces opposing that action in the courts. Now how can you proceed with something like that when you have got more than a majority of the provincial governments against it.
Senator Austin: Could I be allowed to reply to that?
The Joint Chairman (Senator Hays): Yes, one short question.
Senator Austin: I Very simply, that in Victoria there was unanimity; in Vancouver there was not; and I will read you another sentence by Mr. Hatfield, or his evidence.
I take the position that the so-called Alberta amending formula as well had a lot of defects. I was quite confident, particularly the defect of allowing the province to opt out
if they did not like the amendment would not be sustained by Parliament or by the legislatures of Canada.
You cannot hang an argument on agreement at Vancouver, that is the point of difference between us. Thank you, Mr. Chairman.
Senator Tremblay: I have a question, Mr. Chairman, about what Senator Austin has just said about the so-called Victoria amending formula.
Over the years, I have tried without success to discover the exact nature and extent of that agreement. It is an argument that is often invoked and I think the Committee would be wrong to rely on hearsay evidence.
Why not ask Mr. Bourassa to appear as a witness and tell us how he perceived the. Victoria consensus? The Committee should not neglect this important source of first-hand evidence.
The Joint Chairman (Senator Hays): Thank you. Mr. Hargrave? We just have so many speakers and I would like to cover them all. You go ahead, Mr. Hargrave.
Mr. Hargrave: Thank you, Mr. Chairman. Mr. Chairman I would like to first of all extend a very warm personal greeting to Mr. Lehr as a neighbour and a long time friend and I am sure you, Mr. Chairman, as our Joint Chairman, are aware that Mr. Lehr is a very well known cattle producer and beef producer in my community of Medicine Hat. It is very nice to see an old friend and neighbour here with the Alberta Chamber delegation, and I welcome you to it.
I would say to you, Mr. Chairman, to Mr. Lehr and your associates, that your attendance at this Committee is very timely indeed and I would just like to enlarge on that very briefly. It seems to me that it is only over about the last three weeks that the feeling of unrest or frustration, sometimes anger, in western Canada and especially in Alberta, it is only over recent weeks that that has been adequately, not yet properly but adequately reported in the Central Canadian media, especially the newspapers. So I think your attendance at this meeting is most timely indeed and I would like to say I appreciated your very frank conclusion to your original presentation where you made some straight forward comments about this question of separatism or whatever you want to call it in the West, and I would like to say I can associate myself personally with those remarks.
Mr. Chairman, I want to address myself to two aspects of your excellent presentation. The first one is your recommendation number 3, wherein you suggest that the need for First Ministers’ meetings should be recognized in our constitution and that they be required to meet annually. This is a very interesting recommendation and it seems to me that if we look over the last few years the history of those First Ministers’ meetings at least the accomplishments of them or the lack of
them has not been very good. I do not think there is any doubt about that. Maybe there is good reason for that, but in the light of that I want to ask the delegation if perhaps either deliberately or otherwise this situation that you have recognized in putting number 3 recommendation in there is a reflection on the fact that certain regions in Canada or provinces if you like, and especially Western Canada, have not been adequately represented by the federal Parliamentary institution and particularly the House of Commons; and therefore perhaps you might feel that maybe our reactivation if you like guaranteed in the constitution of First Ministers’ meetings might be a way of overcoming this, I hope, short term situation. Would you comment on that please, Mr. Lehr.
Mr. Lehr: Thank you, Mr. Hargrave.
I would like to make a comment on your opening remarks about what is happening in recent weeks. To us, it is alarming and it is alarming from the fact that this separatist feeling is growing; it seems to be gaining momentum and we are alarmed at that.
As to that other suggestion that meetings be held between the Provinces at least on a yearly basis, we feel that Canada is a federation of provinces and, as such, we feel that it would be advantageous to the confederation of Canada that this type of ongoing dialogue be held.
Your closing remarks about the representation from Western Canada, yes, there is a strong underlying feeling in Western Canada that we are not adequately represented.
I do not think that that, though, is the underlying problem in this frustration that is manifesting itself in the separatist movement. It is a factor but I do not think it is the main factor. It is a feeling of frustration.
Mr. Hargrave: Mr. Chairman, I have one more brief point.
I refer to your comments after patriation, the one, 5.4, headed up ‘Transportation’. This one, of course, suggests many things to myself and, I am sure, to you, Mr. Chairman, but I would wonder even though it is marked for attention after patriation whether you would perhaps enlarge on the phrase provincial jurisdiction over certain aspects of transportation should be expanded to make transportation a concurrent power, that phrase, a concurrent power and along with that, Mr. Lehr, would you care to make some comments on whether or not you feel the time is now appropriate in this very broad and complex subject of transportation and I am thinking now, in Western Canada, is the time appropriate to open up the debate on the Crow’s Nest Pass freight rate issue and all the ramifications of that, I am sure you are aware that while it is talked away in our Parliament down here, it has never really been officially discussed and debated other than in Question Period and so on.
Do you feel that it is timely now to address ourselves to that very long-time and complex subject and would you comment also, a little enlargement on what you mean by the concurrent aspects of transportation.
Mr. Lehr: As I know you are aware, Mr. Hargrave, I was one of the Commissioners on the Hall Commission on grain handling and transportation.
We put out recommendations that all the Commissioners agreed to and for me to go in today into transportation, I am afraid that I would be imposing on this …
Mr. Hargrave: That kind of detail.
Mr. Lehr: Yes.
You specifically say what we are saying in transportation and concurrent power. The first thing we are saying is that we put transportation into the category of important issues that should be resolved but we say that the most important issue is repatriate the Constitution under certain amending formula and, then, look at these important issues.
Certainly, the Crow rate, its ramifications, its length of time, its inadequacy in today’s economic position needs to be addressed and needs to be addressed now.
I would add that, in my opinion, it is being addressed in ad hoc manners. We have assistance in branch lines. We have cars being supplied by the Government and the Canadian Wheat Board and provincial governments which indicate that there is a very serious problem in transportation, and it goes farther than grain, because the effect is on other aspects ·of transportation which indicates that it is a very, very serious problem.
You are asking me to comment, is the time appropriate. Definitely yes. It is an issue that should have been resolved years ago, it is an issue that is still hanging fire. It is an issue that is a frustration in Western Canada and it is an issue that should have been addressed prior to this but has not been addressed properly, in my estimation, and I would say that it is time that it was.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Hargrave.
Mr. Hargrave: Thank you, Mr. Lehr.
The Joint Chairman (Senator Hays): Senator Goldenberg.
Senator Goldenberg: Thank you, Mr. Chairman. My first question is to Mr. McKillop.
In arguing the need for provincial unanimity before change is made in the BNA Act, Mr. McKillop, you started by quoting a number of authorities and the first authority you quoted was Sir Wilfrid Laurier in 1907.
Are you aware that in the same year, Sir Wilfrid Laurier introduced a resolution in the House and the Senate for amendment of the BNA Act with respect to grants to the Provinces and that we did that, notwithstanding the opposition of at least two of the Provinces, and that British Columbia actually sent a delegation to London to object to ratification of this Act by the Parliament of Westminster.
Mr. McKillop: Yes, Senator Goldenberg, I am aware to some extent, in any event, of what happened at that time.
As I recollect-and you could refresh my memory—as I recollect, at that time it was a question of whether they were
going to increase the grants to the Provinces and I think it was disposed of on the grounds that it was not a significant problem and, therefore, it should not be pursued at great length by the Provinces. That is my recollection of what happened at the time.
I think that the Province of Nova Scotia objected to it at that time, too. Am I correct there?
Senator Goldenberg: Well, Nova Scotia objected and got an amendment in 1869.
You also quoted, in support of your position Keith Favreau’s fourth principle. I have not got it here with me. But I recollect, he qualified that principle at the end of the particular paragraph. I suggest that you look at that.
Mr. McKillop: Yes, his fourth general principle was that the Canadian Parliament will not request an amendment directly affecting provincial relationship without prior consultation and agreement with the provinces. This principle, he said, did not emerge as early as others, but since 1907, and particularly since 1930, had gained increasing recognition and accepted, but however, the nature and degree of provincial participation in the amending process had not lent themselves to easy definition.
Senator Goldenberg: That is the phrase I wanted to draw your attention to.
You have also suggested that Laurier believed in the compact or contract theory of Confederation, and you have indicated that is your own belief.
I am sure you are aware that there were three colonies involved in 1867 and in the negotiations before that.
They were colonies. They had no authority to enter into a compact or into a contract, and the compact. theory was exploded some 50 years ago by one of Canada’s greatest political scientists, Norman Rogers.
You will find, I would suggest that that view is supported by Laskin in his Law of the Constitution; in Kennedy on the Canadian Constitution; by Dawson in The Government of Canada, and a host of others.
He also mentioned McWhinney. You know that McWhinney is supporting the unilateral action that the Government of Canada is now proposing. I would suggest that you read his most recent publication.
Mr. McKillop: If I could answer that, with respect to the compact theory, many of the members of Parliament, Prime Ministers and Ministers of Justice, have referred to it with approval. I have read Mr. Roger’s comment on the compact theory, and that seems to be the basis upon which Mr. McGregor Dawson arrives at his conclusion that the compact theory has no historical or legal support.
However, having read Mr. Rogers—and, as a matter of fact, I read it only yesterday at the Ottawa Public Library—I was struck by the method by which he reduces the arguments in favour of the compact theory, and it seems to me that he must be driven to the irrestible conclusion that the compact theory was in fact a proper theory, but for some strange reason he goes off on a tangent and he dismisses it. This is the reason
why McGregor Dawson feels that the compact theory should be discredited.
He refers specifically to Roger’s comments with respect to the compact theory. You will remember that about a year ago in the Senate, rather in the Senate reference case, which was heard in the Supreme Court of Canada, the judges of the Supreme Court of Canada in fact referred with approval to certain previous cases in which observations are made with respect to the compact theory.
They refer to the honourable George Brown. But the honourable George Brown said that the very essence of our compact is that the union should be federal and not legislative. He refers to a compact. This is quoted with approval in the Senate case in the Supreme Court of Canada.
They go on to refer to another case, namely, In Re The Regulation and Control of Aeronautics in Canada, a decision of the Privy Council in 1932. In this case it was stated that the process of interpretation as the years go down ought not to be allowed to dim or to whittle down the provisions of the original contract in which the federation was founded.
Academic writers seem to believe that the contract theory or the compact theory of Confederation should not be supported. I suggest to you that our Supreme Court of Canada as recently as a year ago supported the contract or compact theory, and that is the law of the land.
I do not think that MacGregor Dawson has interpreted this law as reflected in Mr. Rogers’ article.
Senator Goldenberg: I am sorry to disagree with you; but I think the word “contract” and “compact” are used very loosely.
I would suggest that you read Lord Sankey in the Canada Temperance Case in, I think 1946. But we have the right to differ Mr. McKillop.
Miss Maloney, you made a strong statement that the resolution which is before us is leading or would lead to a unitary state. I think that is the term you used.
Miss Mahoney: I think I said centralized.
Senator Goldenberg: A centralized state. We, as members of this Committee are receiving a great number of briefs, particularly private letters, and I am impressed by the propaganda which has been spread, and I am not saying that the Chamber of Commerce is doing it, about the effect of this resolution in leading us to a unitary or a centralized state.
As I see the Charter of Rights, which is what they are referring to, it removes powers from both orders of government and does not add power.
My question to you is this: if you feel that it will lead to a more centralized state, what additional powers are being conferred on the Parliament of Canada by the proposed Charter?
Miss Mahoney: I think when you entrench a charter of rights, you are giving in effect, more powers to the court. You are giving the Supreme Court positive legislative functions which will, in effect, detract from the rote of the elected representatives. There is the possibility for legislating in those areas.
Senator Goldenberg: Well, are you suggesting that by asking the courts to interpret the law that you are taking powers away from the legislature? Who else interpret the law?
Miss Mahoney: No, not taking away powers; but the responsibility that the people give to their elected representatives to make laws for them, reflecting the rights that they want and to have included, and at whatever point in time.
Senator Goldenberg: But all this point about the courts making laws: the courts do not make laws. The case has come to the courts because it is alleged that laws are violated. That is when they come to the courts. The courts are intended to correct the situation.
Miss Mahoney: But I would like to say something about why I see it as becoming more centralized. I think if you are going to entrench a charter of rights, you should also be changing the rules for the appointment of judges to the Supreme Court because you are in fact giving that power to a very select group of people who are appointed and who have tenure, and that is not the same situation which we have right . now.
Previously, when Prime Minister Trudeau, in the last Bill C-60, made proposals concerning entrenchment of the Charter of Rights, there were also proposals to change the Supreme Court and to give the provinces more say in the appointment of judges.
Senator Goldenberg: But, surely, if you want the judiciary to be independent, you are not going to criticize the fact of giving them tenure. They will not have independence if they have no tenure.
Miss Mahoney: No, I am not criticizing the tenure or the independence of the judiciary.
I am saying it is much better if you had the elected representatives making that decision.
The Joint Chairman (Senator Hays): Thank you very much, Senator Goldenberg.
Mr. McGrath: Thank you very much, Mr. Chairman. I was intrigued by Senator Goldenberg’s last comment.
Senator Goldenberg: I always intrigue my friend, Mr. McGrath.
Mr. McGrath: I am glad he does not have the opportunity to rebut.
But he said that courts do not make laws, I would remind him that, for example, the Bliss Case, Parliament never intended when it passed the Unemployment Insurance Act and when the regulations were promulgated that unemployment insurance payments would be paid to pregnant women. Now I agree with the decision in the Sheila Bliss case but I suggest to you that here is an example of the courts making law, and we will get a lot more of that kind of thing if we were to entrench a charter of rights in the constitution and that is a point my learned friend wanted to make.
Senator Goldenberg: Yet, you agree with the Jaw that the court made in that case.
Mr. McGrath: That is not the point. It is the process we are talking about, Senator. I am sorry Senator Austin is not here. But I was interested in his selected quotations from Premier Hatfield’s presentation, and because as I understand Premier Hatfield, when he appeared before the Committee, he did agree that there was a consensus on the Vancouver formula; but he qualified it by saying that he did not consider it a binding consensus on the Vancouver Formula. But he did, in fact, agree that there was a consensus.
Whereas, on the other hand, Senator Austin uses the Victoria Formula on the consensus that was apparent at that time to support his argument in favour of proceeding with that amending formula.
But as has been pointed out, two provinces Quebec and Saskatchewan, dissented at the time of the Victoria Conference.
I would like to get our witnesses, Mr. Chairman, for a few questions.
I would like to ask the witness, if he supports the principle of preferential purchasing practices by provinces?
Mr. McKillop: Are you addressing that to myself?
Mr. McGrath: Yes, Mr. McKillop.
Mr. McKillop: Are you referring to marketing boards?
Mr. McGrath: No, most provinces give an advantage to local suppliers, usually a 10 percent advantage, where they do not necessarily accept the lowest tender.
Mr. McKillop: That matter was brought up before this body when the Chamber of Commerce appeared. We certainly had that at the municipal level. You will find that there are by-laws aimed at discouraging outsiders from entering into contracts with the people of the town. My recollection is that Mr. Justice Clyne hesitated to direct any disagreement with that principle.
It is a very difficult problem. I think each province has strong feelings about encouraging local industry. For example, take the Province of Ontario, which has encouraged the direction of what some people who are· more inflamatory than myself would describe as a very massive tariff barrier permitting the growth and encouragement of local industry.
All the provinces do this. How they are going to handle that is a very difficult question. If some one else does it, I suppose in a defensive sort of way, any other province or municipal body must—well, at least you cannot discourage the practice. Mr. McGrath: I see no other way that provinces with weak or developing economies can protect their own constituents, which I find not inconsistent with preferential hiring practices, which runs contrary to your recommendation with respect to the economic union.
They are simply just that—preferential hiring practices. How else, for example, would a province with an unemployment rate anywhere from 15 percent to 30 percent, depending upon whose statistics you want to use, could provide jobs for its work force if it does not have preferential hiring practices?
A case in point is the development of the offshore oil resources in Newfoundland, and the expertise which has developed in Alberta, which has a very low unemployment rate. We have to afford some degree of opportunity to local people in these particular projects.
I find it inconsistent, on the one hand, that we would support the right of provinces to have preferential purchasing practices, yet, on the other hand, we would, in the interest of maintaining the economic union, support the principle of labour mobility.
If we had an unemployment rate in Newfoundland of 3 per cent or 4 per cent, which is the rate in Alberta, the provincial hiring practices would not be necessary.
I might say, Mr. Chairman, that in the case of Alberta, reference has been made to the residential requirement or property rights. I was struck by the evidence of Senator MacLean, because this is a problem which worries me as well.
But how else does a small province like Prince Edward Island with an agricultural-based economy prevent its land from being gobbled up by richer provinces like Alberta? There, again, is a very serious problem; although, I must say that we do not have any objections to Albertans coming clown and buying up large chunks of Newfoundland. We welcome it.
Mr. Lehr: As the Alberta Chamber of Commerce, we have not really lent ourselves or put our efforts into the areas which you have mentioned.
But I would say that we had a resolution which came through the Alberta Chamber of Commerce which was passed at the annual meeting two years ago.
The Chamber of Commerce is necessarily and basically slanted towards the view—and implies—that free enterprise should be the on-going criterion for people.
We had a resolution which passed through the Alberta Chamber of Commerce to the effect that we felt that the Alberta government should not use preferential purchasing powers and that the marketplace should determine who can best supply at a price …
Mr. McGrath: Mr. Chairman, one day when the oil starts to flow on the Grand Banks of Newfoundland we might be able to make that statement, too.
The Joint Chairman (Senator Hays): Thank you very much, Mr. McGrath.
Just before I go to Mr. Mackasey I might remind members of the Committee it is l o’clock and the House sits a 2 o’clock and we reconvene at 3:30 p.m. to 6 o’clock or 7 o’clock and then at 8 o’clock, and we rose last night at about 11 o’clock and that will be the same today. Maybe we could kind of keep these discussions a bit more brief.
Mr. Mackasey: Thank you, Mr. Chairman.
I have only one question that I want to put to our witnesses today and thank them, of course. I think Alberta is an
intriguing province and I have been made very welcome in Alberta in the area that Miss Mahoney is quite familiar with, far out in the area of the Franco-Albertans and I will agree that tremendous progress has been made and I would like to see that progress enshrined in the constitution in the event some Jess progressive government arrive in IO or 15 years and wipes these rights out.
The question that I would like to put to you is the same question or observation I made on page 8:22 or transcript number 8, the Minutes or Proceedings and Evidence and I made it in an exchange with Mr. Hughes and Mr. Haig, I too am a member of the Chamber of Commerce.
To summarize the discussion with Mr. Sam Hughes, we were discussing some of the concerns of the West at the moment, some of the causes of friction, some of the things that get exaggerated in the least, like separation, but nevertheless a legitimate source of grievance, and I talked about natural resources and I said:
I would imagine—in fact I think I know—you are indicating that on those rare occasions when there is an honest difference of opinion between the various levels of government, for instance in the field of natural resources, which is really the main bone of contention at the moment—the revenue from it, I suppose; you are saying that the federal government—in your brief at page 5—should possess the ultimate authority.
And then I asked him:
The ultimate authority to do what?
And Mr. Haig, on behalf of the Chamber says:
I think, Mr. Chairman, the ultimate authority to ensure that the resources are utilized for the benefit of the nation as whole. This is the Chamber’s position with respect to these matters, that a resource may occur in some part of the country, but it is a Canadian resource as much as it is a provincial resource; that all Canadians, as part of the nation, should enjoy the benefit of these resources, and they should not be treated as the exclusive privilege or province of some particular region, area or province. This flies in the face of some strongly held views of some provinces; nevertheless, if we continue to perceive Canada as a national entity, I know of no other construction which can be put on that particular question.
Would you care to comment on that, do you agree or disagree with Mr. Haig?
Mr. Lehr: Well, Mr. Chairman, we were rather hoping that the energy situation, the pricing, et cetera, would not come into the discussion here because we are here concerned with the constitution of Canada. I agree with you, sir, that that also is a very important item, but having opened the subject I would like to make a comment.
I turned on the television this morning when I got up and we again saw where the Arabian countries are putting on another increase in energy Alberta has offered, if you will, the energy of Alberta for the use of Canadians at 75 percent of the going price in North America. I am not about to argue on the basis of whether that is right or wrong except to say this, that
Canada in my estimation can become self-sufficient in energy but money has to be expended to make Canada self-sufficient. We are being bled white by foreign countries. While we grow weaker, our dollar is dropping.
I did not come here to argue the energy crisis, I am not an expert, but I have watched it and I would suggest to you, sir, that the Government of Canada, the governments of the western provinces, in particular Alberta, sit down and come up with a consensus, an agreement that is going to be beneficial to all of Canada. I think we need it very badly.
Mr. Mackasey: I am not going to get into a debate. because I probably share your views to some degree, but you have not answered my question and you have not told me whether you agree or disagree with the interpretation of Mr. Haig, who is really saying that when there is an impasse the federal government must take the initiative because this flies differently to one of your recommendations in your brief concerning arbitrary powers, if you like, that the federal government can resort to.
I just say as an observation if we take the five or six recommendations in your brief and accept them this country, which is in my opinion much too decentralized at the moment, will become Balkanized into simply 10 different countries. That is just my view and, I am sorry, I must express it.
The Joint Chairman (Senator Hays): Thank you, Mr. Mackasey.
Go ahead, Mr. Lehr.
Mr. Lehr: Well, my reason for bringing out the proposal that Alberta put forth accepting 75 per cent of the North American average price in my estimation leaves Canada and all the rest of Canada in a very competitive position and therefore is good for all of Canada.
The Joint Chairman (Senator Hays): Thank you very much.
Mr. Beatty: Thank you very much, Mr. Chairman. Mr. Chairman, like Mr. McGrath, I was very much interested in Senator Goldenberg’s exchange with Miss Mahoney. I think, if I understood Senator Goldenberg correctly, the position that he was taking is that the courts do not make law, that in fact they simply interpret the law, and asking the courts to do so does not undermine the responsibility and the role of the legislatures. I think that is, Miss Mahoney, a very interesting and very useful argument because one of the things that we have been trying to deal with in this Committee is an argument that has been put forward by the Department of Justice that it is somehow improper for provincial governments to go to the courts to ask whether or not what the federal government is doing is legal and proper and constitutional.
I think Senator Goldenberg’s comments will be very helpful, I will be saving them myself for a later date, it would be very helpful. I do not know where the idea came from in the Department of Justice that it was improper or not desirable for the courts to have a chance to rule on the constitutionality of the government’s measures, but Senator Goldenberg’s support of our position will be very helpful.
I know that you had some hesitations about going all the way with Senator Goldenberg, but I wonder whether you at least share his support for the courts far enough that you would agree with me that now that the matter is before the courts, the provincial governments have taken the federal government to court to get a ruling to find out whether or not what the government is doing is legal and constitutional, should the Prime Minister accept the advice that he received in that confidential, for-Ministers’-eyes-only document, which was prepared by the Department of Justice and by the Privy Council Office, and which recommended that Mr. Trudeau should move unilaterally to ask Westminister to amend our constitution before the Canadian courts had had a chance to rule on the legality of what he was doing.
Miss Mahoney: I would say definitely not, that that is not the Canadian way.
Mr. Beatty: Thank you. I think another matter that will be of interest as well is the question of the exchange you had with Senator Goldenberg on the issue of whether or not Canada was becoming more centralized as a result of Mr. Trudeau’s initiatives.
Would you agree with me that the mere fact of the federal government abandoning convention and going to Westminster over the opposition of the provinces instead of with their consent, to ask the British Parliament to make changes in areas relating to what is currently exclusively provincial jurisdiction is in itself a gathering of power of on the part of the federal government through that very action and the taking away of powers from provincial governments?
Miss Mahoney: Yes, I would agree with you. I think that is setting a very dangerous precedent for Canada. Mr. Beatty: So far you are batting a thousand. A good answer.
There has been an exchange between yourself and a number of members on the government side of the Committee with regard to the various amending formulae, whether or not in fact there was a consensus on the Victoria charter back in 1971 or whether there was a consensus as recently as this fall, the so-called Vancouver consensus, and I think that although my views are very similar to yours on this it is probably not very fruitful to debate with government members as to where consensus does or does not exist, but I wonder if we could take a look at the amending formula proposed by Mr. Trudeau in a very different way.
I believe the position of the Chamber is that what we should be doing is simply asking for patriation of the constitution at this time with an agreed upon appropriate amending formula, and that matters like an entrenchment of a Charter of Rights should be dealt with at a later date under the terms of the amending formula; is that correct?
Miss Mahoney: Yes, it is.
Mr. Lehr: Yes, that is correct. We believe that we can, if the constitution is brought home under an amending formula that
the provinces can live with, let us settle our differences within Canada.
Mr. Beatty: You will remember that one of the government members earlier mentioned the fact that virtually all of the witnesses who have come before the Committee have argued for an entrenched Charter of Rights, they felt that the concept was a good concept. You are probably aware of the fact that Mr. Trudeau has said that the reason why he is asking the British Parliament to entrench a Charter rather than doing it here in Canada is that this represents the only hope that Canadians have to have an entrenched Charter of Rights that would enshrine their rights in the constitution itself.
Now, I want, using Mr. Trudeau’s argument, to get your guidance because your position is that you are not arguing that at some date a charter could not be entrenched using an agreed upon amending formula, but Mr. Trudeau says that if he patriates the constitution and if he includes the amending formula which he has put forward, that there will never be a Charter of Rights which he believes and which various witnesses who have come before the Committee believe are self-evidently necessary in Canada, and which the government members have stressed are extremely important for the constitution.
Can I ask for your judgement, then, upon the effects on the Canadian federal system of entrenching an amending formula which is incapable of making amendments to the constitution which are strongly supported by the government, strongly supported by the Prime Minister and which, on the basis of what Mr. Allmand said earlier, are supported by the vast majority of witnesses before this Committee. If something is self-evidently desirable from the Prime Minister’s point of view as an entrenched Charter of Rights cannot be put in the constitution under the amending formula proposed by Mr. Trudeau, what is the effect upon our Confederation of writing that sort of amending formula into our constitution?
The Joint Chairman (Senator Hays): Thank you, Mr. Beatty.
Mr. Lehr: Mr. Chairman, when someone uses the word “never” in your reference, sir, to if it is not entrenched now it never will be, I cannot believe that. Let us look at a little background of why we have the suggestion from the government today of entrenching a bill of rights.
Mr. Beatty: I am sorry, I am not sure you are quite addressing the question. The question was this: if, as Mr. Trudeau says, an entrenched Charter of Rights is very desirable, and if he says it is not possible to achieve with the amending formula that he is proposing in the constitution, what does that say about his amending formula?
Mr. Lehr: Well, everyone is entitled to their opinion and I would like to answer your question but I would like to go back a little step.
Mr. Beatty: Certainly.
Mr. Lehr: We recently, as everyone is aware, went through the referendum that was held in Quebec and thank God it came out the way it did. My persona) opinion is this, that the
government, because of promises made during that period of time, is insisting that the Charter of Rights be entrenched in the constitution. I think the interesting thing is that that does not seem to be the consensus at the moment in Quebec.
We are going back a little to what you said in your opening remarks, the Alberta Chamber of Commerce believes that we should bring the constitution home on an amending formula that can be lived with across Canada and then, by that agreement, entrench the things that we are suggesting, including the Charter of Rights, and that is our stand.
Mr. Beatty: Now, could you perhaps answer the question about the value of entrenching an amending formula in the constitution which, according to Mr. Trudeau, would not work?
Mr. McKillop: Can I address myself to that?
It is the position of the Alberta Chamber that at the present time we require unanimous consent of the provinces to any changes in the constitution. Now, whatever proposal comes forth with respect to an amending formula it is going to assist the Parliament and the provinces to arrive at a Charter on which six or seven of the 10 provinces can agree.
If we can bring home the constitution with an amending formula it is going to be easier to create and enact a Charter of Rights. The objection that Senator Austin mentioned of Prince Edward Island to putting in the right to own property, we all know that Prince Edward Island is relegated to almost a fifth class position in Confederation by virtue of the proposed amending formula, but we could insert that clause in the constitution without the consent of Prince Edward Island.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Beatty.
Mr. Dantzer: Thank you, Mr. Chairman.
I, too, am very happy to be here at this particular meeting with the people from Alberta. I might say that I spent 20 years of my life in that province, for many years I was a member of your Chamber and I still am a member of the Bar of Alberta, and I found them a very vigorous and vital people, and that 1 think is proven true by your presentation today.
I want to touch on one very small point and something Mr. Lehr brought up. He said that the question of separatism is increasing daily. I come from the Okanagan Valley now and I know there is a sense of alienation there, I do not believe it has matured into a real separation.
The question I wish to ask you, since your delegation is from Alberta and some of you at least live in Calgary where I understand that sense of separation and belief in separation is strongest, to what degree does this proposed resolution on the constitution, to what degree does it have an effect on this feeling of rising separatism?
Mr. Lehr: Well, I would say it has a major degree.
Mr. Dantzer: Could you enlarge on that, please? Why?
Mr. Lehr: Well, it is a feeling of frustration in Western Canada, Alberta in particular, of not really being heard on what they are saying in the proposed constitution. It is a feeling of frustration that they are not getting through, it is a feeling that the representation we have under the formula of the western block, the eastern block and the two provinces is not conducive, in particular to Albertans.
If, as I said previously, you do a play of figures, it puts Alberta in a third-rate position because they would have to have the consensus on the population point of view of British Columbia, and if that could not be achieved it would take Manitoba and Saskatchewan along with Alberta in order to have their input, and it is certainly just a feeling of frustration.
I do not know if I have answered your question but that is the feeling that is coming through to me.
Mr. Dantzer: Thank you very much, you have answered my question.
Thank you, Mr. Chairman.
The Joint Chairman (Senator Hays): Thank you very much.
Mr. Wright: Thank you, Mr. Chairman.
Before I ask the witnesses a question may I show my appreciation to them for appearing here this morning and I want to comment on a couple of words that have been coming out in this meeting and coming out in the press, in the media in general, and those are the words “good Canadians” versus “bad Canadians”. In terms of Albertans there are many people who have said these people who oppose this resolution are bad Canadians. Well, if one looks at the make-up of the Alberta population, and as an example I did a study, it was done by an individual who has a Ph.D in statistics, and we wanted to find out who are these people who are bad Canadians in Alberta. We discovered in one area of my riding where 10,000 people lived, a new area, the homes are less than two years old, that 50 per cent of those people came from Ontario and Quebec.
Now, in my opinion, this is happening throughout Alberta. There are many people moving to Alberta and they have been moving there for many years, it goes back perhaps 20, 30, 40 years when the exodus really came about from Eastern Canada.
Now, I would like to ask Mr. Lehr whether he agrees with this comment, that the people who live in Alberta, a great number of them, come from other parts of Canada as well as other parts of the world?
Mr. Lehr: Certainly, and definitely. I get mad, I have to admit, when I hear people talking about bad Canadians. Surely this country of Canada, because we disagree, does make us good or bad Canadians. Surely the people of Canada can say what they think, surely it is a free country and when anyone refers to someone that does not agree with their point of view as bad Canadians, it upsets me, it upsets me greatly.
I do not believe that the percentage of Albertans that could be classed as bad Canadians, I would be very, very, very surprised if it exceeded one half of one per cent.
Mr. Wright: Mr. Chairman, the Alberta Chamber of Commerce bas taken strong exception to the way this important decision-making process is being hurried through the Committee. However, there are others who claim that those who oppose the way the resolution is being hurried are guilty of hysteria rather than reason, and this is a quotation from the Prime Minister.
Mr. Lehr, would you comment on this statement?
Mr. Lehr: As far as the Alberta Chamber of Commerce is concerned, we are very appreciative that the time was extended. We would not have been able to appear before you if the time had not been extended for this Committee to have more time, and extended it to ,February, and we are very thankful for that.
Hopefully, on that basis, it will be extended as far as it needs to be to resolve this issue. Surely, when we have been a country for over a hundred years and we are dealing with the fundamentals of the future of Canada, the future generations, that we do not have to lock it into a few days.
Mr. Wright: Mr. Lehr, how long do you think these meetings should be extended?
Mr. Lehr: That is a difficult question to answer. I believe that the people that wish to make representation on this vital issue should be given the time to address this vital issue. I believe that we have been discussing these things for many, many years and that they do have to be brought to a head, but that enough time be extended to reasonably hear the people that wish to make representations.
Miss Mahoney: Could I add a point?
I think also that you will see in our position that we suggest that governments get together again so that no matter how low you extend the Committee hearings, that it should actually go to governments before any action is taken so that you get the present.
Mr. McKillop: If I might speak to that briefly, and it is with respect to expert witnesses which this group proposes to call, I gathered the other evening that they proposed to call five expert witnesses to deal with this problem, two from the Conservatives, two from the Liberals and one from the NDP.
It seems to me that in dealing with a proposition of this magnitude, that more expert witnesses should be called. There is a problem that exists apart from the provisions of the act itself. There are perhaps six different divisions which could be examined and I would think it would make a good deal of sense to have five expert witnesses address themselves to each Parliament.
The reason I say that is because I have had to prepare iri ten days, go from a lawyer practicing law in Turner Valley, Alberta, to be aware of the constitutional problems, and I found it took a great deal of time; and if you are going to ask an expert witness to give evidence with respect to the various provisions of the act, I think you are going to have to break it down in order to permit each witness to prepare. It will take several weeks to prepare a reasonably coherent argument argument to be presented to yourself.
That is just an observation.
Mr. Wright: This question is to any of the witnesses. Do you believe that if we could extend these talks and resolve our constitutional problem within Canada, this would represent a great unifying force to us in the end?
Mr. Lehr: Well, really, that is the essence of our brief. We say let us come together with an amending formula, and then do our infighting, so to speak, within Canada, and I believe that is essential and definitely would be a unifying force.
The Joint Chairman (Senator Hays): Thank you, Mr. Wright.
Senator Tremblay: No, merci.
The Joint Chairman (Senator Hays): Well, on behalf of the Committee and Mr. Joyal, our Joint Chairman, I should like to thank the Alberta Chamber of Commerce for being here. I am sure you reflect the thinking of Albertans and that they do make up a very important part of Canada, and I am sure we, through these discussions, hopefully, will become a bit wiser in our deliberations.
I wish to thank you on behalf of all of the Committee members for being here. Thank you very much.
Mr. Lehr: Mr. Chairman, I would like to thank you very profoundly for taking the very long time and sitting through the lunch hour. I believe it is a very great show of appreciation to the people of Alberta that we represent and I thank you heartily. I thank you all.
The Joint Chairman (Senator Hays): Thank you very much.
The Joint Chairman (Mr. Joyal): Order, please.
May I request the honourable members of this Committee to take their seats so that we could proceed on with our guests this afternoon.
Mr. Hawkes: Mr. Chairman, could I just have a brief point of order?
The Joint Chairman (Mr. Joyal): Yes, Mr. Hawkes.
Mr. Hawkes, on a point of order.
Mr. Hawkes: Because of the time span with our earlier witnesses, I did not respond to some comment that were made about my point of order at that point. I would just like the record to show that, indeed, we have felt pushed in terms of certain witnesses and, in recent memory, the Canadian Council of Social Development and the World Federalists are two groups which come to mind where we clearly said we would like to have more time but the realities of parliamentary life ran us out of time before the questioning was complete.
Both of them had original thoughts relating to the constitution of Canada and those still remain as unexamined in large part, but I just wanted the record to show that, in view of some of the comments that were made and I did not want to do it earlier because I did not want to waste the time of the witnesses.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Hawkes.
I understand that we have referred that question to the steering committee so that we may have additional consideration and further discussion on the possibility of having back those two witnesses to whom you have just referred.
Thank you very much.
It is my pleasure and privilege to welcome, on behalf of all the honourable members of this Committee and on behalf of honourable Senator Hays, our Joint Chairman, the delegation of the National Indian Brotherhood with, as President, Mr. Del Riley.
I understand, Mr. Riley, that you would like to introduce the other members of your delegation. Usually, our procedure is to invite our guests to make a presentation of their own views in consideration with the proposed motion that we have under debate, after which we hope that you would be agreeable to receive questions by the honourable members of this Committee.
So, I would like to invite President Del Riley to introduce the members of his delegation.
Mr. Delbert Riley (President, National Indian Brotherhood): Thank you, Mr. Chairman.
On my left is Legal Counsel Doug Saunders. Again on my left is Legal Counsel Bill Badcock of the Mohawk Nation. On my immediate right is Eider Wallace LaBillois of the Micmac nation. Next to him is Vice-President Sykes Powderface; he is of the Stoney Nation and, next to him, is Advisor Elmer Deriek of the Gitksan nation. Those are the people who will be answering questions or speaking directly to the Committee this afternoon.
First of all, I would like to introduce our Eider to open with a prayer.
Mr. Wallace LaBillois (Elder of the Micmac Nation): Mr. Chairman, I am wondering if it would be proper on my part to ask all present to stand?
The Joint Chairmen (Messrs. Hays and Joyal): Certainly. Certainement.
Mr. LaBillois: I would like to offer a prayer to ask the Great Spirit for wisdom and courage for all of us today and a whole lot of understanding, and I would like to say this prayer in Micmac.
Mr. LaBillois (Says the prayer in Micmac).
Mr. Riley: Mr. Chairman, I would also like to ask our Eider to read out a declaration of the Chiefs of Canada, of the First Nations of Canada that was arrived at a little over a week agb at a special First Nations conference that was called. That was passed unanimously and with the support. of all the lndian nations of Canada.
Mr. LaBillois: Thank you.
We, the original peoples of this land, know the Creator put us here.
The Creator gave us Jaws that govern all our relationships to live in harmony with nature and mankind.
The laws of the Creator defined our rights and responsibilities.
The Creator gave us our spiritual beliefs, our languages, our culture and a place on Mother Earth which provided us with all our needs.
We have maintained our freedom, our languages and our traditions from time immemorial.
We continue to exercise the rights and fulfill the responsibilities and obligations given to us by the Creator for the lands upon which we were placed.
The Creator has given us the right to govern ourselves and the right to self-determination.
The rights and responsibilities given to us by the Creator cannot be altered or taken away by any other nation. Thank you.
Mr. Riley: Mr. Chairman, honourable senators, honourable members.
When I say to you that it is a special honour and pleasure to come here today to share with you our concerns about the proposed resolutions, it is no mere courtesy. There are, 1 suspect, no body of people in Canada who have a greater interest in the matter with which you are seized and I do not mean an intellectual interest but one which comes from the very nature of our being as the aboriginal peoples of Canada.
Apart from those of us who have an academic or professional interest or those of us who are elected leaders with the duty to focus our attention on these matters, no body of people has devoted as much time and energy to consider what the patriation of the Constitution of Canada will mean to them.
The Indian people of Canada—and I am going to be leaving the prepared text now—have been here for thousands of years. Your government has been in existence a mere 100 years.
We have always been nations within Canada. We have never given up this sovereignty through no act of war, through no legislation and it is with that in mind that we appear before you.
Last week, when our Chiefs met, we attempted to make them aware of what this meant to them, of what the changes to the Canadian Constitution would imply on their future and we also hoped that it would bring out a diverse number of opinions from the Indian people of Canada, the Indian nations of Canada, and it did, but also brought out some basic similarities and, from those similarities, we are going to begin to build. The most important aspect of those similarities that came out was in the declaration.
The differences, I would say, were very minimal in the sense that the principles that we all want, as you have heard numerous times before, are entrenchment of aboriginal rights, treaty rights and self-determination.
Some of the problems that we have had in the past 100 years in working with-I should not say ‘working with’-is oppression by the present government and they are such that we do not want to continue with that type of relationship. Some of the results of that oppression have been that we have lived under a colonial type of government for the past I OO years and for a great part of those years, it was under the direct control of this government.
That shifted somewhat. Now, we are controlled indirectly, but this is still not the kind of relationship that we envision or that we see as being the basis to develop the future for the Indian nations of Canada.
One thing I think you will note we have always advocated and that we have been advocating lately is that we would like to join Confederation. We have not been a part of your Confederation; we have always been basically on the outside of it. We would like to join it.
We have always said that we do not want to see Canada divided and I think that you are going to find that views similar to what I have been saying will be coming out from the Indian people in the future not as a specific request by yourselves or by any of the parties but because we believe that this is the way it should be.
We are in the development stage. We are going to need a lot of help. I think the history of the Indian people of Canada and the Europeans who have come over here, who have formed the government over here has been one of sharing. We have shared with you. We have been generous with you. As a result, you have taken control of all the institutions, you have taken control of the wealth of this country and we have fallen behind.
We are not against change. We want change. We want a better future for our people and we think that through the constitutional process, through the changes that we request, through entrenchment of rights will be formed the basis for the development of our people for the future. We have made treaties with you. We have made treaties with you as separate nations. This is one thing that we have always recognized. We have welcomed you to this country. These constitutional documents, these treaties, we would like them entrenched and for those areas of the country called Canada which are not covered by treaties, the rights that the people have always had which we call aboriginal rights, we would also like those entrenched.
And again, I would like to reiterate that we would like to build. Canada with you but this involves on your part a sharing of the resources with our people. It also means that we must control our own destiny, we must control those institutions, those governments of our people but again I reiterate that we would like to join Confederation along with you.
The next part of the presentation will be read by the Vice-President, Sykes Powderface, and .after that we will entertain questions.
Mr. Sykes Powderface (Vice-President, National Indian Brotherhood of Canada): Mr. Chairman, honourable Senators, honourable members, to allow more time for questions, I will be skipping some of the referral portions that are not necessary to be presented orally; however, they are part of the brief before you to follow.
The issues of patriation and a charter of rights are historic. There should be a sense among Canadians that they are taking their destiny into their own hands and defining the kind of society they want. But we do not sense that spirit or that agreement among you. Our Indian cultures are based on values of harmony and agreement. We see it as tragic that there is so much bitterness and division on the constitutional issues in Canada. In our cultures, we could not proceed in the face of such division.
We have our own sense of the meaning of these constitutional issues. It is clear that our view is a special view and one that has not been anticipated or understood by the government of Canada. This hearing and this issue are not new for us. This is one more stage in our long struggle to assert our rights as Indian nations within Canada.
We have always considered ourselves as members of Indian nations. As well, your legal system recognized that we had at least some of the rights of nations. Your Royal Proclamation of 1763 referred to us as “the Indian nations or tribes with whom we are connected and who live under our protection … ” In treaty negotiations, the representatives of the Queen negotiated with us as nations and referred to us as nations. We were willing to enter into special relationships with the Crown and to agree to share our lands with the people who had come from Europe. But we found that after we agreed to share, you assumed the power and the authority to change the rules. By your laws, we became subjects. We become a domestic matter- an ethnic minority.
When it became clear that you had changed the rules, our people began to protest in various ways.
All these protests occurred because our rights were being denied within Canada. We went to England because we had been given solemn promise of recognition and protection by representatives of the Imperia) Crown. We have gone to Geneva and New York because we believe that our rigths are recognized and protected under international law. The obligation of strong states to protect colonial territories bas been described by the International Court of Justice as a “sacred trust of civilization”.
We have a right to self-determination that we seek to exercise within Canada. Canada is signatory to the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Both Covenants recognize, without qualification, or limitation, the right of people to self-determination.
I gather that most Canadians are surprised at our protests,. surprised at the Constitution Express, surprised at the court case begun against the government of Canada by the Union of British Columbia Indian Chiefs, surprised at the presence of Indians at the Russell Tribunal hearings in Rotterdam, surprised at the Office of the First Nations of Canada that we have established in London, England, surprised that Indians went to the United Nations last week to renew our protests at the international level. Canadians are surprised that it was Canadian Indians that sponsored the creation of the World Council of Indigenous Peoples. If people are surprised by these actions, it is because they have not been listening to our people and because they have no knowledge of our protests in the past.
We see the issue of constitutional change as of fundamental importance for us. The question of our relationship to Canada and our rights of self-determination have never been adequately defined in Canadian law. As recently as 1978, a Canadian court stated that it is:
… still not clear whether Indian treaties are to be considered basically as private contracts or as international agreements.
In 1950, Mr. Justice Rand of the Supreme Court of Canada stated that the duty to protect Indian rights is a “political trust of the highest obligation”. In 1973, Chief Justice Bora Laskin described an Indian reserve community as a social and economic community unit with its own political structure as well.’ Clearly, we have been recognized as distinct peoples within Canada, but the definition bas been uncertain and incomplete. The federal government has seen fit to assume a full legislative jurisdiction over us and seen fit to create an oppressive colonial relationship that was never intended by the United Kingdom, by the Royal Proclamation or by the treaties.
As one blatant example, the government of Canada decided that it had the power to decide who was an Indian and who was not.
The time has come for a better definition of our relationship. It seems that everyone agrees that this is necessary and timely. The Indian peoples of Canada have long struggled to give Canadian governments a better understanding of our relationship. The judges, in at least a dozen major decisions over the last two decades, have recognized the contradictions and problems in the present legal understanding of our relationship. All the constitutional studies of the last few years have recognized the need for substantial new constitutional provisions for Indian rights.
All the federal political leaders are on record as favouring something more on Indian rights in a new constitution.
In September of 1979, the members of the Executive Council of the National Indian Brotherhood met with Prime Minister Clark and he promised us full equal and ongoing participa-
tion in the constitutional negotiations on matters that affected us.
We must be very clear on this point. We were promised participation, not just the opportunity to submit briefs and be observers on the sidelines. When Mr. Trudeau was returned to power, he complimented Mr. Clark on the position he had taken and stated that Mr. Clark had been continuing a policy initiated by the Liberal Government early in 1979.
In April 1980, Prime Minister Trudeau stated-and I quote:
… we set a valuable and historic precedent by involving native peoples directly, with the federal and provincial governments, in the process of the reform of the constitution.
He took persona! credit for introducing the agenda item Canada’s Native Peoples and the Constitution at the First Ministers’ meeting in February, 1979. He said it was understood by all First Ministers at that meeting that there would be Indian involvement in the constitutional discussions.
He stated—and I quote:
In the paper entitled A Time for Action, published in 1978, my colleagues and I gave a high priority to the involvement of Indian, Inuit and Métis representatives in the process of constitutional reform.
And he bluntly recognized a history of government failure in the past—and I quote:
what we have done, however well-intentioned it might have been, has not worked.
This account can give some sense of pride and satisfaction to Canadians. In spite of a harsh and racist history, Canadian political leaders have recognized the rightful place of Indian nations within Canadian society by involving the Indian leaders directly in the constitutional discussions.
But, in truth, these have only been promises.
We have never participated in any of the constitutional discussions that have occured to date. Let me recount the exact extent of our involvement, so there can be no question about the facts:
We were invited to be observers at the First Minister’s meetings held in October 1978, February 1979 and September, 1980. Most of the sessions of the second meeting were closed to observers.
In September, 1979, we met with Prime Minister Clark to discuss our involvement.
In December, 1979 we met with the steering committee of the continuing committee of Ministers on the constitution to discuss our involvement.
We were excluded from the First Ministers’ meeting in June of 1980 and from the meetings from the continuing committee of Ministers on the constitution over the summer of 1980.
We met with a subcommittee of the continuing committee of Ministers on the constitution for two hours in August, 1980. This was nothing more than an opportunity to present a brief.
Both Mr. Chrétien and Prime Minister Trudeau have said that the negotiations on the agenda item, Canada’s Native Peoples and the Constitution will occur in a second stage of negotiations.
This second stage is to occur after the present patriation and amendment proposals have been enacted. The logic is that we should be patient and wait for the proper time for our participation.
But there is a false premise involved: it is the premise that the items on the summer agenda or the issues involving the present proposed resolution do not directly affect us.
No one can seriously assert that that is true, and no one has tried. Yet, we have been excluded from the discussion on issues like equalization and a Charter of Rights which affect us directly.
In August, 1980, we submitted documents to the subcommittee to the continuing committee of Ministers on the constitution describing our interests in all of the 12 agenda items that had been agreed upon by the First Ministers in June.
There has been no dialogue, no discussion, no interaction. The federal government has never come back to us and said “Well, we agree that you have an interest in fisheries, but we do not think you have a real or distinctive interest in natural resource taxation”. We have never had that kind of discussion.
Mr. Chrétien did indicate in August that, as far as he was concerned, the idea of Indian governments as a third order of government within Canada was a nonstarter in any negotiations. But there was an opportunity to discuss the fact that Indian governments are already a distinct order of government within Canada.
We had no opportunity to quote the Prime Minister’s statement that. “internal native self-government” is a subject of “special importance” to Indian leaders and a subject that would be included in constitutional negotiations between Indian leaders and the first Ministers.
We have had no participation, no negotiations, no discussions. In spite of the rhetoric, .we have been left out of the process of constitutional renewal.
Now, the issue of patriation. The National Indian Brotherhood bas consistently taken the position that there should be no patriation of the British North America Act until Indian people have been involved in the constitutional discussions and until Indian rights have been adequately protected in new constitutional provisions.
Many people have misunderstood our position. To some, we seem the most ardent colonials of all. When all the politicians support patriation, the Indians are saying “Wait a minute”. When we went to England we explained to members of the House of Commons and of the House of Lords and to government officials that we were only asking England to respect the obligations of the Imperial government to continue a political recognition of our nations and to act in conformity with the obligation of protection.
Patriation will end the possibility of the Imperial Crown acting on its responsibility of protection.
Some would dismiss our right to appeal to the Imperial government as unimportant on the assumption that the Imperial Crown will not act.
But the people that we want to act, that we want to influence are, in fact, the political leaders of Canada. It is the Canadian political leaders who are forcing us to go to England, who are forcing us to look to the Imperia) Crown for protection. That is the reason that we appear, to some, to be ardent colonials.
We are attaching a copy of our brief to the English parliamentary Committee which is currently holding hearings on England’s responsibilities in relation to the BNA Act.
What we are saying here today is what we have been saying in England as well.
Now, the process of constitutional change. As my submission indicates, we have fundamental disagreements with the process that is going on. We were promised participation and that has been denied. The legitimacy of our concerns bas been widely recognized—by the Canadian Labour Congress, by various church groups associated with Project North; by the Canadian Bar Association; by all three national political parties. For example, the Policy Committee of the National Liberal Convention, the meeting in Winnipeg in July of 1980, passed a resolution committing the Liberal party to work toward the entrenchment of Indian rights and to include Indian representation “at all levels of constitutional reform discussions.”
We have heard no one try to defend our exclusion from the process. No one can deny that the constitutional proposals affect us.
The reference to native peoples in Section 24 means that the government has conceded that we are affected by the Charter of Rights and Freedoms and that a special provision is necessary.
The fact that Indian rights, in general, are excluded from this Charter is not a neutral fact. It says a great deal about political priorities in Canada. The Indian questions that the political leaders of Canada have said are of great importance are relegated to what everyone must concede is a highly
uncertain second round of negotiations, in which the role of Indian leaders is no more certain or defined than it has been over the past two years.
In spite of our basic objections to the kind of process that we have experienced and continue to have, we will speak specifically on the provisions in the proposed resolution. We do this with some reluctance, but we recognize that there are risks to our people if we do not point out the problems which are obvious, at least to us.
Now, amendment: we are concerned with any amending formula for the Canadian constitution. We want our special constitutional position to be maintained and amplified. We fear, and with good reason, that governments may try to eliminate the constitutional basis for our separate existence within Canada. You may say that we have nothing to fear, but we, of necessity, take a long range view of these questions.
Mr. Trudeau’s government proposed “termination” in its White Paper of 1969. The long term assumptions of Euro-Canadians have usually been that the Indian tribes would die out or assimilate into the larger society.
Those of you who are familiar with the Indian question in this country will know of the history of assimilationist provisions in federal legislation, the sorry history of enfranchisement laws; the strange proposals of Dr. Diamond Jenness presented to the special Joint Committee under the Indian Act to liquidate Canada’s Indian population within 25 years.
While we have gained widespread support for our view of the permanence of Indian life in Canada, we know that there are still many who cling to the earlier assimilationist views, and those views may come back into fashion among federal politicians.
For those reasons, we have a clear concern for any amendment formula. We are opposed to any amendment of the Canadian constitution which affects our special constitutional position, without our consent.
The Royal Proclamation of 1763 provided that constitutional or political change would occur by a process of negotiation and agreement. That, to us, is a fundamental constitutional principle, and one that should be recognized in any amendment formula.
Secondly, we are opposed to Section 42, which would allow a federally initiated referendum to amend the constitution of Canada. It was the federal government that proposed “termination” in 1969.
The Government of Canada, at that time, envisaged amending the constitution to remove Section 91(24). There was opposition from the Indian people and also from certain provincial governments. Some of the provinces were our allies in that important struggle.
From this experience, we cannot trust an amendment formula which allows the provincial governments to be completely by-passed.
Thirdly, we are opposed to Sections 34 and 43 which permit changes in constitutional provisions which apply to one or more, but not all provinces. It might be initially thought that such constitutional provisions deal simply with language and denominational school rights. But, apart from those provisions, the most common provisions concern Indians.
There are limited constitutional protections for Indian hunting rights in the British North America Act of 1930, which apply exclusively to the three prairie provinces. As well, there are provisions for treaty land entitlement, which are of current importance in the three provinces.
There are special prov1s10ns in the Manitoba Act, in the documents transferring Rupert’s Land and the Northwest Territories to Canada and in the Terms of Union of British Columbia of 1871. No changes in any provisions, relating to Indian people, should be possible without the consent of the Indians affected.
Section 32 formally institutionalizes the First Ministers conferences and requires certain meetings to be held. A requirement of Indian participation, at least on all matters affecting Indian people, should be included in any such provision.
If the political leaders of Canada mean what they have been saying over the last couple of years, there should be no objection.
It may be thought that Section 51 and Schedule I are intended to completely describe Canadian constitutional documents. So that there can be no confusion, Schedule I should include the Royal Proclamation of 1763 and the Indian treaties.
Now, as to the Charter of Rights: the proposed resolution, at least in its present form, includes a Charter of Rights~ including certain language and mobility rights.
Indian people have been the victims of discriminatory and racist laws. There is no question of our support for human rights codes and bills of rights, which are designed to ensure fair and equal treatment in this country.
Some of you may recall that Indian religious I ceremonies were banned by federal laws and that the RCMP confiscated masks and carvings.
Some of you may recall how Indians were denied the vote in federal elections until 1960 and in certain provincial elections for a decade longer.
Some of you may know that it was a criminal offence for Indians to collect funds to assert land claims from the late 1920s until 1951.
We have known pervasive discrimination in Canada and we would welcome protection from discrimination and racism.
But, in a perverse kind of way, egalitarian laws have been used against us in Canada and in the United States, and in other countries, such as Mexico and New Zealand.
We have to be very careful to ensure that our collective rights are protected.
The Canadian government has understood that this problem exists and bas included Section 24 in the proposed resolution. It provides that the Charter of Rights does not deny the existence of any rights or freedoms that pertain to the native peoples of Canada. We are unhappy about this provision for a number of reasons. It is negative, not positive. We have consistently worked to have treaty and aboriginal rights positively entrenched in a new constitution.
Instead, we have been given only a limited and negative provision. Our rights are now to be described as undeclared rights and freedoms. There seems an implicit onus on us to prove our rights.
Indeed, Prime Minister Trudeau bas said, as much in a letter dated October 30, 1980:
You will have to persuade the government of Canada that the special rights you claim are reasonable and that they should be guaranteed in the constitution.
Section 24 is limited to rights and freedoms “that exist” in Canada. This seems to mean that there can be no additional rights or freedoms recognized in the future, without their being subject to challenge under the provisions of the Charter of Rights. This is particularly paradoxical because the present government of Canada has appointed representatives to negotiate land claims settlements with the Nishga tribe and with other groups in the Yukon and Northwest Territories. If settlements emerge from these. negotiations, there could be major problems with. the Charter of Rights. At least Section 24 should apply both prospectively and retrospectively.
There is another problem with Section 24. While it would probably protect the reserve system, it would probably not protect other parts of the Indian Act. We could expect to have the Laval and Canard cases relitigated. The Charter could be used against any proposals to have bands and tribes establish their own systems of membership. The ability to have special legislation for Indian populations must be maintained. Section 24 does not acheive that goal.
Section 15(2) is designed to ensure that affirmative action programs will not be invalidated by the Charter of Rights.
This is an important provision. As you may know, the Alberta appeal court has ruled that affirmative action programs in the oil sands projects are invalid because of Alberta’s Individual Rights Protection Act. That case is presently on appeal to the Supreme Court of Canada. Section 15(2) mistakenly sees special programs as simply designed to better the conditions of disadvantaged persons or groups. While it is true that Indian people are a clearly disadvantaged group in Canada today, that will not always be the case. There must be provisions that will allow band enterprises to preferentially hire band members, whether or not the band is disadvantaged. The important value is not relieving poverty, but the survival of the tribes as distinct political, social and economic groups within Canadian society.
There are two other provisions that are troubling. Section 6 provides for mobility rights. The reserve system involves a restriction on mobility. Indians are free to live on or off their reserves, but non-Indians are restricted in their access to reserve lands. It must be clear that Section 6 cannot be used to attack the reserve system. Section 3 provides that every citizen has the right to vote, without unreasonable distinction or limitation, in any election of members of the House of Commons or of a legislative assembly. The term “legislative assembly” is not defined. As a generic term, it could be interpreted to include an Indian band council. It must be clear that Section 3 cannot be used to enable non-Indians, who are resident on reserve lands, to vote in Indian government elections. It should also be clear that Section 3 cannot be used to invalidate the residency requirements in northern areas that have been proposed by the Dene and the Inuit, to ensure that the permanent native populations have political power, rather than the transient Euro-Canadian population.
Our proposals: Rather than a series of remedial changes to the existing proposed resolution, the National Indian Brotherhood is proposing amendments which begin with a positive recognition of Indian treaty, aboriginal and self determination rights. For us this is the appropriate way for a new constitution to begin to address our existence as nations within Canadian Confederation.
I will now ask our legal counsel to explain our amendments.
Mr. William T. Badcock (Legal Counsel, National Indian Brotherhood): Mr. Chairman, honourable Senators and honourable members. Appended to the brief that you have before you are the amendments proposed by the National Indian Brotherhood to the proposed resolution that is to be sent to England. I might skip over a couple of pages first, and on page 6 point out that the National Indian Brotherhood
rejects entirely Section I of the Canadian Charter of Rights and Freedoms.
I believe that you have heard before the reasons for rejecting this particular section. Suffice to say that in the view of the National Indian Brotherhood the only purpose of this section is to allow the governments to over-ride our rights without consent, which is completely unacceptable. However, I believe other groups have indicated that Section I is entirely unacceptable in the proposed resolution.
The important part of our proposed amendments is the addition of a new Section 23A, which is designed to provide for recognition, confirmation and protection of aboriginal rights and freedoms. There are explanatory notes along with the text of our proposed amendments. Because of the restrictions of time I propose just to go quickly through what the sections themselves say.
Section 23A(1): For the purpose of this act the aboriginal peoples of Canada includes the Indian peoples of Canada.
Section 23A(2): The aboriginal rights and treaty rights of the aboriginal peoples of Canada are hereby confirmed and recognized.
Section 23A(3): Without limiting the rights of the aboriginal peoples of Canada all rights confirmed or recognized by the Royal Proclamation of October 7, 1763 shall continue in force and the said Proclamation shall be deemed to be part of the Constitution of Canada so far as it touches on the rights of the aboriginal peoples of Canada.
To this extent we propose that the Royal Proclamation of 1763 be added to Schedule l of the proposed resolution to be the first document itemized prior to the British North America Act of 1867.
Section 23A(4): Within the Canadian federation, the aboriginal peoples of Canada shall have the right to their self-determination, and in this regard Parliament and the legislative assemblies, together with the government of Canada and the provincial governments, to the extent of their respective jurisdictions, are committed to negotiate with the aboriginal peoples of Canada mutually satisfactory constitutional rights and protections in the following areas: inter alia: a) aboriginal rights; b) treaty rights; c) rights and protections pertaining to the aboriginal peoples of Canada in relation to Section 91(24) and Section 109 of the Constitution Act, 1867; d) rights or benefits provided in present and future settlement of aboriginal claims; e) rights of self-government of the aboriginal peoples of Canada; j) representation of the aboriginal peoples of Canada in Parliament and, where applicable, in the legislative assemblies; g) responsibilities of the aboriginal peoples of Canada and the provincial governments for the provision of services in regard to the aboriginal peoples of Canada; h) the right to adequate land and resource base and adequate revenues, including royalties, revenue sharing, equalization payments taxation, unconditional grants and programs financing, so as to ensure distinct cultural, economic and linguistic identities of the aboriginal peoples of Canada.
Section 23A(5): a) Every treaty and agreement validly entered into between Her Majesty and any of the aboriginal peoples of Canada and every treaty and agreement with the aboriginal peoples validly authorized by Her Majesty shall continue in force after the coming into force of this act and all such treaties and agrement shall be deemed to be part of the Constitution of Canada. b) No treaty or agreement with any of the aboriginal peoples of Canada, or any provision or term thereof, shall be diminished or abrogated by either Parliament or any legislative assembly, nor shall any act of the Parliament of Canada or any legislative assembly be construed or applied so as to diminish or abrogate any provision or term of any treaty or agreement with any of the aboriginal peoples of Canada without the consent of those aboriginal peoples party to the treaty or agreement.
Section 23A(6): No aboriginal right shall be subject to extinguishment by Parliament of Canada or by any legislative assembly.
Section 23A(7): No lands, waters or resources of the aboriginal peoples of Canada shall be subject to expropriation under any law of the Parliament of Canada or any legislative assembly without the express consent of those aboriginal peoples holding such lands, waters or resources.
Section 23A(8): The free movement of aboriginal persons with their personal goods and possessions guaranteed by the Treaty of Amity, Commerce and Navigation, 1794, and known as Jay’s Treaty, between Her Majesty the Queen and the United States of America, shall apply mutatis mutandis to all the aboriginal peoples of Canada and the United States, and no Act of Parliament or any legislative assembly shall be construed so as to diminish this right.
Then Section 24 of the proposed resolution will follow from there, Subsection (1) saying: The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate, abridge or derogate from any undeclared rights or freedoms that exist in Canada.
Section 15 we propose to be amended such that Section 15(1) will read:
Everyone has the right equality before the law and to the equal protection of the law without discrimination because of race, national or ethnic origin, colour, religion, age or sex.
Which is the same as it is now.
Subsection (2): The section does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged persons or groups or the recognition of the aboriginal and treaty rights of the aboriginal peoples of Canada.
Section 32, subsection 2 is to be amended to read: Such constitutional conferences and all such future constitutional conferences shall include the direct participation of representatives of the aboriginal peoples of Canada for matters on the agenda which affect them.
Then finally Section 51 A, subsection 1: Nothing in Parts IV and V shall be construed as permitting any amendment to any
constitutional provision that affects the rights, freedoms and privileges of any of the aboriginal peoples of Canada without the consent of those aboriginal peoples of Canada so affected.
And one final comment. As well as the addition of the Royal Proclamation of October 7, 1763 to Schedule 1, we also propose that the order of Her Majesty in Council admitting Rupert’s Land and the Northwest Territories to the union dated June 23, 1870 also be added as probably Subsection (2) I believe.
Thank you, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Badcock.
Mr. Riley: Just before we open it up for questions I would also like to impress upon the Committee the need to hear the various Indian nations in Canada that would like to make a presentation before this Committee. I realize that time is short and that you do not have much of that, but again I think it is very important that you hear from all of the Indian nations in Canada.
The Joint Chairman (Mr. Joyal): Thank you very much, President Riley for your statement of principles and position. I think it will make easier our discussion.
I would like to invite the honourable Jake Epp to open our dialogue with our guests this afternoon, followed by Mr. Manly.
The honourable Jake Epp.
Mr. Epp: Thank you, Mr. Chairman.
I would like to welcome Chief Riley as President of the National Indian Brotherhood and his delegation today and take this opportunity in an official way to not only congratulate President Riley for his election to the high post that he now represents the Indian people of Canada, but also wish him well in his personal endeavours with the NIB.
Mr. Chairman, with your permission I am going to take just a little bit of time before I get to the questioning in order to put the position of our party forward in terms of this brief and Indian participation in constitutional renewal.
I think first of all I should point out that I believe it is highly important that the National Indian Brotherhood appear before this Committee. I think I would be remiss in saying that we were somewhat concerned that that did not take place sooner. We understand the circumstances that prevailed, bath in terms of the National Indian Brotherhood as well as this Committee, in terms of the time constraints that both were under and the time frames that we were both working under, and I think it has been highly, I know from my point of view, helpful that the National Indian Brotherhood has appeared before us this afternoon.
I was also impressed, President Riley, by the statement that you made that this process should not lead to further division in the country, but that Canadians should be brought together
and that our collective views should be recognized in terms of a new constitution under which all of us want to live and help build the country. I think I am using your words when you said: we do not want to see Canada divided; and that is not only a sentiment which you have expressed and I know you hold deeply, but one which we share. However, also you gave us the thrust, as you have done before, that you want change but that change is to enhance the future of the Indian people within the Canadian family rather than retain the status quo.
You made the point, and I share that point, on page 1, and maybe that should have been the starting point, you mentioned, and I quote from your first paragraph one pertinent sentence that I think spells out your position and that of our party, and that is:
In our cultures we could not proceed in the face of such division.
And that I believe describes our position exactly and that is that we feel we should not proceed until such a time as the divisions that now mark our country from east to west, that those divisions can first of all be healed or that this process not lead to further division in our country.
You mentioned also that you requested that various Indian nations appear before the Committee. We wish that were possible; in terms of the time constraints that have been placed upon this Committee I must say to you that I frankly do not see how that will now be possible in view of the fact that witnesses will not be asked to appear before this Committee after the first working week after the New Year, but you have our assurances, or my persona! assurance, rather, that I will take that suggestion very responsibly and see if in fact accommodations can be made.
One other point on the amendments before I start on the specifics. I want to say to you, President Riley, that if we do not study all of the implications of the very comprehensive and helpful amendments that you put before the Committee today, I would ask, and you can respond to this later, I would ask that when the Committee is in clause by clause, whether at that time, when there are questions relating to the protection of Indian rights, whether you or members of your delegation would be willing to appear before the Committee at that time to give us as Committee members help in terms of either interpretation or in legal drafting. I would like to obviously extend that invitation on our behalf and I would hope that other Committee members would concur in that.
Mr. Riley: I can give you my assurance now that we would be pleased to appear to give you a further understanding or further clarification.
Mr. Epp: Thank you. Before getting into the questioning 1 think there is one point that has to be made, and that is you have spent some time in our written presentation on the process of negotiation which was to lead up to participation by the Indian people at constitutional conventions and constitutional conferences and constitutional renewal. When you mentioned the conference of August, 1978, in which assurances where given that you would have full and equal participation
in those areas that affect the Indian people, that interpretation of that meeting is correct; I think the record should show that that interpretation is not the interpretation only of the National Indian Brotherhood but of those also other than National Indian Brotherhood who participated at that meeting.
That being the case, President Riley, I believe I should get to the very heart of what is before us and I want to give you an opportunity—I feel that within the Canadian public, as with this Committee sitting around this table, there is, for maybe not the first time, but in my recollection a deep-seated feeling among the Canadian public generally that they want to use this opportunity to start on the road to rectify wrongs, perceived wrongs and real wrongs that have taken place relative to Canada’s native people. That is why, frankly, I was somewhat worried a week or 10 days ago that that opportunity might be lost, but I believe that there is a deep-seated feeling that now is the opportunity and now is the time to correct some of those wrongs, and that being the case I think it is important that one concept be explored by the Committee before any other concept is explored, and that is the concept, and I know the words mean different things to different people, the concept of self-determination, the concept of self-government.
I, in a previous incarnation, thought I understood that, what was meant by the Indian people. Frankly, a week ago I was not sure, but I would like you to take this opportunity, if you might, to give the Committee the benefit of your views on those two words, especially keeping in mind your statement which I take as being not only realistic but deeply held, and that is that this process is not further to divide the country but rather to unite us.
Mr. Riley: First of all I w6uld like to further explain some of the procedure we will follow today.
For the sake of getting across to you full, complete and a better understanding of our position, we brought with us, as you can see, a large delegation which can cover a wide cross section of questions anywhere from legal to political. To a great extent this afternoon I will be answering the political aspects of it; the detailed legal parts of it I will refer to people within our delegation.
To get to your first question on self-determination, again I must go back in history, back in time prior to 1867, prior to the existence of your government as we presently know it. Indian people were very traditional people, we have always had a form of self-determination, a form of our own government. For a great number of years since 1867 a lot of this has been suppressed and our governments have had to, I guess, go underground, we have had to adopt systems that were imposed upon us, but our own forms of Indian government, self-determination, have always been there. They are now resurfacing; they are coming about; they are happening, and it has only been in the last 10 or 20 years that we have developed the kind of leadership that is required to fulfill any objectives within self-determination for our people. We are beginning to exercise
these ourselves today, regardless of any impending legislation. Self-determination has always been very important to us.
It is extremely important in the sense that if we are to progress, if we are to move ahead in any way in the future, we must control our future. The answers do not lie in the system that is presently upon us whereby decisions that affect our future are done in some office in Ottawa without any involvement of Indian people. I must stress I have had absolutely no or next to no connection with this office of Indian Affairs here in Ottawa in the past three months. I have had no relationship with them whatsoever and as a matter of fact I am getting a little away from the concept of self-determination, but I just wanted to demonstrate that this is something that we still believe in and that we are going to move ahead in, in spite of any obstacles that are either put in front of us or imposed upon us. It is very important. Indian government you can conclude as being essentially the same as self-determination,. but it is something that we have always had. We have always had this distinct form of Indian government anyway.
Mr. Epp: President Riley, when I read the Indian Act and I know we could spend some time on that act itself as many of us have done before, but when I look at the definition section and I take a look at the history of the last 10 years, going back to 1969, I know in the 1969 white paper there were a number of terms that were unacceptable to your people and to those of us who at that time might not have been in public life but who had an interest. In 1969, if I recall, and having read those debates subsequently, I think there was a general understanding as there is today that Indian government, the very basis of Indian life, in the Chief and Council as a form of Indian government; that that is where the wellspring of power comes from, that that is the source of government among the Indian people and that the 1969 white paper, one of the difficulties with that paper was the so-called concept of termination and the concept that with termination the responsibility for the Indian people would be transferred from the federal government, that is 91, 24 would not be operative, to that of the provinces. You today commended the provinces for having resisted that. I am not so sure in the light of having read 1969 whether it was the provinces’ desire to protect Indian rights that led to that or was the motivation of that action, or whether they did not want to take the responsibility.
I think history might record that slightly differently from the impression I had in your brief.
But that aside, I look at that period, that while those mistakes were made, that the Indian people today are coming to the cause of, not of the 1969 white paper, but that Indian self-government, self-determination in fact must have its wellspring at the local level with the Chief and Council and that that is the position, and I hesitate to use the words “a municipal government,” but for those us who are familiar with that term, that if there is not an equal at least there is a
parallel. Does that describe your position today on self-government?
Mr. Riley: No, not exactly. It is true that the Chiefs and Councils are recognized as, I guess, the local forms of government but to some extent that is only partially true. There is also the traditional forms of government; and the source of jurisdiction, there is a presumption that under this form of administration that the source of power arises out of Parliament; and this is not a view held by the Indian nations of Canada.
As sovereign people, as people that have never given up their sovereignty we see something substantially different.
Mr. Epp: Do you see that as third level of government?
Mr. Riley: Originally I mentioned that we would like to join Confederation, we would like to be included in any new constitutional reforms, yes.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Epp.
Mr. Manly, followed by the honourable Senator Jack Austin.
Mr. Manly: Thank you very much, Mr. Chairman.
I would like to commend President Riley and the National Indian Brotherhood for their very positive approach to this subject. I think, first of all, that the Committee should note the very substantial agreement between the position that you presented and the amendments that you presented and the amendments that were presented by the Native Council of Canada and the Inuit organization, because I think this represents a great deal of progress in these three organizations sitting down and working out some kind of a common approach. This progress was made in the face of very great time constraints upon you in relationship to this Committee. I would suggest that probably this progress was possible in such a short time because you and other native peoples all across the country recognized the basic threat in the present resolution to your rights and to your continuance as a people.
Two weeks ago I had the opportunity to sit in on the First Nations conference where over 1,000 Indian people from all over the country worked to come to grips with the problems involved in the constitution, and I am very glad to see that the National Indian Brotherhood did have the opportunity to appear before this Committee and, like others, I regret that it is not” possible for more of the constituent provincial groups to appear.
It is my impression that the Canadian people generally recognize that great injustice has been done to the Indian people since the coming of European explorers and settlers several centuries ago and Canadians are generally in favor of government action to redress this injustice but they are also very uncertain as to what is required, and they have some problems with the concept of special status.
Perhaps we can illustrate this, and I would like your comment on it, with regard to your statement “We want to join Confederation” and the average person in the street is likely to say, why can they not just become c:itizens like all the rest of
us. I think that not only are there pressures in government towards assimilation but a lot of ordinary Canadians do not see anything particularly wrong with that. I am wondering if you could speak of that issue. What do you mean when you say, “We want to join Confederation”?
Mr. Riley: Mr. Chairman, what I meant by us wanting to join Confederation was the fact that we, and I think to some extent, you, and to a great extent Great Britain have recognized us as individual nations. We have always held that this is true and as a matter of fact the whole treaty making process that we underwent with you was along those lines, that we are independent nations of peoples, we welcomed you here to this country, we are going to share with you this country, the resources of it, and that has always been our basic position. We do not want to be the same as you. We have a right to self-determination, a right I think that is recognized by the United Nations and by Canada, that people do have a right. They also have a right to tribalism. This is a right that we have always maintained for thousands of years prior to your coming, and we want to hold on to these collective rights which I think Canadian people, this government, finds difficulty with.
Mr. Manly: So perhaps you would say that the process that began with the making of treaties in some areas should now be continued so that there can be some kind of a social contract with the different Indian nations across the country to bring them into a general agreement with the rest of the country. Is this what you were saying?
Mr. Riley: Basically the questioning is leading into some negotiations and we would have hoped that this process would have taken place at a much higher government level but 1 think we could have gotten a much better understanding across to the government if they would have sat down with us to attempt to acquire this understanding. I am not suggesting that that is the only means. I would suggest if the government and if the lndian nations of Canada are inclined to move in that direction, that would be subject to negotiation between those nations and the government.
Mr. Manly: You have talked a fair amount in your brief about the Royal Proclamation of 1763. Could you briefly summarize your view of that Royal Proclamation and what does it mean to you and your people in 1980?
Mr. Riley: I will deal partly; politically, with that question but I am going to refer that question to our legal counsel, the other part of it so it can be better understood by the Committee in the kind of detail that I think it requires.
The Royal Proclamation, as far as Indian people are concerned, did not give rights to Indian people. It recognized rights. These rights which we call aboriginal rights are rights that we have always had. It was a document that I guess set out some procedure in which the British Government would deal with the Indian nations in Canada and that procedure I will ask Bill to explain further.
Mr. Badcock: Thank you, Del and Mr. Chairman.
Mr. Manly, as you realize the Royal Proclamatin of 1763 as President Riley pointed out, did not grant rights, it confirmed and recognized rights that were already there, something that apparently the government did not consider when they introduced Bill C-60 because in that bill it specifically says, “the rights that were granted by the Royal Proclamation”. So we want to get that very straight now, that those rights were not granted, they were recognized in the Royal Proclamation of 1763. That document has never been repealled. It still has the force of statute in Canada. As a consequence it outlines exactly what the position should be between the Indian nations of Canada and the Imperial Crown.
When the Imperial Crown passed, if you will, the self-determination of Canada over to Canada, Canada was bound by that kind of a recognition. Unfortunately, although that may be de jure recognition de facto it has not been recognized at all, and through the years the courts have consistently denied that we are Indian nations; they have consistently denied that treaties have the statute of international treaties. Rather they have looked upon them as mercantile contracts or as some kind of a contractual obligation. So to the Indian people of Canada the Royal Proclamation is very important and should be part of the constitutional papers of Canada because of the recognition it makes of Indian nations as nations, a recognition that has never been given up by the Indian nations of Canada.
Mr. Manly: There is some confusion over the whole definition of aboriginal rights and I am wondering if you can give examples as to what aboriginal rights are and perhaps say something about the record of the federal government in protecting your rights.
Mr. Riley: Aboriginal rights is causing a lot of concern to a lot of people, and to a great extent it is going to be a subject of further negotiations but much like the trade and commerce section of the original concept BNA Act of 1867 it was not defined at that time. Again, we must proceed on the basis that we must further sit down and negotiate the definition of this but if you would look at Section 23 on the attachment to our brief it will give you a good basis on which to start on the areas that we must discuss on aboriginal rights.
The Joint Chairman (Mr. Joyal): Thank you.
Mr. Manly: I think that one of the very positive features about your proposal is that it does allow for negotiation. One of the promises that has been made is that you and your concerns can be the number one item on the agenda after the constitution bas been patriated to Canada. Why do you object so strongly to this?
Mr. Riley: Because of the assimilationist policies of this government and previous governments on Indian people; because of the oppression, because of the oppressive nature of the Indian Act, the taking away of the human rights of people, because of the fact that it has been continued, that it has been the policy of governments up until now, we have no reason to trust the good will of the present government to negotiate it with us after. That is why we want guarantees now.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Manly.
I would like to invite Senator Austin to continue our discussion, followed by the honourable James McGrath.
Senator Austin: Thank you, Mr. Chairman.
Along with other members of the Committee, Mr. Riley, I would like to welcome you on behalf of myself and the government members.
We have been looking forward to your brief, and, indeed, we have not been disappointed. It is an excellent contribution to the discussions we have been having and will continue to have.
I feel that whatever the difficulties in your coming before the Committee, they are certainly totally to the advantage of this Committee if it was required by yourselves to take a little extra time to prepare this particular presentation.
I had an opportunity to discuss some of the key issues with Mr. Powderface, you Vice-President, and I welcomed that opportunity. It was very much to the point, and I will come back to the same kind of points in questions.
The nub of it for me—and I will not take up the time of the Committee with flourishes of rhetoric; but I will go to what I think is the key problem and something which you were responding to a moment ago when Mr. Manly put a question to you about the issue of when your rights would be entrenched.
You are very much aware that at best Section 24 of the present joint resolution seeks to be a sort of without prejudice kind of clause. Whether or not it does it well, its intention is to say, “This joint resolution is without prejudice to aboriginal claims or without prejudice to the points of substance that are ongoing between the levels of government in Canada and the various native communities.”
We could discuss whether or not it works, but your brief is very clear in saying that it does not. But that is not the general point that I would like to move into.
My concern, however, is very much with the problems that you have in enhancing the position of your Committee, the native, the Indian community, in Canada.
I would like to put on record the position of the Liberal Party at its policy convention in July 1980, a position which was briefly referred to in your document.
Madam Payette and I were the Joint Policy Chairmen at that particular convention. It was unanimously passed that the Liberal Party of Canada work towards the entrenchment of original and native people’s rights by (a) enacting legislation with the consent of the original and native peoples that provides for Canada’s obligation by virtue of aboriginal and treaty rights, and implementing a modern settlement policy that provides for orderly development by enhancing and not extinguishing aboriginal treaty and native peoples rights; include the original native peoples representatives at all levels of constitutional reform discussions; amending Liberal Party policy to recognize the true cultural, political and legal status and rights of the original and native peoples of Canada; and a
new Canada, Indian, Dene, native process, direct immediate economic action for mutual advancement towards an independent quality of Iife for all citizens of our nation.
It is a policy that the party is endeavouring to shape with the government. I remain a member of the Liberal Party National Policy Committee, and I can assure you that the question of Indian and native rights is very much in the forefront of our concerns.
But what really bothers me is the difficulty of the negotiations we have had as a federal government in which you have had as an Indian people with the provinces.
I know from the experiences in my own province of British Columbia, of the Nishga who have as good a claim established at common law as has been established to date: they were here before us earlier today, so that the Committee is familiar with the position of the Nishga. But, we have been unable in British Columbia or anywhere else in Canada, to bring the provinces to a recognition that it is they who must implement the territorial daims of the Indian people; it is they who must implement a long number of things, for the very reason that, under the division of powers in Canada, they have the constitutional responsibility for the delivery of many, many of the remedies.
Now I find it rather difficult to listen to Mr. Epp who said, when he opened, that we should not proceed when there is dispute among the provinces. He made reference to the Indian culture. I am not going to make any reference to the Indian culture, but I will refer to the political situation.
All the government is trying to do in this resolution is to create the concept of entrenchment, to put certain rights, entrenched in the constitution. The Prime Minister has said—and this is something I will come to in a moment-that native rights will be at the top of the list for First Ministers following the establishment of the entrenchment system.
We hear, particularly from the Progressive Conservative Party, that they believe only in a formula of unanimous agreement; that they believe, indeed, in the supremacy of Parliament, including the provincial legislatures. So that in my term, if not in theirs, they believe in continuing the deadlock under which you have been negotiating for a very long time.
Mr. McGrath: This is not the situation.
Senator Austin: Well, Mr. McGrath, you will have your chance to correct me, and I hope you will correct it, because 1 would, indeed, like to believe differently of the position of your party.
But I would like to ask you whether you think there is any chance of serious negotiations with the provincbs on their sharing of responsibility for the settlement of aboriginal rights in Canada.
Do you have any faith that any of the provinces will come forward with remedies for any of your rights in the near future?
Mr. Riley: I can answer that very shortly. Absolutely not.
Senator Austin: If that is the case, and if the federal Parliament wishes to encroach upon provincial legislatures and the jurisdiction of provincial legislatures to establish your rights and the rights of others who are claiming rights in Canada, would you support the federal Parliament in establishing an entrenchment system that does indeed require provincial legislatures to deal with a superior law than their own supremacy as legislatures?
Mr. Riley: I would like to say, first of all, that one of the problems we see in the proposal to amend the constitution is in the post-patriation period. At that time we will be pitted against the provinces. We have always had diverse interests.
Senator Austin: In this case you will be pitted against six provinces in accordance with the amending formula rather than each province being sovereign by itself. Does that not improve your situation?
Mr. Riley: Well, I think that even if you got it down to three, it would still be hopeless.
Senator Austin: Very well. Please continue with your answer, then.
Mr. Riley: I would have liked any discussions of this nature to have been part of a negotiating process with the federal government, a process that we should have begun a long time ago, long before we have ever appeared here.
I do not think we could agree with that type of proposal at this stage.
We would have to sit down and study it and look at it, examine it carefully. It is very difficult to have something thrown in front of you and to be asked whether or not you agree with it.
Senator Austin: I too, Mr. Riley, wish that we were in a position where we could, today, entrench rights which would be understood by a court and do it before the patriation process was completed.
The real dilemma—and one which Mr. Manly referred to and Mr. Powderface and I discussed-is that the provinces have resisted our being where we would like to be. Either one or the other choice is going to take place. Either we are going to create an entrenchment system today, and then have a more flexible formula for amendment, or we are going to defer the entire process, as the Conservative party would like us to do until there is some unanimous agreement with the provinces on an amending formula.
You and I have about the same faith, that we will end up by breaking the deadlock by agreement between the federal government and all of the provinces.
So it comes down to this. Can we do something at this stage that is a just treatment of your position without unduly changing or prejudicing the course of the negotiations which should continue at arms’ length?
Is there some way in which we could recognize your existing rights better than we do in Section 24? I know you have suggestions in your documents.
Mr. Riley: Yes; follow our suggestions.
Senator Austin: Well let us say, for instance, that we cannot follow them all. Would you accept, for example, a movement back to the Bill C-60 language which refers to the Royal Proclamation of 1763 which Mr. Badcock spoke about a few minutes ago? Would you go back to that language as an improvement over what we now have?
Mr. Doug Saunders (Legal Counsel, National Indian Brotherhood): I think the position on the Bill C-60 language was made clear at the time and has been reiterated now. The idea of a positive reference to the Royal Proclamation of 1763 is seen as very important. And what was a mistake in 1978 with Bill C-60 was to refer to the Proclamation as a source of rights rather than the recognition of rights which would have Iocked us again into some quite unfertile historical argument.
I would like, as well, to say that there are things which the federal government are able to do and have not done. The position that was taken in 1973 by the federal government on aboriginal titleclaims focussed exclusively on the proposition that aboriginal titleclaims had been lost, and therefore did not recognize in the language of that statement the facts of continuing use and occupancy of lands by various groupings within the country.
This precluded, in a self-serving way, the federal government from asserting jurisdiction over aboriginal rights which continued in fact in the country.
Under Privy Council rulings, the federal government has jurisdictions over lands reserved for the Indians, and that is not limited to the concept of Indian reserves as we commonly understand that term within the country; which means that the federal government would have constitutional jurisdiction, if it chose, in a situation like the Nishga situation, where there has been a political impasse in dealing with the province, to say to British Columbia that it has jurisdiction over the lands and natural resources of the traditional Nishga lands, and will, therefore, act on that unless the province is willing to negotiate and agree.
In other words, the federal government could come forward under its present jurisdiction under 91 24 and say: “We will confirm in the Nishga their timber rights, water and fishing rights in the area.”
This would be seen by the province, without any question, as some kind of a constitutional challenge by the federal government.
The fact is that the federal government, to my knowledge, has never even been willing to make this threat.
As well, under what we regard as very conservative opinions being given by the Department of Justice, it is the present position of the federal government to deny the existence of aboriginal title claims in most of British Columbia and in all of Nova Scotia. This is a position which does not have very much public visibility. Perhaps there is reason for that.
The Joint Chairman (Mr. Joyal): Thank you very much, Senator Austin.
Senator Austin: Am I done already?
The Joint Chairman (Mr. Joyal): You are overdone, Mr. Austin.
I would like to remind honourable members of this Committee that for the next round it will be a 5-minute rule operating. I say that in deference to our guests. You will understand that it is to allow a greater number of members to have a discussion and exchange with you.
Hon. James McGrath, followed by the honourable Senator Lucier.
Hon. Mr. McGrath.
Mr. McGrath: Mr. Chairman, your not too subtle reminder that this is a 5-minute round will give you some idea of how important I feel about this matter, because I am going to take up part of my 5 minutes to address myself to something that Senator Austin has just said.
You know, we have developed the kind of spirit of civility in this Committee and we do not interrupt each other as a consequence.
That imposes upon each of us a discipline not to misrepresent the other.
Senator Austin has twice misrepresented badly the facts today.
First of all, he misrepresented what Premier Hatfield said in selected quotations from the record this morning; and this afternoon, twice he has misrepresented the position of the Conservative Party by saying we proposed some kind of perpetuation of the deadlock by imposing the principle of unanimity. Of course, nothing could be farther from the truth and that is. a misrepresentation.
Our position is very clearly, Mr. Chairman, that we support patriation with the Vancouver amending formula. Senator Austin knows what that is, and he knows that all of the provinces agreed to the Vancouver amending formula whereby, seven of the provinces, representing 50 per cent of the population may effect a change in the constitution with the Parliament of Canada.
He knows that it is the position of this party. He knows that we support that position and further that we would hold that any other changes in the constitution should take place in our own legislatures and not in the legislature of a foreign land.
That is the position of our party; I am sorry that I have had to repeat it again.
If Senator Austin persists in misrepresenting that fact, then I can only conclude that he would be trying to deliberately mislead either the Committee or the witnesses. I do not think that he would be guilty of that; but if he persists in it, then I must be very suspicious of his motivations.
Senator Austin: You will recognize that I do not wish to interrupt you now, but if I do get a turn again, I will try to reply to your comment.
Mr. McGrath: Mr. Chairman, I would like to commend the witnesses on a very good presentation, and I congratulate you on your decislon to appear before this Committee; because in
doing so you are in fact appearing before Canada and the people of Canada through the medium of broadcasting and television.
I think the decision was a wise one which was justified also by the quality of the presentation we have had here today.
I want to ask a few questions in order to clarify a few problems I have in my own mind, and I will try to be as brief and as succinct as I possibly can.
First of all, we had a number of witnesses who have appeared before us with regard to the principle of an entrenched Bill of Fundamental Rights and Freedoms, and they have expressed concern over the Indian Act, specifically Section 12(1)(b) which denies basic fundamental rights in terms of equality before the law to Indian women of Canada. We have heard from several native women’s groups, who have expressed that fact in no uncertain terms and their rights to be treated the same as Indian men. If my memory serves me correctly, we also heard the same point of view expressed by the Canadian Human Rights Commissioner when he appeared before the Committee.
It is my view, by the way, that the government will repeal Section 12(1)(b) of the Indian Act because of the overwhelming volume of evidence in support of that position, but I would like to know, and I am sure the people of Canada would like to know, what is the position of the National Indian Brotherhood on the repeal of Section 12(1)(b)?
Mr. Riley: Thank you.
I would first of all like to say that as Indian people we understand as fully as anyone the meaning of discrimination, and first of all I would like to begin by saying that this was legislation designed by an external government, the Canadian government, for whatever reason it had. I was a very discriminatory piece of legislation and I agree that any kind of discrimination is not right.
However, one of the problems that we are having-we agree that discrimination should be done away with, the problem is the process. We do not believe any government has the right to determine who are Indians, especially the Canadian government. We do not believe that they have the right to determine who is an Indian and that has been the basis of this whole problem. That section basically attacks families, the family unit, and we agree with you that it is not right but how it is changed, that should be decided by Indian people. They should determine who their members are, that should not be determined by the government.
So that the proposal that you are anticipating of just changing the legislation keeps us in the same rut and we are not looking forward to that kind of oppression, nor are we looking forward to the kind of proposed changes that would continue with this oppression.
Mr. McGrath: Well, let me put it to you another way, sir: Would you support the right of an Indian woman who marries a white person to retain her status as an Indian?
Mr. Riley: That question should be determined by that tribe. As a matter of fact, it should have the right to determine whether or not it could bring in any of you people to become members or its citizens. However, I think the answer is probably broad enough to take in that kind of question. This whole membership question should be determined by the band or by the tribe itself.
Mr. McGrath: What you are saying to this Committee and to the Indian women of this country is that the National Indian Brotherhood refuses to take a position on this very fondamental human right which is abhorrent to most people, and I would like to think it is just as abhorrent to the National Indian Brotherhood, that women would be denied this basic human right of equal treatment before the law, because why should a woman lose her status because she marries a white man, whereas as Indian man retains his status if he marries a white woman? I do not understand that and I do not think the people of Canada understand it.
Mr. Riley: I know where you are leading to and the kind of situation that you are trying to Iead me into.
Mr. McGrath: No, I am sorry, I am not trying to lead you at all.
Mr. Riley: I want to answer that question.
Again, I will state that we disagree with any kind of discrimination, and we have experienced it, I have personally experienced discrimination, but what we cannot sacrifice here is a basic principle, and that principle is that Indian government is derived from the Parliament of Canada. We do not agree with that, so that I think perhaps would give you some more to think about.
Mr. McGrath: Well, I say this as one who has great sympathy for your cause and the way you have been treated and the way that this legislation fails to address the problem of the native people and aboriginal rights.
I see before me in the Indian Act a definition of the word “Indian”, but now you are telling me that given the treaty rights that you have and the relationship deriving therefrom with the Government of Canada and the people of Canada, you are telling me that the tribes should have the right to say who is and who shall not be classified as an Indian person.
Mr. Riley: Exactly, that would be much better than you having that right to determine who our members are, and that is the way the situation is now.
If we had been in control of this situation from the beginning, if we had developed this legislation ourselves, we would not be in this problem today and you would not be blaming us because the situation is not rectified. Give us that opportunity, give us those constitutional guarantees and we will rectify that as soon as possible.
Mr. McGrath: Have you asked to have Section 12(1)(b) repealled, and if not, why not?
Mr. Riley: One of the things we have done in the past is we have asked that this section be set aside by the use of Section 4(2) and this has always been the request of the National Indian Brotherhood, and I believe the present government has
agreed only this past summer that it would look at and use this remedy upon the concurrence of the band.
Mr. McGrath: Thank you, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. McGrath. I want to say to you especially that I concur fully with your opening remarks and I think that your point was well taken by all the honourable members of this Committee.
I would like to invite Senator Lucier followed by Mr. Hawkes.
Senator Lucier: Thank you, Mr. Chairman.
Mr. Riley, I would like to just follow up a little bit on what Mr. McGrath has been dealing with. Your brief and all your proposed amendments continue to deal with aboriginal peoples, and what I would like to know, I would like to have a definition of some kind, if it is possible, how can we deal with aboriginal peoples without knowing what “aboriginal peoples” means? I have heard the words “nonstatus” “status”, “Indian”, “native”; I do not think the people know what it means and if you know, could you tell us, and if you do not know, how are we going to find out?
Mr. Riley: One of the things we have been attempting to do with the present and past governments is to sit down and negotiate this. We have been attempting this since the early 1960’s and early 1970’s, but to no avail.
Senator Lucier: How about if you were to go somewhere, and in fact why would you not just appear as one group, why do you call yourselves status and nonstatus and metis, why would you not be just one group and present yourselves to the government as one group, they would have no alternative but to accept you as such?
Mr. Riley: Well, we are Indians, and probably for some of the same basic reasons that: why do you need three parties to run Canada?
Senator Lucier: We do not. We need one to run it and two to oppose.
Mr. Riley: Why do you not all get together?
Senator Lucier: We keep trying. I am just really confused, Mr. Riley, and I am not trying to be difficult about this, I really am confused because I keep reading the words “aboriginal people” and I really do not know what it means, and I would think before you continue to talk about aboriginal peoples in all the sections you might outline, that we should know what aboriginal peoples are, know what we are dealing with?
Mr. Riley: There ae three basic peoples: Indian, Inuit and you have the Métis and nonstatus. That is the three, the only three that I can see, and well, I have a tough time understanding what a Canadian is. I do not know, you tell me.
Senator Lucier: Mr. Jim Sinclair of the Saskatchewan Metis and Nonstatus Indian Association told us last week that in his opinion aboriginal rights must be extinguished with
settlement of landclaims. He said that it just is not realistic to expect that you are going to have a landclaims settlement where you say that you want to have an economic base and you want to be able to do all the things that you do, and that you are going to maintain aboriginal rights. He thinks that one is not consistent with the other. I think that that is completely opposed to your position and is there any flexibility in there, is there any room for the two of you to get together?
Mr. Riley: Yes, we are completely opposed to that. We have always wanted to protect our rights, enhance our rights and not extinguish them.
Senator Lucier: So you are completely opposed to that view and there is no flexibility.
Mr. Riley: That is right.
Senator Lucier: My final question, Mr. Chairman.
You stated, Mr. Riley, that you have not been a part of Confederation and you would like to join Confederation. In Section 51 (a) of your proposed amendments you state in effect that no sections affecting aboriginal peoples can be amended without their consent, and in Section 7 you say no lands, water or resources can be expropriated without consent, which is completely opposed to my situation as a Canadian. You are asking for something entirely different.
How can you say: I want to join Confederation, I want to be a part of it; and then tell me that you want enshrined in here the difference that you are suggesting?
Mr. Riley: Tell that to the people of Quebec as well.
Senator Lucier: No, I am not talking to the people of Quebec, Mr. Riley, I am asking you a question. You are suggesting to me that you want to join Confederation and you are saying that you want these things different?
Mr. Riley: Not as Canadians, as Indian people.
Senator Lucier: Not as Canadians?
Mr. Riley: As Indian people.
Senator Lucier: All right. Thank you, Mr. Riley. Thank you, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Thank you very much, Senator Lucier.
Senator Austin: Mr. Chairman, on a point of persona! privilege.
I understand that when I was out of the room talking to Mr. Dobell about the question of future witnesses you made a reference to me and some comments I made earlier in the evidence. I wonder if you would repeat that reference.
The Joint Chairman (Mr. Joyal): Certainly, Senator Austin. I said to. . .
Mr. McGrath: On the same point of order I should raise the point of order that rather than interrupt the proceedings now, perhaps it might be well if we waited until this important witness had concluded. We have other important interveners
and perhaps then we may have the written transcript and the Chair would not have to paraphrase what the Chair said.
The Joint Chairman (Mr. Joyal): I am certainly ready to follow the suggestion as put by the honourable James McGrath if it is agreeable to the honourable Senator Austin.
Senator Austin: Yes, that would be fine, thank you. I thought perhaps your remarks were relevant to something that was in process at this moment.
The Joint Chairman (Mr. Joyal): No, not at all, not at this point.
I would like to invite now Mr. Hawkes followed by the honourable Warren Allmand.
Mr. Hawkes: Thank you, Mr. Chairman, and I will try and keep my comments brief.
Do I understand your position correctly that legally and morally you are saying no to patriation at this point unless you have agreed to constitutional change, and that in reality you have laid out for us your sense of agreement in the appendices part of your report today, and if that is not accepted by the Committee and by the Parliament of Canada then your legal action would proceed and you would continue with the view that these changes proposed in the constitution act 1980 are illegal from your perspective?
Mr. Riley: Well, I will say that since we have at this time not been able to enter into any form of negotiations with the present government, we will continue with our efforts, both internally and internationally, and that is the direction that we have decided on.
Mr. Hawkes: So you are attempting to convince the world community, really, that this government is acting illegally in the face of not seeking agreement from the aboriginal peoples of Canada and not having their agreement?
Mr. Riley: Yes.
Mr. Hawkes: I would like to point out, and I think I must in relationship to comments made by Senator Austin, but on page 16 of your brief I think you make it very, very clear that as an association you will not support an amending provision in this constitution that does not include the provinces, that does not include the aboriginal peoples, and that you see a referendum in particular as abhorent because it in fact would allow the government of Canada to go right past the wishes of those who are elected to serve; is that correct?
Mr. Riley: Yes, much like the present situation has been in which even though we have been allowed since 1960 to vote, we have no members sitting in the House. The electoral districts are divided up in such a way, and the party situations are developed in such a way, that Indian people will probably never be part of the government under the present system, but that is a very similar situation to what you have just mentioned.
Mr. Hawkes: Can I just come for one second at the concept of self-determination and see if I can increase my understanding and perhaps other members on the Committee, but I take
it to include, starting from the premise, and perhaps your declaration of the first nations is a great premise, a great place to start or begin to comprehend, and if we do not comprehend that declaration then it is difficult for us to understand that elements of the economy must be subjected to aboriginal government, that elements of legal systems must be subjected to aboriginal government, that the maintenance and development of the culture of the aboriginal peoples of Canada is done and will be done in a somewhat different context, and if you do not have those powers and rights then in fact you fear for your culture, that in fact we decree termination to take effect if you do not control some of those things, that it does take us into the justice system and clauses like Section 12(1)( b) would be viewed in an entirely different perspective if we in fact would entrench that beginning understanding of what self-determination means?
Mr. Riley: That is correct.
Mr. Hawkes: On the front page of your brief, and Mr. Epp mentioned it in his opening remarks, but you say:
In our cultures we could not proceed in the face of such division.
And I know that words have importance and you do not use the words “would not proceed”, but you use: ln our cultures we could not proceed in the face of such division.
I am wondering if you could help us understand the choice of the words “could not proceed in the face of such divisions”, what is there in the culture that makes it impossible to proceed in the face of such divisions?
Mr. Riley: First of all I will ask Bill to deal with the legal significance of the words.
Mr. Badcock: Thank you, Mr. Chairman.
Mr. Hawkes, perhaps an example would be the confederacy of the six nations. I believe someone mentioned a little while ago, perhaps it was Mr. Epp, that our government consists of Chiefs and Council.
The fact is that in many cases it consisted of Chief’s counsels, not a Chief and council, but Chiefs of the various nations sitting in council, and those Chiefs when they discussed a point had to come to consensus. They could not proceed unless the point was talked out and a consensus was reached. It is not the case of “would not”; they could not.
Now, I appreciate that often in a small society it is easier for a group to come to consensus than it is in the House, and certainly we have had problems with 10 provinces and the federal government, coming to any kind of consensus on anything short of buying coffee, but the fact remains that under Indian governments that there is that concept of an absolute consensus before you can pass on to the next order of business. Perhaps when that stipulation is put on a government, that there has to be a consensus, perhaps it is easier then to reach it when you know you cannot pass on to anything else until you get there.
Mr. Hawkes: Do you see some value for the protection, the evolution of a culture, in that consensus mode!?
Mr. Badcock: Yes.
Mr. Hawkes: Maybe if you cannot reach it then you should not be doing it would be the message that your culture would have?
Mr. Riley: I believe your Cabinet operates on that principle.
Mr. Hawkes: Ours or theirs?
Mr. Riley: You are all the same.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Hawkes.
The honourable Warren Allmand followed by Mr. Bryce Mackasey.
Mr. Allmand: Mr. Chairman, I want to follow up on some of the comments made by Senator Austin.
Senator Austin suggested that there are two alternatives for entrenchment of your rights: one where you would wait until after patriation and then to obtain that entrenchment they would have to go through the proposed amendment formula where you would require the agreement of six provinces plus the federal government. He says that is one alternative.
He said the other alternative is if you do it now you require, he suggested, the agreement of all the provinces.
Well, of course, I think there is another alternative that he did not suggest at all and that is by entrenching a recognition of your rights he could proceed right away. If he was to accept what you proposed he would not require the agreement of the provinces, and I want to suggest the legal arguments for that.
When the British Monarch in 1763 recognized your rights, they did not consult with colonial peoples over on this side of the water, they recognized in that Royal Proclamation your rights. In the Order in Council admitting the Northwest Territories and Rupert’s Land there was another recognition once more of your rights, your aboriginal rights. When treaties were made between your nations and the Canadian Crown, the Canadian government, if you check the historical record, did not, before they signed the treaties, have a caucus of all the provincial governments of the time to get agreement to sign those treaties. They did it as the federal government who took over the rights of the British Crown as rights were granted to Canada from England.
As Mr. Saunders has pointed out, in Section 91(24), it says the federal government has jurisdiction over Indians and lands reserved for Indians, not the provinces.
So I wouid suggest a third alternative, and I think that is the one that you are suggesting, too, but I would like to hear you comment, the third alternative is that if they recognize what has been recognized in the past in this patriation formula, recognizing aboriginal rights as the Royal Proclamation did, as the Order in Council of 1870 did, as the Manitoba Act did, as many other documents did, if this patriation recognizes, not
grants but recognizes those rights, then you are not opposed to the patriation right now; is that right or wrong?
Mr. Riley: Yes, that is right.
Mr. Allmand: Fine. I just wanted to make that clear. I would challenge at some time, maybe not today, Senator Austin to show to me where in the past in signing treaties or in any other action of recognition of aboriginal rights that there was consultation with the provinces. I am talking in our early history, l know that the federal governments and provincial governments have tried to forget what happened in the past but history documents what really happened.
Now with respect I want to quickly comment, I know that my time is very limited, with respect to aboriginal rights, Senator Lucier says what are they. First of all, any good dictionary defines them and courts have been struggling with the interpretation of the term “aboriginal rights” in the Nishga case which was discussed last night, the Calder case, the James Bay case . . . there are many cases where the Canadian courts have defined aboriginal rights. The American courts have done it; the New Zealand courts and laws, the Australian courts-I am sure if it was in the constitution as you suggest and you made claims under that title you would be able to go to court and fill out the definition of “aboriginal rights” as it applies to any particular case, and your peoples have done that before, is that not correct? You may give the Committee more examples of where aboriginal rights have been defined by the courts in Canada up until now in many instances. Could you give instances of that?
Mr. Riley: I am going to ask Mr. Badcock to respond to that.
Mr. Badcock: Thank you, Mr. Riley. Mr. Chairman, Mr. Allmand, even without defining in a very definitive form what aboriginal rights are, the fact is that whatever these rights are, whether they be in the realm of hunting, fishing, trapping, gathering, the inherent rights of people who were here before, these rights have been over-ridden even without having them set down in any particular place. For example, the federal government has the jurisdiction over fisheries and yet the regulations are passed to the provinces and so while the federal government has the legislative jurisdiction over Indians and lands reserved for Indians, when Indians go to fish they are faced with regulations proposed by the provinces that have been rubber stamped by the federal government. There is an example of how an aboriginal right that a person thought he had when he went to fish has been abrogated by the federal government and the fisherman ends up getting arrested for fishing in an area he thought he could. Another example of course is hunting, the Frank case-the gentleman was under Treaty 6. He went from Saskatchewan into Alberta, shot an animal, and was immediately arrested for hunting where he thought he could in the first place. He had to go to court and have the courts point out to them that he did have that right.
But these rights are constantly over-ridden every day in just the normal course of events. Sometimes the courts will uphold the right, other times they will not uphold the right but even though those rights are not defined they are certainly not upheld by the federal government nor are they upheld by the provincial governments and they will not be until they are entrenched within the constitution, and until the constitution points out to the rest of Canada that Indians do have certain rights in these areas, rights they have had before the Europeans ever arrived on this continent.
Mr. Allmand: This is my final remark. You are not insisting that in addition to what you put to us today that we write in a detailed definition of aboriginal rights. What you would like to sec is the recognition of your aboriginal rights in general and the obligation of the government to negotiate those things and that, then, would be defined in due course.
Mr. Badcock: That is right, and I believe that that was outlined in our proposed Section 23A. There are no aboriginal rights defined. What it says is we are looking for negotiation and a recognition that those rights exist. Now can we sit down and find out exactly what they are and what we can do about them in Canada.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Allmand. I would like to invite now the honourable Bryce Mackasey followed by Mr. Keeper.
Mr. Mackasey: We are going to get along very well, you with the name Riley and me with a Mackasey, we have something in common. I am not going to get into the argument- Chief Riley for whom I have great affection and admiration as he knows from a long time back-into which is the best amending formula, nor am I disputing the position of the Conservative party, and I accept Mr. McGrath’s point that they stand for the Vancouver formula which provides the right to amend to seven provinces and 50 per cent of the population.
I must point out to you my view that the worst possible formula for the native peoples would be the one being prescribed by the Conservative government and by the Premiers, more importantly, the Vancouver formula, because the Vancouver formula makes it possible for the provinces whose provincial rights are affected by the amendment prescribed by the seven provinces representing 50 per cent of the population the right to opt out of the effect of that amendment in certain categories. Here are the categories: (a) the powers of the legislature of a province to make laws. If that is affected by constitutional change, under Vancouver, they can opt out of the impact. (b) The rights or privileges granted or secured by the constitution of Canada, the legislature or the government of a province. (c) The assets or property of a province. You can see the impact on you if through the Vancouver formula, if that were the constitution, the Vancouver formula arrived at something recognizing your rights, demanding from the provinces to do the appropriate thing, the province could opt out of the impact of that amending formula or the consequence of the amendment under the right of the Vancouver Charter which permits the to not only opt out of the assets or property
of a province, or I think even more significant in the settlement of your claims, the natural resources of a province. So the Vancouver formula with the escape clause available to the provinces affected by constitutional change arrived at through the Vancouver formula, those provinces still have, according to this formula, the right to say thank you, but no thanks, we are not going to be affected by a constitutional change. I thought I would just mention that warning to you.
I would like to ask your legal adviser and get your comments, because I am on a five-minute deal, if he would accept the definition in what Mr. Allmand referred to, the definition of a good dictionary. Would you be satisfied with that definition?
Mr. Badcock: For what purpose, Mr. Mackasey?
Mr. Mackasey: For determining aboriginal rights.
Mr. Badcock: I am afraid I do not know what definition Mr. Allmand means. If he has a dictionary definition here I would like to see it.
Mr. Mackasey: You are a good lawyer, you are already expressing concern, but I think the former Minister of Northern Affairs has suggested that you could find the definition of aboriginal rights anywhere, including in a good dictionary. Perhaps the solution is to send a good dictionary to the Judges of the Supreme Court. It would save a lot of legal expenses.
I just do not think defining aboriginal rights is that easy and I do not think you have pretended that it is. Am I right, that you have used, Chief Riley, all the way through the word negotiate? What precisely are you negotiating, compensation for something that is already understood or are we still through negotiating hopefully arriving at a mutually acceptable definition of what the aboriginal rights are before you get into the question of compensation?
Mr. Badcock: We could have done the latter first.
Mr. Mackasey: But you would agree that so far you have not succeeded in either. You have not succeeded in either as yet.
Mr. Badcock: No, and as you have just explained it looks like-the situation looks hopeless.
Mr. Mackasey: No, it does not, and I will tell you why it is not hopeless. For me this is a learning process. This is the first time despite my 15 years in Parliament I have the opportunity to hear from the very important people, yourselves, the first Canadians that we tend to forget in all our rhetoric about two founding groups.
This is the first time I have had this complete an exposure to your views and they are impressive and I have to say that by far the most eloquent presentations have come from the native people, and I am sure the listening audience has to be very much impressed by your presentation. I would not be at all pessimistic about the impact you have made. Really what I am trying to say, I suppose, in conclusion is if we want to do what is really best and I am still waiting to be convinced that what is best for you is to enshrine in the constitution anything that
could limit the definition of aboriginal rights or compensation for aboriginal rights to the courts rather than to the legislature, I am concerned about this.
Mr. Riley: We agree that it is a problem and it has been a problem that has been facing us for a great number of years, and again I must reiterate that we would have liked to sit down and negotiated something that was acceptable between us and this government in all questions of concern. However, this has not been possible, so what we are proposing is the next best alternative, let us put it in the resolution and then let us negotiate its meaning.
Mr. Mackasey: I just want to say in conclusion that I am very impressed by the way in which you and the other groups have presented your case forcefully enough and recognize that the justice delayed is justice denied and the sooner we get on with the process the better. Thank you very much.
Mr. Badcock: I might point out, too, that since we were not prepared to define aboriginal rights before that list that we had in section 23(a) we we fell back into the lawyer’s favoured ploy of using latin and we put inter alia in there.
Mr. Mackasey: I knew it was not Gaelic. I was not quite sure what it meant.
Mr. Saunders: There is one little problem here, that if the Brotherhood or a similar group had come with a very detailed definition that there would have been a reaction by the lawyers on this Committee and by the politicians which includes everyone that you cannot put that kind of detailed language in a constitution, that that is too rigid and specific.
So there appears to be a kind of double bind, a recognition of aboriginal rights in the constitutional document would be a clear starting point signalling what it is we are dealing with in the same way that the use of general terminology like trade and commerce, property and civil rights, and peace, order and good government have been seen to be appropriate terminology for constitutional documents in this country.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Saunders. Thank you very much honourable Bryce Mackasey. I would like to invite now Mr. Keeper followed by Mme Hervieux-Payette. Mr. Keeper.
Mr. Keeper: Thank you, Mr. Chairman. Through you to the delegation, I would like to begin by I guess dealing with one of the tough areas that you have already been questioned on and that is the matter of the rights of women and the attitude of the Indian community in that regard. I guess I would just say that my perception is that, for example, with regard to the resolution as a whole that you are afraid that we will have patriation without your real involvement and without any recognition of Indian rights. I would almost guess that you would also be afraid that Parliament at some date would deal with women’s rights without dealing with the question of Indian rights or the status of Indian governments and I would like to know quite sincerely whether or not you would be prepared to sit down with the government should they show
such a disposition or a willingness, to sit down with them and to deal with both women’s rights and Indian rights at a table. Would you be prepared to do that if the government were willing to.
Mr. Riley: We are prepared to sit down and discuss rights with them. As far as getting off on a tangent, we do not think it would be useful to discuss the Indian Act, the specifics of the Indian Act with them without having come to some agreement on entrenchment of rights in the constitution.
Mr. Keeper: I take it then, Mr. Riley, that you are not unprepared to discuss women’s rights with the government, but you certainly do not want the government to deal with those things that they are concerned with and not deal with Indian rights.
Mr. Riley: I am having a problem. What are women’s rights?
Mr. Keeper: I am referring to the Indian Act and to 12(1)(b) and what one of the questioners asked you . . .
Mr. Riley: That is discrimination.
Mr. Keeper: That is right-asked you is whether or not you were willing to make a change in that area and what I was wondering is, obviously you have been excluded from any process so far for changes in the constitution, whether you would be prepared to sit down with the government to discuss your priorities as well as the government’s priorities. You have indicated a willingness to negotiate.
Mr. Riley: That is right.
Mr. Keeper: The constitutional resolution itself recognizes cultural differences, in other words it makes provision for French language rights. It seems to me that just by virtue of the fact that aboriginal rights is another difference that requires respect in our country if the government were to be consistent in showing respect to one group by way of cultural differences, it would make sense to show respect to the other group, the first peoples. I am wondering if you would not feel that there are very strong arguments, particularly with Indian people and native people, for the inclusion of a statement with regard to aboriginal rights, a very strong argument with this particular resolution because of its make-up.
Mr. Riley: I believe our brief is very, very specific about that, and deals with that question in the kind of detail that I think would make the situation understandable to the members of the Committee.
Mr. Keeper: I understand from your brief that what you would really like to see in the resolution is some positive statement with regard to aboriginal rights, in other words, some sort of recognition of aboriginal rights in that document before the constitution is finally patriated. Is that the essence of what you are saying?
Mr. Riley: That is right.
Mr. Keeper: That is all, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Keeper. I would like to invite now Madam Hervieux-Payette.
Mrs. Hervieux-Payette: Thank you, Mr. Chairman. Maybe before making my presentation I should make a little comment about some of the remarks that I made to the Native Women’s Association of Canada when they appeared the last time. I wanted to point out, by pointing out that their brief was only in English, that they were funded by the Secretary of State responsible for the Official Languages Act instead of being funded through the Indian Organization of course dealing with the Indian Affairs Department. This I wanted to be very clear that we were supportive of the women as women, that they participate fully with the native organizations and that as such they could bave a word within your organization.
I was told by the women that they had asked the NIB to join in preparing your reflection for this Constitutional Committee and that they were asking funds from you, and of course no special funds from the NIB were allotted to the Native Women’s Organization. So this is just a point of clarification from my remark of the last appearance.
I would like to point out of course that maybe as one of the few women parliamentarians in Canada being certainly in a very great minority, in 282 members plus the Senators, I would like to point out that if we put some emphasis on the women’s rights, as my colleague Coline Campbell underlined a few minutes ago, it is because we believe in equal rights and it is not because we are women. I think it is because we are individuals, we are human beings and when we started as women parliamentarians including the NDP representative and the Conservative representative to our negotiation with the Indian bands to repeal 12(1)(b) it was because we felt that some women in this country were discriminated against only because they were women.
To make that story short for the members around this table, and the audience, we wrote to you and we met and seeking your support at least to make sure that there would be from now on some support from NIB to stop the discrimination under Section 12(1)(b) by the application of Section 4(2) which means just suspending the application of Section 12(1)(b), not granting any rights for the future, but not depriving anybody some of their rights because they belong to the women’s group.
Of course this also will have an effect on the children of these women because many women are deprived of marriage, which I believe is among the tradition and culture of the Indian people at least to get married, when they fall in love with an Indian man or a white man, and the women as well as the children should keep their identity and since they were born, these women were born Indian, and they have the possibility to protect their heritage, their tradition, the culture of the Indian people.
I am just asking the NIB representative today to make sure, and after all the interventions, make sure that the NIB will continue to support the application of Section 4(2) to repeal
the application of Section 12(1)(b). That is my specific question, Mr. Riley.
Mr. Riley: Just to add a comment to that, I will say that we were the first to ask that those sections be invoked long before I think that the women did it.
Mrs. Hervieux-Payette: So in any of our attempts as women in the future to contact every Indian band, which we have done already once and which we intend to do in a second round because now we have 50 bands, to ask Section 12(1)(b) to be repealed, we just hope that your organization will send an official support by resolution of the NIB saying that, yes, you do encourage tribes to treat women and men within the Indian nations or Indian group to have the same rights.
Mr. Riley: I believe you have a letter from me which you are free to use at any time you would like.
Mrs. Hervieux-Payette: Thank you so much. Just one final question. When it comes to Section 15 where it is specifying rights or discrimination, talking about discrimination, I would like to ask you how do we separate discrimination based on sex, and discrimination based on the origin, which means that if you pretend to have aboriginal rights, which rights should proceed, the one which you had by birth or the one that you have of course by nature?
Mr. Riley: Aboriginal rights, but I am going to refer this, it is a legalistic type question, I am going to refer it to Bill and as I mentioned earlier, our purpose in coming here is to try to give everyone as complete an understanding of the situation as possible so that I call on the experts, I am not an expert in all the areas, so I call on experts in each of the areas. Go ahead, Bill.
Mr. Badcock: Mr. Chairman, I am not sure I am going to answer your question correctly but I will try. One of the difficulties that we have had with Section 12(1)(b) is the fact, and I do not mean this to sound wrong, but it becomes a red herring al limes because Section 12(1)(b) cannot be separated from the rest of the membership sections very well.
If Section 12(1)(b) is changed, for example, it then has reflections on what happened to children, because indirectly they are affected by whatever happens to discrimination against their mothers. We also have problems in the whole membership sections of the Indian Act between racial determination of Indians and determination of Indians as members of a band. In other words, if a woman is born Indian, there is no one in the world who can tell her that she is not Indian in a racial context. Unfortunately, the government, through the Indian Act, has been able through the years to tell people they are not lndian for the purpose of registering Indians and for the purpose of status. As a consequence l do not think that NIB has ever had to take any kind of a stand whatsoever on whether women should be racially Indians or. not, there is
nothing NIB can do about it one way or the other, nor can the Government of Canada.
We do have problems with the registration part of the Indian Act and the status people have under the Indian Act, and the rights that flow from that status. That is entirely different than saying to a woman: well, now you are no longer an Indian because you married a non-Indian. She is still an Indian for all intents and purposes, she has to be, but she is no longer a status Indian.
However, that has been imposed on us, yet NIB now gets flack for not being able to take a stand on a problem that was not brought forward by NIB in the first place. This was brought forward by a non-Indian government back in the I800s and because of all the inequities that have happened up until now, NIB now is faced with trying to sort out a problem that is not of their making. We are faced with disparate bands across Canada, some say: yes, we should have Section 12( I )(b) out entirely; other bands say: no, we do not want it out. We are representative of those bands, our constituent members are the PTO’s, the provincial and territorial organizations and we take our mandate from them, so we can hardly take a stand on a question like that, that has not even been decided by the PTO’s and has not been decided by all the bands. How many bands have even tried to opt out under Section 4(2). I do not know that there has been very many of them, certainly there has not been a great stamped to the Minister’s office by bands to opt out of Section 12(1)(b) under Section 4(2). Some have and some have not.
It is rather unfair of people to ask Mr. Riley to take a stand or to say NIB says this about Section 12(1)(b). That cannot be done, not at this point, but when the bands themselves can get together and when they then can tell the provincial organizations what stand they want taken, and when the mandate is given to NIB, the NIB will stand foursquare behind them and I do not doubt that NIB will stand behind any band who wants to use the provisions of Section 4(2) to opt out of Section 12(1)(b).
However, that is not saying that we can stand behind each band at all times for everything they want to do. They have not determined, a lot of them, exactly how they want to handle that question of Section 12(1)(b) or how they want to handle the membership section. The simplest thing we can say, and our stand has always been, that membership should be determined by Indian people. Indians should determine who Indians are.
Mr. Saunders: Perhaps I can add just a little to this because you posed the dilemma of a classification based on origin.
One of the queries that has come up in relation to the Lavell case and Section 12(1)(b) is that: are we simply to shift from a system which is sexually discriminatory to one which is explicitly racially discriminatory and if so, how do we justify this when both are generally seen as discriminatory categories or, as you put it, in terms of origin, is that how it is defined.
There is an apparent dilemma to this which is really not in my experience adequately discussed when Section 12(1)(b) comes up. If the rights that are involved are perceived as political rights of a community entitled to self-government, then the logic of something that Mr. Riley said earlier, that a non-Indian perhaps could be a member of the community in political terms, the question then becomes a political community entitled to self-government, entitled to determine its own membership, its own citizenship over time, and this it appears is a correct framework in which to view these issues, and once it is seen in those terms then the notion that the decision making should be at the local level follows very logically because, of course, we do not have one lndian grouping in the country, but many.
Some were matrilineal and matrilocal in their traditional kinship system. In fact, some of the most famous matrilineal groupings in the world, in anthropological literature, are groups that live still within Canada and so the idea of variation of citizenship rules from group to group within the country is perfectly logical if we get beyond the perception that Indians are simply an undifferentiated grouping of Indians.
Mrs. Hervieux-Payette: I do not know if it is a difference of culture, but I am just trying to ask myself whether you answered yes or no, that Section 12(1)(b) is discriminatory or not, because as far as I am concerned it is discriminatory because, on the other hand, you could come and say: well, under our culture women are not allowed to vote at the band in some tribes because people have decided that.
So will there be a common stand, at least, on some basic individual rights that people living in this country called Canada, whether they are Indian or non-Indian, will share? That I think is the goal of the Charter of Rights, at least that we have some rights in common, and when it comes to the courts to have these rights recognized, when I ask you, and my final question is: yes, or no, is Section 12(1)(b) discriminatory? Because I have the feeling it is but you respond to me by saying that the membership should be determined by the Indians themselves, and I agree with you, this could be done, but I am asking you is this clause particularly discriminating against women only? Why should only women who marry white men be deprived of their Indian rights when men marrying a non-Indian and a white woman is not deprived, he keeps all his aboriginal rights, the rights that you are talking about? Why, just hecause she happens to be a woman, should she be deprived? Is this discriminatory or not?
Mr. Badcock: Well, yes, legally it is discriminatory, no one can argue against the fact that Section 12(1)(b) is a discriminatory clause, but if you want to know why you will have to go
and ask the people who framed the membership sections of the Indian Act to begin with and ask them why they decided that lndian women would Jose their rights and lndian men would not. I do not know the answer to that at all, I do not see a good reason for it.
People have tried to give me reasons before that I do not think are very good. They talked about the fragmentation of families and why we should make sure that one family is all status and another family is not all status. There are various answers given by parliamentarians but I do not know why they are there.
Mrs. Hervieux-Payette: What I want to be sure about is when we talk about entrenching aboriginal rights will it mean that we will recognize discrimination based on sex or not? Maybe my question will be clearer this way: if we have a paragraph talking about aboriginal rights, will it mean that we will actually recognize Section 12(1)(b) or will it be suspended, because there will be also Section 15(1)(2)(3), it is recognized that there should be no discrimination in the charter of rights based on sex so which one will precede, the aboriginal one or Section 15? Maybe your lawyer could answer that.
Mr. Badcock: I would suggest, then, if aboriginal rights are recognized under the constitution of Canada, those aboriginal rights will apply equally to all people to whom those aboriginal rights should apply. That is my opinion and that is the way I would like to see it done. I cannot tell you whether that will happen or not, but certainly I would like to see those rights applied equally to all peoples to whom those rights apply. The Supreme Court, itself, though, said that the Lave! case was not abhorrent to the Bill of Rights because she was equal before the law, she was equal as well as any other woman before the law. Well, to me that is fancy footwork. I do not think that is right either. I think that those aboriginal rights should apply to all aboriginal people, yes.
Mrs. Hervieux-Payette: Thank you.
The Joint Chairman (Mr. Joyal): Thank you very much, Madam Payette.
Mr. Manly, I understand that you have an additional question to conclude your previous discussion.
Mr. Manly: Yes. I would simply like to carry on with some of the concerns about Section 12(1)(b) and I would like to point out that Section 11 (1)(f) is also a section of the Indian Act that discriminates against women because here again a woman gets her status from her relationship to a man, because it says that anyone who is the wife or widow of a persan who is entitled to be registered as an Indian can also be registered.
I think we have to realize the complexity of the situation, that in order to resolve it, it cannot be done simply by an Order in Council outlawing Section 12(1)(b). I think that there has to be some kind of affirmative action that will make it possible for lndian bands to receive people back in so that there has to be financial entitlement, there has to be land entitlement, so that it is an attractive thing to bring these people back into membership.
However, I would like to ask the people from the NIB if they would, in their concern to have procedures established for determining your own membership, if you would be willing to consider a clause that these procedures would be determined in accordance with the Universal Declaration of Human Rights, so that as you did establish your procedures there would be equality for both men and for women in them?
Mr. Riley: First of all, I would like to make a comment on this whole line of questioning around discrimination.
I think what it does, it demonstrates the very great wrongness when one people legislate for another and the consequences that follow. If we had developed that legilsation you would not have the problem. And again, to get back to your question, our people have always been fair, we have always shared and we are a very traditional people. I would assume that once we undertake a question of this sort, that the answers will come as a result of our traditions, the way things have been done in the past and again with great regard to human rights.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Manly.
I see the time running out and I understand that we have over-spent the time that we wanted to share together on the most important views of aboriginal rights and our new constitution.
On behalf of the honourable Senator Hays, and on behalf of all the honourable members of this Committee I would like to thank you especially and I would like to say that anyone who has had an opportunity to learn lndian history will note that self-government has been a way of governing for Indians for many centuries. One has to remember that in 1623, for instance, the four tribes, your own groups, gave to Samuel de Champlain wampum in the context of that self-government process.
In 1698 la Confédération des Iroquois concluded peace with Governor Frontenac on the same grounds of self-government as in any other form of government that at that time was known in our history, and I think that that has to be stressed when one has to understand what an lndian means by self-government and I am most grateful that you came to us today and stressed that point because I think if we are to go on and make progress and register progress in that most important debate, 1 think it will be because we will take into account those aspects that have not been stressed enough in the past.
Thank you very much, President Riley.
Mr. Riley: I would like to add a few concluding comments.
I would first of all like to thank the Committee for inviting us here and to emphasize that we would be pleased to return to appear before the Committee at any time in the future, and again I would like to stress, as I said earlier, that I want to impress upon the Committee that I think it is .very important that you hear others of our nations within Canada at this Committee so that they can enlighten you as well, as we have.
The Joint Chairman (Mr. Joyal): I would like to now invite the honourable Senator Austin on the point of order.
Senator Austin: Well, Mr. Chairman, I understood that while I was out of the room on Committee business you made a remark of a substantive character affecting the arguments that I had been making with the witnesses and I found that surprising. I wondered what it was that you had said.
I would appreciate knowing, because, while I am prepared to be corrected on points of procedure, I do not believe that the Chair has authority on points of argument of a substantive kind.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Austin.
As you suggested, I have a transcript of the remark. I will read first the remark that I made and then as it refers to a statement made by the honourable James McGrath, then read the statement made by the honourable James McGrath and then add additional information on my part.
I said in answer to the honourable James McGrath:
Thank you very much, Mr. McGrath. I want to say to you especially that I concur fully with your opening remarks arid I think that your point was well taken by all the honourable members of this Committee.
So I feel that I should read the opening remarks as made by the honourable James McGrath. I will go back to the transcript of Mr. McGrath’s statement and I will read it as follows:
Mr. McGrath: Mr. Chairman, your not too subtle a reminder that this is a five-minute round will give you some idea of how important I feel about this matter, because I am going to take up part of my five minutes to address myself to something that Senator Austin has just said.
You know, we have developed the kind of spirit of civility in this Committee and we do not interrupt each other as a consequence.
That imposes upon each of us a discipline not to misrepresent the other.
Senator Austin has twice misrepresented badly the facts today.
First of all, he misrepresented what Premier Hatfield said in selected quotations from the record this morning, and this afternoon, twice, he has misrepresented the position of the Conservative party by saying we proposed some kind of perpetuation of the deadlock by imposing the principle of unanimity. Of course, nothing could be farther from the truth and that is a misrepresentation.
Our position is very clearly, Mr. Chairman, that we support patriation with the Vancouver amending formula. Senator Austin knows what that is, and he knows that all of the provinces agreed to the Vancouver amending formula whereby seven of the provinces, representing 50 per
cent of the population, may effect a change in the constitution with the Parliament of Canada.
He knows that is the position of this party. He knows that we support that position and further that we would hold that any other changes in the constitution should take place in our own legislatures and not in the legislature of a foreign land.
That is the position of our party; I am sorry that I have had to repeat it again. If Senator Austin persists in misrepresenting that fact, then I can only conclude that he would be trying to deliberately mislead either the Committee or the witnesses. I do not think that he would be guilty of that; but if he persists in it, then I must be very suspicious of his motivations.
And you then interrupt by saying:
Senator Austin: You will recognize that I do not wish to interrupt you now, but if I do get a turn again, I will try to reply to your comment.
So I was referring specifically to those opening remarks made by the honourable James McGrath. As a matter of fact, in the House of Commons on October 22 there was a motion put through by the Official Opposition in the House of Commons and I read that motion:
That this House supports the immediate patriation of the constitution of Canada incorporating only the generally agreed upon amending formula known as the Vancouver consensus so that all other constitutional changes shall be made in Canada by Canadians.
That is the official position of the Conservative Party as stated in the House of Commons, and I have to remind you that on page 3959 I voted myself on a stand, on that very position of the Conservative party, so it is known to the Chair, at least tome, that that is the true position of the Conservative party.
So if an honourable member of this Committee represents the position of another party sitting at this table not exactly in the way and in the context that that party advocates its position, then, of course, he does invite, naturally, the representative of that party to re-establish the fact and in so doing, of course, that does open a debate between those two members, and in front of a witness it creates a situation where our guest witnesses do not feel very comfortable and that is why I said to Mr. McGrath that I fully concurred that in a spirit of civility we try to refrain from alluding to the positions stated or proposed by other parties in a way that it would open a debate, and just in the way it would open a debate.
It will never happen in the Chair, and I think in that respect I have the concurrence of the honourable Senator Hays. It will never happen in the Chair that we would take a stand on the content of a position as stated by one party, but if a member misrepresents the content of that position and it is · known personally to one of the Chairmen, then I think that we have no other choice than to let the representative of the party
re-establish the fact, and of course in so doing it is an interruption of our proceeding and in front of a witness, it creates a situation where each one of us feel uncomfortable for our witnesses having to witness that and having nothing to say, merely waiting until the thing is over.
That is the only point I wanted to stress when I, in reply to the honourable James McGrath, I said I concur fully with what he said.
Senator Austin: Well, Mr. Chairman, I take it the effect of your remarks is to concur in the fact that I misrepresented, perhaps inadvertently, the position of the Conservative party, and I would say in response, first of all, that that is a substantive intervention on your part and not a procedural one and it is an error on your part; and secondly, I would say that it is for the Conservative party to correct me or to make their arguments, and not for you to do so; and thirdly, it is my conviction that the Conservative party, in terms of its policy towards such witnesses as the Indian community, is suggesting a Catch-22.
Mr. Mackasey made very clear the nature of the Vancouver formula, which I would have done had my time not run out, and as far as I am concerned the nature of the Vancouver formula substantively allows the provinces to opt out of any settlement with the native community or any settlement of the aboriginal issue.
I must protest to you in the strongest nature the supervisory type of comment that you made with respect to my arguments, I believe I have a foundation for my arguments, I believe that reasonable men can differ over interpretations, I am aware that Mr. Clark signed a document in Quebec which I am advised opposed unilateral patriation, which is a conflict with his statement in the House of Commons in June. I may be misunderstanding the question.
I had in addition the purpose of asking questions in a way, and you are a lawyer and I am a lawyer, as counsel would ask to discover what the response of the Conservative Party would be to the position and that is a matter of tactics that I am allowed to undertake at this particular Committee, and I am anxious to learn their position. I have no hostilities to it.
As far as the question of Mr. Hatfield is concerned, Mr. McGrath and I can differ, but I took his intervention to be a political defence in the way that mine was a political attack, and this is the nature of what it is we are doing here.
So I want to repeat again, Mr. Chairman, that if you wish to involve yourself substantively in the debate, then step into one of these chairs and do so.
The Joint Chairman (Mr. Joyal): The honourable James McGrath on the same point of order.
Mr. McGrath: Mr. Chairman, I would just briefly like to make a few points.
first of all, for Senator Austin to suggest that the Chair does not have the right to intervene in a substantive way on a point of order is just ignorant of parliamentary procedure.
Not only does the Chair have a right, but indeed in certain instances it has an obligation to intervene. In this particular case if I charged that there has been misrepresentation on a point of order, then the Chair has a right to make a judgment on that point.
But to suggest that this is showing some degree of partiality on the part of the Chair or some act of impropriety on the part of the Chair, to me is reprehensible; because one thing which has stood out in these proceedings, has been the fairness, the impartiality of both honourable gentlemen who preside over this Committee, and I am glad to have the opportunity to say that for the record; and I regret very much that one of the members of this Committee has seen fit to cast a reflection on the Chair, and I would hope that he would reconsider and perhaps be prepared to withdraw.
The Joint Chairman (Mr. Joyal): The honourable Jake Epp on the same point of order.
Mr. Epp: Mr. Chairman, first of all, I would like to associate myself with the remarks of my colleague, Mr. McGrath.
You are quite correct in stating the events of October 22, Mr. Chairman. I think all of us are entitled to political judgments; but the political judgement of October 22 was quite clear, and that was that we put forward a motion as a party whereby we called for patriation of the constitution with a Vancouver Formula.
Everyone, who has studied the Vancouver Formula, knows that it does not call for unanimity.
I have said so as well as spokesmen for federal-provincial relations of our party, and I know that our leader has stated it a number of times, that we believe, in view of the events of the past, that unanimity in a federation leads to deadlock, and that the deadlock has to be broken.
I do not believe, Mr. Chairman, that it is my right as a member of parliament, though I might be a partisan, to misrepresent positions taken either by the Liberal Party or the NDP.
I have the right to disagree, as they have the right to disagree with the views of my Party or my own personal views; but it is quite another matter to misrepresent.
What I want to say to you, Mr. Chairman, as a member of this Committee and of our Party is that I think, as an opposition party, we always, when we enter the workings of a Committee, obviously look at who will be the Chairman or Chairperson.
We have known by experience that we cannot influence that too much, if there is a majority situation.
But I want to say to you, Mr. Chairman, and not because of this moment, but without any hesitation that members on this side feel that, not only have you and your Joint Chairman have had difficult rotes to play, but you have, Mr. Chairman, handled the role not only with deftness, but what is so important for a Chairman, that you have handled it with what I may
describe as knowing the moment, knowing what to do at the moment and when to say at the moment.
I have appreciated that over these months, and with all due respect to Senator Austin, we can have our political differences, but I do not share his view that either of the Chair has been remiss or that the Chair should leave its present position and occupy one of the chairs of the other members of this Committee.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Epp. The honourable Bryce Mackasey.
Mr. Mackasey: Mr. Chairman, I think it is remarkable that after close to 50 sessions that we have met that this is the first time that we have any honest difference of opinion. I have sat on many committees and have chaired quite a few. I do not think that the Chairman needs any defence by Mr. Epp or members on this side of the House. It is not a party matter but an individual concern of Senator Austin.
I believe it is agreed that there is a difference between misrepresenting a viewpoint, opinion or position, deliberately or unintentionally. But under our parliamentary procedure, the word of an honourable gentleman is taken on that sort of thing. I pay great regard to that aspect, particularly the House of Commons; if you cannot accept the word of an honourable gentleman then the whole parliamentary procedure falls apart.
I think Mr. McGrath had a very valid point of order if he presumed that Senator Austin was misrepresenting his position deliberately, in which case the solution would have been very simple for him to have made the point. The honourable thing then for Senator Austin to have done, would have been to make it very clear that if he were wrong it certainly was not deliberate but was a sincere belief on his part. That would have been an easy way to handle it, rather than for the Chair to state what he knew; but I think we can blow this out of proportion, and I just have to weigh it in the light of the fact that after 50 meetings this has been a remarkably nonpartisan, in the sense of petty politics, Committee.
I would not like to see that element introduced on our side nor on the other side. I have watched with a degree of fascination the tolerance which has applied here. As an old parliamentarian I am sometimes astonished at the degree to which witnesses are led. I listened to the young lady today who was being asked the most intricate questions calling for a judgment on procedure which I would not dare ask Bora Laskin; and the young lady was answering, “yes, you are absolutely right.” I do not know if we were leading her down the garden path. Probably at another Committee we would demand that the Chairman prevent that. I hope we do not reach that point.
Perhaps we have to sit back and take stock as we are doing now, because I would like to see this present atmosphere continue, because it is the right one.
I feel, therefore, the proper procedure may have been for Jim to make the valid point which he is entitled to make, and that is that he resented the inference that perhaps Senator Austin was deliberately misrepresenting his position.
I would have done exactly what he did. The proper solution may have been for Senator Austin when he had an opportunity to state categorically in what context he was speaking.
What confused the issue is that when you made the statement, Senator Austin was out of the room, and perhaps inadvertentley; and that is why he felt it was important to hit the blues. I am sure Senator Austin would not want to cast oil on troubled waters.
Senator Austin: Indeed, I thought I would have an opportunity to respond to Mr. McGrath, and I did say after he had made his comments that I would not interrupt his examination, but would respond later.
Of course I have no intention of deliberately misleading your position, but I think there was a lot of evidence for doubt as to what the position was.
Senator Tremblay’s evidence and his position has been very clear and is in writing and I could produce it if you like. He is supposedly a constitutional advisor to the Conservative caucus. I would like to settle the matter simply with the statement that I consider the book now closed, but I did not find myself happy with respect to what I thought was taking place.
Mr. McGrath: On a point of order, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Senator McGrath.
Mr. McGrath: I regret very much that Senator Austin has not seen fit to withdraw the reflection he made on the impartiality of the Chair. That is the important point, and I do not think it should be allowed to stand quite frankly.
The Joint Chairman (Mr. Joyal): The honourable Duff Roblin on the same point of order.
Senator Roblin: It is very difficult for me to know whether l can add anything constructive to this very interesting discussion, except to observe that coming from the place I do, the virtue of a sober second thought commends itself, at least to me, and perhaps ought to commend itself to Senator Austin.
I think it is difficult to agree with Mr. Mackasey’s observation about deliberate misrepresentation. He could not get my name right the other day, but he was able to object to the way in which I spoke to witnesses; although I think that when it comes to leading the witnesses he could take second place to no one. He is an excellent model.
But the point at issue is when a statement is made, one has to presume it is deliberate. After all, it was made. It means that the person against whom it is directed must be expected to respond in some way or other.
Now the question arises as to whether it is appropriate for the Chair to remind us that we will get along better if we were to restrain ourselves from comments of the kind which are likely to lead to contentions disputations when witnesses are here.
We are going to have plenty of opportunity when we come to clause-by-clause section of this brief to engage in politics, plenty of opportunity.
I think the Chairman is giving sound advice. I think Senator Hays would have clone the same thing if he had been in the
Chair at the time, in advising us to keep our political prejudices under some reasonable control.
Now, I agree with Senator Austin that this is really no big thing, and perhaps we would be well advised to let the matter drop at the present time.
But I simply want to say that I do not think it is fair to criticize the Chairman as has been so hearshly clone. I think he does not deserve it.
One of his responsibilities is to take care of minorities, and he has clone that very well for us and for anyone who has come here. I want to express a word of appreciation. I suspect that Senator Austin did not wish it to be such a harsh criticism as it appeard to us who have listened to it.
I can well understand that he is disburbed. That is a natural response; but it seems to me that we would be well advised to support our Chairman in this particular issue and to proceed to have our dinners.
The Joint Chairman (Mr. Joyal): The honourable Senator Austin.
Senator Austin: Mr. Chairman, let me make my position very, very clear. I have in no way impugned or intended to impugn the Chair. I have not questioned the impartiality of the Chair. In fact, I have every confidence in the Chair.
I would also like to add my words of commendation as to the way in which the Chair has behaved throughout the sittings in this Committee.
Mr. Chairman, my intervention related, I suppose, to what you might call counsel’s annoyance with an interference in a line of examination in order to learn something, which is why we are here.
Nothing I did—and I repeat I would like to make it clear—was intended deliberately to misrepresent anybody’s position at any time.
The Joint Chairman (Mr. Joyal): To conclude, if honourable members will allow me, I would repeat that I certainly never had any intention to impute that you have deliberately misled or misrepresented the facts.
I think that when one member of the Committee wants to refer to the position of another party sitting at this table, or another member, sitting at this table and who is participating in the debate, he should do so in a way which would as much as possible reflect exactly the statement that was made by that member or party so that we do not open the door for partisan debate, when we have witnesses before us.
That is the idea I had in mind, I think it is clearly understood by all members of this Committee.
The meeting is adjourned until 8.00 o’clock tonight when we will be hearing representatives from the Nuu-Chah-Nulth Tribal Council from British Columbia.
The meeting is adjourned.
The Joint Chairman (Senator Hays): I wonder if I might have your attention.
We are honoured to have this evening the Nuu-Chah-Nulth Tribal Council-I hope I pronounce that correctly-and they are represented by Mr. George Watts, the Chairman, Mr. Jack Woodward and Mr. Rosenberg, Legal Counsel.
The procedure is that you make a statement and then members of the Committee should like to then question you.
I understand that Mr. Woodward is going to make the opening statement?
Mr. Jack Woodward (Legal Counsel, Nuu-Chah-Nulth Tribal Council): Thank you very much, sir.
Honourable Joint Chairman and honourable members of the Committee, I also have difficulty, even as Legal Counsel for the Tribal Council, pronouncing the name but Mr. Watts seated to my right is the Chairman of the Tribal Council and he will be making the introductory statement on our behalf. I will be following up, with the advice of Mr. Rosenbert to my left, with a statement of the law, as we perceive it. So, we will commence now with our brief.
The Joint Chairman (Senator Hays): Mr. Watts.
Mr. George Watts (Chairman, Nuu-Chah-Nulth Tribal Council): Thank you, Mr. Chairman.
I think that it is important and significant that this Committee and the Parliament of this country listen to what we have to say. I guess that for the very reason that you have started out with here and that you cannot say our name and the only people that can say our name are our own people, the NuuChah- Nulth people, I think that it is important that we exist as a people and that our language continues on in this country because it is not by accident that we are here.
I would first of all like to talk about who we are. The Nuu-Chah-Nulth people are the people of the West Coast of Vancouver Island. Today, we have 15 bands and we have some 4,200 people that belong to our Tribal Council.
Our people are here today to present something to this Committee because we feel that the issue that you are dealing with, the Constitution of this country, deals with our very existence as Indian people. We feel that, in view of the history of the government-Indian relations in this country, we had to be here, we had to come here to state how we feel and where we see ourselves in this Constitution.
I do not think that we want to get into a discussion of history; that is well documented in this country, but we do want to tell you what it does mean to us as lndian people, the Constitution.
You know that this government has been involved for over 100 years now in trying to determine what is best for lndian people through their lndian Affairs program, through the Indian Acts, through various other acts of Parliament in different relations through different departments of this government.
What I have to say to this Committee is that no act of Parliament, no lndian Act, no Indian Affairs departments will ever help us or determine us to be Indian people.
Our existence as Indian people depends on us and only us.
What we are saying to you is that our place in the Constitution can only set the stage for us to existas Indian people. We do not want any kind of programs, cultural peograms to guarantee that we exist as lndian people. My people still have our way of life. We still have our own laws. We still have our own culture. We have our own language. We have our own societies.
The time has come for the government of this country to now recognize that and to quit attempting to try to change us, to make us better Canadians. We are prepared to be Canadians. We want to be Canadians but we can only be Canadians and good Canadians if we are allowed to be Indians and the only way that we can be allowed to be Indians is if you allow us to have our land and our sea and our resources because that is where our history as lndian people lies.
It would be like taking people from the plains and placing them out in the ocean and asking them to exist as people. Well, the same goes for us. We are people who grew up, we are people whose traditions lie with the sea resources and the land adjacent to-the sea and we are now asking for the government of this country, for the Parliament of this country to recognize where our rights are, where our history lies and how we can exist as Indian people and, therefore, as good Canadian people.
I was brought up by my father to know what the Parliament of this country did to our people, and I think that it was for a very good reason that he taught me about what you did with our Potlatch because the Potlatch is at the core of our society. It is everything that we stand for and everything we are, and your Parliament tried to do away with that by law. Well, it did not do away with it because you just cannot do away with us. You could either shoot us if you want to but you just cannot do away with us by passing legislation.
I would hope now that we are going to have a better track record this time around; that a Committee of Parliament and, therefore, recommendations to Parliament and what Parliament passes, I would hope that they are going to deal with the Indian people on a better level than they have in the past.
I think that the government of this country, and I want to say very clearly that I do not think that this is an issue which belongs to the Liberals or belongs to the Conservatives or belongs to the NDP or should be reacting to what polls are across this country, what we are talking about here is the future of people and their very existence and that has no political boundaries to it. You are talking about the genocide of a people or whether or not they exist as people. That is what you are talking about.
I think that the Parliament of this country has that opportunity to set a new stage for lndian people and you can only do that by dealing with what is right for lndian people and what is honest with Indian people, and that is all we are asking.
We are not asking you to come up with any great solutions to the problems that exist for Indian people. A.li we are asking from you is to give us that opportunity to continue to exist as Indian people and to recognize that we are a people and that
we can be a good part of this country if you will allow us to be. But if you do not recognize us as people who exist and if you do not recognize us as people who should continue to exist, then, what you are asking for is another 100 years of bitterness between lndian people and non-Indian people, and I know that that is not what the majority of Canadians want.
Mr. Chairman, I would just like to say, before I give my closing remarks, that we cannot do as the Prime Minister has suggested to us, through a letter to the President of the National Indian Brotherhood, trust that our rights are going to be looked after after the constitution is brought home because he is asking us to put our rights and our future on the table with provincial governments, that there would be agreement amongst the provincial governments.
We are not that dumb, Mr. Chairman. We know the history of our people with the provincial governments. We know what has happened to the lndian people in B.C. and how they have been dealt with by provincial governments and there is no reason, absolutely no reason why we should now start to trust them. The present Premier of that province has been arguing about the offshore rights. I have yet to hear mentioned the Indian people in his speeches. In fact, I have yet to hear him mentioning Indian people, period, in any of his speeches about anything, the Indian people of British Columbia. That is because he does not recognize us as a people. All he cares about is our resources. And those are the people that you want us to trust our future to? Well, we do not buy it. We do not buy it. Canada has got the responsibility for the native people in this country and until we settle that, we do not want to be dealing with any other parties. They cannot be used as the cop-out. You know, I can just see it five years from now when they want to amend the Constitution and this government here in Ottawa says, well, we cannot do it because the provinces do not agree with us. Well, we do not buy that because it is the Parliament of this country that brings this constitution home that is totally and solely responsible for the future of Indian people in this country, and you cannot blame it on anybody else five years from now. It is your responsibility, and how we exist as people and how we relate to each other as people lies in your hands.
Thank you, Mr. Chairman.
The Joint Chairman (Senator Hays): Thank you, Mr. Watts.
Mr. Woodward: Thank you, Mr. Chairman.
We have come here to draw your attention to the specific inadequacies of the constitutional proposal as it affect native people and to propose some solutions.
We are somewhat heartened in this effort to find that the groups which have appeared before us have studied the pro-
posed constitution and have independently reached the same conclusions as we have about the problems in this document.
It was impossible for all of the groups to meet and to coordinate a common position because of the shortness of time and the difficulties of geography but the remarkable consistency of the briefs and the presentations before this Committee should emphasize to you that this is a real problem and that a grave injustice may very seriously occur if this constitution was to be adopted unchanged.
At the heart of the natives’ submissions is the idea that native rights are already a part of the constitution of Canada and that this status quo will be upset by the introduction of a new document which makes no explicit entrenchment of those rights. That is the point, the fundamental point we wish to make.
Consider Section 52 of the proposed constitution. For the first time in Canadian constitutional history, the constitution will be defined, a nice tidy definition referring us to a schedule which sets out what is and, therefore, by implication, what is not in the Constitution. This section is of course necessary to the scheme of the Act because you have to know what documents are subject to the amending process and which are not. If a law applicable within Canada is not subject to this constitutional amending process, then it is simply a matter within the legislative powers of either Parliament or a legislature acting alone.
The point of drawing up this list is to set out clearly what is beyond the whim of a single government of the day, whether federal or provincial.
Now, in the marginal notes to section 52 which I must remind the honourable members is not a part of the legislation, we find the words:
The Subsection does not exclude other acts and orders from also being a part of the constitution.
In our submission, this is simply wishful thinking on the part of a confused constitution writer. The subsection most certainly has the effect of excluding documents not on the list from the crucial requirement that they be put through the amending process in order to amend or repeal them. That is the heart of this constitution. You make it very hard, although still theoritically possible, to get rid of some fundamental laws. That is what the charter of rights and freedoms is all about.
Among those fundamental laws which must be entrenched and which must be placed beyond the powers of any single government acting alone are the fundamental laws which set out the rights of native people.
What are those laws? Firstly, there is the doctrine of aboriginal title; secondly, there is the guarantees, the set of guarantees provided by the Royal Proclamation of 1763.
With respect to the doctrine of aboriginal title and the Royal Proclamation of 1763, we submit that they are at the present time part of the constitution of Canada. The former is a common law principle of binding constitutional effect. The
latter is a constitutional document which predates Confederation but which persists as part of the Canadian constitutional law. These two fundamental laws are explicitly intended to protect Native people from the abuse and displacement they could expect with the invasion of the Europeans. It is the protection of a minority, exactly the kind of purpose for which we have designed constitutional entrenchment, the concept of constitutional entrenchment.
I want to say a word about the Royal Proclamation and its historical significance which will perhaps make clear the reason we reached the conclusion that you; your Committee, the Parliament of Canada is bound to include it and its principle in the definition of the constitution, section 52.
The Proclamation—and I recommend that you all obtain a copy and read it—it can be found in the Constitutional Appendix to the Revised Statutes of Canada, in your office. It was issued as a result of the Treaty of Paris of 1763, al the conclusion of the Seven Years War.
In the United States, that same Seven Years War called the French and lndian War, the British had two allied enemies on this continent during that war, the French and the Indians, and when it came time to make peace in the vast new territories acquired by the British, the British Government—and I say the British Government, not just the King because this Proclamation was issued by advice and consent—it required a royal guarantee for both the former enemies if they were to avoid interminable guerilla warfare in the territories.
To the French was granted the self-governing colony of Quebec; to the Indians, an explicit recognition of and guarantee of their aboriginal title, explicit protection of minority interest, as the foundation of a new peace in the expanding British Dominion. That is what the Royal Proclamation of 1763 was all about.
The process which began in 1763 has evolved dramatically for Quebec. All of the fundamentals of a self-governing minority are preserved in each successive constitutional document: in the Quebec Act of 1774, in the BNA Act of 1867.
For the Indians, there have been a series of treaties, according to the terms of the Proclamation whereby aboriginal title is purchased from the Indians. For those Indians who have not signed treaties, the Proclamation most surely applies as their continuing royal guarantee.
In any case, we wish to make clear and we support the principle enunciated this afternoon by the National lndian Brotherhood that the doctrine of aboriginal title existed as a constitutional principle of the common law prior to 1763. The Proclamation merely reiterates the principle and provides some machinery for giving it effect.
Now, when we, in our modest way, analyze the proposed constitution to determine if these fundamental laws were
recognized and entrenched, and, of course, we found that they were not, it occurred to us that there might be some other fundamental constitutional provisions in the same category, namely, doctrines of the common law or constitutional documents which do not necessarily apply just to Native people but which apply to Canadians as a whole and if one doctrine or document could have been overlooked, perhaps others could also have been overlooked.
We perhaps face the grave danger that some of the very underpinnings of our constitution could be impliedly repealed by the passage of this constitution act. We bring this matter to the attention of your Committee because the Nuu-Chah-Nulth people are Canadians just as they are Native Canadians.
Can the Committee assure itself that all of those laws which are part of the constitutional law of Canada by virtue of our inheritance from Britain will be preserved? Is there not a danger, as we point out in our brief, that the effect of Section 52 will be to repeal the old, the unusual perhaps, the unwritten, but to repeal part of the constitutional law of Canada?
We have illustrated this point with an example from Magna Carta. We asked, what would become of the constitutional right to a speedy civil trial as guaranteed in Magna Carta.
Here is yet another example. The Great Charter of King John guarantees that no fine shall be so large as to deprive a person of his livelihood. That is a provision of Magna Carta. It is reiterated in the Bill of Rights, the Bill of Rights of 1687. That provision does not appear in the charter of rights and freedoms. It has been left out.
Is it, therefore, about to be lost to Canadian constitutional law?
Ladies and gentlemen, the procedure that has been adopted by this government for the consideration of the new constitution of Canada has been so rushed and so sudden that this type of question has hardly been explored.
Enough then of the constitution and the definition of the constitution. We return, as all the other native groups have, to Section 24.
Section 24 is intended as a saving clause. A citizen with an undeclared right is supposed to be able to stand up in court and point to Section 24 and say, see, here it is, I am allowed constitutional protection for my rights even though they were not mentioned in the Charter and any judge who hears that plea will have to determine if in fact Section 24 accomplishes what the hopeful litigant says it does.
Unfortunately, we are of the opinion that Section 24 says absolutely nothing, whether one is a Native person or not. If a right or freedom is not included in the Charter, then it is excluded from the requirement that any abridgment or amendment of that right through the constitutional amendment process. It is, therefore, a matter wholly within a provincial or the federal sphere of jurisdiction. These undeclared rights and
freedoms are quite simply unprotected rights and freedoms. They depend on the sufferance of the government of the day.
There is nothing new to this proposition. As a trite example, did anyone suppose that their right to drive a car being an undeclared right or freedom would somehow gain constitutional stature through this section? The simple fact is that from now on a right or freedom is either constitutionally protected or it is not. Section 24 does not add to the list of constitutionally protected rights in the slightest. Nobody for one moment suggested that enactment of the charter would cancel out all of our driver’s licences. That was not a danger. Section 24, in our submission, is meaningless.
It has been discussed over the last couple of days that Clause 26 of the old Bill C-60 might be an appropriate improvement on the existing Section 24. The specific mention of the Royal Proclamation and rights acquired under it is certainly more detailed than the original situation of a vague reference to unspecified rights and freedoms.
But let us go back to first principles to understand the meaning of this proposed section. The mere fact that Section 26 provides that the rights are not to be abridged in no way entrenches them in the charter. Those rights, even though recognized by Section 26, remain unprotected rights. It is not acceptable to the Nuu-Chah-Nulth Tribal Council, it is not acceptable, I submit, to most of the native people of this country that Section 26 be used as a substitute for Section 24 because it has the same defect; it fails to entrench the rights acknowledged by the Royal Proclamation of 1763 as constitutionally protected rights.
Moreover, Section 24, as it now stands, with the inclusion of a reference to “the native peoples of Canada” may pose a very real danger for native people for three reasons.
In the first place, we had the problem hinted at a moment ago. Since this is to be the only place when native people are mentioned in the Charter, a judge might conclude that it is only with respect to the kind of rights contemplated by Section 24 that native people can have a special right. As I have just pointed out, Section 24 deals with rights which are not entrenched and only with such rights.
The obvious conclusion for the judge to reach is that no native rights are entrenched rights. It is, of course, utterly unacceptable to native people that that might be a potential conclusion of future litigations.
The second danger is that the paramouncy of the entrenched provisions of the charter would have the effects of whittling away at native rights when they appear to conflict with an entrenched right. For example, Section 31 in part II of the constitutional proposal would commit the government to promoting equal opportunity, but in many cases native people require and demand special opportunities. We ask whether the failure to mention native people in Section 31 will or might be interpreted in the future to mean that such mention was
considered and rejected, in the light of Section 24, and that special opportunities for native people were thereby prohibited.
Finally, we have said that rights and freedoms, the phrase “rights and freedoms” does not adequately describe the scope of interests which comprise the special status of native people in Canada. Native people are primarily concerned in this context with collective rights over and above these individual rights. In particular, the Nuu-Chah-Nulth are concerned with preservation of their long-standing claim of aboriginal title.
We doubt if the phrase “rights and freedoms”, when read in conjunction with all the preceding sections of the Charter is adequate to encompass such a complex idea as a land claim based on aboriginal title.
In preparing our submission, we have appreciated hearing and reading brief of preceding groups.
Our understanding of this complicated area of law is still evolving, and we are happy to be able to adopt some of the principle points which have been put before you earlier in these proceedings.
In particular, we find ourselves in precisely the same legal and constitutional position as the Nishga Tribal Council which appeared before you last night.
We particularly agree with their submission that the vagaries of judicial interpretation with respect to the meaning of the doctrine of aboriginal title and the Royal Proclamation of 1763 must be buttressed by specific mention in the Charter.
We propose the following wording as an additional amendment, not included in our submission, to be included in the Charter.
I will now refer or read two sentences which ought to be included as specific additional clauses to the Charter. They are not in our brief, and they are additional as a result of the submissions we heard last night from the Nishga Tribal Council.
They are: (a) the aboriginal title of all of the native peoples of Canada, except where extinguished, is preserved; (b) any rights acknowledged by the Royal Proclamation of 1763 shall be guaranteed pursuant to this Charter.
These two statements reflect the present state of constitutional law in this country.
To enact them is merely to preserve as constitutionally binding the present law. To fail to enact them while simultaneously entrencing all sorts of other provisions, would be a gross violation of the centuries-old trust. The fundamental pact between Europeans and Indians, which dates to 1763 and which was intended to secure peace, would be thereby broken.
That is the end of our submission.
Thank you very much.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Woodward.
I would like now to call on Mr. Dantzer, followed by Mr. Fulton.
Mr. Dantzer: Thank you very much, Mr. Chairman.
I am very happy on behalf of this Committee to welcome this delegation, and I would like to congratulate you on your very good brief. I would like to reiterate what Mr. Epp said earlier, namely that it is a very good thing that you took the opportunity to appear before this Committee, because, as you know, it gives you at least Canada wide television.
One of the problems, that many, many Canadians do not really appreciate the problems with which you are faced. In particular, the National Indian Brotherhood have indicated that over the years you have been attempting to make your voice heard in Canada. Many, many times you have been to court and made representations and been all over the world. But in spite of that, I dare say as one would say that a large number of Canadians do not really understand or appreciate the position you put forward. For thet reason atone I think it is a very good idea, and, again, I congratulate you for appearing before the Committee; because, as you well know, the wider the dissemination of your position, the more likely you are to achieve your goal.
There is something which has been running through all the briefs from the various Indian or native people and which I woulds like to underline. It is that in all your briefs you indicate a sense of urgency and of importance, almost a sense of impending disaster and doom if this constitutional package is allowed to go through without the kind of amendments you seek.
Your position seems to be much stronger than that of certain minorities who indicate that they would like to see it changed because if it is not discrimination would continue against them.
But as Mr. Watts said, you appear to being saying that you believe that you are fighting for your very existence; that your rights and culture as Indians would disappear if this Committee does not recognize and put into this Charter some of the claims you are seeking.
I can understand that, because most minorities in this country, be they Italians, German or what have you, can go outside the country and seek to renew the source of their culture and way of living.
But you, of course, cannot do that. This is your home; this is where your way of living began, and where your culture is and where it will remain. That is why you have tried to give us that sense of crisis which you face by this constitution.
One question I would like to have you answer for me, first of all, is this, that the National Indian Brotherhood seem to emphasis the question of aboriginal rights.
I have got the impression, perhaps wrongly, but that if there is one thing they wanted in the constitution, that was the bottom line for them, and that was a clear statement in the constitution that their aboriginal rights would be recognized. On the other hand, it would appear that you seem to be saying that the most important thing for you is to have recognized the Royal Proclamation of 1763.
Now, if you had to choose between those two insertions, which would you think would more fully satisfy your requirements and request?
Mr. Watts: In response to the question, the reason we do not see the aboriginal title statement in the constitution as being as important, is that as far as we are concerned our aboriginal title still exists, that that aboriginal title is recognized by the Proclamation of 1763.
You must recognize that the National Indian Brotherhood has to represent all the native people in Canada. That creates a problem sometimes because we have treaty and nontreaty Indians. That is the importance of this Committee hearing a group who are involved in a different situation.
The situation we are in in the west coast of Vancouver Island is that our aboriginal title has never been extinguished. Therefore, we say that if you include the Proclamation of 1763, then at least we have a place to come to.
Mr. Dantzer: So that, you are saying that as the bottom line would be sufficient for you, if the Proclamation of 1763 were included in the constitution?
Mr. Woodward: No, it would not be a fair categorization that the mere inclusion of the Proclamation would be sufficient.
Some honourable members have suggested that it be included in the proposed manner of the wording of the old Clause 26 of Bill C-60.
It is not sufficient merely to say that the rights arising there are not to be abridged. We are insisting that those rights be entrenched. The reason why we are insisting on that, is that those rights are now part of the constitution of Canada, and, therefore, could not be overruled either by a province or by the federal government acting alone, and we expect that situation ought. to continue in the future.
So, yes, if by inclusion of the Royal Proclamation you man the entrenchment of the Royal Proclamation, that is exactly our position.
But the mere inclusion of the proposed wording of Section 26 to replace Section 24 would not be sufficient.
Mr. Dantzer: Thank you very much.
The Joint Chairman (Senator Hays): Thank you.
Mr. Manly: Thank you very much, Mr. Chairman.
I would like to ask Mr. Watts some questions. I think all Canadian are concerned about our past record of relationships with you and your people. At the same time, it is very important for Canadians and members of Parliament to understand how you feel about some of these things.
We often look on Indians as a disadvantaged group.
I would like to ask you that question. Do you look upon yourselves and upon your people as members of a disadvantage group?
Mr. Watts: I guess we look upon ourselves as a disadvantaged group in the sense that we are living with many things which are not ours. If you look back in our history, you will see that at one time we were a people who used to work seven months of the year and spend five months of the year feasting.
Now, many of our people spend 52 weeks of the year living on welfare, and the others who are fortunate enough to be employed spend 50 weeks of the year working and two weeks feasting.
Now, if you ask me if we feel disadvantaged, well, the answer is: yes we do, because you have replaced our world with a Iess satisfactory one.
We are saying to the government of this counry that you can draw up all the solutions you want to our problems, that are not going to work, because the basic solution to the problems we have is to return to being lndian people, but within the 20th Century and living alongside Canadian people. But there are some basic things in our lives which we are going to have to return to. What we want is the opportunity to return to those things through the entrenchment of our rights to both the sea and the land resources.
Mr. Woodward: And if I may supplement the answer to that question, I would like to say that the phrase “disadvantaged group” conjures up the wording of Section 15 of the Charter.
We would have to support the earlier submissions of other groups, particularly the Inuit, who indicated that the wording of Section 15 has to be expanded to provide that the operation of the Charter does not preclude a law which has as its object, the fulfillment of the guarantees of the rights of native people.
So it is not merely because native people are a disadvantaged group that those rights are preserved as a special exception to the normal right of equality, but because they are native people and have certain inherent rights, that these rights are preserved; so that they do not have to prove they are disadvantaged to have those rights protected.
Mr. Manly: Perhaps I can push Mr. Watts a little bit on this. You see certain aspects by which your people are disadvantaged today; but you also talk about returning to some values.
So you see some things which are important in lndian. Would you care to expand on that very briefly?
Mr. Watts: Well one of the clearest examples is—and I can only refer to it in my own language: it is what we call “Houpyuk”. Houpyuk dealt with people in our villages, in that it brought up people to accept their responsibilities and to know their place in the community.
Now looking at our communities today, and you see some of the problems we are having, the reason why we have problems
is that we do not have Houpyuk, and it has been replaced by the public educational system.
In my opinion, and that of many of our people, is that we · are not asking you to start a DIA program so that we could have this Houpyuk, but we want you to leave us alone so that it could still be a part of our lives.
Mr. Manly: But you want us to leave you alone by recognizing your basic rights.
Mr. Watts: Our existence as people is based on our rights, our living on the West coast of Vancouver Island: some of our traditional pursuits are tied in.
That is the problem we have faced and have witnessed, non-lndian people coming into our area and imposing solutions upon us and forgetting to look at what was there to begin with, and they have destroyed it and replaced it with something which is of no value to us and which has, in fact, brought destruction to us.
Mr. Manly: This recognition of your rights, this entrenchment of aboriginal rights, I think poses a certain problem for the federal government because it has been my impression that the federal government fears that entrenching aboriginal rights will interfere with the federal governments relationship with the provinces.
How do you think the federal government could get around this problem?
Mr. Watts: The problem that the federal government has with entrenching our rights not only has to do with their relationships with the provinces, but with the resources which we are talking about.
It goes far beyond the relationship with the provincial government. But the provincial governments and the federal governments have been discussing for years about where we sit as members of this society.
You have to remember that in B.C. they were arguing about the railway track and trains. That is where the lndian people started off in the discussion. We were being horse traded for a track to go out to British Columbia.
If you look at the history of British Columbia today that is where you will get the answer to your question about our bringing about difficulties between the provinces and the federal government.
Mr. Manly: Did you want to say something, Mr. Woodward?
Mr. Woodward: Yes. I appreciate the opportunity to respond to that question with respect to whether the entrenchment of native rights in the manner we have suggested would in some way infringe upon the provincial sphere.
If we are correct in our position that it is already part of the constitution of Canada, these particular native rights, then of course they do not interfere with any provincial rights. They are already bound by those doctrines. Aboriginal title is already a feather on the title of the Crown, whether it is the
Crown provincially, or the Crown federally. Whoever seeks to extinguish that aboriginal title must compensate the native people who hold the title.
Now there is nothing new about that. There is no new limitation on the provincial powers, nothing certainly as dramatic as the new limitation of the Charter itself.
Therefore, I think this Committee would be safe in recommending that entrenchment of native rights does not significantly alter the constitutional law of Canada, but merely continues it, and that there is no especially new infringing upon provincial spheres.
Mr. Manly: When we talk about aboriginal rights, and you look at a map of your people on the west coast of Vancouver Island, it is somewhat easier to talk about aboriginal rights in remote areas; but this map also intrudes into areas which are built up, and a lot of people have concerns about what aboriginal rights mean in relation to a developed area. Would like to say something about that?
Mr. Watts: The clearest statement is that we do not want those lands back. You can have them.
We are not talking about any of the developed areas. We are talking about places which are unsettled. We have no master plan for removing the 23 million Canadian people out of this country.
The Joint Chairman (Senator Hays): Thank you very much. Mr. Manly.
Senator Williams: Mr. Chairman, I would like to ask many questions but I am going to ask only a few. I am going to direct my question to Mr. Watts.
Your part of the country, or your part of British Columbia, was really the beginning or the first contact point with Europeans as far as our west coast is concerned.
Your part of the country, as sea coast dwellers, enjoyed resources. Right on your beach part of the great Pacific Ocean was teaming with mammals and other food stuff, fish, shellfish and many other forms of food that you gathered or fished for before the white man came. I think and I believe, and what 1 would like to have answered is, what effect upon your people who fish that many months a year, and there is no other primitive nation or primitive people who performed as your people did, I have yet to find a tribe or a nation who went out in the ocean and speared whales up to 90 feet in length in a fragile canoe; now that the whales are gone and you get an entrenchment of rights in the patriation of the BNA Act, you also enjoyed along with the hunting of these huge mammals the hunting in your canoes by spear to the large herd of seals seasonally. Those two forms of sea life that I have mentioned are no longer, your people no longer hunt seals, never mind hunting whales which are just about extinct on our part of the West coast, what compensation do you think, or replacement or substitute, whatever, would be suitable to compensate your
people on these two privileges that your people enjoyed in the past?
Mr. Watts: Thank you, Sentor Williams.
I guess that is the concern, the exact concern that our people have in tracing our history in contact with the non-Indian people. Our contacts started because of the first sealing industry off the West coast of Vancouver Island and they are virtually eliminated, and they started hunting the whales off the west coast of Vancouver Island and they are virtually eliminated now. Now the Japanese have acquired a taste for herring row and now we see our herring going, and we see that the world has a need for forest products and now we see our forests being cut down, and through that process we are losing salmon spawning grounds. I guess when we talk about the settlement of our aboriginal rights, what we are talking about is getting a fair share of what is left so we can protect it because we have little reason to believe that it is going to be protected for us.
The other thing I guess we are really concerned about and have a very strong point of view on is that we feel we should be part of the management of that resource so that we do not experience any more of these types of things. I just hope they do not discover oil off the West coast of Vancouver Island in any quantity that they would want to start doing that, because that would spell the end of us.
We see the entrenchment of what is left—our people are very involved now in the fishing industry and we have seen the stocks of salmon decline steadily on the west coast of Vancouver Island and we feel that we have to become part of the management of that and also have to have a certain percentage of the share of the fisheries resource off the West Coast of Vancouver Island.
Senator Williams: Further to that second part of the question, the matter of sealing, your people no longer go to sealing, and is my observation right or am I wrong, that the sealing regulations in this day may be totally unfair to your people, that you can only go sealing in a dugout canoe,, of which you have not many left, and by spear, and the herd at times we understand is upwards of 2 million, do you think there would be more sealing participation by your people if the laws were made to suit your ability or your type of vessels to harvest a very small percentage of the two million hens?
Mr. Watts: The answer to one of your questions, Senator Williams, is yes, we would pursue the seal more often if the rules of the game were changed.
We have a very hard time sometimes understanding that. lt seems that the government always wants to impose an updated and modern version of regulations except when it comes to our rights, they do not want to modernize our rights; and it is exactly as you say that our right to hunt the seal is still limited to pursuing them in a dugout canoe and hunting them with a spear, and it certainly is unfair to our people.
Senator Williams: I understand that the natives in the Northern part of Japan, the Ainous, have similar laws in the matter of harvesting or hunting of seals, and that may be beside the point.
Now, leaving that part of my question, as being the first contact point of the European nations to your part of the country, I have read some articles concerning your people saving Captain Cook and his crew. My understanding is that your people towed his ship ashore to a safe anchorage. History does not actually give your people that credit. I have also read that in return of the good, the reward was disease, and in those days and in later days they called them social diseases.
If they had known what the reward would be do you believe that they would tow his ship by having dozens of canoes tow it to a safe anchorage or place of safety?
Mr. Watts: Senator Williams, the place that Captain Cook was towed into was a place that was eventually called Friendly Cove, and I have got a feeling that if the Indian people were to do it over again it would be called Unfriendly Cove now.
Senator Williams: Thank you.
Mr. Watts: By the way, Senator Williams, in our language the name for non-Indian people is what we called muh-mult-hnee, and the interpretation of a muh-mult-hnee is people who are without land and lost out in the sea, and I can imagine where they got that name from.
Senator Williams: Thank you.
Now, your organization has had time to consider the disadvantages and the advantages of this day and age as brought down in this century to the advantage of many of our people across this great Canada of ours, many of the programs in this day and age have been to the advantage of many of our people but there are other areas where disadvantages have become part of the way of life of some of our isolated areas, where it be in the North or wherever it may be.
You have mentioned the logging off of areas. Has there been an impact in certain areas that are logged off that have affected the reproduction streams of salmon and also the fur bearing animals and animals that are hunted for food?
Mr. Watts: Yes, we have documented rivers that have been, the spawning beds have been affected by the logging, and also we have just from our own people, they are talking about the amount of wildlife that once was in our valleys and is no longer there. Very clearly our people have suffered because of the forest industry.
Senator Williams: Do you feel that this society with its greater advantages through its advanced technology of medicine and through its technology of advanced mechanization or automation, has this stage of advancement reached your people? By rights I should say “our people”, but your people?
Mr. Watts: Well, I guess like other areas in Canada it has reached a certain percentage of our people and I think that those who have benefited from it have had to adopt some of the business principles of non-Indian people in order to survive
and benefit from it, but the majority of our people have not benefited from the economic growth in our area.
That is really what we are saying, we are not against this world changing and living with other people and that, but what we are saying is that it is time for the Canadian people to recognize that we have certain things in our society and we still have them, and we have a certain way of life, and if you are going to replace them, at least replace them with something better than what is there rather than giving us what we have.
I guess the clearest example on our position or our thoughts about the development and what the non-Indians technology has brought to our area, there is no sense in bringing us the best operating room in the country or bringing us the best hospitals in the country if you are also bringing the diseases that are causing us to go to that hospital.
Senator Williams: Thank you, Mr. Chairman.
The Joint Chairman (Senator Hays): Thank you very much, Senator Williams.
Mr. Epp: Mr. Chairman, I am going to give my time to Mr. Hawkes.
The Joint Chairman (Senator Hays): Mr. Hawkes.
Mr. Hawkes: Thank you, Mr. Chairman and Mr. Epp.
I think Mr. Dantzer had a couple of minutes left and I may use those as well.
I am pleased that the first three questioners have brought out more of the cultural difficulties than are contained in your brief, and that is the direction I had originally intended to head in, because I found it to be a legal brief with little about the culture and I think it is important for the Committee to understand some of the unique differences from tribe to tribe and I think we now have a better picture of that.
So I will go back I think to deal directly with the brief and the legal arguments which are presented in the brief, and I do think you have something unique and I will get to that in a minute, but it is obvious that you have studied in some depth the legal situation and you have come up with the brief as a consequence of that.
My first question is: do you have an opinion as to whether or not this whole process is illegal, and if you have the opinion that it at least might be, do you as a Council intend to join with others in defining that in court if in fact the constitutional act as drafted proceeds?
Mr. Woodward: Mr. Watts will answer first.
Mr. Watts: First of all I would like to just say not from a legal point of view, but from a political point of view, to us we would sooner come to this Committee and convince this Committee about where we want to be in the constitution and have them convince Parliament. That is our choice, to try and negotiate, try and motivate you to do that.
The courts have never resolved much for Indian people and we would not want to go that route if we do not have to, but 1 will let our lawyer answer the legal point of view about whether or not we should go there.
Mr. Hawkes: Allright. You trust Parliament more than the courts, is that the message for us?
Mr. Woodward: Sir, I understand the question is before the courts. The very question came up before the British committee which is examining the Canadian constitution, the British Foreign Affairs Committee, at this time. A witness before that Committee, Mr. G. Marshall, was asked approximately the same question on December 3 of this month, this year, and be spoke about the distinction to be made between what is legal and what is permitted pursuant to the constitutional convention. With respect to the convention be said, and I quote:
You cannot find any single instance in which we have amended the act in the face of substantial provincial objections.
That is his opinion with respect to the convention. He goes on in his brief, and in a similar brief presented by the eminent constitutional lawyer, Professor H. W. R. Wade, on the same date before the same British Committee, we have the opinion that perhaps the British Parliament, in enacting an amendment to the Canadian constitution, or in this case enacting a patriation of the Canadian constitution is not technically acting as the United Kingdom Parliament at all but is acting as part of the Canadian constitutional amendment process and that they, therefore, must act in accordance with the Canadian constitutional conventions. The question is whether this is a following of the appropriate Canadian constitutional conventions, perhaps it is not a question of law at all. The courts are going to have to decide that point and we leave it to them.
They might find that it is within the law but they might very well find that it is a violation of a well-established convention.
In any case, the point that we wish to emphasize with respect to native rights is that even if the charter as a whole in some way moves in a new direction to place restrictions on provincial legislation that were not previously there, and even if that is done over provincial objection, there is not a parallel to be drawn with native rights.
Native rights are part of the Canadian constitution now. In particular, the common law constitutional doctrine of aboriginal title is part of the Canadian constitution, and you can look to the judgement of Mr. Justice Hall in the Calder case for that principle.
Secondly, the Royal Proclamation of 1763 is part of 1the Canadian constitutional law and my reference for that proposition is, of course, the brilliant doctoral thesis by Professor Slattery at the University of Saskatchewan just published last year. Actually not published, it is an unpublished doctoral thesis and I have cited it in our brief.
Mr. Hawkes: Thank you very much.
I am from Calgary and I saw that city portrayed as the hotbed of separatism in Canada on the national news on the weekend, and today we had the Alberta Chamber of Commerce, earlier today, and it may be my own sensitivities but I see similarities in your brief to their brief and earlier today . . .
Mr. Woodward: I am sure that is impossible.
Mr. Hawkes: Well, let me try and draw you a parrallel and see if we are on the same wavelength or not.
That is a group that represented 14,000 businesses spread through 121 communities and, as you know, small towns sometimes function somewhat at least like some tribes in the laws of dynamics that operate, and to that extent they may be representing something similar, but the context of their brief or my summary of their brief was that the constitution act 1980 attempted to separate Canadians from a lot of their governing traditions, from a lot of their legal traditions, and from a lot of their economic traditions.
Now, I conclude from that, the anybody who supports it as it exists has some aspects of separatism in their personal behaviour because they seek to separate, and that I think would be a definition.
But you put that same kind of thinking I think into your brief, as you get to page 3 where you say to us with clarity that we have a long set of traditions in this country, and I look at the three points you make. You say in this new .constitution we will have been separated from our traditions if we do not do the following, if we do not include earlier Canadian constitutional documents, if we do not include early British constitutional documents, and you have a very nice exposition of the Magna Carta as an example, going back to the l 200s and you say the doctrines of the common law. What I think in the basic tone and thrust of your brief as it differentiates itself from the 50 or 60 or others that we have considered before this Committee is the strength with which you say we will be okay, our rights will be protected as long as we take the time it takes to make sure that we bring back those old documents and make sure they are attended to because in your judgment the new way of saying some of these things is a lot worse than the old way and this hurried up process is likely to leave us with a lot less of our tradition and a lot less of our protection, unless we do it. That is the kind of context where I see similarities between you and the Alberta Chamber of Commerce, and tell me if I am dead wrong or not.
Mr. Watts: I guess other than the 20,000 years of history and our tradition, I guess there is a little bit of a difference, but I do not think we want to be dragged into being compared to the Chamber of Commerce. Our interests are as a people
who were born as a people, we were not brought to Calgary to make money out of oil. We are talking about our existence as people and I would not want to be dragged into that kind of a comparison.
The Joint Chairman (Senator Hays): Thank you, Mr. Hawkes. Senator Connolly.
Senator Connolly: I have a couple of questions, Mr. Chairman, for my own edification. I am very impressed, I may say, with the performance that we have had here tonight from both of these gentlemen. This afternoon I understood the native council to say, and perhaps you can clear this up, that the Proclamation of 1763 recognized but did not define aboriginal rights. You seem to go a little further and I think I detected in Mr. Woodward’s statement the suggestion that there was a good deal more than a simple recognition of a sort of a block of rights but something more specific than that that would redound to the benefit of the native peoples out of that Proclamation. Am I right?
Mr. Woodward: I think it is fair to say that aboriginal title is a more specific right than the phrase aboriginal rights.
Senator Connolly: Yes, I think that is right.
Mr. Woodward: The Proclamation of 1763, perhaps it could be said that it creates aboriginal rights in its explicit recognition from aboriginal title.
Senator Connolly: Perhaps it does not create them, perhaps it recognizes them and establishes them for the benefit of the peoples who own them. Is that what you are saying? It vests the rights in them and there is a recognition in the law as a result of the issue of the Proclamation.
Mr. Woodward: Really, the Proclamation is directed at King’s subjects and particularly officers of his government. It says you shall treat Indians thus and so and it is a direction by the King that those officers and those subjects of the King, particularly those colonial settlers, have to treat native people with the respect that they ought to be treated considering that they have this aboriginal title. So if aboriginal rights means that directive from the King then I think we would agree.
Senator Connolly: All right, thank you very much for that. If you add to Schedule 2 as one of the constitutional documents the Proclamation of 1763 then would the result not be that if that were to be changed in any way it would have to be changed in accordance with the application of the formula or by Section 42 of the proposed bill through the referendum. Mr. Woodward: Yes, precisely.
Senator Connolly: And virtually that would be entrenchment, would it not?
Mr. Woodward: Yes, that is exactly our intention.
Senator Connolly: That is good, thank you. Now, the third thing that I want to ask you, and this is more of a factual thing, you submitted with your papers a map of Vancouver Island and a line running from a place near the south tip to another place near the north tip and I assume that everything west of that line is part of the lands, the aboriginal lands, of the Nu-Cha-Nulth people. Is that so?
Mr. Watts: The area that is marked out on the map, but even more important to my people is the water off that land. That is where our people have our history.
Senator Connolly: Because of the fishing interests.
Mr. Watts: Because of our use of the seas.
Senator Connolly: The harvesting of the seas, that is the big point.
Mr. Watts: Yes.
Senator Connolly: Now, I want to ask Mr. Woodward this question. How far do you go in connection with legal title emerging from these aboriginal rights or titles? You told us earlier that the guarantee of aboriginal rights came from the Proclamation of 1763. You told us that some of the tribes or nations, probably based upon the acknowledgment of those rights or titles, made treaties and I assume that those treaties supersede whatever rights they got under the Proclamation and therefore they are restricted to the rights they now have under the treaties which are virtually contracts, but that other peoples like your people, not having treaties, fall back upon the original document which is the Proclamation of 1763 for their right both to land and to the use of water perhaps or the water off those lands; you mentioned, this is getting a little complicated perhaps, but I do not think it will be for you, you mentioned also the fact that when it comes to the title to land then the Crown grants were issued from time to time and titles were built up based upon the grants from the Crown.
Now, obviously there is going to be a conflict between those Crown grants and the title to those lands that derive from the Proclamation.
Would you like to make some comment about that?
Mr. Woodward: Yes, I will reply. Mr. Watts would like to make a short reply before me.
Mr. Watts: I would just say that we presented our claim to the Government of Canada and what we are saying is that . . .
Senator Connolly: Do you mind if I ask you just at that point, did you delineate the lands specifically more particularly than the way you do it in this map when you made your claim for the lands?
Mr. Watts: No, that is exactly the way you see it on this map. What we said to the government is from the Proclamation of 1763 we have aboriginal title to this land and the off-shore resources here. Now, if the Canadian government wants to change that situation we are prepared to sit down and negotiate.
Senator Connolly: All right, but suppose for the sake of argument there were gold mines, silver mines, uranium mines, any kind of mines within that area, suppose too that subsequently there are oil or gas reserves found off-shore, would they be part of your original title?
Mr. Watts: If we could get there before the Chamber of Commerce from Calgary we would want . . .
Senator Connolly: You might have to go fast.
Mr. Watts: A lot of those questions cannot be answered because they are part of negotiations. For me to say what we would end up with would be wrong. I do not know what would be the outcome of negotiations.
Senator Connolly: Very good.
Mr. Watts: Maybe our people would end up with 10 per cent of the oil royalties, maybe we would end up with 50 per cent, that would be all part of the negotiations of our aboriginal title.
Senator Connolly: Yes.
The Joint Chairman (Senator Hays): Thank you very much.
Senator Connolly: Have you more?
Mr. Woodward: The Senator has indicated that he would like me to reply. Perhaps I could just give a short reply to his question.
The Joint Chairman (Senator Hays): Yes.
Mr. Woodward: What aboriginal title consists of is called in the cases, and I am not an expert on the cases, there have been some experts in aboriginal law before this Committee: Mr. Rosenbloom last night, who was counsel on the very Calder case that is our leading case in that matter, and Mr. Saunders this afternoon who wrote the book on the subject, I can only read what those gentlemen have written, but aboriginal title is known as a usufructuary title, it is the right to the use and the occupation of the land.
Senator Connolly: It is the fee.
Mr. Watts: No, no it has never been said to be the fee. It has been said to be a right of occupation over the land.
Now, the Crown cannot alienate that land to someone by the words of the very Proclamation without first settling with the Indians to dispose of that right of occupation. The Proclamation prohibits the Crown from alienating that land. Of course the Crown has gone ahead and done that. I think there ought to be by law some compensation payable for that past injustice.
As for the present status there is a fetter on the Crown’s title, that aboriginal title. Now, what it is worth, that is a malter for negotiation. What is the right to the use and occupation, the right to enjoy the fruits of the land, what is that worth, and what if someone comes in and builds a large mine that makes it impossible to enjoy the fruits of the land because the mine pollutes and the mine blocks the access and the mine destroys the productivity of the land itself. That is a 1 destruction of their usufructuary title and it ought to be compensated.
Senator Connolly: Once you say usufructuary title, do you not rule out the possibility of owning the subsoil or the soil itself.
Mr. Woodward: It is an ownership right. The actual parameters of what you own would have to be . . .
The Joint Chairman (Senator Hays): That is it, Senator Connolly, you have had a 12-minutes go and a five-minute start. Mr. Fulton.
Mr. Fulton: Thank you, Senator Hays. I would like to address my questions jointly to Mr. Watts and to Mt. Woodward. I recognize, as I am sure both you gentlemen do, that there are three very limited treaties in British Columbia, the large one of course being treaty 8 where it comes into the Peace River area of Northern British Columbia. In Iooking at that I think we have to keep in mind, all members of this Committee, that about 90 per cent of the land in British Columbia, since that is what we are discussing tonight, in fact has unsettled title. I think members of this Committee ought to well be reminded and keep in mind that through this Committee and the Parliament of Canada we in fact hold powers considerably different and considerably more powerful than the Supreme Court of this country. I think many members of this Committee tend to forget in this situation the way the resolution is written that the government has dealt five aces to themselves in this resolution. Being in avid card player I know what happens when you deal yourself five aces.
I think we are rather reticent to look at exactly what the situation is in this situation, when Europeans moved into this country and in fact Mr. Watts in your situation the Europeans that came to this land moved into your home first and first asked you to move upstairs. That is the reserve concept. Then as competition for floor space in the home increased you were asked to move into the upstairs closet and that was the competition for your historical resources such as fish, timber and game. Now the resolution that is before this Committee and may in fact go in its present form back to Parliament asks you to say in the closet. It offers you no access to your home after you have been trapped upstairs and in the closet for 100 years, and I say that in all seriousness to the Committee, and that we think about it.
This Committee has greater power than the Supreme Court of Canada. When the Europeans came to this country, other areas of the world recognized the titles of other people. Simply because the title was Indian seems to have some connotation that can be taken away, we can simply deal ourselves five aces, and I say that with all due respect to all members of this Committee from both the Senate and the House that we are not playing fair and I think at times we are becoming somewhat vacant minded and vacant in terms of principles as to what the duties of this Committee are in relation to the lndian people of Canada.
What we have to face up to is, number 1, the native people exist, that they did exist historically on this continent and particularly in relation, Mr. Watts, to your band. Title has never been extinguished either by federal or provincial Crown and thus we have a stonewall and it is the duty of this Committee to set aside vote getting techniques or partisan principles or whatever and to set those rights in a position where they can be settled and they can flow from it, and it is from those comments that my question first to you, Mr. Watts, flows. On the entrenchment, should this Committee move forward, which I am hopeful, very deeply hopeful that this
Committee will, to entrench the principle of aboriginal title not only in Section 24 but through a variety of techniques we have touched on. Senator Connolly touched on it, other members tonight, Senator Williams has touched on it, that the inclusion of such treaties as the treaty of 1763, the capitulation of Montreal, there is a wide variety of treaties, the inclusion of all of those, but the most important and critical fact to be included in there so that the Supreme Court and other courts and governments of this land can interpret over not only the next decades but the next centuries and generations what aboriginal rights are.
Mr. Watts, I wonder if you could comment on when these negotiated settlement is made from the principle of entrenched title what the impact will be in terms of what has historically been your rights in terms of fishing, the use of timber, the use of game as well as such things as the potlatch that you have touched on, we recognize what your claim is now and what may flow through negotiations should this Committee do what I think in principle we should do as Canadians and as honest global beings, what impact do you think there will be on the fabric? Do you feel that your culture can survive on a settlement that is negotiated, that is very different, but taking into account the changing fabric of Canadian society and Canadian economy?
Mr. Watts: The answer to your first question is yes, we agree that the principle of aboriginal rights should be entrenched. In regard to what are the benefits that are going to flow or what our future is as Indian people once we have a negotiated settlement, I guess part of the answer to that is we know what is not going to work because we have been living with it for the last 100 years. We know what does not work for our society, and what is destroying our society. l guess it really lies in the hands of our negotiators and l think we have some very able people who will be able to put forth in front of the government what we see as being the negotiated items that we need to survive as a people. What is the alternative? The alternative to having a negotiated settlement on aboriginal rights, the alternative to it is the destruction of our people. It is as simple as that. It is not whether or not we are guessing if it is going to happen, we are seeing it, we are witnessing it. We are witnessing it today, seeing it happening and all we need is a few more years to have you guys around and we are going to die as a people unless there is an about-turn.
Mr. Fulton: Are you saying, Mr. Watts, if I can get some clarification here I think it is one of the things that has created conflict in the minds of almost all members of this Committee, should the principle of aboriginal titles solely and simply be entrenched in the constitution without some additional strengthening in terms of aboriginal rights, and when I say that I couch it in terms of not being self-determination with paramountcy above the provincial or federal paramountcy in this country, but that there needs to be something related to the concept of entrenched aboriginal rights within the constitution to ensure that the title alone cannot preserve your culture but there is a requirement for some additional strengthening within the resolution.
What I am basically asking is, is simple entrenchment of the concept of aboriginal title enough or does it require an additional concept of entrenched aboriginal rights. When I say that, what I am asking is do you feel that rights will flow simply from title or do you feel that aboriginal rights is required outside the bounds of title itself?
Mr. Watts: I think what happens is that future rights flow from the negotiations and how they are entrenched in Canadian law or in the acts of Parliament depend on negotiations. You have to look at what our history is. We have the right to food fish. That is part of the Fisheries Act but in the future that might not necessarily be a part of the Fisheries Act. How our aboriginal right to food fish is defined would depend on our people, how we negotiate it, where we want to be, how we want to have a relationship with the rest of Canada in regard to what we see as being part of our resources. I do not know how far you can go in defining it in the constitution. You know, the constitution, the amendment or whatever it is, could end up being a thousand page document just talking about Indian rights; and I am not too sure whether we would want to be there.
At the same time I agree that there are certain basic principles that have to be there, otherwise what will happen is that we get into the very situation which I talked about before which is we will end up squabbling with the provinces and the feds for the next 100 years about what our rights are, and no one will ever agree upon them and they will never be resolved.
The Joint Chairman (Senator Hays): Do you have another question?
Mr. Fulton: Just one very short one, Senator. One of the things that has profoundly interested me in sitting on this Committee, and I am sure it is something that the other members have thought about, is that the overwhelming majority of native people who have appeared before this Committee have not asked specifically for the entrenchment of their language rights, and I think as all members of this Committee have noted, well within the document, is that one of the potent principles included in it is this specific reference to the inclusion of minority rights specifically for certainly the second largest group in Canada which is the French speaking people of Canada.
I wonder, Mr. Watts, if you could comment, and before 1 would ask you to comment I would simply point out the concern that I have, and it is a profound concern, that the interests that have been expressed by the majority of native people who have appeared before this Committee have been asking for one of the most fundamental rights that there is on this planet and that is the right to have their own home and to have the rights that flow in terms of immediately local economy, and that is specifically in relation to food and basic local economics.
Some of the more highly refined and perhaps distinct from what you are requesting in terms of language rights has not come forward as one of the most stressed principles before this
Committee, and I wonder if you could comment on how far you have gone in terms of what you are requesting before this Committee?
Mr. Watts: I guess the reason that it has not come out and 1 guess has come out from a lot of other groups is because the things that we talk about as far as our survival, really our language is part of that. If we do not survive as a people and if our communities do not survive then our language dies anyway, and you could have all the acts of Parliament and programs and everything else to try to keep our language. It is not going to live if we do not live as a people. What will happen is you will have professors in universities speaking our language and that is about as much as it will be living because if we are not alive as a people, how can our language live?
Mr. Williams, for instance, said we were people who hunted whales at one time in dugout canoes. We have certain things in our language which relate to that hunting experience. Now, I would say that maybe 1 per cent of that language is alive, because the whales are no longer there and our people do not go hunting whales anymore so they do not talk about it; so that part of the language dies. It died with the whales.
The Joint Chairman (Senator Hays): Thank you, Mr. Fulton.
Mr. Mackasey, you have a short question.
Mr. Mackasey: Just a short observation, Mr. Chairman. I would like to go on record as welcoming you to the Committee. I am fascinated by the whole procedure of native rights and aboriginal title. Emphasis was placed on the word “negotiation” and as a former Minister of Labour I can say that negotiation is always preferable to going to court. If we could doit.
I would like to make the point which has been overlooked, when Canadians of various cultural groups and backgrounds express some concern about it. It is that we do have in the proposed Charter, Section 22. I think I will read it for the benefit of the Committee:
22. Nothing in Sections 16 to 20 abrogates or derogates from any legal or customary right or privilege acquired or enjoyed either before or after the coming into force of this Charter with respect to any language that is not English or French.
I may be stretching a point when I say that it applies to your own language. But it is a recognition that other languages have a prominence, particularly in provincial jurisdictions. Do you care to comment on that?
Mr. Woodward: It raises an interesting point with respect to school districts.
Last night the Nishga Tribal Council informed the Committee that they had their own school district.
We can conceive of a native tribal council having its own school district and wanting to teach in the native language, or at least partly in the native language. If they did so, would they have acquired a right to teach their children in that
language which could not be abridged, because it would be a constitutional right?
I am not sure that Section 22, as il now stands, entrenches that kind of right. It permits it, but once set up it does not become entrenched in the way that rights to establish private school districts elsewhere in the constitution, in the British North America Act, become entrenched once you begin to fund a private school district.
I do not think that Section 22 gives that kind of protection to, for example, a native language school district.
Mr. Mackasey: It might be worded to have an. effect because it comes at the end of the section on official languages which begins from Section 16 on and deals, ironically, with minority groups, at least the English and the French, concerning the right to be educated in English and French if you are a minority in a province.
Section 22 I think is an attempt by the draftsmen to recognize that in many jurisdictions in Canada-it was mentioned today by the Alberta Chamber of Commerce that in Alberta today they have progressively extended the teaching of languages to many cultures, many languages, not simply English or French.
What Section 22 attempts to do, even if it may be badly worded, is to say that nothing between Sections 16 and 20 should even unintentionally limit the prevailing customs of some of the provinces.
In other words, if the provinces want to continue to teach other languages other than English or French, there is nothing in Sections 16 to 20 which is intended to limit that.
You appear to put some reservations that this is a sufficient entrenchment of the situation we have just described, the teaching of a particular language in your area.
Mr. Woodward: Well, it is not entrenchment. We have a similar problem with the wording of Section 22, although 1 have not addressed my mind to that Section as much as to Section 24.
The idea of saying in this Charter that this Charter does not eliminate this or that right, and, of course it does not; but the Charter entrenches certain rights, which once entrenched, then they go through the whole complicated, difficult amending process, as it should be; because if it is a minority right you want it to be difficult to get rid of.
The point is that inclusion in Section 24 of some reference to the Royal Proclamation of 1763 or to aboriginal title, in that fashion, saying, “Nothing in this Charter of Rights shall be taken to eliminate the Royal Proclamation or its effect,” is not enough because it does not have the effect of entrenching and we are still talking about minority rights.
The Royal Proclamation and the doctrine of aboriginal title are essentially minority rights and ought to be treated the way the other provisions of the Charter are, in a positive and not in a negative way.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Mackasey.
Senator Roblin: Mr. Chairman, I would like to join in this fascinating discussion, because the witnesses have given me a couple of thought starters in their brief, presenting a proposition which I do not think has been developed before, and which is illustrated in your discussion of the definition of the constitution at page 3 in which you express concern, lest by failure to enumerate a lot of the earlier British constitutional doctrines and to refer to the doctrine of the common law which we have inherited over the centuries, the tremendous body of constitutional rights and privileges and definitions which are included in this vast array of accumulated material might be lost.
My point is a legal one, and not being a lawyer, perhaps I had better ask a lawyer what the right answer is.
Because I see that the British North America Act of 1867 is included in the appendix which, in effect, entrenches it in this proposition which is before us now. In that North America Act, in the preamble, there is reference to the desire to have a constitution similar in principle to that of the United Kingdom.
My question is, does this phrase in the preamble to the British North America Act, which is confirmed in Schedule ‘A’ to the document before us, sweep up into our constitutional law these ancient rights and privileges that people have won over the centuries?
Now, that is not germane to your particular interest here tonight, but you have raised it and I think it is an exceedingly important point and one in which I hope someone will explain to us before we get through with our deliberations here. Would you like to offer an opinion here?
Mr. Woodward: Thank you, sir. It is a most important point, and it touches directly on our submission, because if the doctrine of aboriginal title could be said to be collected into the phrase “similar in principle”, if that is incorporated into the constitution act by the wording of this constitutional proposal, then we would seem to be all right.
But in my narrow experience with the law, the phrase “similar irl principle” has not been sufficient to afford constitutional standing to the tough points, the difficult points of the law.
Aboriginal title is, without question, one that is going to be fought vigorously in the court.
If all the native people can do when they go into court is to show the judge the phrase “similar in principle” and to say, “That is included in this Schedule here, and therefore is part of the constitution,” I can tell you that is not enough. It simply would not work.
The very few occasions in law where the phrase “similar in principle” has been used to establish a positive constitutional right, have been minority judgments of the court and never a majority judgment. It is not enough to rely on that phrase, although the point is very well taken.
It might in an abstract theory of constitutional law be said to be enough to do the trick; but in practical experience it does not.
Senator Roblin: I was concerned that might be your view, because later on in your brief you have warned all of us on the same point that a narrow interpretation of the term “constitution”, based on Section 52 may have consequences for all of us which nobody has begun to explore in our discussions of this paper at the present item.
I want to express my thanks to you for dealing with this matter so clearly, and it has certainly given me a lot to think about; perhaps the matter will come up when some of our “experts”, the few that we are to be allowed, come before us. I will try to remember to ask them what is the meaning of these factors.
Mr. Woodward: Thank you very much.
The Joint Chairman (Senator Hays): Thank you very much, Senator Roblin.
Do you have an observation which you would like to make, Mr. Joyal?
The Joint Chairman (Mr. Joyal): If it could be of any help to Senator Roblin, I could provide him with a list of decisions of the highest courts in this land and of the Judicial Committee of the Privy Council, where he will find words defining or giving an interpretation or meaning of “similar in principle to the constitution of the United Kingdom”. That might be of help to the Senator in assisting him to understand the meaning of those words in our constitution. I can do that tomorrow.
Senator Roblin: Mr. Chairman, I thank you. That would be very helpful. It only goes to prove that there is an advantage in having a constitutional lawyer as one of the Chairmen of this Committee and it helps us non-legal types to get closer to the real meaning of the words and the problem. I would be grateful for that.
The Joint Chairman (Senator Hays): On behalf of Mr. Joyal, the Joint Chairman, and all members of this Committee, I should like to thank you, Mr. Woodward, Mr. Watts, and Mr. Rosenberg for being here.
It has become increasingly apparent to all members of this Committee that the native people do have a great problem. I am sure that, in our deliberations, we will be very mindful of that.
Thank you very much for being here.
Mr. Watts: Thank you for the opportunity to appear here.
The Joint Chairman (Mr. Joyal): The meeting is adjourned until 3.30 tomorrow afternoon when we will be hearing representatives from the Attikamek-Montagnais Council and from the Union Nationale.
This meeting stands adjourned.