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 31 (5 January 1981)
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 31 (5 January 1981).
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HOUSE OF COMMONS
Issue No. 31
Monday, January 5, 1981
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, 1980-81
SPECIAL JOINT COMMITTEE OF
THE SENATE AND THE HOUSE
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 an order of the Senate adopted November 5, 1980:
Senator Williams replaced Senator Austin;
Senator Rousseau replaced Senator Adams;
Senator Roblin replaced Senator Phillips;
Senator Lafond replaced Senator Bird;
Senator Wood replaced Senator McGrand.
MINUTES OF PROCEEDINGS
MONDAY, JANUARY 5, 1981
The Special Joint Committee on the Constitution of Canada met this day at 6:10 o’clock p.m., the Joint Chairman, Senator Hays, presiding.
Members of the Committee present:
Representing the Senate: The Honourable Senators Asselin, Lafond, Lapointe, Petten, Roblin, Rousseau, Tremblay, Williams and Wood.
Other Senator present: The Honourable Senator Lucier.
Representing the House of Commons: Messrs. Allmand, Beatty, Bockstael, Miss Campbell (South West Nova), Messrs. Corbin, de Jong, Epp, Fraser, Hnatyshyn, Irwin, Mackasey, McGrath, Nystrom and Tobin.
Other Members present: Messrs. Blackburn, Hawkes, Hovdebo, Manly 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 the Algonquin Council: Lena Nottaway, William Commanda, Richard Kistabish, Salomon Wawatie, Major Kistabish, Louis Jerome, Kermot Moore and Pamela Kistabish. From the Union of Ontario Indians (as the agent for Anishinabek): Mr. Patrick Madahbec, President, Mr. Paul Williams and Mr. James Mason. From the Association of Iroquois and Allied Indians: Mr. Charles Cornelius, President, Mr. Bill Tooshkenig and Mr. Gordon Peters. From the Indian Association of Alberta: Mr. Eugene Steinhauer, President, Mr. Willy Littlechild, Legal Counsel, Mr. Leo Prettyyoungman, Chief of Blackfoot Reserve, Mr. Percy Smith, Mr. Les Healy and Chief Nelson Smallegs. From the Federation of Saskatchewan Indians: Mr. Sol Sanderson, Chief, Mr. Rodney Soonias, Legal Counsel, Ms. Delia Opekokew, Legal Counsel and Mr. Kirk Kickingbird, 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 Algonquin Council made statements and answered questions.
The witnesses from the Union of Ontario Indians made statements and answered questions.
Mr. Joyal assumed the Chair.
The witnesses from the Association of Iroquois and Allied Indians made statements and answered questions.
The witnesses from the Indian Association of Alberta and from the Federation of Saskatchewan Indians made statements and answered questions.
At 11:57 o’clock p.m., the Committee adjourned to the call of the Chair.
Joint Clerks of the Committee
(Recorded by Electronic Apparatus)
Monday, January 5, 1981
The Joint Chairman (Senator Hays): Members of the Committee, on behalf of Mr. Joyal, the Joint Chairman and myself, we welcome you to the proceedings after the festive season.
Starting our 1981 proceedings tonight, we have four groups; and we intend to give all an adequate hearing.
It is now a little past the hour of six and I would like, first of all, to introduce the Algonquin Council. Before doing so, however, I should like to make this request to honourable members of the Committee, that is to ask them to restrict themselves to the two and five-minute rule which we have decided upon as the way we would function.
We would also request that members look towards the Chair so that we would not interfere with your line of questioning, and so that you would have an adequate response from witnesses.
Tonight we are honoured to have the Algonquin Council.
Mr. Epp: On a point of order, Mr. Joint Chairman.
The Joint Chairman (Senator Hays): Yes, Mr. Epp.
Mr. Epp: I am wondering whether, for today’s proceedings, it would not be more desirable if we were to proceed on the basis of five-minute rounds right from the very beginning. I think it would allow for the flexibility which we had before, if, of course, it is acceptable to the Committee.
The other matter is this. I understand that the media, who have been taping proceedings both in terms of television and use for radio or in terms of notes, have been instructed that they cannot tape; and, according to my understanding when we opened the proceedings they could and it did in fact happen.
So I wonder if members of the Committee would not want to continue proceedings at this time in terms of how the media functioned heretofore.
The Joint Chairman (Senator Hays): Is it agreeable to members of the Committee that we should have a five-minute rule operating?
Some hon. Members: Agreed.
The Joint Chairman (Senator Hays): So far as the taping of the proceedings is concerned, the media have been doing that in any event, as I understand it. So, is it agreed that that is in order?
Mr. Corbin: Just the audio.
The Joint Chairman (Senator Hays): That is as I understand it. That is agreed, do I take it?
Is there another point of order?
Mr. Nystrom: Yes, Mr. Joint Chairman. We would prefer 10 minutes for the opening round. We would prefer to stick to the 10 minutes.
The Joint Chairman (Senator Hays): Would you let us handle that up here? We will try and exercise appropriate discretion. We fully understand, when we hear the questions, that there may be occasions when we have to have a little more time insofar as the answers are concerned.
Mr. Nystrom: All right: I will just give you notice of that as a caveat and see how the matter goes and perhaps we can look at the matter later on.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Nystrom.
This evening we have the Algonquin Council. Mr. Richard Kistabish, is here, and perhaps you would like, Mr. Kistabish, to introduce those people who are with you first.
Mr. Richard Kistabish (President, Algonquin Council): Yes, Mr. Joint Chairman.
First of all, I would like to introduce some people who would like to address some message to you in the hope that you would listen to it.
First of all, there is Lena Nottaway and William Commanda, sitting to my right; Salomon Wawatie, from Rapid Lake and Major Kistabish. We also have Louis Jerome; and Mr. Kermot Moore; Donat Papatie at the back of us and Jacob Wawatie. Edmond Vincent; and to finish this presentation, we have Pamela Kistabish, who is just a child, who would like to address some remarks to you at the end.
I would like to begin by saying that we received notification of our appearance before the committee just before the holidays, and as a result we have not been able to prepare a written presentation for you.
Nevertheless, we decided to come to this meeting to tell you something about how the constitution should be reworked.
I will ask Mrs. Lena Nottaway to speak first.
Mrs. Lena Nottaway (Member of the Algonquin Council): (through an interpreter) We want everyone to sit down together so that our children will have a more secure future and brighter future. We want to find an agreement that will be satisfactory to both sides.
It should be remembered that the native people, the Algonquins, were and always will be the first inhabitants of our lands. This should be taken into consideration for our children’s future and your children’s future.
We have made quite a bit of progress together, but today our children are experiencing problems in their lives, and these problems would not exist if there were a satisfactory agreement for us.
We must emphasize that the Algonquin people have always enjoyed self-determination and have always managed by them selves without assistance from anyone. I must make it very clear that our way of living must be enshrined in the constitution to ensure that the animals on which we depend are left to us. We must therefore work together to try to understand each other and to see that there is no interference between your lifestyle and the Algonquins lifestyle.
Both senior citizens and the handicapped have been greatly ignored for many years. We always managed to support these people. Whereas today, they are completely neglected, even though the government has at its disposal all the resources necessary to help them.
I would also like to say that the lifestyle of Canadians tends to have an effect on the natural world and those who depend on it.
Mr. R. Kistabish: That is all Mrs. Lena Nottaway had to say.
We will ask Mr. William Commanda to say a few words to you.
Mr. William Commanda (Chief, Maniwaki Band): I am not a member of the Algonquin Council as yet, I have been Chief for 21 years in the Maniwaki Band. I accepted the invitation this morning especially to find out reasons: why would the Indians be refused to sit while they are debating the constitution? There are a lot of things run in my head since I have been sort of defending the Indians for so long a period. It came to my mind it could happen that probably we are considered as municipalities in our environment and therefore to my mind, to my way of thinking, the mayor and his aldermen and also his councillors are not allowed to participate in the constitution of the country. It is not clear, because the government never told us why they are refusing. There has been another thing happening during the last three or four years. Some of the Indians took the trouble to go to London last year and when we went this year we are told that when Mr. Bennett was Prime Minister of this country he had obtained a transfer of the Indian people to the Canadian government. Why the Indians were not told of this before they took the trouble and spent all this currency and spent time to go to London, not knowing this. Only after a second trip while they were there and trying to open the office and trying to negotiate with the Parliament of England, that time they were told they were rapping on the wrong door, this door to rap was in Canada.
It is really baffling, confusing, the reason why it has been refused.
I think when we look at the Proclamation of 1763 especially as people that are living in Quebec, a lot of the rights, we did not sign any treaty to anybody and we did not extinguish our rights as to trapping and fishing and the other things including the forests, they were just taken without the permission of the Algonquins.
These are the things we would like to have answered. I know most of you probably are discreet and know what is taking place and we would like to know before we take more trouble to sit here and there and spend a lot of money travelling and a lot of time wasted, and that is how much I would like to say. Thank you.
The Joint Chairman (Senator Hays): Is that your presentation Mr. Kistabish?
Mr. R. Kistabish: No, we still have some other things to say.
The Joint Chairman (Senator Hays): All right, proceed.
Mr. R. Kistabish: The constitution has certain objectives. In the past, Europeans left their homelands perhaps because they did not like it over there or because there was not enough room, but they actually came here for economic reasons.
They found a new land. So they tried to co-habit with the Indians over a very vast territory in which the Indian reserves looked something like candles on a cake. The whole issue of the constitution is based on land and the way of living together; this is where we disagree.
I have looked at Mr. Trudeau’s bill and there is not the slightest mention of Indians or their land, and yet, as everyone knows, treaties have been signed, but they were peace treaties.
in Quebec, the only thing we consider to be still valid is the Royal Proclamation of 1763, which gives an indication of why Mr. Trudeau has questions about native rights. He needs only to go to the library with his advisors and make a proper study of this document.
I will not go into further detail of this, but we will be sending you a written brief explaining our opinion on native rights.
An important point that must be stressed when we talk about land is that pollution has destroyed many things and this has had a considerable impact on the Algonquin’s lifestyle. Not only has it effected the way Algonquins live, it will also effect our children’s lives and your children’s lives. At the rate we are going, we will definitely reach a point at which it will no longer be possible to exercise any rights at all.
If we want to keep our country beautiful, and that we must find a way to live together peacefully for the sake of your people as well as ours.
We are going to have to reach an agreement on the boundaries of the territory over which the Algonquins have full jurisdiction.
You make laws to apply to everyone, rather to all Euro-Canadians. The Algonquins should also be able to make laws concerning their territory, without there necessarily being any contradiction or conflict between the two.
This jurisdiction would be transmitted and implemented by virtue of what we call the Algonquin Act.
The Algonquin Act will cover all the areas that are not clearly defined, the territory where we will have control of ownership of the resources, control of education, political freedom, cultural freedom such as religion, hunting and fishing, etc., control of health and the most important thing is the environmental protection laws; but we have to be positive that this
not a business contract like the James Bay Agreement. It is a contract between two nations, the Euro-Canadians and the Algonquins.
I wanted to find out the meaning of “charter of right and freedoms”. I looked in the 1980 edition of the Larousse dictionary—it is very recent—and it said that a charter is the constitutional law of a state established through a concession of a sovereign and not by the representatives of the people.
This dictionary definition gives a very bleak view of the charter, and yet this dictionary is used throughout Canada. The definition is in French of course.
If the charter implied that the Queen is to be imposed as our queen, then we cannot agree. We also cannot go along with the idea that these laws are established through a concession of this person; this is too great a violation of the fundamental freedoms of a people.
I will now ask Mr. Salomon Wawatie to speak to you.
Mr. Salomon Wawatie (Member of the Algonquin Council): I would like to tell you that I have had some education in your culture. I noticed that in the history of Canada that I was taught, the first immigrants to Canada were more or less the “rejects” of “mid-East” civilization. They were received in such a way that they quickly became part of the very fabric of the country. They were given assistance to come here and eventually they set up a parliament. There were no roads, so they used canoes.
Canadians should be reminded of this important point: without the canoe, there would be no Canadians.
All we want is respect for our way of life. You have your people to look after and we have ours. We are different. There is one thing on which we can agree: life, our children’s lives and the future of the land.
That is all I have to say.
Mr. Major Kistabish (Member of the Algonquin Council): I would like to follow along the same lines, and make a specific point on a subject I am closely involved with, namely education.
Our children, the children of the Algonquins, were taken at a very early age, five or six years, outside their family environment and were thrust into another setting, into a different way of life in which they felt completely lost. We had no way whatsoever in this process.
In my opinion, all groups with their own language, their land and their way of life constitute a people. We have our own language and our land, we are a people.
I think that everyone here will agree that every people has the right to decide how they are going to live, and to decide what their future will be. I do not think that any people has the right, either legally or morally, to make such decisions for another people.
By patriating the constitution, I do not think you have the right to make any law or to make any decision whatsoever concerning our people without consulting us. This is why we must sit down and talk about these matters relating to the patriation of the constitution.
The Joint Chairman (Senator Hays): Thank you. Does that complete your presentation? Do you have one more?
Mr. R. Kistabish: Yes, we have one more.
Mr. Kermot Moore (Algonquin Council): I do not have much time so I will have to drop the formalities.
Honourable Senators and members of Parliament, it is indeed a pleasure to appear before you on behalf of the Algonquin nation.
The Algonquin nation, as you are aware, is geographically outlined by the Ottawa River watershed which stretches from the Abitibi Region in the North to the confluence of the Ottawa and St. Lawrence Rivers in the South. These Houses of Parliament are on Algonquin land. However, we did not come here to discuss land claims-. . .
The Joint Chairman (Senator Hays): Mr. Moore, I am sorry to interrupt. You may have to proceed a little more slowly or our translation people will not be able to cope with your fine presentation.
Mr. Moore: Should I take a paragraph at a time?
The Joint Chairman (Senator Hays): Yes.
Mr. Moore: However, we did not come here to discuss land claims or to debate the composition of the nation.
That statement also applies to the meaning of self-determination and self-government. The semantics are best left to the academics and politicians who enjoy word games.
The creation of a new constitution offers a fortuitous occasion to display to the world Canada’s genuine commitment to human rights. The banishment of the present colonial system in favour of one which would respect the rights of all its citizens is our goal. If principles of justice which will guarantee the rights of the oppressed and deprived first nations of our land were enshrined in the constitution, then a standard will have been set that will ensure the rights of all of our citizens. It is highly unlikely that the Parliament of Britain and Canada will find fault with this approach since both parties are committed to those principles at the international level.
The other method is an amending formula by which the federal and provincial politicians would decide native rights after patriation. Since most of the provincial premiers oppose
native rights, any such discussion would be meaningless. We are against this or any similar masquerade of justice.
We firmly believe that rights that are subject to the whims and expediency of politicians are patently unjust and morally unconstitutional. We hope to convince you that the signposts of honour and principle lead to a just constitution.
The effects of European disease on the indigenous people and thereby the shaping of the Canadian nation is one example. When the Europeans came to this hemisphere they arrived in an area of the globe that was almost disease free. Europe itself had gone through 300 years of Black Death and its attendant plagues. The diseases became more deadly with the passage of time but some of the infected survived and thus it was the ranks of the survivors came the carriers of disease to the Americas.
They brought wave after wave of virulent infection; epidemics, of small pox, influenza, measles, scrofula and tuberculosis swept the native nations like fire through pine forests, wiping out as many as 90 per cent of the population at a time. The few who survived were weakened and demoralized by the hopelessness of their existence and became easy prey to the ravages of colonial totalitarian control.
The spread of disease, both by accident and by deliberate acts of genocide, was a key factor in the colonization of Canada.
Genocide as a fact of history is recorded in the National Archives. The massive depopulation led to false European claims to sovereignty over native peoples and malicious declarations of open land.
The Algonquin nation has never been subdued by a war of conquest and that can be said with justification about most of the native peoples in Canada. The War of Conquest was fought between European nations, the French and the English. Thus, of indigenous Canadians it must be remembered that conquest can only be claimed by default as a result of epidemics.
In the wake of the epidemics came exploiters of every ilk led by sectarian propagandists of church, school and government. These agents of colonialism took advantage of every circumstance conducive to the destruction of native identity, image. spiritual beliefs and the economy, as a means to subjugation.
The present biased system of government and the pervasive colonial mentality of this nation owes its existence to mores and attitudes that were instigated in those times. A legacy that demands careful examination if the mistakes of the past are not to be repeated in the new constitution.
Through is the privations of an undeclared war we have emerged fewer in number than in our former state but strong and vibrant from a new awakening, convinced and determined that we will recover the rights of indigenous birthright in this hemisphere.
Even in areas where the indigenous title was recognized by the Crown, our lands were subjugated to illegal encroachment. In 1763 a major portion of the Algonquin territory was affirmed as Indian territory by Royal Proclamation. The Proclamation predated the creation of Lower and Upper Canada by 18 years. It legalized principles for the ceding or surrender of Indian land as follows:
The native peoples possessed occupancy rights to all land which they did not or had not formerly surrendered, that no land occupied by natives may be granted to colonists until formerly surrendered, that the government assumes the responsibility of evicting all persons unlawfully occupying our said lands, and that the surrender of Indian land may only be to the Crown and for consideration. Neither the Government of Canada nor the Governments of Ontario and Quebec have honoured those principles in their occupancy of Algonquin lands.
A case in point is the Temagami land caution which is presently proceeding to the Supreme Court of Ontario, to test that province’s claim to jurisdiction over lands designated by the 1763 Declaration. The case points to yet another deviation from justice, as governments continue to advocate and support the illegal confiscation of our lands and our livelihood we become refugees in our own land. In response we are forced to make land claims of our own, to homelands that we have occupied since time immemorial.
We must prove indigenous title in courts of an alien system which by its very nature constitutes a subterfuge of justice to our people. We speak of freedom with some knowledge of its meaning for we were once a free people. We obeyed laws, laws of our own making, laws that harmonize with nature, laws that respected all life and allowed for the propagation of all creatures. It was to this land of freedom, this land of abundance and unspoiled beauty that Europeans came with an avaricious apetite for personal power and material riches. They created laws that they said were democratic and right, laws that were to enhance life. We have found, instead, that the so-called democratic system are laws that institute a rule of suppression, a system of legislative, social and judicial injustice, and the reason is that colonization and democracy are incompatible unless the rights of the original people are recognized and respected.
There are two rules of law for citizens in Canada: one rule exploits and controls native people and their lands, the other constricts all power and control to Euro-Canadians. Actually, they are two faces of the same law. The origin of this imbalance is a colonial system that ensures power and influence is concentrated in the hands of Euro-Canadians. They make all the laws. If anyone needs proof of that claim, look to the faces of this Special Joint Committee of the Constitution of Canada; there is not one native person on it—l apologize; I see Mr. Williams over there.
Parliament itself is conspicuously undemocratic by virtue of its composition. There are presently 282 seats in the legislative body of this country and only one is held by a native person. That a parliament so composed serves the Euro—Canadian interest to the detriment of indigenous peoples is elementary logic.
Another blatant example of colonial planning, in my estimation, is the twinning of Indian Affairs with Northern Development. It is by no means an accident that this duality of ministerial authority pertains to areas of the country where native people are the majority of the permanent residents and where the interests of the establishment generally run contrary to native interests.
The question naturally arises as to where the priority of such a minister lies. I must conclude that it most of the land in Southern Canada where still claimed by Indians, Parliament would move quickly to create a Ministry of Southern Development and twin it with Indian Affairs.
The most obvious manifestation of Canada’s entrenched colonialism is a ministry of Indian Affairs that is politically controlled and administered by Euro-Canadians.
Who is a Canadian? I can tell you the origin of the word and its meaning from Algonquin history. When Champlain and his countrymen ascended the great river, known today as the St. Lawrence, they met with a group of Algonquin hunters. They asked, “What is the name of this country?” The reply was, “Cadayand,” which literally means, where we live.
As the French settled along the river, they adopted that identity and became Canayen. Later, by English adoption, it “became “Canadian”.
Cadayand, where we live, expresses our love for the land which gave birth to our race. We are indigenous as the lakes, rivers, mountains and valleys of our great land, and evolved from its very soil.
We are not ethnic; we are nationals in our own land. Unlike peoples whose origins are European, Asian and African, our culture, language, race and spiritual beliefs are unique—our distinct identity—they thrive no where else on earth. And it is this unique entity of man kind, as part of the Canadian nation, that we want protected by a new constitution.
Canada, like Janus, the Roman God of beginnings, who had two bearded heads placed back to back so that he might look in two directions at the same time, has achieved a two-faced profile on human rights to the world. With one, she espouses the highest ideals to the international community and criticises iron curtain countries and other jurisdictions for human rights violations.
With the other, she denies those rights to indigenous peoples at home by a prejudiced legislative system which is based on a false assumption of European racial superiority. Can there be honour in a two-faced nation?
It is, indeed, honourable that successive Canadian governments have supported .the right of Jewish people to a state after 2000 years of exile from their home land. We empathize easily with the people of Israel, for we know the horrors of exile and persecution without ever having left our homeland.
Like the Jews, we must be the interpreters of our fate. We cannot be judged free be others, or have freedom imposed by the same impropriety. We must be part of the process to freedom; we must enunciate the meaning of emancipation, because we have experienced its lack. The colonial mentality can no more perceive freedom than can a blind man see the light of day.
We propose that for a start, Canada live up to commitments she has signed, as an esteemed member of the United Nations, by enshrining principles in our constitution that would lead to the fulfilment of those commitments.
The United Nations declaration on the elimination of all forms of racial discrimination states, in part:
Considering that the United Nations has condemned colonialism and all practices of segregation and discrimination associated therewith, and that the declaration on the granting of independence to colonial countries and peoples proclaims in particular the necessity of bringing colonialism to a speedy and unconditional end, and considering that any doctrine of racial differentiation or superiority is scientifically false, morally condemnable, socially unjust and dangerous, and that there is no justification for racial discrimination either in theory or in practice,
In line with that declaration, International Covenants of Economic, Social, Cultural, Civil Political Rights have formulated principles for its observance, Article 1 of each Covenant reads:
1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
2. All peoples, for their own ends, freely dispose of their natural wealth and resources prejudice to any obligations arising out of international economic cooperation, based upon the principle of mutually benefit, and international law. In no case may a people be deprived of its own means of subsistance.
3. The states parties to the present Covenant, including those having responsibility for the administration of non-governing and trust territories, shall promote the realization of their right of self-determination, and shall respect the right in conformity with the provisions of the Charter of the United Nations.
If the intent of those principles were enshrined in a new Canadian constitution, the Canadian reality would be under-
stood and fundamental rules would be established for the creation of right human relations between the original peoples and those who migrated to this land.
The Algonquin Council has one recommendation for the commencement of a practical application of the principles outlined. The idea has not been broached to other native nations yet, but should it find favour with them and the Canadian electorate, it could be the impetus for eventually decolonizing our people.
We see the present system, of government without representation, as a milestone around the neck of native peoples. Therefore, we propose that immediately following the acceptance of the universal principles of justice, that the first act be the creation of representative government for native people, flowing from those principles; and by “native”, we mean status and nonstatus Indians and Métis.
Our concept is a countrywide native constituency with the equivalent powers of a province, which would elect members of Parliament on a per capita and territorial basis. They would represent the indigenous entity in the same manner as the established government represents the economic, social, cultural, civil and political rights of other Canadians. This is our view of native self-determination within the structure of the Canadian nation.
If such an initiative is to work, all benefits which presently accrue to the provinces must go to the native constituency. including equalization payments, as per the policy on have-not provinces. To overcome 114 years of deprivation, the native people will require at least as much help as the poorest province.
Finally, may I quote these words of wisdom from Don Quixote:
There’s a time for some things, and a time for all things; a time for great things. and a time for small things.
My friends, what is this moment in Canadian history? Is it a time for small things, or is it a time for great things? Are we a nation of small minds and petty differences, or are we on the threshold of greatness, as we approach the 21st Century? Will we be proud of our new Canadian constitution?
Thank you very much.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Moore.
Mr. Epp would you like to proceed with your questioning?
Mr. Epp: Mr. Hawkes would lead off.
The Joint Chairman (Senator Hays): Mr. Hawkes.
Mr. Hawkes: Thank you, Mr. Joint Chairman; and welcome to the Algonquin group. Thank you for your testimony, and I must say I wish we had a little more time than we are going to have for questions, That has been the history of the Committee. Almost every session we leave wishing we had had more time to inquire in more depth into what lay behind the testimony.
I would like to try and summarize my own sense of what you have said to us this evening, that there should not be a new or patriated constitution for Canada until the aboriginal or native people, as it nation, agree to that constitution. is that the basic thrust of the testimony that there are many things which need to be incorporated to advance the concept and that that requires considerable consultation and agreement?
Mr. R. Kistabish: Before the Europeans came to Canada we lived in harmony with the land, and also in harmony with the other Indian nations surrounding our territory.
For example, I could not communicate with the Cree in Saskatchewan, but there was always another nation between the two groups, in every territory, that ensured that the rights of others were respected. The resolution would give us a constitution in which everyone would be encroaching on other people’s territory and the rights of others would not be respected at all. Each people have their own language and their own culture, and no law should be able to destroy these things.
You need only look at the past and see how we lived then, and you cold implement such a system in your constitution now. No one interfered with any nation. Unlike today, there was no oppression.
Mr. Hawkes: Thank you very much. Sitting here I cannot recall whether you are the ninth, tenth or eleventh group of native people that have appeared before us. I hear the concept of nationhood and also hear very clearly the concept of a culture that is different, with different ways of resolving issues, that has different religions; that has a somewhat definite different respect for the land and its place in the rythmn of life.
I also hear, usually, some sense of not wanting patriation because of the amending formula, and some comments which have been made that, in fact, settling these outstanding issues which have been around for at least a century, would be made more difficult when there are more than one Parliament involved, when there are provincial as well as federal parliaments involved, making the situation more complex and more difficult.
I sit here thinking of what you call the Euro-Canadian traditions. I have watched members of this Committee, as a committee, a vote along party lines. Essentially it is a process a 25 member council, if you like—in which 14 or 15 members come from the government side, and, therefore, can easily out vote those of us who are not from the government side.
I sit here wondering what your expectations are about what kind of amendments you think the Minister of Justice will bring forward to this Committee in the near future.
Do you really believe that, after all these years, now that we are engaged in this constitutional process, you have a government that, in the next week or 10 days, would bring forward a
series of amendments that will start to redress these long standing problems? Do you really think that is a possibility?
Mr. R. Kistabish: Even before the writing of Confederation in 1867, there were already points of view which were put forward by our ancestors. They went to see those people who mattered when they were writing this constitution in 1867.
So all we have to do is to take all those recommendations and put them in front of you again; the way we have been functioning, the ways we have survived have always been the same for the past 100 years.
Since we have been here we have always been living the same way. We have always to fight to survive, but somehow we managed to get a livelihood here.
You just have to go back and look at your books or those things which have happened in the past and you will see those things which have already been said, and you have to consider those points of view.
Also, we are here to repeat those messages which our ancestors have already passed on to your ancestors.
The Joint Chairman (Senator Hays): Thank you, Mr. Hawkes.
Mr. Manly: Thank you, Mr. Chairman.
I would like to thank members of the Algonquin Council for their presentation. One thing which came through very strongly was your live and let live philosophy, because on a number of occasions you have said that no people can decide for another people and that there should be no interference between our way of life and yours; that we must show respect for your way of life.
You went on to point out that, as far as you could see, the basis for the whole constitutional discussion rested on the land. You wanted some kind of agreement so that our different peoples could live together on this land in some kind of harmony. You said that you did not want a business contract like the James Bay agreement.
Would you like to set out for the Committee what you feel was wrong with the James Bay Agreement?
Mr. R. Kistabish: The first condition the Cree had to meet before negotiations could begin on the agreement was the abolition of their rights. It was the first condition the Crees had to meet before they could sit down to negotiate.
This condition must be eliminated if we want to have proper discussions between equals. It is absolutely essential that this be done when we meet to discuss the situation and how we are going to live on this land.
The reference to business contracts suggests that we will always be given money to compensate for our loss of rights, but it is completely unthinkable for us to have our rights abolished, because they were given to us by our Creator and we were created to exercise these rights. No human being can take these rights away from us, only God can do that.
These are the fundamental issues that we must sit down and discuss and resolve.
There is also your approach to the negotiations and to the question of occupying the land. You always think in terms of possession and material things. You want to possess something. We do not say that we own the land, but rather that the land owns us.
These are two completely different ways of thinking and it is essential that we respect each others approach.
I could not sell a piece of land, because I do not own the land, whereas you appropriate the land for yourselves and it becomes private property. Our two cultures are completely different and we must reach an agreement about what we should do. You see yourselves as owning the land; while we feel that the land possesses us.
We will have to give a great deal more thought to this point before we continue our discussion.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Manly.
Senator Williams: Thank you, Mr. Chairman.
First of all I want to thank the Algonquin Council, their members and supporting group sitting behind them.
You will have to excuse my ignorance. One thing I would like to know is how many Algonquins are there? I am from the west coast of British Columbia.
Mr. R. Kistabish: I have a number. I put it sur mon front. My number is 211. That is the Indian Act way. It does a poor job to protect human rights. Perhaps the Canadian government wants every Indian to have a number. That is the way the Canadian government treated the Indians, by giving them numbers. I am just reminding you that it is 211. According to that act we are 3,500.
Senator Williams: 3,500; thank you very much.
Senator Williams: I have tried to listen very carefully. I will make my questions short, Mr. Chairman.
The thing that struck mostly in my mind was the statement by one of your witnesses that Algonquins have always been able to solve their problems. Being in Indian organizations most of my life, and I am not young any “more, this is an achievement in itself. On the whole, the Indian people in Canada have had real difficulty in solving their problems, and if my figures are right, I believe the total number of Indians in Canada is somewhere around the figure of 300,000.
Out in the West we have different problems than you have. Another thing is, one of your witnesses said we have come a long way together. I am not quite sure what your witness meant by that, whether it is a government or whether it is society or whether it is the denominations that have taken over. Many of the ways of life of the Indian people in Canada as section by section, or province by province, which is a new area of history, and coming a long way together, I would like you to tell me if there were any advantages in coming a long way together, or disadvantages.
Mr. Salomon Wawatie (Algonquin Council): I will answer your question. We, the Algonquins, believe in natural laws so we have natural problems that solve naturally, and with this new type of living that we do not know, it has a tendency to dehumanize a natural human being.
Senator Williams: Thank you.
The Joint Chairman (Senator Hays): Your last question.
Senator Williams: My last question. Mr. Chairman. Are Algonquins on the increase or are they diminishing in total numbers like some of our West Coast tribes are getting less and less, not going to the Happy Hunting Grounds but marrysing out of the Indian society into what some—there was a reference here of Eural people, which means I believe, those that come from Europe. A large number in the West are marrying out of the tribes.
Mr. S. Wawatie: The question is a question that is normal to ask from a mind that only thinks about physical things. You see, we believe that life is a stage where your spirit learns about things and this way of thinking of the Euro-Canadians takes everything physically which tends to make an Indian have a physical attraction to white skin.
You see, it is a medicine that we have have never tasted before because it is not our medicine. Our medicine is life. We do not stay with a person because she is beautiful, because she is a human being, you see.
The Joint Chairman (Senator Hays): Thank you, Senator Williams.
Senator Williams: Thank you, Mr. Chairman. I would have liked to have had one more question. But that is fine.
The Joint Chairman (Senator Hays): You go ahead.
Senator Williams: No, that is fine, maybe later on.
The Joint Chairman (Senator Hays): All right, Mr. Allmand, do you have a question you would like to put?
Mr. Allmand: No, I have no questions. The witnesses have Spoken very clearly.
The Joint Chairman (Senator Hays): Mr. Fraser?
Mr. Fraser: With the agreement of the Committee I would like to ask one specific question concerning Section 24 of the proposal that we have in front of us. As the witnesses will know, Section 24 says that the guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada, including any rights or freedoms that pertain to the native peoples of Canada.
Now as I read that section that means that if this proposal is passed in the form it is in that is a declaration that guarantees that any rights that your people can establish in future discussions with the rest of us can be asserted and that the intent of the section is to keep that option open to you.
That may be the intent of the section that may not be adequate to you, but I gather that what you are saying is that no new constitution ought to be passed until those rights which you feel have not yet been accepted by our community, by the non-native people in this country, that those rights ought to be spelled out in the constitution.
What I am asking you is this, if Section 24 is passed as it is, and I put it to you that the intent of Section 24 is to keep open your rights to engage in discussions with your other Canadians and have those rights finally asserted, those discussions may take a long time; and my specific question is, would you be prepared to accept Section 24 as a first stage, as a sort of basic guarantee that you still have the right under the constitution to assert those other rights which you say have not been accepted or have in fact been breached, or would you not accept a new constitution until you have had a chance to work out among yourselves what those rights ought to be, and that they should be put in the new constitution at this time, not some future time?
Mr. Commanda: I will comment on your question. I think it would be an error to let it go by before it is debated because since the Prime Minister on the August 8, 1969, in Vancouver stated that he categorically refused to respect or to recognize the aboriginal rights of the Indians and in a case like this, it is only a maybe, he would probably do a little bit better, but not enough, as we expect. I think it should be done before the patriation of the act itself.
Mr. Fraser: Thank you very much.
The Joint Chairman (Senator Hays): Thank you, Mr. Fraser. Mr. Kistabish, I am sure that all members of the Committee, as is quite obvious by their questions, are very interested in the native peoples’ problems. I am sure they will be mindful of this in their deliberations when we deal with these issues in the clause-by-clause study of the resolution.
At this time, I should like you to thank all of your members for being here this evening and taking time to discuss with the Committee your problems that are very serious to you and I am sure that all members of the Committee are quite conscious of that. I would like to thank you for being here, on behalf of Mr. Joyal, our Joint Chairman, and all members of the Committee.
Mr. R. Kistabish: I just have one thing to finish it, this one here, since the constitution is going to be for the future I would like to have the kids say a few words.
Miss Pamela Kistabish: When we had a country you have taken it from us. As for our pride, you have not taken it from us as we have hidden it. When we used to be the majority of the inhabitants. we did accept you but now that you are the majority, you reject us. Now that we want our rights to be respected, you put us on the cross.
Now, you are talking about human rights and constitution but after several discussions you carry on ordering us off our rights as persons.
Yes, we will always have our country because this theft is going to be punished and despite your desperate efforts to exterminate us, the algonquin people will remain forever because the young will soon take over.
The Joint Chairman (Senator Hays): Thank you very much, Pamela.
Our next group is the Union of Ontario Indians. They are represented by Mr. Patrick Madahbee, Mr. Paul Williams, Chief James Mason. Mr. Madahbee is the President and if you bring your group forward, Mr. Madahbee, we will proceed with the meeting.
You are familiar with the procedure, Mr. Madahbee. Will you be making the presentation?
Mr. Patrick Madahbee (President, Union of Ontario Indians, as the agent for Anishinabek): No, Mr. Chairman, I will be making the initial comments. Chief Mason will be opening presentation with some remarks and Mr. Williams as well will be making some comments.
The Joint Chairman (Senator Hays): And Chief Mason will be leading off?
Mr. Madahbee: Basically, I just wanted to indicate to you that we welcome the opportunity to come here and speak to you and we would like to begin our session in a traditional way.
First, we should join together to thank our Creator, to remind ourselves that we are all human beings on this vast island and have much to be thankful for. I will call on our Elder, Chief James Mason, to give thanks and to perform the Ceremony of Condolence to begin our council here this evening. Chief Mason.
The Joint Chairman (Senator Hays): Chief Mason.
Chief James Mason (Union of Ontario Indians, as the agent for Anishinabek): (Prayer in Ojibway).
With this sacred sweetgrass, now that we meet together to consider the future of our peoples, we should take care that we are not distracted or upset by the misfortune and conflicts of the past, and that our minds and our senses are prepared and open, seeking harmony, peace and strength. This is how our council begins.
With the sacred sweetgrass I clear your eyes so that you may see clearly without confusion; I clear your cars so that you hear clearly without obstruction; I clear your throats so that you may speak without hesitation, openly and freely. I remove the darkness from the earth and replace the sun in the sky so that in the serenity of the day you may deliberate and confidently look clearly to the future; I clear the passage of your hearts so that you may not be affected by bad feelings but may consider these matters with purity and honesty within you, so that our words may reach you, to your hearts.
I begin this council so that we can meet together and take the time to think together for the generations yet unborn. Let us bring our minds together, we as brothers and sisters, to work together for the future of this land and for our children’s children. Let the council begin. Thank you.
Mr. Madahhee: Mr. Chairman, I would like to indicate to you that we are here as spokesmen for the Anishinabek. On my right is Chief James Mason, an Ojibway, Chief of the Saugeen Indian Reserve. He has been active in Indian politics for over 25 years. On my left is Paul Williams who will also be speaking to us a little later. My name is Patrick Madahbec, an Ojibway from Manitoulin Island, recently elected President of the Union of Ontario Indians.
The Union of Ontario Indians in its present form is a direct descendent of a number of previous organizations. Its immediate predecessor was called the Grand Council of Indian Chiefs of Ontario. The predecessor before that was simply known as the Grand Council. The Council was a confederation of Indian nations, the members of which are still members of the Union of Ontario Indians today. It is on behalf of those Indian nations, our member nations, that we have the authority to speak to you this evening.
We are the Anishinabek.
The Creator placed all things on this island. He directed that we should all live together in harmony. The birds. the fish, the animals and the plants, like ourselves, shared to survive. Our families, our clans, chose to live in communities of a size best suited to our hunting and fishing and farming. Each of these communities had and knew its own territories, its own resources.
We have been called Ojibways or Chippewas, Ottawas, Delawares, Potowatomis, Algonquins. We are nations whose languages are similar, whose cultures are close, whose lands are often shared. For years beyond memory we have been confederated; our chiefs have met and acted together for the benefit of our people,
Today we number over 40,000 people on our lands to the north of the Great Lakes. We are a distinct people. We have a
distinct territory, and our own lands. We have our own laws, languages and forms of government. We survive as nations today.
All our lands are known to us; we continue to use them as the source and support of our lives and communities, both in an economic sense and in a spiritual way. Each place has its name and its importance to us. Let any who doubt our connection with these lands live with us, observe our ways. Though we have shared our lands through treaties, we have never separated our people and our lands in our minds.
Our communities and the governments of our nations are tribal in nature. They are suited to the needs and the character of our people.
The people together in council made all important decisions. By election or by heredity, they chose on Ogimah or chief, responsible to them, to guide and advise them. AnikehOgimauk, or councillers, assisted the Ogimalt in his work. This system, although modified as a result of the imposition of Canadian laws, survives today.
Our governments are, and have been, as much government as the people wanted or needed, and no more. We have never accepted the concept that a majority has the right to force others to follow its ways. We have concluded instead that we can take the time to seek solutions that will be acceptable to all our people. In our tribal communities, we cannot live in ways that divide us. We are one people.
Our Ogimauk also met together in what has been called grand councils of the nations. We have said that we have been confederated for years beyond our memory, and this is so. The purpose of the grand council was to discuss and decide matters which concerned all of our communities; matters of war and peace. of territory and law. These things remain so today, and our Ogimauk continue to meet in council in the same manner.
The main purpose of the grand council has been to conduct our relations with other nations.
We have alliances and treaties with other tribal nations in the four directions.
To the south, with the Madoweg, the Iroquois confederacy.
To the east, with the Abenaki and the Mi’kmaq Matronimouw, the Micmacs.
To the north, with the Mashkegons, the Anishnabeg-Aski.
To the west, with our relations on the other side of the lake and the Lake of the Woods, and with the plains Cree. With these nations, we have maintained economic and military
alliances as well as formal and informal social and cultural relations.
With European nations, as well, we have treaties.
The first European nation we met with was France. In trade and in war we became the allies, not the subjects, of the king of France. For over a century, our alliance brought advantages to France and to ourselves. When, in 1760, Great Britain defeated France in this country, Article 40 of the Articles of Capitulation of the French at Montreal made provision for us as allies of his most Christian Majesty; that we should be maintained in the lands we inhabit, should we choose to remain there; they shall not be molested on any pretence whatsoever having carried arms and served his most Christian Majesty.
This was a quotation included in the Articles of Capitulation.
From 1760 to 1764, many of our people conducted a war against Great Britain in our country. The war ended with a treaty at Niagara of peace and friendship with the Crown. This treaty lies at the foundation of our relationship with the Crown of Great Britain for the next two centuries, and has been our guide in our relations with the dominion of Canada.
ln 1764 we received an invitation to attend a Council of Niagara from Sir William Johnson, the Superintendent General of Indian Affairs, in the name of the Crown. We met at that place in July of 1764. The representatives of 24 nations met with the representatives of the British Crown.
Sir William Johnson informed those nations of the King’s Royal Proclamation of October 7, 1763, which recognized their rights to their lands and which would serve to protect them from the King’s subjects. He renewed the friendships in the name of the Crown with those nations already connected with Great Britain. With those nations with no such formal connections, he established relations in the name of the Crown.
The Treaty of Niagara was both an end of the hostilities between parts of our nation and Great Britain, and a beginning of the relationship of particular significance to both our nations and Great Britain. It was ratified at Detroit shortly afterward, and on many occasions since that time.
Our relationship with the Crown of Great Britain has always been described as a silver covenant chain. In July of 1764, this covenant chain was well known as the symbol of the relations between Great Britain and the Iroquois Confederacy. At Niagara we agreed that we should enter it as well. In the name of the Crown, Sir William Johnson entered into this compact with us.
At the end of our deliberations at Niagara. Sir William Johnson stated:
There now only remains for us to exchange the great belt of the covenant chain that we may not forget our mutual engagements.
I now therefore present you the great belt by which I bind all your western nations together with the English, and I desire you will take fast hold of the same and never let it slip, to which end I desire that after you have shewn this belt to all nations you will fix one end of it with the Chipeweighs at St. Mary’s whilst the other remains at my house.
I exhort you, then, to preserve my words in your hearts, to look upon this belt as the chain which binds you to the English, and never to let it slip out of your hands.
This treaty was preserved on a belt of wampum. This was the convention in this country at this time, as our people did not have writing, and because paper would not last. Both the belt and the tradition of the chain have been passed down through the generations of our leaders, and this relationship remains strong in our minds. Over the two centuries since the chain was made, we have renewed our alliances often, through subsequent treaties, and with our blood.
The nature of the chain is that of a compact, a political union, in which the participating nations are like links of a chain. You can see them joining arms here. These are the individual council fires of the nations, each figure on here represents the Indian nation and the English, and this represents our council fires, and it shows it is continuing, so that it is for all time. You will see that the chain is open so that we can continue forever.
Each link retains its identity as each nation continues to conduct its internal affairs. The purpose of the making of the chain, as of any compact between nations, is to create the strength and protection that flow from unity and a common purpose.
I should further explain what the relationship was at that time and proceed to the present day.
We use the word “compact” very carefully. I think you could refer to the original British North America Act as a compact between four provinces, a treaty of union which was later ratified by the Parliament of Great Britain. In most of its characteristics that relationship can be characterized as a protectorate, In many ways, it was a mutual protectorate because the Indian nations covenanted to protect the British against British enemies as much as Britain promised care and protection to the Indian nations.
If you examine historical records, you will find that these Indian nations fought for Britain and the Crown in every war Britain called upon them to do so, and after that, even until World War II.
In most cases, the citizens of those Indian nations were not required to fight for Britain. They were not subject to conscription, they were not required to do any more than volunteer if they chose to.
Given that relationship of mutual protection and mutual friendship, something very different evolved over the years. In 1764, the Indian nations held the military balance of power in North America. In 1776, and during the years following that, in the American revolutionary war, those Indian nations fought on the side of the British against the revolutionary American colonists. In many cases, many of those Indian nations lost their lands in the United States when Britain removed its power from that country.
Throughout the 1790s, Indian nations acted as a buffer protecting Upper Canada from the American invasion. In the War of 1812, Upper Canada would have been lost completely had it not been for Indian military intervention and Indian military action. All of this can be found in the history books, I have just very quickly summarized what took place.
It was not until the 1830s, when the threat from the United States really no longer existed, and when there had been sufficient European immigration that the colonists in Upper Canada no longer had to rely on Indian military protection. It was then that the Government of Upper Canada also felt it no longer had to protect and respect the sovereignty of Indian nations.
During that period as well, there was a number of so-called treaties signed. One has to be very careful when one looks at treaties. Most of what Canada has chosen to call treaties are in fact real estate deals, The very early ones read just like any other British real estate conveyancing document.
By 1867, when the British North America Act divided up jurisdiction between the provinces and the federal government, the federal government emerged with the exclusive jurisdiction, according to Section 91(24):
“. . . over Indians and lands reserved for Indians”.
Provincial governments took the natural resources within the province.
This division of powers resulted in a number of disputes between the federal and provincial governments, but perhaps more important for Indian purposes, the federal government at that point began to legislate increasingly in, shall we say, paternalistic manner.
The first legislation produced by British colonial governments was designed to keep British subjects from settling on Indian lands. By the 1870s, the Government of Canada sought to define who was Indian in order to prevent non-Indians from squatting on Indian land. That perhaps was the first inroad by Canada into the sovereignty of the Indian nations: The effort to define unilaterally who were the citizens of those nations by
stating who was not and therefore was not entitled to live on those lands.
Canada has moved to determine the nature and powers of Indian government to determine the use and nature of the use of the Indian lands, to change the rules on how Indian lands can be given up, to determine the relationship between treaties and the provincial and federal laws, and in no revision of the Indian Act can it be said there has been any improvement in the standard of fairness exhibited towards the Indian people by the Government of Canada.
Each subsequent act has resulted in the reduction of powers of Indian governments, a reduction of the independence of Indian people, a reduction in the number of people eligible to be considered Indians by Canada, a reduction in the power of Indians over their own lands, a reduction in the degree to which Canada and the provinces must respect Indian treaty obligations; that is, the obligations undertaken by the Crown to the Indian nations.
Through all this we have seen, as well, two separate phenomena: one, an increasing dependence on the part of Indian people on the Canadian government. That proceeds very closely with the breakdown in Indian economic structures, and to some degree Indian social structures.
I would like to comment about that as well, that is, Indian nations have always functioned on the basis of a community, as a tribal society, very different from the societies that European people live in. Different in ways that tend to give the individual liberty within a structured society, rather than extending the individual’s rights above all.
Policies of the Government of Canada and the provincial governments reflect the culture and a system that enhances the rights of the Individual at the expense of society to a great degree. Whereas Indian nations have their lands in common, the Government of Canada has promoted for the past 100 years the division of Indian land into privately held allotments; whereas Indian government was government by consensus, the Government of Canada has imposed a system of majority vote and majority rule. This is not the Indian way of doing things.
I have gone through all this historical background to try and explain the unique position of the Indian nations today, within the constitutional process.
It was not until 1960 that Indians became citizens of Canada. Before that, it is not really clear what Indians were citizens of. We believe that Indians were citizens of their own nations at that time and have remained citizens of their own nations to this date, but neither Canada nor any other nation should be placed in the position of unilaterally depriving People of their nationality. I believe international law and the United Nations Convention on Human Rights also agrees with that. Once one reaches that stage of saying “Where are Indians in Canada’s constitutional scheme today?”, they are certainly not at that constitutional table in Ottawa.
The Indian nations have never really consented to become a part of Canada. The treaties were all with Her Majesty the Queen. not with the Government of Canada. Indians nations for whom I am speaking have no treaty, no political relationships with either Canada or Ontario, and that relationship has yet to be determined.
The relationship with the Crown is clear. It is a protectorate. There was no surrender of sovereignty, in fact the treaties include promises of respecting sovereignty. All one can say is that the declining respect for Indian sovereignty follows a virtually mathematical equation, following the decline of the significance of Indian military power as an alliance or as a threat.
The less threatening or the less useful as military allies Indians were, the less respect Canada and its predecessors manifested for Indian rights. Having said that, there is no Indian participation at the constitutional talks now.
We have to say something else, too, that is, we do not trust Canada or the provinces, based on their past record, with the power to restrict or abridge. or in any way modify the rights of Indian nations. What we told the Government of Ontario this past September. I am going to repeat to you now.
Number one, we would like to see full Indian participation in the constitutional talks, constitutional negotiations and debates. If there is to be any Indian relationship with Canada defined, if in fact there is to be any Indian relationship with Canada at all, it cannot be determined in the absence of Indian representation.
The second point we made was that as this time we would not want to see patriation of the British North America Act without first recognition or entrenchment of Indian rights. We simply do not trust Canada to take action to protect Indian rights on its own because it has never done so in the past with the power that it has had.
We can cite very specific and numerous examples of broken promises, broken treaties, breaches of trust, abuses of power, deliberate attempts to break down the governments and the responsibilities of the Indian people and of the Indian nations.
I would now ask Paul Williams to comment further on our Indian nations.
The Joint Chairman (Senator Hays): Mr. Williams.
Mr. Paul Williams (Union of Ontario Indians, as the agent for Anishinabek): Thank you, Mr. Chairman.
I suppose, now that you have been reminded of the history of the relationships between the Anishinabek and the British Crown, we should also take an overview of how the governments of Canada have, over the past number of years, evolved their perception of who the Anishinabek are.
In 1764 the language used by the Crown was a reference to nations or to tribes of Indians. The Royal Proclamation refers to nations or tribes. Every treaty until at least 1840 uses the
words “nations” or “tribes”. The perception by the Euro-Canadians, by the British in North America, was that they were dealing with political entities, nations or tribes of Indians, and the definition in their minds was a political one.
In 1867, with the British North America Act, the Government of Canada, the federal government, was given legislative jurisdiction over Indians and lands reserved for the Indians pursuant to Section 91(24). This created a constitutional definition of Indians. Canadian courts have since held that the constitutional definition of Indians also includes the Inuit or Eskimo people. It may in fact also include people regarded as nonstatus by Canadian legislation. So that is the third step in this metamorphosis.
From the political entity, Canadian perception moved to a constitutional definition and from there the Parliament of Canada, through successive Indian acts, created a legislative definition of who is an Indian, much narrower than the constitutional one and even further removed from the political perception of the 17th, 18th and 19th centuries.
During the past years, we have seen the emergence of a new policy and a new word, the word “natives”. The concept of native peoples, the word “native” is not based on legislation, it is not to be found in the constitution, it is not to be found in any of the treaties. The word “native” is a purely racial definition and we want to make it exceedingly clear that the rights of the Indian nations are not based on and do not emanate from any racial affiliation or any racial identity. They are political rights. They are the rights of groups of people.
In rejecting this attempt to define the rights of Indian nations as based on race, some people have taken refuge in the Indian Act. They have said “Canada recognizes our rights in legislation”. These people were mistaken. The Indian Act can be changed like any other act of the Parliament of Canada.
Other people have taken refuge in the constitutional responsibility of the federal government under the constitution, under the BNA Act. They, too, have been mistaken, for that act may also be changed. It is not a recognition of rights, it is merely, as we have explained in our brief, a designation of the federal government as the entity responsible for the relations with the Indian nations. Therefore, in considering the source of the rights we are discussing, we return to the political definition. The fact that the treaties and the relationships were concluded with political entities, nations, as Canada since 1931 has concluded treaties with any other nations; they are not racial rights. Race, the fact that most of the citizens of these nations belong to one racial or ethnic group is a coincidence. In the Same manner that the Government of Canada deals with the Government of Japan, it never considers the race of the Japanese people as an element in their political relations.
We suggest that when the Crown of Great Britain was making treaties with our nations. it was the political identity and not the racial identity of the people and the governments that brought about treaties. One does not make treaties with racists, one does not conduct governmental relations with
racists. We have never proposed that that should be done. You have heard of the history of our relations with the Crown for a specific reason.
We also want to explain that we do not have what you call Indian rights. The rights of each of these nations, in relation to the Crown, are different; because the treaties of each of these nations with the Crowns contained different terms.
Thus the Ojibways do not have Indian rights; they have Objibway rights. The Micmacs do not have Indian rights; they have Micmac rights.
Canada’s Indian Act has been an attempt to take a diversity of nations, with a diversity of relationships with the Crown, and to generalize, and then in the process of this generalization to lose sight of certain rights, certain specific relationships, because each of these is different.
I should also like to point out that we are not discussing the kind of rights that are described in the proposed Charter of Rights and the resolution.
Canada, with its European heritage, understands things in terms of relations between the individual and his government. The rights we are talking about are not individual rights. They are the rights of groups. There is nothing in the proposed Charter of Rights that deals in any way with collective rights.
What we are discussing here are collective rights and not individual rights.
We have said that we are opposed to any patriation of the constitution of Canada, unless our rights are both recognized and protected. I will try to explain these two concepts further in greater detail.
It must be made clear in this constitution of Canada that the rights we are speaking of have existed before any constitutional recognition; that the constitution, in recognizing them, is not creating them for the first time; the Royal Proclamation of 1763, about which you have already heard, did not create the rights of our nations. It recognized them.
The Royal Proclamation was made before, and for the purpose of, cementing the covenant chain with the eastern nations with our nations. We can document that, if you wish.
But the Proclamation is confirmatory, and does not create the rights. It was not a source of the rights.
In saying this, we are saying something along the lines, perhaps, of the Canadian Bill of Rights, as it exists today, which does not create, but rather confirms that the rights have existed and shall continue to exist.
I would like to comment on Section 24 of the proposed resolution. It seems to be the only reference to the rights of Indian nations in any manner whatsoever. It states that the Charter of Rights shall not be construed as denying the existence of any other rights or freedoms that exist in Canada. including any rights or freedoms which pertain to the native peoples of Canada.
The note in the margin of the section indicates that it deals with undeclared rights. The rights of the Anishinabek are not undeclared, they are not uncertain. We are aware of those rights. The Crown is also aware of those rights. If the Crown has forgotten we can assist in reminding the Crown what those rights are.
We resent any attempt, especially any attempt in the constitution to reduce them to the status of undeclared rights.
Section 24 is not the recognition of rights. It is, rather, a statement that if Indian nations have any rights, the proposed Charter does not deny their existence at this time.
We feel recognition requires a positive statement and not a back-handed one; and Section 24, is, indeed, a back-handed recognition, if any recognition at all.
It requires a declaration, not a classification of undeclared rights.
I have already explained that the words “native peoples” give us problems. I will explain a little further.
The Royal Proclamation of 1763 and other royal documents at the time, and all the early treaties whether in writing or otherwise preserved, contain the words “nation” or “tribes”. There is constitutional or historical precedence for the use of those words.
There is no precedent, legal, constitutional or historical for the use of the words “native peoples” or “native peoples of Canada”. The words have no legal meaning.
Since these words, “native peoples” are racially, rather than politically, based, and we have already explained that race is not the source of these rights, we would not want to see these words perpetuated in the constitution.
In our brief, you will notice that Lord Bathurst, in 1815, directed the governments in Upper Canada and the Indian department to encourage the nations or tribes of Indians with whom Britain was on friendly terms, to continue to use the words which would indicate their sovereignty, to continue to use the word “nations” as opposed to “tribes” or lesser words in relations with the government of the United States, in treaties with that government, and in treaties which Great Britain would conclude with the Indian nations.
We have continued to use the words “nations”, “tribes”, and those have meaning and we suggest their use be continued in the constitution of Canada.
On the question of treaties, this covenant chain, which you have seen clearly explains the relationship of the Anishinabek with the Crown.
The laws of Canada, made by the Parliament of Canada, have not made these treaties binding on Canada.
We have people in court, day after day in many places, because federal and provincial laws have, in the words of the courts, “superseded the terms of the treaties.”
Treaties are not protected in Canadian law.
We have no reason to trust Canada, based upon its performance over the past century to respect the treaties. Therefore, we are suggesting a provision within the constitution itself that the treaties are binding upon the federal government; that they are not subject to the kind of unilateral abrogation that has taken place over the past 113 years.
I would like to discuss also the question of devolution of powers from Great Britain to Canada. That is also a source of problems.
In official communications, the government of Great Britain has notified us that it has devolved its treaty obligations to us, to the Government of Canada, pursuant to the statute of Westminster 1931; and that it, therefore, no longer has any treaty obligations to these Indian nations.
We can find nothing in the statute of Westminster which suggests Britain’s treaty responsibilities to our nations were fully devolved to Canada, and we know of no rule of international law which permits one nation to transfer its treaty obligations to another, a third nation, without the consent of the nation with whom it has the treaty.
Canada would not doubt object if the United States transferred its treaty obligations under any number of pacts to a third country and no longer accepted treaty obligations on that basis.
Yet, if Britain has in fact devolved its treaty obligations to Canada, it is clear that Canada has not accepted these obligations.
In other official communications, the government of Canada has notified us that it does not consider itself bound by the terms of treaties with our nations which were made outside the present territorial boundaries of Canada.
That, Canada denies any obligation under the treaties of Niagara and Detroit, among others, with our nations, on the grounds that the treaties made by the Crown were outside Canada’s present borders.
I presume Canada would deny, if it had had the power to sign that treaty, any obligation under the Treaty of Versailles because it was signed outside of Canada’s borders.
The treaties of Niagara and Detroit are the most important treaties that the Anishinabek have with the Crown, because they established the political relationship with the Crown; all subsequent treaties deal with land, real estate, not political relations.
Britain states, therefore, it has no obligations. It has devolved the obligations to Canada. Canada states it has no obligations; the treaties were signed outside its borders.
Furthermore, we have been unofficially informed by the Government of Canada that it does not consider itself bound by treaties entered by the Crown with our nations before 1840, since the British North America Act provides only that the federal government assumes only the debts and obligations of the United Province of Canada after the Act of Union of 1840.
Furthermore, we have been informed that the Government of Canada may not consider itself bound by the terms of any treaty entered into before Confederation. We have been unable to get any clear answer from the federal government to our questions on that subject. Instead, we have been invited to submit a claim based on such a treaty, to have the issue resolved in some adversary forum.
What we have then, is a number of treaties with the Crown which no existing manifestation of the Crown will accept responsibility for.
Before Britain devolves any more powers to Canada. we want to be sure that Canada accepts the responsibility that comes with the power, otherwise the rights of Indian nations might disappear somewhere in mid-Atlantic as they seem to have done already, with both Britain and Canada denying any responsibility under our treaties with the Crown.
I should point out at this point that the Chiefs in Council have stated that they would prefer to see the rights of the Indian nations recognized and protected in legislation of the British Parliament and not in Canada.
They would like to see this done in a manner which would continue to bind Canada. The treaties were all made with the Crown of Great Britain, the Imperial Crown, not with Canada.’ Until the Statute of Westminster, 1931, and the letters patent to the Governor General of 1947, Canada did not have the capacity to enter into treaties with other nations in its own right.
When the chiefs dealt with the Government of Canada, they felt they were dealing with an agent of the Crown. The relations continued with the British Crown. That is why the chiefs continue to look to Britain and to visit Britain, because the Crown in right of Great Britain was a signatory of these treaties. The Crown in right of Canada did not exist before 1867, and did not have the capacity to sign treaties until a considerable period after that.
The declaration recognizing the rights of the Anishinabek should also contain a specific provision that these nations shall have the right to govern their internal affairs, and our brief contains a recitation of what we consider those affairs to be.
This principle of noninterference by one government with the internal workings of another has been part of the treaties with the Crown since the very beginning.
Having talked about recognition, I should say that mere recognition is not enough; that the rights require protection
and entrenchment as well. This constitution we are talking about is something that should, could, and will be amended in the future. We would not want to see the rights recognized in the first round, only to disappear in the first amendment.
We therefore propose that the rights and relations we are discussing here should be placed in a separate part of the constitution, and that that part should not be amended without our consent and agreement.
Naturally, in saying this, we are also saying that the words of the present Section 1, which place further limits on the application of the constitution and the rights protected in the constitution, should not apply to the separate part we are discussing.
What we are proposing is, in effect, an amending formula which would protect the rights of the Indian nations and the existence from arbitrary or unilateral change or attack by other governments of this land.
I said the chiefs would prefer British rather than Canadian entrenchment, recognition and protection of these rights. Nevertheless, proper recognition and protection within Canada would be acceptable. It is the strength and not the form of the entrenchment which is important.
We are convinced at this time that the federal and provincial governments in Canada will not respect the rights of Indian nations unless they are effectively bound to do so. Thank you.
The Joint Chairman (Senator Hays): Thank you very much.
Does that complete your presentation?
Mr. Williams: Yes, it does.
The Joint Chairman (Senator Hays): Mr. Epp? Mr. Fraser?
Mr. Fraser: Thank you, Mr. Chairman. First of all, gentlemen, may I, on behalf of everybody here welcome you this evening.
After the really quite extraordinary competent presentation which you have given us, I do not have time, nor do my colleagues, to do the presentation justice.
I have remarked on this because it is not the wish of all members of this Committee to be forced to have as little time to discuss these matters.
I want you to know that there are members on this Committee, not in the government, though there may be some in the government who would wish that there be far more time to discuss the matters and issues raised, but because we do not have time, and because we have limitations imposed upon us over which we have no control, and because this Committee is not the same as a constitutional congress, or a constitutional meeting in which there are representatives of people standing as equals in their own right, which is a partisan committee—while attempts have been made here to keep it as partisan as possible, nonetheless that is the Committee you have in front of you.
I would like to turn specifically to some of the matters that have been raised.
Section 24, as Mr. Williams said, is the only section in the proposal which deals with Indian rights, and uses the words “native rights” and it does not refer to nations or tribes and in the Charter of Rights these are individual and not collective rights; you have made that point extremely well, and I am in complete accord with the point you have made.
The difficulty we are in, is this. This Committee has to report back within an allotted period of time. There is then going to be a debate in the House of Commons. We know that the government is going to bring in—and probably has already drafted—a number of amendments to this proposal. Whether those amendments would even deal with the subjects you have raised, I do not know, because we do not see them until the last minute.
Here is our dilemma. Accepting what you say, and accepting also that there must be a great deal of work done in the spirit in which our Chief opened the meeting, how is there time for this Committee to deal with the issues you have raised?
You see, what the government has proposed in this bill under Section 24 is to leave the matters you are raising to some further date, and they would have us believe that Section 24 keeps the door open to your doing that at a subsequent time.
The Indian group which was here just a few moments ago, before you, said, when I asked this, “This is why we are opposing patriation until the rights are asserted”.
But the dilemma we are in is that, with the best will in the world, given the time frame we are labouring under, we cannot do it or do justice to the problems you are presenting to us.
Because, when you have a bad situation in front of you, it is the duty of the Opposition to try and patch it up as much as possible, I would like to put a proposition to you and see whether this, all imperfect as it may be, is better than Section 24.
If the constitution declared, in substitution for the words of Section 24, that it asserted and confirmed, as the present Bill of Rights does, the existing rights of Indian nations and tribes, those rights that were affirmed by Great Britain historically in the treaties entered into with your people, and if it asserted that those rights, whatever they may be, are confirmed by Canada today as being the rights to which your people are entitled, would that go some way to correcting the present defficiency, because if it is so, as Mr. Williams has pointed out, that the Government of Canada takes the position that rights entered into with the old Imperial Crown are not or may
not even be binding on the present Government of Canada or the country of Canada then surely that is the assertion, the confirmation that you need at this time; because we are not goint to have time to deal with the rights as you may enumerate them after some other Committee or some future Constitutional Committee can sit down and study the validity of the propositions that you have.
Mr. Williams: Mr. Chairman, perhaps I could try to answer that. I am sorry, likewise, that we do not have the time to do the question justice, to consider it as fully as we would like. Obviously your proposal goes some distance to satisfying some of the problems we have but it deals with half the question.
Mr. Fraser: Could I just interrupt, Mr. Chairman? I recognize it deals with half the question, perhaps not even half. I am just inviting you to be cognizant of the difficulty under which we are labouring, given the terms of reference of this Committee and the time problem. What we have to do is make the best of a bad job and that is why I am putting forth the suggestion that I have to you.
Mr. Williams: All I can say is that it provides a degree of recognition but it provides no protection, that is it places people in a situation where whatever is being recognized is probably merely being set up for future derecognition. There is no entrenchment and there is no guarantee of any participation by Indian nations in any future constitutional developments, so that it is an improvement, but it remains a bad situation. It is not satisfactory.
The Joint Chairman (Senator Hays): Thank you, Mr. Fraser. Mr. Blackburn.
Mr. Blackburn: Thank you, Mr. Chairman. I would like to follow on on what Mr. Fraser was referring to a few moments ago. Our time is of the essence on this Committee and we are probably going to be presented with a fait accompli by the government in a few weeks time and will probably be told to take it or leave it. I am speaking now for those of us who are sitting on this side of the table.
A few weeks ago, specifically on December 19, Premier Blakeney from Saskatchewan recognized also the weaknesses of Section 24 of the resolution as we do in my own party and I think many other members around the table as well, and he proposed subsection 2 which is printed in this document which he presented to us. The Patriation and Amendment of the Constitution of Canada on behalf of the province of Saskatchewan. I will just read it to you very slowly. First of all, have you read Premier Blakeney’s presentation. It says here Section 24(2):
Nothing in this Charter abrogates or derogates from, or shall be construed or applied so as to abrogate or derogate from, any rights enjoyed by Indians by virtue of treaties made between Indians and the Crown or any historic rights which pertain to Indians, Inuit, Métis, or other native peoples of Canada.
In light of what Mr. Fraser asked you, I am going to ask you also, as a beginning in our constitutional discussions with the aboriginal people of Canada, would that subsection 2 as
proposed by Saskatchewan government be acceptable to your group, the group which you are here representing tonight? I emphasize again, Mr. Chairman, as a beginning of discussions. I am not saying that this is the be-all and end-all of an agreement. I appreciate also, Mr. Chairman, that the gentlemen have not had an opprotunity to read those few words, but I read them very slowly. I was wondering if you would care to comment, sir.
Mr. Williams: I would like to comment on that. Again, we have not had the opportunity to read it in detail. It sounds very much like merely a separation from the existing Section 24 of Indian rights and once again it is not a positive declaration. It is something which fails to deal with Indian nations, fails to recognize the political nature, the rights of Indian nations, continues the assumption implicitly that the rights have a racial source, and really does not declare any rights. It is an attempt at being a saving clause and while we are grateful for any saving clauses in the circumstances I think that the minimum that we are hoping for within the constitution of Canada is a combination of recognition and protection and Section 24 however modified is not a recognition, it is not a positive statement.
Mr. Blackburn: If the Blakeney statement were accepted by you, I say if, it would certainly go probably close to half way in meeting your demands for the present. It would certainly accept the Royal Proclamation of 1763; it would accept the Jay Treaty; it would accept the Treaty of Ghent. These are all very, very important treaties which the present federal government, to the best of my knowledge, refuses to accept on behalf of the aboriginal peoples of Canada.
So I am suggesting to you, sir, that this would not be the be-all and the end-all. This would not be the total package but at least in my judgment anyway would be a very substantial beginning.
In further discussion I also recognize your argument that is is not a guarantee of fundamental rights.
Mr. Williams: If I may, if I am right in my understanding of what Mr. Blakeney is proposing, he is not saying these rights exist. He is merely saying whatever rights might exist shall be unaffected by this Charter. He is not saying that the rights exist in any way. It is not a declaration; it is a conditional statement that at this time we are not denying the existence of such rights. It is not a statement even that denial will not take place in the future.
Mr. Blackburn: No, it is quite the contrary. It says:
Nothing in the Charter abrogates or derogates from, or shall be construed or applied so as to abrogate or derogate from, any rights enjoyed by Indians by virtue of treaties made between Indians and the Crown or any historic rights which pertain to Indians, Inuit, Métis, or other native peoples of Canada.
This includes all your rights as written or understood or accepted in all treaties between your peoples and all native peoples of Canada and the federal government and the Crown.
Mr. Williams: It says nothing in the Charter shall derogate from those rights. It does not say specifically what the rights are and it does not say that the rights cannot be derogated from, in other parts of the constitution than this Charter. There is no protection other than from the Charter of Rights itself which is something which deals with individual rather than collective rights.
Mr. Blackburn: I agree. If you went then to a second part, which we do not have before us, with the Charter of Rights would this then not be acceptable as the beginning of further deliberations to hammer out those rights.
Mr. Williams: I think we have proposed in our brief a kind of recognition or the form of recognition that we are seeking, that is a positive statement that:
1. The Royal Proclamation of October 7, 1763 remains a part of the constitution of Canada insofar as it provides for the rights of the nations or tribes of Indians with whom the Crown is connected, or who live under its protection.
2. The treaties made betwen Her Majesty and the nations or tribes of Indians are binding on Her Majesty and the nations or tribes of Indians, and form a part of the constitution of Canada.
Then what we propose, and it is on page 27 of our brief is a series of further recognitions and declarations, that nations or tribes of Indians have the right to determine their own citizens. The problems that you have already heard about with discrimination against women in Canada’s Indian Act do not have their source in the laws of Indian nations, they have their source in the laws of the Parliament of Canada, and what we are proposing is that Indian nations should determine their own citizens. They have to live with them and in many ways the concept of people becoming citizens of Indian nations is similar to the concept of people becoming citizens of Canada. It is like an immigration problem, and not a racial one, again:
b) the right of a nation or tribe of Indians to determine its own form of government, and to control that government;
c) the right of a nation or tribe of Indians to control its own lands and natural resources;
d) the right of a nation or tribe of Indians to determine and control the education of its children;
e) the right of a nation or tribe of Indians to use, practice and maintain its own language in all aspects of its existence and within all parts of its territory;
f) the right of a nation or tribe of Indians to all aspects of self-determination within Canada;
g) the right of a nation or tribe of Indians to exercise, and the right of its citizens to exercise, any right guaranteed
or provided for in a treaty between that nation or tribe and Her Majesty;
And further to recognize:
h) all rights of nations or tribes of Indians which existed at the time those nations or tribes came into contact with Britain or Canada, or entered into treaty relations with Her Majesty, and which have not been surrendered by treaty.
That is a positive declaration.
Mr. Blackburn: I just have one more question, one brief one, may I, Mr. Chairman?
The Joint Chairman (Senator Hays): Go ahead.
Mr. Blackburn: If the Committee accepted everything on page 27 and 28, would this not then, and I do not think this is a hypothetical question, would this not then create a separate independent Indian nation within Canada?
Mr. Williams: I would like to answer that in two parts. First of all, there is not one Indian nation, there are many Indian nations, each with their own rights and their own relations with the Crown, their own languages, their own territories, their own laws. I would think that it would not create those nations because those nations exist already and have existed and are recognized in the treaties with the Crown. The question is how to these nations exist in Canada and to what extent do they have independence of Canada.
The Chiefs have said they are not interested at this time in living outside of Canada if they can live within Canada. We are saying that these are rights of communities, of nations within this country, to live as nations within this country. There is not an easy English political legal term to describe the kind of relationships that we are talking about, but it is a relationship which exists already and which would not be created by this but would merely be recognized by it.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Blackburn. Mr. Allmand.
Mr. Allmand: Thank you, Mr. Chairman, maybe I am the eternal optimist but I am not as pessimistic as some members of the opposition. I am hopeful that the government will come forward with some meaningful amendments to the proposals which will recognize Indian and other aboriginal rights.
That over the years by listening that I have learned a lot and I know that the many witnesses who have come before this Committee have made an impact on members of the Committee and have in fact changed the views of many members of this Committee with respect to Indian and aboriginal rights, so I am hopeful that some meaningful amendment will come forward, and some of us are working towards that end.
As I understand your statement, you are saying that before the Europeans came to this land there were Indian nations that had their lands, their governments, their laws, their cultures. their languages, their economies and since they had those rights, which some people refer to as aboriginal rights, and to the extent that they never gave them up, have them.
You are also saying that those rights have been recognized to some extent by certain constitutional documents of the
French government, the British government, and of the Canadian government, either by proclamation such as the Proclamation of 1763 or in treaties. These documents, or instruments, did not create those rights. You are saying that they recognized and confirmed some of those rights, and that is why, with due respect to my friend Mr. Fraser, when he proposes that we put something in the constitution proposals which would confirm those rights which were confirmed by British government in the past, we are not including all those rights, we are only including some of them because the treaties in the Royal Proclamations may have left out some of those aboriginal rights.
I want to be very specific. In Section 52 of the proposals they suggest that the constitution is not just made up of this constitutional act but all other documents that they list in Schedule 1. They say the constitution of Canada will consist of, in addition, certain other constitutional documents.
Which of the treaties and constitutional documents do you think are important enough to include in that schedule, what ones that are not there right now would you like to see included in that schedule.
Mr. Williams: I believe the first document in the existing appendix to the published Statutes of Canada is the Royal Proclamation of 1763. I note that is not part of the Schedule to the proposal, We would suggest that be the first.
There are a great number of treaties which the Anishinabek alone have made with the Crown. When Mr. Blackburn mentioned the Treaty of Ghent and the Jay Treaty those were treaties between Britain and the United States but we have treaties at Detroit and at Burlington Bay which are treaties between Indian nations and the Crown which confirm the Jay Treaty and the Treaty of Ghent, which make those treaties actual agreements between the Crown and the Indian Nations.
It is very difficult to list off the top of my head how many of those treaties we would consider as appropriate for constitutional inclusion and how many are what we have described as mere real estate deals. Probably the most important that we would include would be the treaties which led to the making of the covenant chain, that is which created a protectorate relationship between the Crown and the Anishinabek, and it was a mutual protectorate, as I explained.
Beyond that, it is very difficult to list the treaties. I would, however, suggest that treaties which deal with political relations are appropriate for constitutional inclusions; treaties which are mere land transactions and which do not contain any other implications or rights are probably inappropriate; and in saying that I recognize that treaties in Western Canada contain both political arrangements and land arrangements and in those treaties it is difficult to separate the two concepts.
Mr. Allmand: Thank you. Mr. Madahbee, when you made a statement, you made the statement that we must be careful of the treaties after 1830 because they were more real estate transactions than confirmation of political relationships. You did not mean by that that you were rejecting those treaties but you just placed them in different category. Is that correct?
You would like the rights in those treaties confirmed and protected as well from unilateral derogation by governments. You do not want to leave them in the same position that they are in now.
Mr. Madahbee: Yes, and when I made reference to the treaties, I spoke only of the treaties made with the Anishinabek, I was not speaking of any treaties outside of our territory.
Mr. Allmand: I see. i just want to make that clear, even those treaties that you would describe as real estate transactions, you want those protected as well but you look on them in a different way.
Finally, you point out that our courts in Canada have established a long line of precedents which have failed to recognize the rights which you have argued here this evening and which you believe exist and many other people believe exist. And unfortunately governments and other courts are using those precedents to continue injustices, to pile one injustice upon another, and what you are suggesting in effect is that we wipe clean that long string of precedents which did not recognize treaties and other constitutional documents and make it that the Indian nations and Indian peoples of Canada have rights, that they be put beyond the power of provincial and federal legislatures and that they be looked upon as they were originally looked upon.
I understand you want us to wipe clean that slate of a long line of court decisions, wipe them away?
Mr. Madahhee: I think this is an opportune time. We have a great opportunity before us to correct those injustices and I think if we take the time now to do it right, it will work to the benefit of all people in this great country because we have much to add to this country of ours and we feel that if these injustices can be prevented in the future it will make for a better harmony among our people.
Mr. Allmand: My last question. Mr. Chairman.
If your suggestions, the substance of your suggestions are included in these constitutional proposals, would you then be Opposed to the federal government approaching Great Britain to enact those proposals in a constitutional document even though all the provinces do not agree?
In other words, would you insist, if the federal government and this Parliament enacts proposals which are satisfying to you and the other Indian nations of Canada, would you object to them going forward and being made part of a new constitution even though some of the provinces, even, let us say, a majority oppose those proposals and others?
Mr. Madahbee: I will let Paul answer that question.
Mr. Williams: The very first treaty that was made between the Crown and the six nations confederacy was in September, 1664. and its meaning is preserved on a wampum belt which contains two parallel black lines on a white field.
Its significance is that the boat of the six nations confederacy and the boat of the British will travel down the same river in the same direction but neither shall interfere in the course of the other. That is, neither government shall interfere in the internal affairs and internal workings of the other.
I think the answer to your question is that we would not presume to tell Canada and the provinces how to arrange their internal affairs, that our only concern is recognition and protection of rights of Indian nations within Canada. How Canada arranges its own house is not a matter which Indian nations should interfere in.
There is one other concept I should mention and that is that traditionally, in the councils of the Anishinabek at any rate, until people could agree on something a decision did not come. The decision did not come by majority rule but rather by consensus, and that the imposition by a majority of its will on a minority would always, in the view of the Chiefs, lead to bad feelings in the future, so that naturally we would want to see a consensus but we would accept the recognition and protection of rights of Indian nations within the constitution of Canada as our only prerequisite to patriation, Relations between the federal government and the provinces are really not our concern at this point.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Allmand.
Now, Mr. Madahbee, I hope I have pronounced that correctly, we appreciate your being here this evening along with Mr. Williams and Chief Mason.
You are the eleventh group of aboriginal people that have been before the Committee and I think we have five or maybe seven more groups to hear before our proceedings are complete and if you wish to send us any more information in addition to the brief that we already have and your evidence tonight, I am sure it would be most welcome to the Committee.
We do thank you for being here and we will surely take into consideration your very excellent presentation.
Thank you very much.
Mr. Madahbee: Thank you for the opportunity to be here this evening and if any individual members wish to discuss any of the issues in greater detail we will be around for about another hour, and as well we can be reached in Toronto for further discussions.
The Joint Chairman (Senator Hays): Thank you very much.
I should not like to turn the meeting over to my Joint Chairman, Mr. Joyal. The next group we have are the Association of Iroquois and Allied Indians, if they would please come forward.
The Joint Chairman (Mr. Joyal): On behalf of the honourable Senator Hays and on behalf of all the honourable members of this Committee, it is my pleasure to welcome tonight the President of the Association of Iroquois and Allied Indians, Mr. Charles Cornelius.
I understand that President Cornelius will first introduce the members of his delegation and make the opening statement, and then would be agreeable to answering questions by the honourable members of this Committee.
Mr. Charles Cornelius (President, Association of Iroquois and Allied Indians): Thank you, Mr. Chairman.
First of all, to my right, I would like to introduce Gord Peters and Dean Jacobs, and to my left Chief Bill Tooshkenig from Walpole Island, and my name is Charles Cornelius and I am the President of the Association of Iroquois and Allied Indians.
First I would like to thank the Committee for being able to approach them tonight and being able to state our declaration and our concerns regarding the constitution. I also would like to inform the Committee that we, at a late time this afternoon, at 2 o’clock or so, we were informed that we would be able to speak to the Committee tonight and therefore we do not have any legal representatives with us this evening, so what I am prepared to do is to explain to the Committee here a resolution that was passed by our Association and also a declaration that our Association has acknowledged here a month or so back at a general assembly.
Before I go into that I would like to explain to the Committee here a bit about our Association.
First of all, our membership exceeds 9,000 status Indian men, women and children in the province of Ontario, and not long ago, at a general assembly, our membership unanimously passed a resolution regarding patriation of the constitution. At this time I would like to go into this resolution and state the resolution and then also go to the declaration, if I may.
The resolution reads:
Whereas the members of this Association represent the aboriginal peoples of Canada who are of many independent Nations of Indians and have always been Indian Nations;
And whereas our Indian nations like all other nations have inherent rights which include the right to self-government together with the right to self-determination;
And whereas our Indian governments are entitled to independent and total control of their land encompassing water, air, minerals, timber and wildlife;
And whereas our Indian nations are desirous of remaining within Canada but only with proper guarantees of all Indian rights and equal participation by Indians with all proper parties in determining and ensuring that Indian rights will exist within Canada;
And whereas our Indian Nations have always enjoyed a special relationship with the United Kingdom duly recognized by the Royal Proclamation of 1763 and Treaties entered into by the Indian nations and others on behalf of the Imperial Crown;
And whereas unilateral patriation of the British North America Act by any government of Canada directly threatens the rights and entitlement of our Indian nations;
And whereas such unilateral patriation without the consent of our Indian nations would constitute a direct breach of the special relationship between our Indian nations and the Imperial Crown;
Now therefore be it resolved:
1. That this General Assembly of the Association of Iroquois and Allied Indians duly constituting several of those Indian nations having a recognized special status with the Imperial Crown hereby rejects any attempt by any government of Canada from patriation of the British North America Act without the consent of our Indian nations.
2. That this Association is hereby authorized to undertake all action it deems necessary and appropriate to ensure that no patriation of the British North America Act is carried out until consent from our Indian nations is granted.
3. That this Association hereby approves of and adopts the “Association of Iroquois and Allied Indians Declaration of member Indian Nations Relationship to the Imperial Crown” with its inclusive direction to the Imperial Crown respecting patriation of the British North America Act.
Now I would like to read this declaration to you:
This Association of Iroquois and Allied Indians having within its membership some of those nations described in the Royal Proclamation of 1763 as “the several nations of tribes of Indians with whom United Kingdom are connected and who are under our protection”.
The Royal Proclamation of 1763 was enacted by King George III employing a Crown prerogative to legislate directly for the colonies, and is the first written constitutional document for Canada, its provision still having the force of law in Canada. The various Indian nations specific relationship to the Imperial Crown was then, and remains, one characterized as a protectorate.
A protectorate is described as: a state which has transferred the management of its more important international affairs to a stronger state. It implied only a partial loss of sovereignty, so that the protected state still retains a position in the family of nations. Moreover, the protected state remains so far independent of its protector that it is not obliged to be a party to a war carried on by the protector against a third state, nor are treaties concluded by the protector ipso facto binding upon the protected state.
The Royal Proclamation of 1763 set out specific procedures for treaties between our Indian nations and the Crown. These procedures included that treaty relationship were to be between representatives of the British Crown and leaders of the aboriginal nations, and that Indian lands could only be acquired in accordance with the treaty procedures prescribed in the Royal Proclamation.
When our Indian nations entered into the protectorate status of the Imperial Crown, the Crown undertook a basic
obligation which was to protect our nations. This the Crown specifically acknowledges in the Royal Proclamation of 1763, as well as the report of the Select Committee of the British House of Commons on aborigines.
This was not a unilateral obligation and included an acceptance by our nations of a special relationship with the Imperial Crown. Britain expanded her colonies and acquired lands in Canada through the treaty process with our nations as was prescribed in the Royal Proclamation. We in return received a pledge of protection and recognition of the Imperial Crown that any change in this relationship should only occur by mutual negotiation and agreement. This arrangement benefited Great Britain and Her subjects; however, our nations have not been as fortunate. Nonetheless, that is the status between our nations and Great Britain which still exists to this day. Included therein are obligations that cannot be lightly disregarded without a breach of faith.
Treaties negotiated in Canada on behalf of the Imperial Crown from your first contact with our nations through to the present, all rely upon the perogative powers of the Imperial Crown and in the Royal Proclamation of 1763. The Royal Proclamation of 1763 is the source of all power for the negotiating and entering into of treaties. And, any treaties negotiated were in fact negotiated on behalf of the Imperial Crown, not on behalf of the Crown in the right of Canada or the Government of Canada.
Neither the British North America Act of 1867, Section 91(24) delegating responsibility in relation to “Indians. and lands reserved for Indians” the Statute of Westminster of 1931, which gave Canada power to negotiate International Treaties; nor any other piece of legislation in Canada before or after Confederation gives authorization for Canadian Officials to negotiate treaties with Canada’s aboriginal nations. Nor were these powers transferred to Canada in 1949 when an amending power to amend the constitution was given to Canada by the Imperial Parliament.
The Imperial Parliament could not have given the Canadian Parliament the power to amend the Royal Proclamation, a document which was Imperial and not solely Canadian in nature. Historically the record is clear, that officials negotiating treaties, acted on behalf of the Imperial Crown, not the government of Canada, the Prime Minister of Canada or the Crown in right of Canada.
As for the treaties themselves, English law reflects their international character; the Indian nations recognized them as international in character; and the question remains unanswered in Canadian law.
Although certain transfers, financial and administrative responsibilities of imperial obligations to our nations to Canada have occurred over the years, the process of treaty negotiation has remained the same. It has always been pursuant to the Royal Proclamation of 1763.
The Royal Proclamation of 1763 remains embodied as an operative part of the constitution of Canada. Although Section 2(2) of the statute of Westminster provides that Canadian law
can alter Laws of England or any act of the Parliament on the United Kingdom, it does not alter the Royal Proclamation. The Royal Proclamation of 1763, as a prerogative Imperial enactment relating to Canada. has no application to England. is not a law of England, nor an act of the Parliament of the United Kingdom.
The changes in responsibilities from the Imperial Crown to Canada occurred in practice but not in law. We were weak then, but now our nations call upon the Imperial Crown under its historical obligations and responsibilities to help us in our struggle to decolonize our relationship with Canada and the United Kingdom.
Our nations recognize that Britain has by convention not normally interfered in the internal domestic affairs of Canada. However, our nations have a special relationship with the Imperial Crown. No other grouping in Canada has an equivalent historical, legal or moral claim to the Parliament of the United Kingdom. Our Indian nations resquest that Parliament examine all Canadian proposals regarding the constitution in light of the rights and statutes of our aboriginal nations. You have pledged to protect our nations. The time is at hand when we call upon you to honour your pledge.
The early pattern of direct Imperial prerogative responsibility of relations with our nations involves an obligation to protect our nations and involves a commitment to change that relationship only through mutual agreement. Although there was a shift to Canada of certain Imperial Crown obligations and responsibilities that occurred in 1860, 1867, 1931 and 1949, this shift neither explicitly nor implicitly transferred any of the Imperial obligations and responsibilities to our Indian nations.
Therefore, if the United Kingdom desires to transfer them to Canada, it cannot legally or morally do so without the consent of those Indian nations. Particularly in this case due to the basic model of negotiation and counsel in the treaty process prescribed by the Royal Proclamation of 1763.
What we as Indian nations want is clear. We want to be self-governing nations within Confederation. To ensure that we are self-governing, we want to maintain our special relationship to the Crown; a relationship which is parallel to that of the government of Canada and the Canadian provinces. We want an affirmation of the fundamental principles of the Royal Proclamation that changes in our relations with the Imperial government and Canadian government will be negotiated and proceed on the basis of consent. We assert these rights to protection; of self-government; and of treaty relationships today because of the obligations Great Britain undertook by virtue of the Royal Proclamation.
We have asserted these rights in Canada without success. The Imperial Crown now is called upon by the Indian nations it pledged to protect, to fulfill its obligations and responsibilities by refusing patriation to Canada of the British North America Act until the necessary consent of the Indian nations is granted.
That is the declaration, Mr. Chairman.
The Joint Chairman (Mr. Joyal): I would like to invite the honourable Jake Epp to open the discussion and comments with our guests tonight.
The honourable Jake Epp.
Mr. Epp: Thank you, Mr. Joint Chairman. Just a few questions, Chief Cornelius, first of all.
Do I understand your position quite clearly to be that patriation cannot take place until aboriginal rights are entrenched in a constitutional amendment?
Mr. Cornelius: Yes.
Mr. Epp: Do you not feel that, in terms of that question, that political events in Canada have somewhat gone beyond that point? Let me explain that for a moment. There is general agreement in Canada that patriation should take place and should take place immediately; and that there is not agreement as to the amending formula or what else should be included in the constitution.
How do you feel that your position is strengthened by arguing that patriation should not take place before these rights are included, whether your position, in fact, would not be strengthened if you insisted that, all right if patriation is to take place because it is the political will in Canada, that a period of time elapse whereby these questions of entrenchment must be resolved to the satisfaction of the Indian people, whether that would not be a better course of action to take?
Mr. Gordon Peters (Association of Iroquois and Allied Indians): We do not feel that patriation of the constitution is a bad thing. We do feel that patriation of the constitution before entrenchment of Indian rights are guaranteed should not be done. So we do not agree with the fact that you are saying we would have a stronger position.
Mr. Epp: I am asking you if you would. I am talking about the politics of it at this stage rather than the legalities.
Perhaps I should explain myself a little more clearly. I believe that there are two strong positions which I sense in the country; one, that Canadians want patriation, and regardless of how we feel about amending formulas or the regions from which we come, or our attitudes towards a charter or bill of rights, there is general agreement about patriation. not only in this house, but across the country.
So that is one position. A second position I find to be strong In the country is that this is the time to right the wrongs which have been done to Canada’s native people.
Those two positions Canadians want to address. I am wondering whether the position you have taken does not reduce some of the desire to change those wrongs, whether Canadians
will not say: if you are going to resist patriation, whether the question of aboriginal rights can in fact be addressed.
In other words, that the argument of patriation becomes the dominant argument.
Mr. Peters: The argument of patriation does not become the dominant argument. For us, the argument of entrenchment of Indian rights before patriation becomes the dominant factor for the Indian people.
According to some of the latest polls, not all Canadian people are in favour, not even the majority of the Canadian people at the present time are in favour of patriating the constitution.
Mr. Epp: I agree with your interpretation of the poll, but I do not think that is addressing the question I asked.
If you look at the polls, it is not a question of patriation that people oppose. I do not think that is the question. It is all the other amendments which are to be bootlegged in through the process, and that is where you start getting disagreement, not on patriation. I beg to differ with you there.
I agree with the position you take, but I have difficulty in terms of political strength, and I can only operate from strength.
With the Canadian people saying “let us get patriation behind us,” I wonder whether your resistance to patriation, in other words entrenchment first, and then patriation as the last act, I wonder whether that is in tune with the political will of Canadians?
Mr. Bill Tooshkenig (Association of Iroquois and Allied Indians): I would like to ask a question. I would like to make a comment to Mr. Epp’s question. If we had the facilities and resources to get the message as to what Indians actually want to the people of Canada, they would support the Indian position. Our problem is that of resources. The government of Canada has almost unlimited, it appears to me, resources, to advertise and to hang the apple in front of the people of Canada. We do not have that strength or the economic base to do that.
However, we feel that if we could get this message across to the people of Canada, they would support our position. I believe the polls would swing in our direction.
Also, the reason why we have taken this stand that we have, is that we feel we are original peoples and have aboriginal rights, and we have made our presentation to England with this document a few weeks ago.
We feel the mood even in England would swing in our direction if we can get this message across.
You are talking about political strength. We do not have the strength. We appeal to the people here in this Committee I am not even persuaded that the people in this Committee have much authority with regard to the new amending formula or whatever is going to England.
I am of the opinion that, perhaps the government is going to do it anyway without gathering all this information and it would be shoved in the back room; I hope and trust this would not happen.
But we are here appealing to the conscience of the Canadian government and the Committee here to see our position, that we really believe that we have aboriginal rights and that they are still today as they were in I492 when Columbus landed or whoever else came, and that we still have those rights and that is how we feel.
Mr. Epp: One last question. You are right when you talk about the resources of the government, using tax payers money in an advertising campaign of six million dollars plus.
But the point that I was trying to make is that obviously you thought this matter through very carefully in terms of your strength as to which should come first.
You and I would agree on the polls, that what they were talking about was unilateral action rather than of specifics to which you were referring earlier.
One final question, if I may, Mr. Chairman. It is important at this stage, because the government has the majority, whether the government would be amenable to any amendments.
Mr. Allmand said that he was the eternal optimist, and I hope that optimism is well placed.
Have you had any assurances, either from the Prime Minister or from the Minister of Justice or the Minister of Indian Affairs, that amendments along the lines you have suggested, that are in your declaration, namely the recognition of aboriginal rights and their entrenchment in the constitution, whether the government recognizes that and whether they would be making amendments along those lines to this Committee?
Have you had those assurances?
Mr. Tooshkenig: I do not think we have had any assurances from anyone about anything. That is the problem.
It appears to me that this constitutional issue has not been discussed with the Indian people, and we met with our MP, Mr. Maurice Bossy just a while back, he explained that we had representation to the Government of Canada; but he was our representative, and I explained to him that he had not visited us so that how did he know what we wanted? He was prepared to support the government’s position without even coming to his constituents and asking “What do you think of this proposal?”
This is what we felt all along. It is something which has been done. We are today appealing to the conscience of the Canadian government.
The Russell tribunal, as some of you have seen in the news, has recently declared that our position is valid, This is what we are saying today. We have a position here, the Indian peoples do have these rights and the Government of Canada has not
recognized them. To say that it is going to be the first item on their agenda to me is saying that it is the first item to be thrown out.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Jake Epp.
Mr. Blackburn: Mr. Chairman, thank you.
I would like to address one or two questions to these gentlemen. I can well appreciate the last witness’ statement, implying that everything is more or less an exercise in frustration in response to a question Jake asked.
I would like to go a little further now and geographically move from Canada to the United Kingdom.
It seems to me, Mr. Chairman, that the major thrust of this document presented to us by this group is really directed more at the United Kingdom than at Canada, at least in the way it is set out.
The first question I would like to ask is this. What response did the Association receive from the British government or representatives of the British government or British members of Parliament or the British House of Lords, when they went to the United Kingdom, and, in fact, when they went, did they present this same document or the same resolution on page 1?
Mr. Cornelius: The purpose of our trip was really to talk to members of Parliament over there to make them aware of what was happening over here with regard to the constitution and Indian people.
What we found was that many, I could say a 100 per cent of the people we talked to over there, were not aware of the Indian position.
Of course, within a matter of months and now that a great deal of lobbying has been done over there by many Indian Associations across Canada, these members would be made aware of what has been happening over here.
But they are totally ignorant of what is happening over here.
Mr. Blackburn: Have the Brits so far given you any commitment at all?
Mr. Cornelius: We have got some support from the people we have talked to.
Mr. Blackburn: What is the nature of this support?
Mr. Cornelius: Understanding what we are talking about and being able to communicate with them afterwards, and giving them documents, papers, communicating back and forth.
Mr. Blackburn: But they actually have not agreed with this document per se. They have not said: “We accept this document and what you have written here is correct and we will back you.” They have not gone that far?
Mr. Cornelius: To some extent they would support the document providing they look into the history and find out if this is fact, and so this may come about in that way.
Mr. Blackburn: For example—if I may interrupt again—at the top of page 5:
Therefore, if the United Kingdom desires to transfer them to Canada, it cannot legally or morally do so without the consent of those Indian Nations.
When you read that back to the British parliamentarians, what was their reaction?
Mr. Cornelius: Well, a lot of them were not really making either positive or negative statements on it, because it was the first time that they were involved in the matter. We approached members of Parliament over there who had never seen Indians before, and whose idea of Indians were only obtained from television. I don’t know if they expected us to show up with feathers on or what, when we made appointments with them.
A lot of them did not make any commitment. Their attitude was: “Yes, we understand. We will see what we can do and we will get back to you.” Some of them did.
We have talked to many of them, for periods longer than what we will probably spend talking to you. It was a first meeting. We plan to go back and talk with them again and we have appointments to do so.
Mr. Blackburn: I am very sympathetic with this document and I can fully appreciate your frustrations, both in Canada and possibly in the United Kingdom as a result of ignorance in both countries.
I know, representing a constituency in which one of the largest Indian reserves exists, the Six Nations Reserve, 1 can fully appreciate the widespread ignorance even in that small geographic area known as Brant County. So I wish you well, both here in Canada and in the United Kingdom.
However, I have one more question, if I may, Mr. Chairman. It relates directly to the resolution on page 1, Paragraph 2—and I quote again:
2. That this Association is hereby authorized to undertake all action it deems necessary and appropriate to ensure that no patriation of the British North America Act is carried out until consent from our Indian nations is granted.
I would like to ask Chief Cornelius if he could very briefly convey to this Committee what that action might be in the event that patriation does take place without the inclusion of a Charter of Rights and guarantees for the Indians or aboriginal peoples of Canada?
Mr. Cornelius: I cannot answer that question, because things are changing so much, that the action depends upon what is happening at the time. I might get direction from the chiefs, from the councils, from people to do a certain thing at a certain time.
But to state right now what is going to happen six months from now in regard to this I could not say. We may be successful in the United Kingdom or we might have some
effect here. So, six months from now, what might come about I do not know.
Mr. Blackburn: There has been no reference to or hint of physical action?
Mr. Cornelius: I doubt very much. I do not know what you mean by “physical action”.
Mr. Blackburn: Aggressive action.
Mr. Cornelius: I suppose because you are looking at me, you feel I am capable of some physical aggression. I can assure you, I am not.
But I have not heard anything like that. Are you talking about arm wrestling?
Mr. Blackburn: I am talking about any action which might fall within the meaning of the word “action”, constitutional, legal, courts—I am not referring specifically to physical action, violence.
Mr. Cornelius: No, I do not believe there is anything like that. In other words, we do not plan on going on the warpath or anything like that.
The Joint Chairman (Mr. Joyal): Thank you very much. The honourable Bryce Mackasey.
Mr. Mackasey: I do not know if I may be out of order in congratulating the Chairman who was recently “Canada’s best dressed man”; before they look at Mr. Epp and the rest of us, he was officially named “Canada’s best dressed individual”.
The Joint Chairman (Mr. Joyal): It is probably, the honourable Bryce Mackasey, because you were not in the competition.
Mr. Mackasey: I feel better already. I want, on behalf of the Liberals, to welcome our witnesses this evening. I can assure them that this is an educational process for all of us. As has already been pointed out, I believe, before the hearings are over, we would have listened to close on 20 groups representing aboriginal people.
We are all very impressed by the sincerity of the briefs.
I would like you to appreciate the fact that if any of our questions appear to be controversial, then they are designed to bring out information or to resolve differences in our minds.
1 would like to say by way of preamble-and I am quite convinced that the government does intend to proceed with this resolution, amended or not amended; that is, we do feel rightly or wrongly, and I feel rightly, that not only is it time to patriate the constitution, but in order to make it realistic, we must have an amending formula, and hopefully, a Bill of Rights.
The amending formula, as you know, is the subject of controversy, which is normal, depending upon your view of Canada, whether you believe in a strong central government or not.
We may differ on what that formula should be. We may differ on what the Charter of Human Rights should contain, and this is my perplexity. I am not too concerned about the first two stages that Mr. Epp mentioned and perhaps as a neophyte to your subject I would be better informed if I knew Mr. Epp’s position vis-a-vis the aboriginal groups. He has raised a lot of astute questions again this evening but he has yet to tell us what the position of the Conservative Party is and we have to start determining within the Committee what our positions will be of the party.
At least government’s position is stated in the letter of the Prime Minister, what he would prefer and that is that the first order of business, the first conference takes place after patriation and with the amending formula, would deal exactly with the problem of the aboriginal people, and I think this is significant because this is after all a letter of the Prime Mnister of this country in writing, too, which is already part of the testimony here.
What confuses me perhaps is that I recognize as I think all Canadians do and as we are becoming more and more familiar with through television. that there have been great injustices done to the aboriginal people and that advantage has been taken through what was earlier described as real estate deals in negating treaties. The fact remains that we all agree that there are such things as aboriginal rights and there are treaty rights. Our dilemma may, certainly my dilemma, is what are they and how are they best determined?
I think one of the things that worries me as I go along is that we may be whetting expectations, we may be creating expectations as to what this constitution can do. I am talking now of our fellow Canadians for the moment. We have other groups who come and somehow feel that the constitution will solve or resolve all of our problems when really it will just put in place the mechanism to resolve these problems and many of these problems are going to be resolved in court decisions.
Some of us are concerned that your aboriginal rights are best determined and resolved through negotiations, through the political process, based on a statement pehaps that such things exist, rather than have through the constitutional process and have the courts determine with perhaps insensitivity or lack of appreciation or knowledge, and I think this is the Prime Minister’s concern, as well, that this is one of the things that if we take it out of the political process and put in the courts it will not do the aboriginal people justice.
Now, I know what you are going to tell me, as a wise young man you are going to say but, you know, what has been the history of our political decision, but 1 do think that the people Of Canada want these problems resolved. I know that I am making a statement here, but coming back to Mr. Blackburn’s remarks earlier in the evening when he talked about Premier Blakeney’s statement, to me that was a very significant statement. I do not have it in front of me, but I have read it many time, significant because it will be enshrined in the constitution; insignificant if it is just a statement or insignificant if it
was a preamble to provincial legislation; but extremely significant in the constitution because her the premier of a province is saying there are such things as aboriginal rights.
What I am really trying to say to you is, I cannot go as far as Mr. Allmand in suggesting that we are going to tell the gentlemen what to do; we are not; we are going to try and influence the government and then we will accept the government’s decision, but it seems to me that the dilemma that I have to resolve, and I am hoping in listening to you people that I can, is are we better with a Charter of Human Rights that is very broad, by simply recognizing fundamental’ rights rather than specific rights? Of your 17 groups maybe seven are uniform in what they want; maybe another half a dozen are contradictory and maybe the other four go different ways, and that is understandable; but how can you include in a constitution something as specific as what every one of the groups want and not necessarily a common theme, other than that aboriginal rights exist. It seems to me that if that was declared in the constitution it would be a big step forward. Would you like to comment on that.
Mr. Cornelius: I think that it all boils down, back to our basic position, and that is going back to our basic rights again and having them guaranteed in the constitution before it is patriated. If that was to be brought around that way I think that is, like you said before, there are 11 or 12 Indian groups that have approached this Committee and I think that they are all saying the same thing, whether they are saying it in different ways, the message should be there. How it is put together and how it is included in there. . .
Mr. Mackasey: I will just say in conclusion because I know there are others who want to speak, but it is one thing to say that the constitution will recognize aboriginal rights; it is another one to try in the constitution to define them or spell them out. That will always be the courts action, whether it is in the constitution or not. Some reference in the constitution to aboriginal rights will at least end forever the argument that no such thing exists. There is no way the constitution is going to define what they are or provide adequate compensation. This has got to be through the political process. That is why I am a little concerned that we may just take the whole thing holus bolus out of the political arena, put it in the constitution, wipe our hands of it and say let the courts make the decisions based on the fact that constitution says certain things. That is why I still have an open mind as to what is best for you. Thank you very much.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Mackasey. Senator Williams.
Senator Williams: Thank you, Mr. Chairman. I have just two or three short questions.
You in your province have the largest Indian population from what I have been told. I am sure that some of the members of your organization are decendants of those who fought along with the British to make Canada what it is today. Now, that is my comment.
In order to get the BNA Act repatriated with an amending formula may be very difficult. Most of the amendments may take place years afterwards if it is repatriated. You and I may be long gone.
Do you think if there had been greater unity of Indians in Canada among themselves rather than many splinter groups, do you believe the demands of the Indian people in regards to entrenching aborignal rights, do you think that if there had been great unity among the Indian people this entrenchment as demanded by the Indians could have been more effective to the government.
Mr. Cornelius: I suppose it could have been but it would have depended on which way and how they were trying to assert those rights. I am not really sure of the question that you are proposing.
Senator Williams: I am not proposing anything; I am asking a question.
Mr. Cornelius: The last part of the question was to influence the government—in what way did you have in mind, by influencing because of strength? Are you saying that if the Indian people were together in larger amounts, forcefully, physically, would that have anything to do—is that what you are getting at?
Senator Williams: No, not forcefully. What I am saying, my question is simple, if there had been greater unity among the Indians in Canada do you believe their demands in the repatriation to entrench aboriginal rights would be more effective for them or to their needs.
Mr. Cornelius: I think unity as far as Indians go in Canada right now, with the National Indian Brotherhood, I think is a very good voice, a very strong voice, that I think most of the politicians and the governments recognize.
Going back a ways, before the organizations were there, before the National Indian Brotherhood was operating, sure, there was no unity at that time, and perhaps then it might I have made a difference; but this was not a crisis then. I do not think it was a crisis then, going back quite a number of years. It seems to be a crisis now. So with the National Indian Brotherhood and with the organizations, the number of organizations all across the country, and with communications being that it is today and planes flying, and going across the country in two or three hours, the world is smaller than it was 25 years ago; so naturally we can get together and have a little stronger voice as far as stating our rights and so on.
Mr. Tooshkenig: I would like to make comment with regard to that question. I do not think it is an insurmountable task to cause the government to take a second look at what they are doing especially with regard to native rights because the government in Britain only has a majority of a certain amount of seats and if we can make an impression on those people and the government is unable to get a majority, Mr. Trudeau is going to have to come back over here and say, all right, what do you want, how can we get this back over. We would rather
see him do that before he goes and then we can go along with it and we will even accompany him in the plane. Thank you.
Senator Williams: In a way you think it is too late to unite as one.
Mr. Cornelius: To unite as one?
Senator Williams: Yes, as one organization.
Mr. Cornelius: Well, I believe the National Indian Brotherhood did make a presentation here as a unified body under the National Indian Brotherhood. I am here as a representative of our Association and the 9,000 people that I represent to go along with the national position. It is all basically the same thing. This is what I said earlier, the message that is coming across from all the native groups that have been talking to this Committee, they are basically all saying the same thing.
Senator Williams: In accordance with their provincial places, their places in their provinces, all the organizations that have come through the National Indian Brotherhood as you say are saying the same thing, possibly in different words.
Mr. Cornelius: True.
Senator Williams: Then if and when the—I should not have said if»-when the British North America Act is repatriated, without an amending formula maybe, then what will the Indian organizations do? There will be a new effort on their part, province by province, when many of the provinces do not even recognize the Indian organizations. I am thinking of my province of British Columbia.
Mr. Toqshkenig: I think if that ever happened we might have to answer to Mr. Blackburn’s proposal earlier and see what we would do, if we would march around or ride on horses or whatever.
Mr. Blackburn: I did not propose that.
Mr. Tooshkenig: We have a document here; we have flyers; what more can we do to persuade the people that we mean business. We have gone to England, we have made presentations there and we are just as hopeful and optimistic as Mr. Allmand that people are going to start to listen and I think that they are. I think we are picking up support in England and I think the government had better reconsider what they are going to do prior to there, because they might not have enough majority to get this constitution, plus the Bill of Rights, through, because they do not have one in England. Those people are walking around there, if you slug a fellow on the subway there you get life imprisonment. They are in as bad shape as we are over here and they do not have any Bill of Rights, and you are proposing one over there. What is going to happen? You are going to have a hard time getting it through.
The Joint Chairman (Mr. Joyal): Thank you very much, Senator Williams.
It is my privilege on behalf of the Honourable Senator Hays and on behalf of all the honourable members of this Committee to thank you for your presentation and add, maybe, an optimistic note to our discussion, in recalling the words that were used by one Indian representative in our first session of work which was in December, if I remember well, who said
that the only fact that Indian representative have had an opportunity to come in front of all the Canadian people in this room and speak to the honourable members of this Committee and speak to their other fellow Canadians, that was a push for 25 years ahead, in terms of help that was given to the Indian groups in Canada to put forward their cause. I think it is a just cause and anyone who stands for a just cause is always confident that he will win at one point. So I would certainly put forward those thoughts when I would thank you on behalf of all of the honourable members of this Committee.
Mr. Cornelius: Thank you, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Thank you very much. I would like to call now back at the witnesses table the representative of the Indian Association of Alberta and the representative of the Federation of Saskatchewan Indians, and also I would like to call Chief Leo Prettyyoungman who is responsible for Indians under Treaty No. 7.
It is my privilege and honour on behalf of the honourable Senator Hays and on behalf of all the honourable members of this Committee to welcome back to our proceedings President Steinhauer on behalf of the Indian Association of Alberta, and Chief Sanderson on behalf of the Federation of Saskatchewan Indians, and the members of the respective delegations.
I understand that Chief Prettyyoungman of the Blackfoot Reserve, Treaty No. 7, would ask the members of this Committee to receive a presentation that he would make and after that presentation we will open our discussion and have an exchange of mutual comments at the point we left when we first met in December.
Is that agreeable to all the members of both delegations, Chief Steinhauer?
Mr. Eugene Steinhauer (President, Indian Association of Alberta): Thank you, Mr. Chairman.
We are back again here to answer questions presented to us and we would like to thank again the Committee for the opportunity to be here.
Before we start I would like to ask Mr. Sol Sanderson of the other side to ask one of his elders to start the meeting with an invocation, which is our tradition.
Mr. Sol Sanderson (Chef, Federation of Saskatchewan Indians): I will ask elder Ernest Tootoosis to say a prayer.
Mr. Ernest Tootoosis (Federation of Saskatchewan Indians): (Prayer spoken in Indian tongue).
Mr. Steinhauer: Mr. Chairman, I would like to ask the Treaty No. 7 Chiefs to get up and be recognized.
Mr. Nelson Smallegs.
Les Healy from the Blood Tribe Council.
Jim Omelso from the Sanson Band, Central Alberta, Treaty No. 6.
On my right, Wilton Littlechild, our legal advisor, and on my far right is Leo Prettyyoungman who will be making the presentation now on behalf of Treaty No 7.
I would like to ask Sanderson to also introduce his associates and representatives.
Mr. Sanderson: Thank you. .
To my left here is Delia Opekorew, one of our legal advisors. Another one of our legal advisors. Another one of our legal advisors, Rod Soonias, and First Vice-President Doug Cuthand.
Another attorney, Kirk Kickingbird, and one of our Senators in the Federation of Saskatchewan Indians, John Tootoosis, You just heard the prayer from our elder, Ernest Tootoosis.
Mr. Steinhauer: I will ask chief Prettyyoungman to give the presentation on behalf of Treaty No. 7.
Mr. Leo Prettyyoungman (Chief, Federation of Saskatchewan Indians): Thank you, Eugene.
Now, I will go through the presentation in respect to Treaty No. 7’s position, Mr. Chairman.
The chiefs and councils of the Treaty No. 7 area respectfully submit the following brief in response to current government proceedings in its proposed patriation of the British North America Act.
Treaty No. 7 takes the unfied position of complete rejection of the unilateral terms under which the Trudeau government proposes to patriate the constitution. Treaty No. 7 will initate and incorporate all necessary elements. and legal components at our disposal, towards rightful participation and negotiation of our concerns prior to patriation.
Our position results from government recognitions, and our assertion that we possess rights derived from original inhabitancy through our ancestry in this country from time immemorial. We further avow that this position is legally bound and affirmed through the inauguration of various acts and declarations made over the years. For example, the Royal Proclamation of 1963, under the auspices of the Court of St. James, states:
And whereas it is just and reasonable and essential to our interest, and the security of our colonies, that the several nations or tribes of Indians with whom we are connected, and who live under our protection, should not be molested or disturbed in the possession of such parts of our dominions and territories as, not having been ceded to or purchased by us, are reserved to them or any of them, as their Hunting Grounds. . . And we do hereby strictly forbid, on pain of our displeasure all our loving subjects from making any purchases or settlements whatever, or taking possession of any of the lands above reserved, without our especial leave and license for that purpose first obtained.
To further clarify our position, we offer the following quotation from an 1870 address to the Queen from the Canadian Senate and House of Commons following the acquisition of the Hudson’s Bay Company territories by Canada:
And furthermore that, upon the transference of the territories in question to the Canadian government, the claims of the Indian tribes to compensation for lands required for purposes of settlement will be considered and settled in conformity with the equitable principles which have uniformly governed the British Crown in its dealings with the aborianes.
This declaration gave legislative recognition of aboriginal rights and the government proceeded to enter into agreements with Indians, on behalf of Her Majesty Queen Victoria.
The proposed Charter of Rights and Freedoms accompanying the constitutional amendment bill does not acknowledge the existence of treaty and aboriginal rights. It only says that these rights may exist. and they will not be limited if it is found that they do. The language provisions of the Charter promotes the two-founding nations concept. However, we as Indian nations, having many different languages, had a direct hand in building our country, now knows as Canada. The true founding nations are the Indian nations and the European immigrants.
With the foregoing premise, we in Treaty No. 7 recognize the Treaty of 1877 as but a necessary portion of a total enactment of the process required under international laws in the acquisition of land for settlement from aboriginal inhabitants.
The standards we pose today, standards that should have been used in the treaty process. are to be the basis of Treaty No 7 efforts to achieve a gainful bargaining status for a secure place within a Canadian constitution. There are six measures of activity that must be adhered to in making a treaty:
1. Terms and conditions must be proposed and given to all parties involved for their consideration;
2. These terms and conditions must be negotiated;
3. The negotiated agreement must be properly endorsed and witnessed;
4. The endorsed agreement must be ratified to introduce the required formalization of a treaty;
5. Empowerment of the treaty must be passed through legislation; and,
6. Implementation of all its ingredients must be carried out fully.
On April 29, 1980, Prime Minister Trudeau himself promised the hundreds of Indian Chiefs assembled in Ottawa to work closely with us “in reforming the Canadian constitution in ways which will better secure the rights and status of the original people of this land”. Unfortunately, there has been absolutely no consultation since that time.
On October 17, 1980, as contained in the Commons Debates, Mr. Trudeau states:
I have suggested and I repeat that as soon as we have the constitution back in Canada with the basic rights entrenched, we will be happy to go into a next phase where we would put native rights as one of e first items on the agenda and deal with it then. In the meantime, I am very happy to see our ministers and officials attempting to work out with Indians and with Inuit leaders ways in which that could be best stated in the constitution.
We firmly believe, based on historical evidence, that once the British North America Act is patriated there will be no assurance that our special constitutional status and rights will ever be protected in law. Therefore, our central position is that the Government of Canada guarantee and entrench our treaty rights in the new constitution before it is patriated. The protection of Indian rights and Indian lands must be maintained in any constitutional amending formula.
In view of Trudeau’s lack of positive responses to our direct requests for equal participation in the constitutional talks, and more specifically, to deal with Indian issues before patriation, it is our intention to seek public support in making the Prime Minister aware of his obligations in this regard. Obligations that he has shouldered through nomination and election to his office as Canadian advocate for Her Majesty and administrator of Her dictates as outlined in her treaties with Indian nations.
Furthermore, we wish to serve notice that the Treaty No. 3 Chiefs will procedd to lay before Her Majesty and the British Parliament, our position, and simultaneously register, at the House, our grievances and concerns.
The 1980 Canada Act cannot be accepted by our people until such time that all elements of our treaty(s) through aboriginal rights have been properly executed and implemented.
This is our presentation, Mr. Chairman, and Treaty No. 7 position.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Prettyyoungman.
May I ask President Steinhauer if he had any other comments or any views that he would like to put forward before I invite the honourable Mr. Hawkes to open our discussion tonight.
Mr. Steinhauer: Thank you, Mr. Chairman.
I would like to explain just briefly that we are here united. We invited the President of the National Indian Brotherhood to be present, we also had a meeting with him this afternoon. The position of the Indian Association is quite general in terms of what we feel will be reasonable as far as dealing with the treaty rights question is concerned.
At the same time, because of the differences, the minor differences, I would say, in the treaty areas, Treaty No. 7, Treaty No. 6 and Treaty No. 3 when Alberta have all been
taken into consideration as part and parcel of the over-all presentation here.
And the other thing that we would like to say is that the people back home-by the way, it is a very warm western Alberta, a nice rich province, and we got here it was very cold and I hope that the Committee does not become that way, I hope you will give us a very warm reception and a positive response to what we have presented already.
The Joint Chairman (Mr. Joyal): We have a dictum, President Seinhauer, in French saying that one who has cold hands has a warm heart, and I must say I think that is the position of all the honourable members around this table.
Mr. Steinhauer: I hope so. This is al I want to say and I will ask perhaps Mr. Sanderson if he wants to make any opening statements.
Chief Sanderson: Thank you, Mr. Chairman.
On behalf of the Chief and Indian people of Saskatchewan I just want to wish everyone here a happy new year.
The Joint Chairman (Mr. Joyal): Mr. Hawkes.
Mr. Hawkes: Thank you, Mr. Chairman.
On a point of order, just to clarify, the delegation in its main components was here on December 18 and made their basic presentation and that is why the presentation we have heard tonight is so short, but I presume Mr. Mackasey was talking on behalf of the government when he assured this delegation that upon their return in early January there would be sufficient time and that we are now sort of free of time constraints for this delegation at least, even though we have been labouring under that time pressure earlier this evening, we have the time for a longer round and subsequent questions if necessary?
The Joint Chairman (Mr. Joyal): That is the way I welcomed you into the discussion, Mr. Hawkes.
Mr. Hawkes: That is the warmest welcome any delegation has received. The Premier of the province of Saskatchewan, I was the next questionner when that terminated, so that one was short as well.
Mr. Allmand: He was happy.
Mr. Hawkes: He was happy.
I am sorry Mr. Mackasey is not in the room at this time but with the previous delegation he may have left Committee members and the audience with some perception that in fact the Indian and aboriginal nations which have appeared before us are not united in their basic thrust, that there is a great deal of divergence.
I think I have attended all the sessions in which aboriginal groups have appeared. I missed part of the presentation from this particular group but I have subsequently read the testimony and it seems to me that there is a remarkable degree of agreement on the basic thrust of what the aboriginal groups are asking this Committee and the government of Canada to do, and-I need to check that out.
It seems to me that all of the aboriginal groups start with the assumption of sovereign nations, negotiating in a political
way the arrangement between those nations and the nation called Canada, and in fact what each and every group is saying is that there should not be a revised constitution, a new constitution, unless those aboriginal nations agree to at least those parts of that constitution that affect their lives and that that agreement is entrenched in perpetuity relative to subsequent changes. That would be part of the agreement that is being sought, and that no patriation takes place until that principle is firmly entrenched.
Is that the common element across all of the presentations from aboriginal peoples as you understand it?
Mr. Steinhauer: Are you asking?
Mr. Hawkes: Yes, I am asking that. I did as a young man go to the YMCA camp on the Stoney Reserve and I think, at least in part, I learned to listen, and I am hopeful that maybe that summary is accurate and that is where we have agreement from aboriginal nation to aboriginal nation?
Mr. Steinhauer: That is correct, Mr. Chairman.
The position taken in Alberta by the chiefs there is that there should be no patriation until such time as their treaty rights are recognized, entrenched, and we have done a considerable amount of work in the past couple of years in that area. We have had quite a number of workshops, resolutions have been passed and this is where it is at.
Now, the reason why we are very suspicious about the Prime Minister’s position at this time is the fact that we have been told so many times, dating back to I guess a century, and more recently in 1969, where the White Paper policy was imposed upon the Indian people. At that time it was rejected by Alberta and subsequently with support of all the chiefs in Canada it was shelved. However, since that time numerous events have taken place which in our view have been a major thrust to force termination on the Indian people in this country. So when we talk about patriation and we think about the ways and means of the federal government’s position as to what it can do, then we question the idea of patriating and then looking after the Indians concerns.
What we see in Section 24 is very superficial, it has got nothing really to satisfy us as far as protecting Indian treaties. So when we look at patriation and what happens after that, it seems to us that the federal government is not really sincere, although the statement implies that the rights would be discussed later with the Indian people.
But then, we also see that the provinces are fighting for economic and political survival, and being attended to first, although we had requested participation and this was refused by this government.
So what we believe will happen is that because of the Canadian Charter itself, which sets out different connotations and also spells out that everyone has, for example, to be equal before the law, and it does not take into consideration collective rights.
Now, if the federal government relies on the Canadian people, perhaps by way of a referendum or if the provinces
dictate as to how they want the country to be run to the Prime Minister, we do not see how we could survive as an Indian people. That is why we are opposing patriation.
Mr. Hawkes: Again, if I can go back to Mr. Mackasey for a moment. He left the impression that, bringing back the constitution required an amending formula.
I have been particularly struck by the number of aboriginal groups which have said that change should not be made until everybody agrees, and that the real protection for a society is some time to think things through and move gradually towards what it is that we need; that if you stay with the process long enough, you can get agreement and hopefully, a better world without the kind of bitterness and division that majority rule creates far too often.
My second question is for Chief Sanderson, and in some way I apologize for this.
On December 19, Premier Blakeney was a witness before this Committee, and he presented us with a document—and I do not know if you have had a chance to read it; but given the activities of your association, perhaps you have read it very closely.
But on page 17 and 18 there is a section on Indian people, and in the Appendix K, there is a proposed amendment which was brought up earlier this evening with some of the other groups who were witnesses before us.
I was, supposedly, the next questioner for Premier Blakeney and the meeting terminated and I did not get an opportunity to ask my question.
So I am asking Chief Sanderson, if, perhaps in Premier Blakeney’s absence, he might answer my question for me.
But as I read the advice which Premier Blakeney gave to this Committee, one piece of advice on page IS, in the fourth paragraph, was that we deal with the question of aboriginal rights after patriation, which is advice which runs counter to the advice given by all of the aboriginal groups, which say we deal with that issue before patriation.
As I look at Appendix K at the suggested rewording of Section 24, I find that it does not contain a single idea which I think is important to the aboriginal presentations.
In other words, we have the premier of the province in Canada which has the highest proportion of voters who can be classified as aboriginal peoples, in other words, the province in which aboriginal peoples have their biggest political clout, we have the premier of that province essentially saying to this Committee: do not do what the aboriginal peoples are advising you to do.
I am wondering, Chief Sanderson, if, through your process of discussion with the Premier and the elected people of that province, if you could give this Committee a sense of why someone in that position, with that kind of aboriginal population, would clearly provide this Committee with the advice to not do what it is you would like us to do?
Chief Sanderson: Thank you. Mr. Chairman, in response to that question, I do not wish to have a political debate with
Premier Blakeney here at this table. We have a forum for that in Saskatchewan.
But we have tabled this very same position with respect to the entrenchment and aboriginal rights in the proposed constitution.
It is very clear that we wanted the British Parliament to give force of law to the aboriginal and treaty rights positions prior to patriation of the constitution.
Of course, you will recall that in July of last year, when your government was in power, we made a special trip to Ottawa and to England to do that specifically and we also requested an audience with the Queen at that time which your government graciously denied; and that is why we are here today again.
People are continuing to deny access to authority for us in Canada, and we have to sit down seriously and address the degree of entrenchment of these rights.
I do not necessarily fully agree with Premier Blakeney’s position, but I guess that is one premier who at the moment is prepared to recognize treaty rights, which is a degree of political recognition of Indian or aboriginal peoples in Canada.
We had asked him to go much further in terms of recognizing aboriginal rights as well.
I do not know if that answers your question, but it was a fairly loaded question and I am not prepared to get into that kind of debate here.
The Joint Chairman (Mr. Joyal): I understand that other members of the delegation would like to speak or comment on the same question put to you by Mr. Hawkes.
Mr. Littlechild: Mr. Chairman, I would like to comment on that question.
If your assessment is correct, that the aboriginal rights people are at least the same in one area—don’t go ahead with patriation, and we have a premier who says. “Do not do what the Indians say”, well, who are you going to listen to as a Committee?
Mr. Hawkes: Well, I went very carefully through Chief Snow’s presentation. He called this constitutional debate at this time, the decisive battle.
I would like some amplification of why this period in this struggle might be seen in that fashion, as being much more important as a period than perhaps some we have had historically, or more important than some periods of time we may have in the future.
In his presentation on December 19, he said that the struggle that was taking place with aboriginal peoples to get these things entrenched might in fact be the decisive battle.
Could you give me some sense of why? Is that a product of better organization?
Mr. Steinhauer: Mr. Chairman, I would like to comment on Mr. Snow’s presentation which was regarded by Alberta as an historical presentation.
The impact of that, we believe, was quite significant to this Committee here as well as to the general public. Mr. Snow’s presentation did not represent all of Treaty No. 7, but rather he was allowed to come here and make a presentation as such.
So, the understanding we have from Treaty No. 7 now is that their paper was distributed. I believe you have the information positioned somewhere. This is what was read to you a while ago by Chief Prettyyoungman.
As far as Mr. Snow’s presentation and what he meant by a constitutional struggle is concerned, I think Mr. Snow, being a high calibre person with charisma, really wanted to tell the public that, there should be more peace in the minds of politicians and also the people of Canada and, that they should come to grips with the problem itself; and also the fact that the Indian people over the past century were never involved in any constitutional discussion; we were subjugated by an act of Parliament, policies and so on.
It is only recently that we began to speak on behalf of our people.
I believe these were the points that Mr. Snow wanted to get across to the Committee here. For that reason, he did make a contribution as far as we are concerned.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Hawkes. Mr. Hovdebo.
Mr. Hovdebo: I would like to welcome the delegations from Saskatchewan and Alberta. Seeing the members of the delegation from Saskatchewan makes me feel at home. I hope they, too, feel at home here.
I must say that I am very proud to be associated with the presentation or with the group that made the presentation from Saskatchewan—and also the one from Alberta—because, without doubt they were the best prepared and the most comprehensive and well reasoned and logical presentations that were made. It was one of the best made to the Committee.
So, I would like to congratulate you on that. Your contribution is going to last a long time.
I have one short question that I would like the President or the Chief of the FSI to answer.
Initially, how are the chiefs in Alberta and Saskatchewan chosen?
Chief Sanderson: Mr. Chairman, some of them are elected under the electoral system, under the Indian Act; some are still elected by custom of the band.
Mr. Hovdebo: Is it the same in Alberta?
Chief Sanderson: Likewise.
Mr. Hovdebo: Now, I do not propose to go into the area of rights, because as has been stated before, a dozen. Delegations have been before this Committee, native or Indian delegations, or related groups.
So, let us accept the idea that the rights are there, and established by treaty, that the rights of Indian governments, the degree of sovereignty, and so on, are part of nationhood, the Indian nations are part of it.
I would like to explore a little, the area discussed in your presentation, particularly the presentation from FSI. In that presentation you stated that it became obvious that your problem was one of jurisdiction. You also suggested a very unique and direct method of handling it by inserting a Section 93 into your presentation.
I would like you to comment on that, if you would. How would your government work, and how do you perceive its relationship as one of the three governments which were part of this presentation in this paper?
Chief Sanderson: With respect to that, we view the treaties as not only confirming the aboriginal rights position of our people in Saskatchewan, but also call for a very specific relationship between the Crown and the Imperial government, the Government of Canada and the Indian government. Section 93(b) is the one, I presume you are referring to, dealing with the legislative powers of the Indian government.
We would view the band as being the basis for Indian government in Saskatchewan, and I am sure it is similar to that across the country.
Some areas do not have bands. Some already use the term “nation”. We have a land base in Saskatchewan, which is protected under treaty and which has a degree of Indian sovereignty, which was never surrendered to the Crown or to anyone as far as the title is concerned, and it was held in perpetuity for a generation.
That is the degree of sovereignty that has never been addressed.
The government, under the colonial powers that were enacted in the Indian Act, denied the powers of the Indian government; but that still does not mean that they do not exist.
The act of signing a treaty certainly recognizes that there is a degree of governing powers there.
We are saying in Saskatchewan that it is time that the governments, both federal and provincial, and the Crown, start addressing the clear areas of Indian jurisdiction which do exist on the reserve lands under treaty, and that there are shared areas of Indian, provincial and federal jurisdiction within treaty territory.
I suppose, Mr. Chairman that is one of the sad concerns that we have about the constitution as proposed, that there is a consistent lack of recognition of the political rights that Indians have in Canada—and that is by all parties and all governments in Canada; it is not any one specific party.
Now, it is time that we did sit down in Canada and discuss the degree of jurisdiction for Indian government.
We are not going to ask you in this forum to do that. We are not going to ask any government to do that. We are putting it in place in Saskatchewan, and of course, we would like also to say that in Saskatchewan we are looking at developing more of our economic and political institutions which will accomplish it
We feel, if we are looking for something to bridge the cultural relationships, the social development which have to go
on, they should be done in the institutions and not at the cost of our political rights and institutions.
Mr. Hovdebo: You have also in presentation set a rather wide range of areas, and you just mentioned them now, elements into which your Indian government would become involved. One of the papers that was presented was this paper here.
How do you perceive that this would be financed?
Chief Sanderson: Well, again, under the treaty there is an obligation of the federal government, as far as the fiscal relationships go under treaty, to provide for certain social rights under treaty on an on-going basis; and we did not surrender all rights to resources both renewable and nonrenewable; we retained the right of access to territorial rights for the hunting, fishing, trapping and gathering for renewable resources and certainly in the discussions leading up to treaty, nonrenewable resources were silent in any negotiations and discussions and we certainly are pressing both the federal and provincial governments to get involved in a resource-sharing negotiation and come up with financing for our institutions in that way.
Mr. Hovdebo: You are already negotiating in that way, are you?
Chief Sanderson: Yes. I would also like to add that in Saskatchewan we do not accept any services from the provincial government unless they are paid for by those arrangements and that we view Indian jurisdiction as something that extends beyond reserve boundaries within treaty territory.
Therefore, we have no urban Indians or off-reserve Indians. We deal with those questions from a jurisdictional position and they belong to a band or a tribe that has a proper government of their own and they are responsible for them within treaty territory as well.
Mr. Hovdebo: Just to follow on that off-reserve basis, when you say within treaty territory, what do you mean?
Chief Sanderson: I am talking about those treaty boundaries that were negotiated when the signing process was negotiated.
Mr. Hovdebo: Which might be interprovincial on some occasions?
Chief Sanderson: Yes. In a lot of our dealings, we do not recognize provincial-federal boundaries.
Mr. Hovdebo: Also to what extent do you consider the Off-reserve jurisdiction? What would be the extent to which you would think—in what areas?
You have. in Section 93(b), Indian government legislature may make laws applying on or off reserves in relation to—and you have listed a number there—education, culture, elections and so on. Could you just comment on how you feel that that jurisdiction can be extended into, say, the urban areas?
Chief Sanderson: I just finished explaining that the jurisdiction for the chief and council that the governing body of the band would extend into those territories and that we would set up our institutions to accommodate the process.
Mr. Hovdebo: But I know, for instance, in Prince Albert there are members of ten bands.
Chief Sanderson: Yes.
Mr. Hovdebo: You are not going to have ten different educational institutions.
Chief Sanderson: What we are doing in Saskatchewan is setting up a Chiefs’ treaty area Council and that Chiefs Council may consist of Chiefs from different tribes and may consist of Chiefs from different treaties, and we are setting up what we call treaty area centers and we are putting in place Indian government institutions.
You have in Prince Albert federal-provincial buildings that are government buildings. You will now have additional buildings in Prince Albert that are Indian government buildings.
Mr. Hovdebo: I hope that you get that.
One other area in that particular, and I am sticking very closely here to 93, is you have in there a suggestion of courts operating.
Are those courts to operate within the jurisdiction of courts of Canada or are they separate courts?
Chief Sanderson: Mr. Chairman, I guess that depends on what action is going to be taken with respect to the Indians’ presence in the patriated constitution.
Now, with respect to the arrangements that exist now, it is possible to set up an Indian justice system whereby—again in Saskatchewan I must explain—provincial laws do not apply on reserves where we have Indian sovereign rights to lands and that we would look to have law and order put in place by developing Indian law that would by-pass provincial magistrate’s courts but, under treaty again, we have a special arrangement whereby we have to agree to some of the Criminal Code legislation.
Trespass, again under the Criminal Code, is a mandate that our government has and we would view the civil matters, for example, of child care, elections and so on being handled by an Indian tribunal and we would want to see that there was room made for Indian law within the existing arrangments or future arrangements. Right now, we do have in Canada the civil code for Quebec and common law for the rest of Canada. We would also want to have the representation at the Supreme Court level, just as other cultural groups have.
Mr. Hovdebo: I have another area which I would like to go into a little bit and that is, you have stated this very strongly in here and you have reiterated your position very adequately in reviewing it now, notwithstanding the attempt of Mr. Hawkes to present the position of Saskatchewan, I think that our party has federally at least accepted the idea of the sovereignty of the original nations and feels that it should be dealt with now rather than after patriation, but I would like to know how or why you feel so strongly, as many of the group have expressed, and maybe both of you could comment on this, why you feel
this is so important a factor rather than just the entrenchment of the rights in the constitution.
Chief Sanderson: Mr. Chairman, with respect to that question, again just a little bit of history for the Committee members.
We have experienced a series of policies that are in a lot of cases not legislated but very subtly put in place. We experienced at an early age in our development with our relationships here what they call the 1840 Detribalization Policy which virtually eliminated all political rights of Indian people by legislation and it also eliminated the cultural rights and development of Indian people in a series of legislation again and, following the 1840 Detribalization Policy, came the 1947 Liquidation Plan that was, just as it says, a liquidation plan of governments, not one any specific government but governments, and that was a 25-year plan to complete what was started in 1840. Then we arrive at the 1969 White Paper which is a five-year plan to wrap up and complete what the 1947 Liquidation Plan intended, and that was to get rid of reserves, get rid of Indians and so on.
Now, viewing that kind of policy on Indians—and it was a so-called assimilation policy and we called it termination policy-plus the residual powers and responsibility that the imperial government has to make sure that the rights of original peoples in Canada are protected, we are asking that the legislation prior to patriation guarantee aboriginal and treaty rights.
And again, we would like to discuss the degree of entrenchment which is something the Committee has not really addressed. We would also want to say that—I think it was Mr. Mackasey who said earlier—there will be ongoing disputes even after there is a patriated constitution, I think you people guarantee that for us, but we also propose a protectorate office so that we can achieve the rights that we are speaking of.
Now, politically, the way that your judicial system is constituted at the moment does not allow for any moral, historical or political evidence to be brought forward and we have to take our cases forward to your courts for proper judgments, plus a lot of the law that is there now is not proper as far as we are concerned when it comes to recognizing Indian rights.
So, we have many reasons why we would want to see the proposed legislation that we are speaking of in Saskatchewan and the Protectorate Office we see as a means of being able to resolve the many jurisdictional disputes that do exist now and the many jurisdictional disputes that we will experience even after there is a patriated constitution if that is to take place and, Mr. Chairman, I would ask my colleague from Alberta to continent on the question as well.
Mr. Willy Littlechild (Legal Adviser, Indian Association of Alberta): I think two further reasons as to why we may want it prior to patriation, in your discussions as to an amending formula, there is no available mechanism there that includes Indian involvement once patriation does in fact take place and,
secondly, in the present proposal, at least the resolution as it is, in our hands there is a requisite for provincial agreement to also take place and what you are asking us to do is to put into the hands of another body, i.e. provincial governments across the country, the determination of Indian rights, and all we are saying is that prior to getting into that kind of a battle, we would prefer to ensure that our rights are entrenched prior to patriation. The simple fact of patriation itself may not be so difficult in the eyes of many but what we are saying is that once that happens then there is no guarantee after patriation that Indian rights will in fact be entrenched or even be discussed, for that matter, in spite of all the previous assurances, even in writing, that they will be dealt with after patriation.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Hovdebo.
The honourable Mr. Warren Allmand. I am sorry, Chief Sanderson, I thought you had completed your answer to Mr. Hovdebo’s question.
Chief Sanderson: I was just going to have Rod Soonias explain the intent of Section 93(a) and 93(b).
The Joint Chairman (Mr. Joyal): Certainly, Mr. Soonias.
Mr. Rodney Soonias (Legal Counsel, Federation of Saskatchewan Indians): Section 93(2) is an entrenchment provision of treaty on aboriginal rights in Canada. The reason we have done this is that the definition of treaty on aboriginal rights has never been properly made. The courts have said a lot of things, but there is no definitive statement on what aboriginal and treaty rights are. The same with our people. As far as we are concerned, treaty and aboriginal rights are very hard to define because they also take in the oral tradition of the Indian people and their lifestyles. It is not just what is in the treaty, not just what is written down.
Therefore, this entrenching provision we have put down entrenches the idea of treaties in the constitution in their totality. This includes negotiations, understandings, the oral tradition and the practice of administration of how Indians have been treated. Now, the legislative powers we have enumerated in Section 93(b), the best way to explain those is even though some of them appear to infringe on federal and provincial powers, the way I understand it is that in constitutional law right now there is an accepted idea of double aspect. You can have something that touches a federal matter, also a provincial matter. I believe here we have to accept the idea that there is a triple aspect to a lot of this legislation, the third aspect being that a law can touch Indian lands and Indian people. For this reason we have enumerated the powers over which Indian governments will be prepared to make laws, applying on and off reserves to Indian and Indian lands. We realize that to put this in place will take some time. Canada was not made in a day. The laws were not made overnight, and we foresee that it will take a long time to put these laws into place, therefore, what I guess we are saying is that there will be a referential incorporation of federal and provincial laws for the time being until such time as we can make our laws to fill the gap.
The Joint Chairman (Mr. Joyal): Thank you very much for your answer, I would like to invite the Honourable Warren Allmand to speak.
Mr. Allmand: Thank you, Mr. Chairman, these questions might be put to the legal advisers to the delegations, but I leave that to the discretion of the presidents.
As you and other delegations have pointed out, the treaties were bilateral agreements between nations and you presented much historical evidence to support that position. Unfortunately, as time went on the courts began to interpret the treaties in a different way and in some cases interpreted them as mere commercial contracts or agreements. Now, some members of this Committee and other members of Parliament might wonder how the courts could come to such conclusions when there is such overwhelming evidence to the contrary, and delegation after delegation have presented us with that evidence. The Union of Ontario Indians have, you have, many others have.
What many members do not know is that in many of the legal cases which established those precedents, Indians were not involved, that there were cases between non-Indians, between plaintiff A and defendant B, neither of whom were Indians, and for many reasons Indians either could not or were not able to intervene to make sure, to argue the strong positions that you have here today.
I forget the exact date, but I believe it was up until the thirties that Indians could only take action in court with the consent of the minister or file security for costs with the consent of the minister, and another aspect was, that in the thirties and twenties I do not believe the Indians were organized on a national or provincial basis as they are today and were able to intervene, but even those who tried to intervene, they often, when motions were made to supply security for costs, they were not able to because they did not have the moneys for those Supreme Court and superior court cases and they had to withdraw.
So many of the legal precedents which have defined treaties in the early part of this century and up until, I understand, around the middle thirties or maybe later, were established without any strong Indian counsel before the court to argue the positions that you have argued before us in the last number of weeks, and consequently we now have a lot of law on the books quoted to ministers and quoted back to you which say that ordinary provincial and federal laws override the treaties, which was never supposed to be.
Would you confirm that this is how it has taken place, that despite the strong arguments, that our Canadian courts have come up with these adverse type of judgments which have taken away your rights, and what I would like to do at the same time when you are answering the question is to point out how the American courts I understand, have interpreted the treaties as true international treaties, treaties between nations. I would like you to amplify on that because there is a lot of information missing before this Committee on how our courts
came to such, I believe, ridiculous sort of judgments with respect to the treaties.
Chief Sanderson: Mr. Chairman, I will give you some of the legal and technical answers and then I will give you the political answers and then I will ask Delia Opekokew to deal with it first and then ask Kirk Kickingbird to deal with the U.S. treaty,
Ms. Delia Opekokew (Legal Counsel, Federation of Saskatchewan Indians): Basically your question centres on why the law is such that Indian cases from the Indian perspective were so weak and basically you answered the question in the sense that Indian people were unable to present the evidence properly simply because in most cases they were not part of the case. Most of the cases that occurred until about the 19605 were between non-Indian people and certain questions would come up regarding, for instance, property as the most important Indian case in Canada now. the St. Catharines smuggling case of 1885, that was the case which involved the dispute between the federal government and the provincial government as to who owned lands after treaty, or who had the official interest in the lands, and it dealt with a section of the BNA Act that did not really affect Indians, but in fact affected the provincial governments.
Again, the matter of paying for litigation costs was, again, another problem, and so we do have a history of litigation on Indian matters in Canada being dealt with not by Indian people but by non Indian people and, for that instance, the proper evidence as far as we were concerned was not led properly.
Kirk, do you want to take over.
Mr. Kirk Kickingbird (Legal Counsel, Federation of Saskatchewan Indians): Yes, I am Kirk Kickingbird, and I am an attorney in Washington, DC., and I have worked in a variety of capacities with Indians, as counsel to the Congress of the United States most recently on a special Commission called the American Indians Policy Review Commission, in which we reviewed the last 200 years of Indian history and Indian laws.
The basic things which must be kept in mind when dealing with the United States legal system and its recognition of Indian governments, the basic theories relate around several factors, probably the most important is that tribes are recognized as distinct independent political communities and they retain their inherent sovereignty unless it has been specifically given up by treaty or has been curtailed by legislation to carry out the treaty,
Theoretically tribes have delegated certain powers to carry out the treaties which allow this limitation of certain powers. The most recent or one of the most recent pronouncements, in 1979. related to some fishing cases in Washington State, relating to the Treaty of 1854, 1855. The common element
that comes out in controversies about Indian political rights and treaty rights is the fact that the idea comes up that passage of time has diminished the legal political impact of those treaties and time and again, from the very beginning of the United States, the United States Supreme Court has answered, in its examinations, essentially the way it did in these Washington State fishing cases. It said that contracts, including contracts between the United States and Indian tribes, are essentially contracts between two sovereign nations. Time has not diminished those political rights established in treaties unless they have otherwise been given up, and in fact in that case confirmed those fishing rights reserved by the tribes in 1854 and 1855.
So those are very much real political rights and the essence of it is that there is an ongoing political relationship. Probably most prominently seen in the settlement related to the controversy in the state of Maine about whether those lands in that area were protected under what we know in the United States as a federal Indian trust relationship.
Mr. Allmand: Thank you very much, that evidence is very important for the Committee.
My final question, Mr. Chairman, is one I put to the Union of Ontario Indians. Oh, yes, the Alberta Indians, their legal advisor would like to comment.
Mr. Littlechild: I think if I might borrow from the initial statement that Mr. Hawkes made in reference to Chief Snow’s comments about the timing of this particular Committee and its proceedings, in relation to the interpretations of treaties that has been presented already, I am sure numerous times it has not been from an Indian viewpoint. The legal history in Canada is sad in its interpretation of Indian treaties when they refer to Canadian legislation to interpret such, and I think because of what Chief Snow has said that this is an opportune time to change that, then if you are going to talk about entrenching treaty rights, one of the considerations that must also be given is that they have prior status to other legislation, whether it is federal or provincial. I think the entrenchment of treaties, if they go to court, if they go to the extent of going to court, then at least the judges would have some reference point, and in this case, that the treaties have prior status.
The Joint Chairman (Mr. Joyal): Thank you. Chief Sanderson.
Chief Sanderson: Thank you, Mr. Chairman. I am going to ask Rod Soonias to comment, and Mr. Steinhauer and I would like to make some comments on the question as well.
The Joint Chairman (Mr. Joyal): Thank you. Mr. Soonias.
Mr. Soonias: I would just like to take up on what Mr. Allmand said, that sometimes Indian groups could not afford to bring court action.
There was also a problem with the legislation in some cases. I believe in 1876 it was either the Dominion Lands Act or one of the Indian Acts, and this went up into the 1900s, where status Indian people were not permitted to hold freehold land, like non-Indians.
Also, in the 1927 Indian Act, there was a section there which stated it was against the law for Indian people to bring a land claim to court.
Mr. Percy Smith (Federation of Saskatchewan Indians): My name is Percy Smith, I am a member of the Paegan Band Council.
In regards to the general feeling that Mr. Snow tried to bring out, I think you must recognize, all the members of this Committee, that what we are trying to bring out for your consideration, in my trying to work with the Committee that I have been associated with, we try to bring across very simply the fact that our existence is every bit as sacred and united with the land that we speak of, in our case it is the 50,000 square miles that covers southern Alberta.
The Union that the treaty established for us has to be the founding basis that we work from in working towards bringing about all of these forms that Saskatchewan has so well put out. So it is with that, that I hope, as the present Queen’s grand mother respected and acknowledged in directing the Canadian government to make treaty with us, that respect is all that we are asking you people to maintain; no more.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Smith. Chief Sanderson, you wanted to add some comments?
Chief Sanderson: Yes, Mr. Chairman.
Just further to that question that Warren Allmand has posed, being that he is a former Minister of Indian Affairs I am sure that he appreciates the frustrations that we have before your judicial system, and that we are proposing again the establishment of a process whereby we have an Indian Rights Protection Office and the Office of Indian Rights should adjudicate on Indians and Indian land disputes, not federal and provincial courts.
The Joint Chairman (Mr. Joyal): Thank you.
Mr. Steinhauer: Mr. Chairman, just some comments on interpretation of Indian treaties.
The Indian treaty recognized the need of both Indian nations and tribes and the British Sovereign to come up with new relationships with each other, and just as the European nations solemnly entered into covenants, compacts and treaties that identified this respective relationship as nations, the same principle was applied to us.
Treaties are not of a contractual nature, the land transaction, quit claim deed. Our treaties are sacred covenants and solemn obligations entered into with good faith and equality. The courts in Canada have had to deal with the nature of our treaties, and especially as our rights have been slowly taken away by federal or provincial legislation.
Just as an example, in the famous case of Earl Socaia, a Treaty No. 11 Indian was charged and convicted of hunting a migratory game bird contrary to the Migratory Birds Conven-
tion Act of 1917. That Convention was entered into by the British government and the American government. This convention, even though it was signed on behalf of Canada by the British, had to be ratified, sanctioned and confirmed by Parliament in 1917 to be effective legislation.
Socaia used as his defense our right that was recognized by Treaty No. 11 to hunt for food. The Court of Appeal for the Northwest Territories gave full recognition of the existence of Indian hunting and fishing rights. Now, we have a number of cases that have been dealt with which could be explained to you but it would be time consuming, but we do feel very strongly that treaties are here and they must stay because we look back at history, had we people sitting around this table been around then with the knowledge, the experience and academic education, things would not have happened the way they did 100 years ago. I am not saying that our forefathers were not wise; they were very wise people. but at the same time they believed what the Europeans said because they believed everybody was honest, so now we have come to a point in history where we ourselves believe, this generation and the next generation to come, will be, say, fighting for not only political survival but also for cultural survival, and that means that the land must be retained, the treaties must be respected.
The Joint Chairman (Mr. Joyal): Thank you very much, President Steinhauer.
The honourable Jake Epp.
Mr. Epp: Thank you, Mr. Chairman. I have a few questions.
Chief Sanderson, on page 44 of your paper, the first nations Indian government and the Canadian Confederation, today as well, when you use the word Indian Government, that is Indian bands, are you using words “Indian Government”, Indian bands, “and Indian nations” interchangeably.
Chief Sanderson: I use the word, Mr. Chairman, of Indian government. That is an institution, a political institution. The band is a collection of band numbers that make up a Band or a respective group of people that have certain territorial jurisdiction or rights. and Indian government is a term that is used to define the political institution that is needed for organizing those political rights of those people.
Mr. Epp: But you do recognize, then. that the power of government, that institution emanates from the Chief and Council; is that correct? Is that your concept of Indian government?
Chief Sanderson: We would have to take your system that you call Confederation now and literally turn it upside down.
Mr. Epp: I would say both you and I use that same term.
Chief Sanderson: And we would see the bands as the basis of the governing powers, there would be an Indian government constitution that would spell out clearly what the band powers are. It would also spell out clearly what the division of powers are for the Chief and Council themselves of the governing body of that band or tribe, and then you go to the extended
extraterritorial jurisdiction that we keep talking about in treaty territory. We would work through the delegation of powers to the councils, whether they be district, regional or national.
Mr. Epp: Well, I recognize that, Chief Sanderson. The point that I am trying to make, I am wondering as we have been discussing with a number of Indian representatives, whether, and I am not talking about the institution or its formation or its structure, what I am talking about is the interchangeability of those concepts because I am of the mind now that, as I listen to you and I put that into context as I have been listening to other native and Indian groups, that those words are being used interchangeably, and when I look at your brief on page 44 I am led to the same conclusion because you use both words.
Chief Sanderson: I would not want to get into the words, definition of words. In our same book we have defined specifically the words that we have used. I am going to ask Kirk Kickingbird to make a comment respecting that.
Mr. Kickingbird: I think that it is a general proposition that the bands, as well as the upper levels, other delegated bodies such as the FSI, have various aspects of Indian governments, and so in a broad sense, yes, there is a specific usage consistent with the idea of delegated powers. In essence, the powers derive, of course, from the people of the band delegated to the band governments.
Mr. Epp: Precisely.
Mr. Kickingbird: That in turn is delegated up to the provincial level in terms of the way the FSI operates.
Mr. Epp: Not only the FSI, but if I understand Indian government, and when I have listened to you, and with past experience, that is the manner in which I interpret Indian government, and according to your brief as I read through it that is the interpretation I get out of that as well, and I am just trying to confirm that.
Mr. Kickingbird: I think we are basically in agreement.
The Joint Chairman (Mr. Joyal): Chief Sanderson, you wanted to add something?
Chief Sanderson: Yes, I would just like to say with respect to that same question, we, in putting in place our governing powers and governing structures, we do not want to lead you to believe that we want to acquire our governing powers from this Committee or from this Parliament.
Mr. Epp: I do not think we have the power nor were we granted it.
Chief Sanderson: We have inherent right to that governing power and we are not going to ask anybody about putting them in place. I think that to mislead this Committee in believing or pretending that you have that power so we can acquire our governing powers from you is going to be the same misleading concept that you propose under the amendment to the Indian Act, that success parties and governments have proposed under the amendments of the Indian Act, whereby we are supposed to acquire our governing powers from you when in fact they are inherent and they are rooted in those
homelands that are reserve lands in Saskatchewan and in Canada.
Mr. Epp: I was not referring to that, Chief Sanderson, but that takes me to the next question, and that is why you make that statement, and I can see why you make that statement but yet you then turn around, and validly so, but you then turn around and your structures that are in place in what has been referred to today as the Euro-Canadian culture or the European culture and you use those same institutions as protection for the very rights that you claim to have. I am not disputing the rights, I am simply saying that the process that you use, you finally ascribe or you finally come to the same point in terms of protection by virtue of institutions, as Mr. Mackasey might as an individual or I might as an individual, and that takes me to Section 50.
I do not know how much attention you have been able to give to Section 50 but the Indian people of Canada, along with some others of us who feel that the Crown gives us protection as individuals, the Indian people have had a very specific relationship to the Monarchy, the Crown, yet the way I interpret Section 50, and by virtue of the amending formula of Section 41 or Section 42, the power of the Crown can either be abrogated, reduced or eliminated, and I wonder what your reaction to that is, especially in View of the fact, the point that I made earlier, namely that the protection of Indian rights has always been claimed through the Crown by the Indian people?
Chief Sanderson: I think, Mr. Chairman, in response to that question, we had posed a question of the Committee and asked what presence does the Crown really have in Canada. You seem to accept that you have the political will of any government, you can change the status of the . . .
Mr. Epp: Excuse me for interrupting. I am not saying that, Chief Sanderson, I do not want to mislead you. I am not saying that. The provision which I disagree with, namely Section 50 among others, but Section 50 I disagree with, is that the power of the Crown, in whatever manner it might be interpreted, in whatever manner it might protect the treaties and the native people, can in fact be changed, in fact eliminated through the provisions of Section 41 or 42, as I read it. That is the point I am trying to make.
Chief Sanderson: I think there is another element to the political will that I was going to address, Mr. Chairman, and that is the sacredness of signing treaty. Surely there is the moral obligation of these Committee members and government to respect the sacredness of signing treaty, and at the present moment, whether you like it or not, the Crown that you speak of is the head of the church as well and if you want to eliminate the process of moral obligation from political obligation, then perhaps that is what is wrong with this country.
However, I think if you understood and appreciated the sacredness of signing treaty there would be no need for a statement such as you have made, Mr. Epp. There is an ongoing trust obligation there that you would have to respect in spite of your political beliefs, in spite of what is there, that prevents government from honouring those treaties, and we think that honourable men entered into the treaties with a
sacred process in mind as well as the political process and the economic needs that were recognized at the time should continue. Do you disagree with that?
Mr. Epp: Well, Mr. Chairman, with all respect, I do not think. Chief Sanderson, you gave a correct interpretation of my statement. I did not in any way say that that responsibility or that moral obligation should be eliminated or that there is not a role for a moral obligation in the political process. That is not what I said and I am sorry, I believe that was a misinterpretation.
What I am saying is I would like to see Section 50 changed, namely to remove the provision whereby the monarchy’s role could be changed, through Section 41 or Section 42. In other words, that that protection would remain which you have claimed and which I, as an individual, might claim through the Crown, and so what I am asking you is whether you have given thought to that amendment, to an amendment of Section 50 of the proposed resolution removing the provision whereby the Crown cannot be changed under either Section 4l or Section 42?
Chief Sanderson: With direct response reflecting our position on that matter we are proposing that the patriated constitution that is being discussed, that there be Imperial legislation in place protecting the treaty and aboriginal rights and addressing the degree of entrenchment and the Indian Rights Protection Office and so on.
Now, the presence of the Crown, eliminating the powers of the Crown I do not believe can be done at will. If the Committee does not succeed in getting the government to change its mind, we are going to press the British Parliament to enact a piece of legislation respecting Indians in Canada and to make sure that Canada’s trust Crown obligations continue.
Mr. Epp: That is the point I was trying to make. Thank you.
Chief Sanderson: Is that your policy?
Mr. Epp: Exactly.
The Joint Chairman (Mr. Joyal): I understand that President Steinhauer wishes to add something.
Mr. Steinhauer: I would like to ask the Committee to listen for a few minutes to Mr. Healy, who has done extensive work in the area of the constitution in past years, and he is also a member of the largest reservation in Canada. Recently he came back from England, and he has more information. I would like him to explain very briefly the position of Treaty No. 7 more clearly.
The Joint Chairman (Mr. Joyal): Thank you.
Mr. Les Healy: I thought I would take advantage of the generosity extended to us by members of the Joint Committee that we could use as much time as we need to make our presentation.
Before I read out the position of Treaty Seven people with respect to our presentation to the British House of Commons
and the British House of Lords, I would just like to inform the Committee that, going over to England, I sat down and spoke with Bruce George, the British member of the British House of Commons for Walsall South. He advised me that we should encourage as many Indian delegates to go to London to speak to and encourage British MPs—all 635 of them—during the course of the next few months.
I suppose this is disregarding the advice that he gave us at the National Chiefs Conference held here in town in the first part of December when he advised the Chiefs that we should, perhaps, do our homework and lobbying here, first, in Canada, prior to proceeding to London to do some extensive lobbying there.
I might suggest to the Joint Committee here that I think, as we complete hearings here and testimony before you, we will have exhausted all possible means of putting forward to you the positions taken by the various associations and committees that have made presentation here.
I would like to make reference to an earlier statement made by Chief Cornelius of the Association of Iroquois and Allied Indians, where he states that the British members of the House of Commons are 100 per cent—I think that was the term he used—ignorant of the Indian situation here, other than the fact of what they have seen on television, the cowboy and Indian concept of Indians.
I believe that was a fairly accurate statement, because bringing back some correspondence from the British House of Commons, correspondence that has been sent from the British members of the House of Commons to the office set up by the National Indian Brotherhood, called the Office of the First Nations, the former Vice-President, who is now manning that office, advised me to bring back with me some correspondence to show the Chiefs of Treaty No. 7 the nature of the ignorance that is displayed in the letters where British MPs, 90 per cent of the time, in their letters expressed themselves in this way: “Let us get on with the business of the patriation of the constitution, allowing the Canadian government to settle the problem of the entrenchment of Indian rights in Canada”.
They wanted to clean their hands of that particular problem.
I felt that, before it was too late, we should send as many delegations of Indian people to London to make our point better known and to make them clearer to them, before they voted in the House of Commons to let the British people off the hook very easily, because that is what their intention is.
Having said that in organizing and setting up meetings for the Chiefs of Treaty No. 7, we felt we should complement the positions taken by the Indian Associations of Alberta, and that we should supplement whatever information had been given to the British House of Commons by the National Indian Brotherhood, by making our own statement, our own testimony, verbal and written, and in doing so we contacted, on behalf of the Chiefs of Treaty 7, the Governor General, Ed Schreyer’s Office, asking the Governor General, on behalf of the Chiefs of Treaty No. 7, to see if the Chiefs of Treaty No 7 could be received by Her Majesty the Queen.
In doing so they have asked us to prepare a position paper which would eventually, hopefully, be given to the Queen, and if we are not received by the Queen, then we hope we would present it to the Clerk of the Queen in London.
We have set up the mechanism to do so.
With the permission of the Chair, I would like to table for your information and for your information only, for the records, and to read to you the Treaty No. 7 position which will be presented to the Governor General tomorrow morning at 11:30 at his residence.
So if I have your permission, I would like to proceed with this. It will just take a few minutes.
It states that the Chiefs, Councils and representatives of Treaty No. 7 area respectfully submit the following brief in response to current government proceedings and its proposed patriation of the BNA Act. Treaty No. 7 takes the unified position of complete rejection of the unilateral terms under which the treaty government proposes to patriate the constitution.
Treaty No. 7 will initiate and incorporate all necessary elements and legal components at our disposal towards rightful participation in the negotiation of our concerns prior to negotiation.
Over the past year we have met with and sought the advice of other treaty people from the province of Alberta, as well as other native leaders across Canada, the United States, South America and various indigenous people at gatherings around the world.
We have utilized the knowledge of our elders, our own researchers, legal consultants and parliamentarians.
In all our efforts to rationalize the wisdom of the federal government’s proposed 1980 Canada Act and to clarify its effect on our people, our lands and our way of life as treaty Indians, we have absolutely no reason to be optimistic that our future as treaty Indians will continue, nor do we envisage any beneficial ingredients within the proposed constitution.
On the other hand, we discern that where the singular reference is made to Section 24, our rights will not be recognized nor will our treaty be honoured.
Our position results from government recognition and our assertion that we possess rights delivered from our original inhabitancy through our ancestory in this country.
Thus we evolved the following declaration, Mr. Chairman, that
We, the original people of this land, know the creator put us here. The creator gave us laws that govern all our relationships to live in harmony with nature and mankind.
The laws of the creator define our rights and responsibilities. The creator gave us our spiritual beliefs, our languages, our culture and a place on mother earth which provides us with all our needs.
We have maintained our freedom, our languages, and our traditions from time immemorial. We continue to excercise the rights and fulfil 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.
Our position, we further acknowledge to be legally bound and affirmed through the inauguration of various acts and declarations enacted over the years.
The Royal Proclamation of 1763, gave legislative recognition of aboriginal rights and the government proceeded to enter into treaties with various Indian nations on behalf of Her Majesty, Queen Victoria.
The treaty was assented to by our forefathers only after they were given to understand that the end result would be for the mutual benefit of our people through the sharing of our lands, and that we would receive certain rights and privileges for maintaining peace with Her Majesty’s immigrants.
Through the last century, we have shared our lands. We have kept the peace. Many of our people chose to serve and many gave their lives in defence of Her Majesty’s royal interests.
Categorically, our war veterans have been deprived of the benefits warranted servicemen of the white society, and through various methods of abuse, we have been denied the fulfilment of treaty terms.
We firmly believe, based upon historical evidence, that various statements expounded by the Canadian Prime Minister, assuring consultation on Indian issues after patriation, are only a means of pacification, and once patriation is secured the Canadian government will, once again, abrogate its promises.
Therefore, our central position is that the government of Canada guarantee. through entrenchment our treaty rights and special status in any new constitution before patriation.
We reaffirm our stand that the protection of Indian rights, Indian lands and self-determination must be written into and thereby maintained in any constitutional amending formula.
In view of the Canadian government’s rejection of our legal demands for equal participation in the constitutional talks and more specifically to deal with Indian issues before patriation, we humbly and earnestly entreat the British Parliament and Her Majesty Queen Elizabeth the Second, to interpose on our behalf and instill within the Canadian government leaders at legalistic sense of its obligations, obligations that they have shouldered through nomination and election to office as Canadian advocates of Her Majesty, the administrators of her dictates as outlined in Her treaties with Indian nations, under the new law of self-determination of peoples, recognized by the International Court of Justice and other international agencies, the people of Treaty No. 7 wish to remain within the
existing framework of the plural constitutional system without relinquishing our ethnic, cultural distinctiveness or special status.
Therefore, the 1980 Canada Act cannot be accepted by our people until such time as all elements of our treaty have been fully recognized, entrenched and negotiated and executed.
May the great spirit guide and protect us as we walk hand in hand towards unity and brotherhood.
And this is submitted, Mr. Chairman, by the Chiefs of Treaty No. 7.
The Joint Chairman (Senator Hays): Thank you very much.
Mr. Steinhauer: Thank you for being patient with us. We also thank you for the time you have given us.
Our legal advisor would like to respond to Jake’s question. He has some ideas on that. Following that, I would like to have one of the powerful Chiefs of Alberta, who has made some grandstands against the provincial and federal governments—Nelson Smallegs, to talk to you briefly.
Mr. Littlechild: Mr. Chairman, if I may refer back to Mr. Epp’s comments on Section 50 itself in respect to the removal of the Crown, I would like to say that because of the opinion that Indian people have about treaties and the signing between Indian people and representatives of the Crown, if the interpretation of Section 50 is that you are to remove the monarchy or the Queen, then it means in effect that it terminates treaty rights and treaties in Canada.
If that is the case, then we must register our protest over that particular section.
Mr. Epp: That is why I have studied Section 50 in some detail and I have asked the question earlier, and I have been surprised that the Indian people have not put more stress on the implications of Section 50 and what it means to the treaties and the position of the Indian people in the Canadian Confederation.
The reason I raised that as well is for those of us who are strong supporters, not only the Monarchy. but also of the powers and rights it protects for all of us, that is the Crown; it is worrisome to me that, through a process of campaigns, advertising, a referendum, that in fact it can be removed in the emotional heat thant can create.
That is why I fear specifically that part of Section 50, and I have additional worries when I see a member of the Committee saying that within two years, once the passage of the Canada Act has taken place, under Section 50 in fact they could eliminate the role of the monarchy.
That is why I feel it is important for the native people to be very careful.
Mr. Mackasey: On a point of order. Would you please identify the member of the Committee, otherwise we are all antimonarchy.
Mr. Epp: Yes. I am sorry: Mr. Lapierre in Le Devoir.
Therefore. I think it is important that Section 50 be examined very closely as to its implications on the treaties.
The Joint Chairman (Mr. Joyal): President Steinhauer, I think you wanted to make some comments earlier.
Mr. Steinhauer: Nelson Smallegs.
Mr. Nelson Smallegs: Mr. Chairman. ladies and gentlemen, I want to address the Committee and say a few words about the Treaty No. Seven area.
At this stage the Treaty No. 7 area consists of about 15,000 Indians. Looking as far back as I can remember and thinking in terms of what my grandfather told me, Treaty No, 7 area has given a lot to the general public. Treaty No. 7 area suppIied the two world wars with treaty Indians. Not only the Indian soldiers, we raised wheat and beef and horses that we I supplied to the army and still today we are proud to say that we are still raising cattle, and agriculture.
I do not envy you what you are sitting through. I would not take your place for anything in the world, but you are put there with your knowledge. You must have a good background, that you are put on this Committee, to decide the constitution for all the people across Canada. I just want to say very strongly, think, and think about the Indian, his future, because I do not want to talk about what happened 100 years ago. We learned a lot from that 100 years. I want to have my grandchildren and my great grandchildren have a better life than I had and my grandfather and my great grandfather had. Thank you.
The Joint Chairman (Mr. Joyal): President Steinhauer.
Mr. Steinhauer: I believe, Mr. Chairman, this will wind up Alberta’s presentation and also the question period. I would like to, on behalf of our group, thank yourself and Mr. Hays and all the Committee members here. It has been a very extensive work that has been done by our people as far as the constitution is concerned and I believe you will realize that it is a unique situation that we are going through. I think we are providing some very constructive information to you and hopefully with this in mind something positive will arise as a result of our presentations, we hope.
Sometimes I would like to just reverse the process by asking you people some questions as to what might actually happen in time, as I think we have answered a lot of questions in the past years as to how we feel about our treaty rights and put out some very positive suggestions, proposals, to the federal government, that most of the time are not recognized; so I hope that this time that things will change.
Once more I would like to thank you and I would like to turn the chair over to Sanderson.
The Joint Chairman (Mr. Joyal): Before I turn to Chief Sanderson I see on my list that I have still a name of Mr. Ron Irwin and the honourable Bryce Mackasey. I wonder if you would be agreeable to receive questions by those two gentlemen. I understand that it is date and I understand, too, that they will be co-operative and try to be brief so that we might wind up in a few minutes, but I would be really happier if I
could recognize those two gentlemen, with your consent, of course.
Mr. Steinhauer: They are welcome, with open arms, and sure, we would be prepared to answer.
The Joint Chairman (Mr. Joyal): Thank you very much. Mr. Ron Irwin.
Mr. Irwin: Mr. President, I quite agree with you, it has been an unique and a constructive session. We are now on our fifteenth brief, eleven prior to tonight and four tonight dealing with the aboriginal rights, from the Inuits or the Indians.
I noticed in the Edmonton Journal, the write-up on the Russell tribunal decision, that Chief Wood said that it is our contention that Canada is still a colony within a colonial system. I find that very discouraging. Then he went on to say at the end, we are not a part of Canada, Canada is part of us, and I find that encouraging, that type of sentiment. As the previous witnesses have said Indians have contributed soldiers and wheat and beef and horses and agriculture and although I look on you as having a very special status in this country I think I would feel a lot more comfortable talking Canadian to Canadian, and as such in these 15 or 16 presentations I have noticed your discouragement probably because you have to deal with provinces and the federal government as evidenced in the presentation on British Columbia. and then you wind up with courts splitting three and three, and I think your desire for self-determination has come through over this last month with various groups, and your desire for preservation of culture, lands, and a better deal and that fact it is difficult for you as you have to go back to your tribes and say, this is what I obtained. Well, what did you obtain? You have that added pressure on you.
Now the difficulty I am having is the same difficulty I started with, what are aboriginal rights. We started this three or four weeks ago. I have heard occupancy to be an aboriginal right; criminal justice; family law; one clear one was it means ownership, lock stock and barrel, and I like that one because at least it is the clearest definition I have heard in a month.
Now, in the recommendations from the Indian Association of Alberta you suggest Indian treaties be included in Section 24. There was some dispute as to what treaties, but I think that is something that could be cleared up. Aboriginal rights, I heard another term tonight, special status, which I just used and which one of the witnesses used, and then it goes on that the Indian government shall have exclusive power to make laws with regard to Indians and Indian lands in the following matters, institutions, procedures and processes of government, court of Indian jurisdiction, education, health, welfare, citizenship, labour, justice, municipal affairs, Indian corporations, fish, plant and wildlife, taxation. Most of these are clear, most I understand.
Then over in the Federation of Saskatchewan Indians brief it describes aboriginal and treaty rights as follows: aboriginal rights recognize our ownership over lands that we have tradi-
tionally occupied and used and our control and ownership over the resources of the land, water, minerals, timber, wildlife and fisheries; furthermore aboriginal rights recognize our Indian government’s sovereignty over our people, lands and resources.
Then thrown in earlier tonight I heard on top of this there should be equalization. My difficulty is, is this a negotiating position or is this a right that we can define correctly and properly and put in a constitution. I do not know who wants to answer that.
Mr. Steinhauer: Mr. Chairman, I will refer this question to our legal advisor and if Mr. Sanderson wants his people to answer they can do so as well.
Mr. Littlechild: I think it has been our experience, Mr. Chairman, in the past few years at least that I have been involved with, that whenever it comes to a crucial stage the question inevitably always arises, what are aboriginal righs and yet if you look at your own interpretation of what aboriginal rights are through your courts systems, you have never answered that question either. What you have done, you have danced around it and come through the back door and tried to say what they are not. So now you are trying to put us in a position where you are asking us to identify what those -aboriginal rights are specifically so that again we can be locked into those specifics and rather than trying to attempt to define what aboriginal rights are in the Indian viewpoint, we would refer that to probably other more capable people to do that. I am rather surprised that always comes up.
The same thing arises as to treaty rights. What are treaty rights? What do you mean by treaty rights? We can ask you the same questions and in fact we can pile cases upon cases with legal history where they try to attempt to define both of those and they will just keep piling up and the government, at least in my experience, has never been satisfied with the amount of evidence that we present nor will it be satisfied with the amount of paper that we can produce.
What we are saying is that aboriginal rights do exist.
Mr. Irwin: I agree with that, but I need your help to put this into definition and it looks like every right has gone into the presentations over the last month and it has been left to this group to pick and choose. I go back to what Mr. Mackasey said for which Mr. Hawkes took him to task. If we define that prematurely and put it in now we may be doing an injustice to you by picking and choosing and there should be a process for negotiating further and this process should be the political process at this point because it is actually premature to sit down and pick and choose because of that potential injustice that may occur.
Mr. Littlechild: Mr. Chairman, I think my view in terms of any negotiations is that Indian rights are not negotiable whether aboriginal rights or treaty rights. Neither of them are negotiable. In fact they co-exist without any legal sanction in Canada. What you have been referring to is the source of legal rights, whether they are aboriginal or treaty, has always been from the basis of case law. You have never considered the Indian interpretation, the elders oral or Indian traditional
history of what treaties are or what aboriginal rights are so when we get to the court stage which is inevitably what will happen in this case then you are still going to get non-Indian interpretation.
Mr. Irwin: But I see the Indian bands themselves are using this. Now, we started off with the concept that aboriginal rights dealt with occupancy, and ownership was a white man’s term. I believe I brought that up about three or four weeks ago, and now we are talking about ownership which is a white man’s term and a court interpretation. It is not only this Committee and members of this Committee that are dealing with court decisions, it is also the delegations themselves who are taking pieces of court decisions and putting them into their presentations, and it is causing a great deal of difficulty as far as what aboriginal rights really are other than a very nice term.
Mr. Littlechild: I think if I can refer to one of your own cases again, probably the most recent one, the Baker Lake decision on aboriginal rights, it says that you may have possession of the land but you do not own it, and yet prior to that you said nine tenths of the law is possession, or wherever the legal principle there is, completely contradicts each other; so what I am saying is that the principle that we go on is that aboriginal rights and Indian treaty rights co-exist in Canada without any legal sanction.
Mr. Irwin: But following what you are saying. if we put the term aboriginal rights into this document you will then be going to a court which you distrust to define that in the next decade.
Mr. Littlechild: Not necessarily because if you look at the FSI presentation it accommodates that by creating an Indian rights protection office.
Mr. Irwin: Thank you.
The Joint Chairman (Mr. Joyal): Chief Sanderson, did you wish to comment on that.
Chief Sanderson: Yes, I think with respect to the aboriginal rights question I am going to ask Delia Opekokew and Kirk Kickingbird to address that. Also I would like to speak to the process itself. It covers your question plus Mr. Epp’s question earlier. It is in our paper, the yellow document. that we are concerned that our rights in the monarchy could be eliminated in the process of the amending formula that is available now and that is in two to four years down the road. That is why we ask for specific areas to be entrenched. That is why we want the entrenchment to be done by the British Parliament. That is why we ask for the office of Indian rights protection. That is why we say that Section 93(a) could be added as we present it, cannot be amended by anybody but us with our consent.
I am going to ask Delia Opekokew and Kirk Kickingbird to deal with the question of aboriginal rights. You people have been trying to define it; you get caught up in your own terminology all the time. Perhaps we will try to explain it.
Ms. Opekokew: Aboriginal rights relates to the right for the Indian people to have their ownership to the lands and resources recognized and additionally for the right of those
people to control those resources and lands, so it is a two aspect answer. Presently in the court system in Canada aboriginal title only recognizes the right to occupancy without recognizing the right to self-determination and the right to control, so it is a two aspect answer, and for that reason also because of how much control you want, et cetera, an indefinite type of statement, it is very difficult to answer the second aspect of it, except to say that is where the right to self-determination comes in.
Mr. Irwin: May I interrupt here.
Ms. Opekokew: May I finish this.
Mr. Irwin: Just on this point, what you are saying is your definition of aboriginal is not the courts. at least in a minority position, have decided what is the definition of aboriginal, and you want these amplified to fit what you feel are your traditional aboriginal rights.
Ms. Opekokew: Yes, to be amplified to the definition now used in international law of what aboriginal rights mean because in order to have control over lands you also have to have control over the right to govern those lands and that is where aboriginal rights come in.
The other question that came up, or the other answer that came up, is that you stated because we are not defining aboriginal rights then we will continue with the same conflict that the Canadian courts will have to answer that question and Someone answered in the FSI paper. We deal with that by saying or confirming that there will be an Indian protective office. That again presumes or accepts the international law statement that in order to protect interests that are sacred to a state, because aboriginal rights come from the fact that there were aboriginal people subsequent to the establishment of a state such as Canada, and those are what you consider sacred rights, natural rights, natural law. In order to protect those natural laws they have to be removed from the very government that has inherent conflicts of interest. For instance, when you are dealing with economic rights when your government for instance has the majority interests to protect obviously interests are going to come in conflict and so the right to protect them has to be removed from that very government that perhaps will have to weigh the majority interest, but the fact is that those are natural rights inherent to the people that originally owned the land and that is where that conflict has to be removed. Mr. Kickingbird will continue answering that question.
Mr. Kickingbird: On pages 65 and 66 of the Federation of the book First Nations, there is a commentary about aboriginal rights and it includes both the right to property and that is the context in which it is of course most often spoken of, and to self-government. Indians claim these rights by virtue of their occupation upon certain lands from time immemorial, and that is the usual legal phrase, and by virtue of their traditional political independence.
ln Canada, the Proclamation of 1763 recognized Indian aboriginal rights by forbidding settlement upon Indian lands and directing that such lands be obtained only by session or purchase, and that of course implies a certain political identity, at political entity with which the Crown would have to deal to obtain the cession or purchase.
In 1973 the Supreme Court of Canada recognized aboriginal title as a common law right in Canada. In the case of Calder versus the Attorney General of British Columbia.
Recent international law cases would seem to lead us to conclude that the only means of acquiring rights from indigenous peoples is through formal agreement, otherwise aboriginal rights survive and, as I say, this is a summarization of what appears on pages 65 and 66.
So to some extent it is, to a great degree. nebulous, it has been spoken of most often in the context of land rights but I think for the most part Delia has summarized it very succinctly.
The Joint Chairman (Mr. Joyal): Chief Sanderson.
Chief Sanderson: I just want to say that the agreements negotiated in our territory did not encompass negotiation of aboriginal rights, in terms of us addressing all Indian, aboriginal peoples rights in that territory, and we reserved many of those rights to ourselves to deal with and address, and government has assumed themselves the supremacy of Parliament gave them the powers under the BNA Act to address all areas that effect Indian life and all areas of jurisdiction that impact on our rights. That is the problem you are having in your system, and if you continue to do that and ignore the presence of Indians in Canada, I think we are heading for trouble,
The Joint Chairman (Mr. Joyal): Thank you, Chief Sanderson.
The honourable Bryce Mackasey to conclude.
Mr. Mackasey: Thank you, Mr. Chairman.
I want to say that I was extremely pleased by the exchange in the last 15 minutes between counsel and Mr. Irwin, who is also a lawyer and I am not, because I think for the first time it has become very clear to me as one who has, however, done a lot of negotiation as the Minister of Labour many years back, I think the counsel is very wise when he said: why should we spell out specifically what aboriginal rights mean? I think that is a solid position to take and one that I would take if I was there or even here.
Really what you are saying is that these things will eventually have to be negotiated and it comes back to my fear that unintentionally we may make it impossible to negotiate in the future but simply through court action. Really what I am saying is that what I would like to see as an individual is recognition in the Charter that aboriginal rights exist. The inference there to the courts is that these things be resolved and, as the Prime Minister has stated, the first order of business at the next provincial-federal conference, he has stated that in writing which I am sure you have a copy of,
would be indeed the whole issue of aboriginal rights for the first time.
What has pleased me about this whole process is that this type of dialogue has been going on for weeks, it has been over due in this country, and I share your concern and your frustrations, when a dignified people such as your own. for what we owe so much, has found it virtually impossible to get a public forum of this nature in this country, and to show that we have come a long way in our own thinking in the last fifty years. We cannot redress all the injustices of the past, you have not asked us to do that.
So I think this whole process has been very useful and I now see exactly what the young man was stating, what I always thought, that the best settlements are negotiated settlements. The lawyers will tell you that.
Really, however, we have got to force negotiation and that is what you are asking us to do somehow through the constitution, that is why I say: let us not be too elaborate.
Finally, Chief Sanderson, when I said there would be lots of trouble despite the harter, I am sure the young man who is an expert on the American situation will tell you that their Bill of Rights has not resolved all the problems in that country, but I want to come back to something 1 said earlier, and obviously Mr. Hawkes has commented on it, and as a friend of mine I know he must have commented positively, he would not say anything derogatory about me while I am out of the room; I have not seen the transcripts but I would just like to repeat, Mr. Chairman, what I did say.
What I said is that it is the position of the Liberal Party, the government, exemplified by this resolution in front of me, is to bring back the constitution unilaterally. I have no intention of comonflaging that that is our purpose, it is clearly enunciated, it is on the record, and I think the New Democratic Party has supported that and I am sure, I know at one time Mr. Clark did, and I am sure that issue is behind us, the public would rather see the constitution brought home with the support of the provinces, but in the absence of something we cannot achieve, we are bringing it home, presuming that England goes along with it, and a lot of presumptions, but we are starting with that presumption.
The second thing I said, as I recall, was that the patriated constitution must include an amending formula. Without one there is no use bringing it back.
Now, whether or not it is the amending formula, Mr. Chairman, in this resolution depends on a lot of factors, not the least the influence of this Committee if we feel that it should be improved. As a matter of fact, the government has already stated that it is going to be amended to accommodate Prince Edward Island, but it has got to have and will have an amending formula, and hopefully it will also include, and it is the governments intention at the moment, a Charter of Human Rights.
Why before rather than after? Because the opposition to a Charter of Human Rights by provincial premiers, particularly last summer, would indicate that if we do not at least include a Charter of fundamental human rights, we will never have one in this country. That is how decentralized this country is. So when I state that to you people I am just stating the truth. I think you would rather hear the truth. It is part of our position, and I am concerned that at least you know what our position is.
Now, I will check the transcript and Mr. Hawkes interpretation tomorrow, but as a point of order I am not bashful to raise it. What I said to you, with great respect for your cause, one that I can relate to, one that I understand, one that I have always concerned myself about, the individual and collective rights, I identify with your problem and because I have great respect for you people and for all the groups that appear here, I do not want to mislead you and I simply said that I hope you do not get the impression, or anybody gets the impression, that somehow through the Charter we can resolve all issues. If we could, we would all be working to do it. I mention this and I mention again, and I want to reiterate to the aboriginal people that I hope, through our representations on this Committee to the government, that we will come up with some recognition in that Charter of aboriginal rights, without attempting to identify them, without attempting to force you to state that they are; that will be the subject of negotiation in the future. That is my position and I am sure that is exactly as Mr. Hawkes interpreted it and if he feels that I said anything else, perhaps this is the time for him to say so.
Mr. Epp: Bryce, I think after you know what he said you will be able to sleep well tonight.
Mr. Mackasey: I am sleeping well.
Mr. Hawkes: Just for clarification, Mr. Chairman, Mr. Mackasey’s assertion that we must have an amending formula was the point at which I took issue in the sense that to bring back the constitution alone, without amendments, I believe in law would leave us in the position of requiring unanimity for change which I felt was consistent with many of the aboriginal cultures, and that in fact the rule of unanimity protects the weak from the tyranny of the majority, and that I think is consistent with a great deal of what we have heard from the 15 aboriginal groups, that they want protection from the tyranny of the majority and are seeking the necessity for their concurrence in change. . .
Mr. Mackasey: I would just say on a happy note, Mr. Hawkes, that we are fortunate the majority in this country are not tyrants.
Thank you, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Hawkes, Mr. Epp and the honourable Bryce Mackasey.
I see that President Steinhauer wants to have the final Comment on that exchange.
Mr. Steinhauer: No, I think we would like to, just to begin, I think maybe question, I would like to pose one question. It has been in my mind for quite some time now, since the time I heard this Committee was going to start performing.
Before I ask the question, I do not really see anybody here from the Prime Minister’s office or even Mr. Chrétien, or is there one?
Mr. Mackasey: Just left ten minutes ago.
Mr. Steinhauer: As I understand it, Mr. Chrétien is actually the key person that will be dealing with the constitution and also the review, say, from the hearings here.
I guess the question really is, I realize that perhaps this is not actually a rubber stamp Committee, but just how much, in spite of all the good intentions in the past weeks, all the hard work that has been done here, sitting up late at nights like tonight, what do you expect will be achieved, say, by your Committee in terms of relating to the Prime Minister’s office, since he is the one and also Mr. Chrétien, going to decide on how to deal with the Indian issues, treaty rights and aboriginal rights?
The Joint Chairman (Mr. Joyal): If I have the agreement of the members of the Committee I can direct the question to the Parliamentary Secretary to the honourable Minister of Justice, Mr. Irwin who is responsible in terms of policy of the Minister of Justice, and state generally the responsibility of this Committee as it was stated by the House of Commons.
Mr. Irwin: Mr. Chairman, the House of Commons debated the issue and sent the joint resolution to this Committee, and this Committee is to make recommendations back to the House of Commons with or without amendments, whether or whether or not we should even proceed.
Next week I think the matters will be much clearer when hopefully the Minister will be before the Committee with amendments, and conceivably it could be Monday or Tuesday of next week.
Mr. Hawkes: Mr. Chairman, could I just respond to that as a member of the Committee from the opposite side?
Part of my disquiet with the expense in terms of time and money of this process is that I do not share any sense of confidence that the exercise that this Committee is engaged in is real. That is my personal persuasion, it is not a position on behalf of my party, but I think what is going to happen is that people who are not in this room will determine how this resolution will be amended and that the people in this room will basically support it. That is my personal feeling. The majority will support it and it will proceed in that fashion.
Mr. Mackasey: Mr. Chairman, Mr. Hawkes has a very dim View of his persuasiveness and I cannot do anything about that. Maybe he is right in his own self-analysis.
I do think that we will have some impact on the resolution. For instance, the Minister has already stated, and the Prime Minister, categorically, publicly, for instance, and you will appreciate that we are dealing with everybody’s problem, he has already stated that there will be an amendment to Section
I, what we call the limitation clause and I think amendment to Section I, the limitation clause, reflects the contribution, not only of witnesses but cross-examination from all members, including members of the Opposition, including Mr. Epp and Mr. Hawkes.
I am quite sure the public, the press being concerned about Section I, because of the input of people like yourself and because of our own misgivings which, through Mr. Irwin, was brought back to his Minister and through the rest of us it was brought back to the Caucus and to the Prime Minister. We have the case that the Minister and the Prime Minister has already stated, changes to the proposed amending formula that will reflect the important position Prince Edward Island has in our Confederation, left out unintentionally because of numbers. I will not get into it, I am sure the lawyers will understand.
There are, I hope, many other areas that Mr. Chrétien has alluded to on radio and television, procedure before the courts, things of this nature, a section that we did not talk too much about here.
In essence, I think perhaps the strongest statement over the weekend, the statement of the Prime Minister when he pointed out that the resolution in front of us really reflected the efforts in the summer to get all the provincial premiers’ agreement to the resolution, something that did not occur. That was admitted on the part of the Prime Minister, that the resolution that we began discussing here was imperfect and needed improving.
So I really again would not want to mislead you and say, “Well, we have done our work, we will have the perfect document as seen by you, or the perfect document as seen by any of us”, but I can assure you that we are not a rubber stamp and that everything that transpires tonight is already in the Prime Minister’s office, not only the transcripts, the television, the clips, our witnesses behind here, the young ladies from the Research Department, people from the Department of Justice, are here tonight. People from the Prime Minister’s office, Mr. Irwin representing his Minister.
So, be reassured in conclusion, that I have greater faith in the procedure than Mr. Hawkes has.
The Joint Chairman (Mr. Joyal): Mr. Hovdebo.
Mr. Hovdebo: Thank you, Mr. Chairman.
I just cannot help but think that Mr. Mackasey did nothing but reinforce Mr. Hawkes’ misgivings by saying that the Minister will bring in . . .
Mr. Mackasey: Who else?
Mr. Hovdebo: …will bring in recommendations and then we will decide on them. I thought the idea of this Committee was to present recommendations to Parliament, not to the Minister, and the Minister was not going to present those recommendations to you.
Mr. Mackasey: Well, Mr. Chairman, I do not want to get into a debate as to how it happened, the Minister will bring in recommendations of proposed amendments to the resolution based on what has been done so far, and if this Committee does not particularly appreciate them, or think they go far
enough, then certainly I expect, in fact I know that your party and the other party will in a proper procedure bring forward amendments of their own and make their case as eloquently as possible and then finally the matters will go to a vote and back to the House of Commons, so we have a long procedure ahead of us.
Mr. Epp: Mr. Chairman, I was not going to get into this debate, I think that is for next week, but as Mr. Mackasey has made references to our party, I think that means I have to respond. There is no question that this party will be bringing forth amendments. The Minister, I imagine, will be bringing forward amendments as well. I imagine the NDP has, too.
Our position has been stated quite clearly, and that is why I questioned earlier, that we are in favour of patriation, an amending formula which we stated earlier, and we believe then there should be a period of time through a constituent assembly, through a meeting of the First Ministers, whereby amendments are made in Canada. That is quite clear.
Now, if the government has changed its position, if they are willing to listen, I am sure we can get some cooperative measure, but it will be, frankly, up to the government to move its majority into that position.
The Joint Chairman (Mr. Joyal): President Steinhauer.
Mr. Steinhauer: Just a few words regarding the concern that we have in Alberta with respect to the federal government’s intention to change the Indian Act and to present the government bill sometime in midsummer, and also the present policy that is being pushed and imposed on our people with regard to the Deputy Minister’s departments’ mandate to do things, which is contrary to what our tribal governments are trying to do, the self-determination.
We see that policy, also the Indian Act change process, really has no direct relation with what we are doing now as far as talking about entrenchment of our rights, and here again we see another simple move by the federal government in trying to implement what we call again the White Paper, which we felt was quite dead some time ago, but apparently it is still alive so I think I would advise the Committee to perhaps check into this, Mr. Mackasey, if you will.
Mr. Mackasey: The White Paper of 1969 you are talking about.
Mr. Steinhauer: Well, it has gone into another shape now, more of a hidden process that is coming along and certainly we do not agree with it in Alberta.
I think if there is going to be any changes, it should be done in accord with what we are trying to do as far as looking after our treaty rights, but really this is not happening.
The Joint Chairman (Mr. Joyal): Chief Sanderson.
Chief Sanderson: Thank you, Mr. Chairman. Just in closing I would like to express some of our concerns.
We do not view this Committee, if you recall, Mr. Chairman, when we made our presentation, we said it was only one step of many that we have to take as Indian people to achieve our rights here in Canada, and we view this Committee’s role as not only being one that has to report back to Minister’s or Parliament, we view your role as respective members of Parliament to take that responsibility and those same messages back to your own community respecting Indian position as they have been presented, and we also want to say very clearly to this Committee here that if you are going to continue to ignore the presence of Indians in Canada in all forms, then again I have to repeat that we are in trouble because right now the violence is being taken out on each other, pretty soon that is going to be turned outward and that is not threat, Mr. Chairman, it is just a stating of fact. I do not think you can build any more institutions because they are full now with Indian people and we have to be prepared to address true Canadian sovereignty that recognizes Indian nationhood as it exists now.
Just because you do not have the political will to address that properly does not mean that we will not struggle to continue to control our economic and political institutions, and with that I want to thank you for being patient. I see you are operating on Indian time this time and I want to thank you for inviting us back and, like anything else in the work of government, we will be returning the favour. We want to start inviting Parliamentary committees and governing bodies out to Saskatchewan so that you can see what is going on firsthand and we will be extending, certainly an invitation to this Committee before is final reports are complete, to come dout to Saskatchewan and to Western Canada and see where things are happening.
The power, as you know, has moved to Western Canada and we have to be prepared to address that with some sincerity, not with lip service and as Indian people we feel the impact of all governments at the moment suppressing our economic developing and our political development and we cannot continue to come to these kinds of forums, you have to pay the same respect to us and start coming to us.
Likewise, we will be inviting the Standing Committee on Indian Affairs out to the regions and the territories so that they can get first-hand information. That is what politics and politicians are all about.
I want to thank you again.
The Joint Chairman (Mr. Joyal): Thank you very much, Chief Sanderson and President Steinhauer.
On behalf of the honourable Senator Hays and on behalf of all the honourable members of this Committee, I think there is a concensus around this table that, as you have wisely said, it is a step, and if it were to be the final step or the last step, everyone around this table would be deceived, the Canadian public would be deceived. I think the fact that you have come back, the fact that you have spent so much time with us and the fact that we will have other opportunities in this Parliament to continue the discussions, and to make sure that other steps are open and that the Canadian public is involved in
those discussions, because you have to realie as well as me, that it is the first time that this very national issue has been debated on a national scale and that is the most important gain I think that we have realized out of our discussion tonight and in the previous weeks of this hearing.
So I would like to advise you and to support you in any initiative that you would like to take to discuss your issues and your problems and your wishes for Canada publicly, and I think that the people of Canada need that before they make up their mind and press upon politicians to make up their mind and discuss and negotiate with the different Indian peoples of Canada.
That is very important, that is the essence of the political process and I want to thank you for having taken part in it.
Thank you very much.
So the meeting is adjourned until tomorrow afternoon at 2:30 when we will have the opportunity to meet the representatives of the Vancouver People’s Law School Society.
The meeting is adjourned.
From the Algonquin Council:
From the Union of Ontario Indians:
as the agent for Anishinabek
Mr. Patrick Madahbee, President;
Mr. Paul Williams;
Mr. James Mason.
From the Association of Iroquois and Allied Indians:,
Mr. Charles Cornelius, President;
Mr. Bill Tooshkenig;
Mr. Gordon Peters.
From the Indian Association of Alberta:
Mr. Eugene Steinhauer, President;
Mr. Willy Littlechild, Legal Counsel;
Mr. Leo Prettyyoungman, Chief of Blackfoot Reserve;
Mr. Percy Smith;
Mr. Les Healy;
Chief Nelson Smallegs.
From the Federation of Saskatchewan Indians:
Mr. Sol Sanderson, Chief of Federation of Saskatchewan Indians;
Mr. Rodney Soonias, Legal Counsel;
Ms. Delia Opekokew, Legal Counsel;
Mr. Kirk Kickingbird, Legal Counsel.