Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, 32nd Parl, 1st Sess, No 69 (7 September 1983)
By: Canada (Parliament)
Citation: Canada, Parliament, Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, 32nd Parl, 1st Sess, No 69 (7 September 1983).
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Thirty-second Parliament, 1980-81-82-83
SENATE OF CANADA
Proceedings of the Standing
Senate Committee on
Legal and Constitutional Affairs
The Honourable JOAN NEIMAN
Wednesday, September 7, 1983
Issue No. 69
First proceedings on:
Subject-matter of the Constitution
Amendment Proclamation, 1983
(See back cover)
THE STANDING SENATE COMMITTEE ON
LEGAL AND CONSTITUTIONAL AFFAIRS
The Honourable Joan Neiman, Chairman
The Honourable Richard A. Donahoe, Deputy Chairman
The Honourable Senators:
*Ex Officio Members
ORDER OF REFERENCE
Extract from the Minutes of the Proceedings of the Senate, June 29, 1983:
Pursuant to the Order of the Day, the Senate resumed the debate on the motion of the Honourable Senator Frith, seconded by the Honourable Senator Petten:
Whereas the Constitution Act, 1982 provides that an amendment to the Constitution of Canada may be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by resolutions of the Senate and House of Commons and resolutions of the legislative assemblies as provided for in section 38 thereof:
And Whereas the Constitution of Canada, reflecting the country and Canadian society, continues to develop and strengthen the rights and freedoms that it guarantees;
And Whereas, after a gradual transition of Canada from colonial status to the status of an independent and sovereign state, Canadians have, as of April 17, 1982, full authority to amend their Constitution in Canada; And Whereas historically and equitably it is fitting that the early exercise of that full authority should relate to the rights and freedoms of the first inhabitants of Canada, the aboriginal peoples;
Now Therefore the Senate of Canada resolves that His Excellency the Governor General be authorized to issue a proclamation under the Great Seal of Canada amending the Constitution of Canada as follows:
PROCLAMATION AMENDING THE
CONSTITUTION OF CANADA
1. Paragraph 25(b) of the Constitution Act, 1982 is repealed and the following substituted therefor:
“(b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired.”
2. Section 35 of the Constitution Act, 1982 is amended by adding thereto the following subsections:
“(3) For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired.
(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons”.
3. The said Act is further amended by adding thereto, immediately after section 35 thereof, the following section:
“35.1 The government of Canada and the provincial governments are committed to the principle that, before any amendment is made to Class 24 of section 91 of the
Constitution Act, 1867, to section 25 of this Act or to this Part,
(a) a constitutional conference that includes in its agenda an item relating to the proposed amendment, composed of the Prime Minister of Canada and the first ministers of the provinces, will be convened by the Prime Minister of Canada; and
(b) the Prime Minister of Canada will invite representatives of the aboriginal peoples of Canada to participate in the discussions on that item.”
4. The said Act is further amended by adding thereto, immediately after section 37 thereof, the following Part:
“PART IV.1 CONSTITUTIONAL
37.1 (1) In addition to the conference convened in March 1983, at least two constitutional conferences composed of the Prime Minister of Canada and the first ministers of the provinces shall be convened by the Prime Minister of Canada, the first within three years after April 17, 1982 and the second within five years after that date.
(2) Each conference convened under subsection (1) shall have included in its agenda constitutional matters that directly affect the aboriginal peoples of Canada, and the Prime Minister of Canada shall invite representatives of those peoples to participate in the discussions on those matters.
(3) The Prime Minister of Canada shall invite elected representatives of the governments of the Yukon Territory and the Northwest Territories to participate in the discussions on any item on the agenda of a conference convened under subsection (1) that, in the opinion of the Prime Minister, directly affects the Yukon Territory and the Northwest Territories.
(4) Nothing in this section shall be construed so as to derogate from subsection 35(1).”
5. The said Act is further amended by adding thereto, immediately after section 54 thereof, the following section:
“54.1 Part IV.1 and this section are repealed on April 18, 1987.
6. The said Act is further amended by adding thereto the following section:
“6.1 A reference to the Constitution Acts, 1867 to 1982 shall be deemed to include a reference to the Constitution Amendment Proclamation, 1983.”
7. This Proclamation may be cited as the Constitution Amendment Proclamation, 1983.
With leave of the Senate,
In amendment, the Honourable Senator Steuart moved, seconded by the Honourable Senator McElman, that the motion be not adopted but that the subject-matter thereof be referred to the Standing Senate Committee on Legal and Constitutional Affairs for consideration and report
After debate, and-
The question being put on the motion in amendment, it was-
Resolved in the affirmative.
Charles A. Lussier
Clerk of the Senate
MINUTES OF PROCEEDINGS
WEDNESDAY, SEPTEMBER 7, 1983
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 11:00 a.m., the Chairman, the Honourable Senator Joan B. Neiman, presiding.
Present: The Honourable Senators Bosa, Godfrey, Haidasz, Lapointe, Neiman and Tremblay.
Present but not of the Committee: The Honourable Senators McElman, Petten and Steuart.
In attendance: Mrs. Barbara Plant Reynolds, Mr. Bruce Carson and Ms. Katharine Dunkley, Research Officers, Research Branch, Library of Parliament.
From the Prime Minister’s Office:
Mr. Pierre Gravelle, Deputy Secretary to the Cabinet (Federal- Provincial Relations).
The Committee commenced the examination of the subjectmatter of the Constitution Amendment Proclamation, 1983.
On motion by the Honourable Senator Bosa, it was agreed,-That the letter dated September 2, 1983 received by the Chairman from Mr. Chris Pearson, Government Leader of Yukon Territory, be printed as an appendix to this day’s proceedings. (See Appendix 69-A).
On motion by the Honourable Senator Godfrey, it was agreed,-That the letter dated August 24, 1983 received by the Chairman from the Minister of Justice and Attorney General of Saskatchewan, be printed as an appendix to this day’s proceedings. (See Appendix 69-B)
The witness made a statement and answered questions. At 12:40 p.m. the Committee adjourned until 2:00 p.m.
At 2:05 p.m., the Committee resumed:
Present: The Honourable Senators Asselin, Bosa, Deschatelets, Flynn, Godfrey, Haidasz, Lapointe, Neiman, Stollery and Tremblay.
Present but not of the Committee: The Honourable Senators McElman and Steuart.
In attendance: Mrs. Barbara Plant Reynolds, Mr. Bruce Carson and Ms. Katharine Dunkley, Research Officers, Research Branch, Library of Parliament.
The Honourable Mark MacGuigan, P.C., M.P., Minister of Justice.
From the Federation of Saskatchewan Indian Nations,
Chief Sol Sanderson, President;
Ms. Delia Opekakew, Solicitor of the Federation; Mr. Peter Manywounds, Sarcee Band, Council Member.
The Minister made a statement and answered questions.
On motion by the Honourable Senator Godfrey, it was agreed,-That the brief submitted by the Federation of Saskatchewan Indians be printed as an appendix to this day’s proceedings. (See Appendix 69-C).
Mr. Sanderson and Ms. Opekakew made opening statments and they, and Mr. Manywounds, answered questions.
At 5:10 p.m., the Committee adjourned until 8:00 p.m. this evening.
At 8:10 p.m. the Committee resumed.
The Honourable Senators Bosa, Haidasz, Lapointe, Neiman, Stollery and Tremblay. (6)
Present but not of the Committee: The Honourable Senators McElman and Steuart. (2)
In attendance: Mrs. Barbara Plant Reynolds, Mr. Bruce Carson and Ms. Katharine Dunkley, Research Officers, Research Branch, Library of Parliament.
The Honourable John C. Munro, P.C., M.P., Minister of Indian Affairs and Northern Development.
The Minister made a statement and answered questions.
At 9:10 p.m. the Committee adjourned until 9:00 a.m. on Thursday, September 8, 1983.
Clerk of the Committee
Ottawa, Wednesday, September 7, 1983
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred the subject matter of the Constitution Amendment Proclamation, 1983, met this day at 11:10 a.m. to consider the said subject matter.
Senator Joan Neiman (Chairman) in the Chair.
The Chairman: Honourable senators, this morning the committee is beginning its consideration of a resolution on a proposed amendment to the Constitution the subject matter of which was referred to this committee following its introduction in the Senate on June 28, 1983. The proposed amendment, as you will recall, concerns those sections of the Constitution of Canada bearing on aboriginal rights. In the course of the debate at that time it was decided that this resolution was of sufficient importance that it should be referred to this committee for consideration prior to the Senate voting on it. It is for that reason that the committee has, on your instructions, arranged for a series of meetings with parties and organizations which the committee felt would be very much concerned in the future with the actual contents of the resolution and the proposed amendments, should they be approved.
I should like to advise honourable senators that, in accordance with the direction I received, I wrote to all provincial governments, to the offices of the leaders of the political parties in the Northwest Territories and the Yukon Territory in order to allow them an opportunity, if they so wished, to make some comment or, indeed, to appear before the committee and give evidence on this matter. As well, I had to make a decision as to what other native groups it would be timely and appropriate to hear from. I did that in the belief that we were under considerable pressure to deal with this fairly expeditiously. I directed my communications to those groups who had been signatories to the resolution. Since then I have had a considerable amount of pressure and argument from other native groups who are not signatories to the resolution and the Accord when it was signed by the first ministers. I have made a decision on behalf of the committee that it would be appropriate for us to hear from some of those groups as well. So, as a consequence, we have a considerable number of meetings scheduled, not only for this week but for the week of September 20.
I should also report to you that in reply to my communication the Province of Newfoundland advised me that they did not feel it was necessary to make any comments or make their views known to a Senate committee.
The Attorney General of Saskatchewan replied to the effect that his government also would not appear. I am going to circulate copies of the letters, but before doing so, perhaps I should have a motion from the floor that they be appended to today’s proceedings.
Senator Rosa: I so move.
(For text of letter, see Appendix 69A).
The Chairman: I also received yesterday a detailed response from Mr. Pearson of the Yukon. Arrangements have been
made to have copies of that letter circulated to members of the committee today. That letter constitutes a careful response to questions I put to him. Whether or not we agree with the concerns he expresses, of course, is up to the committee to decide once it has had an opportunity to read the reply carefully.
I would also appreciate a motion that that letter be appended to today’s proceedings.
Senator Godfrey: I so move.
(For text of letter, see Appendix 69B).
The Chairman: We have not heard from any other governments on this matter, therefore, I assume they will simply follow the proceedings. I should report one further item; that is, to date the governments of Nova Scotia, Alberta, Prince Edward Island and New Brunswick have all passed the resolution. Copies of the Hansards of those various provincial legislatures have been circulated to you. We just learned about the passage of the resolution in Prince Edward Island, and I do not think there was any recorded debate on that. Am I right, Mrs. Reynolds?
Mrs. Barbara Plant-Reynolds, Research Branch, Library of Parliament: The Province of Prince Edward Island does not have verbatim transcripts of their proceedings. They sent the Journals for that day.
The Chairman: The other province of considerable size which would, of course, have to ratify the resolution is the Province of Ontario. To date it has simply tabled the resolution.
That brings you up to date on what has occurred to the moment.
In order to get the hearings under way, and to give you an opportunity to obtain some further background that I have not provided to you, I asked Mr. Pierre Gravelle, Deputy-Secretary of the Cabinet for Federal-Provincial Relations and also of the Office of Aboriginal and Constitutional Affairs to speak to us this morning.
Senator Tremblay: Madam Chairman, before we hear from Mr. Gravelle, I would like with your permission to ask you a question in your capacity as Chairman of this Committee, regarding the procedure in a case like this one. This is the first time we have had an amendment to the Constitution. As I understand it, once the Commons has passed a resolution we here in the Senate must decide if we are also in favour of it.
In the interval you wrote to the provinces to ask if they wanted to present their viewpoints before our Committee. If I have correctly understood the procedure set down in the Constitution Act, this is not, I think, the appropriate procedure. The way the legislative assemblies are to express their views is by passing a resolution. There is no question of their presenting their views before a Senate committee, I am putting this question because it seems to me that what we do now could set a precedent for the future. I would like to have some clarification on the way in which the procedures for amending the Constitution are interpreted, in particular where the provinces are concerned.
I would like to add that I don’t remember which section is the relevant one, but one of the sections of the Constitution Act of 1982 stipulates that the impetus for an amendment to the Constitution can come either from the House of Commons, or from the Senate, or from a provincial legislature. We should perhaps situate our procedure within a larger framework, so that we act in accordance with both the letter and the spirit of the 1982 Constitution Act. Perhaps Mr. Gravelle will be able to shed some light on this matter, or you yourself, Madam Chairman–can you clear the matter up for me?
The Chairman: I’m afraid, Senator Tremblay, that I shall have to reply in English.
In general terms, you are quite right in questioning whether, indeed, it is proper procedure when dealing with constitutional amendments that we ask the provinces to appear before a Senate committee. However, we are not asking them to negotiate or set forth their points of view.
It was the intention to circulate copies of the questions I asked of them. My original thought was that first of all we do have a policy within the committee that anything afecting the provinces should be referred to the provinces at some point, or at least we should give them an opportunity of expressing an opinion or a view on any kind of legislation or matter that passes through our hands in which we felt they had any interest whatsoever. It was in that spirit entirely that I com- municated with them. It is not that I felt a Senate committee could, in any way, interject itself as part of the negotiating process to the Constitution.
Therefore, when I wrote to them, I expressed that point of view. We merely wanted to try to get some kind of clarification of whether, in fact, all the signatories and all the people who might be affected by that resolution had the same firm idea of what these particular words meant, and we did not really want to go beyond that. I quite understand that the provinces might not want to involve themselves in any particu- lar debate with this committee.
Senator Godfrey: Perhaps I could say a word at this point, because I just do not agree with the chairman. I do not see why we should restrict ourselves in the way you have indicated with reference to this committee. We may decide in our own wisdom that we do not agree with the resolution itself. We are not here just to find out whether we all agree with the wording, and I do not understand why you did write that letter to that effect.
Dealing with Senator Tremblay’s question which also crossed my mind-and I have been thinking about the prov- inces and so on right up until today-it occurred to me that there might very well be a province that is against constitutional amendment, although they are a min ority, and that province should have the right to come to the Senate and to a Senate committee and say: “Look, you are supposed to repre- sent regional interests. We want to tell you that in the interests of our particular province, we are affected by this amendment and we do not think you should pass it, even though the majority of the provinces and the House of Commons are in
agreement.” Therefore, I see that as a perfectly legitimate thing for the Senate to do, if it is not to be confined merely to interpretation or anything else, and if we find that a province does object, certainly a Senate committee should be the place to which a minority province could turn in order to attempt to block a constitutional amendment. Obviously, that is not the case in this instance, but I wanted to make the point in case such a situation should arise in the future.
The Chairman: I do not disagree with you, Senator Godfrey. However-
Senator Tremblay: May I add this, Madame Chairman. The formal procedure requires that the Parliament of Canada adopt the resolution. At the first stage, perhaps the Commons and the Senate would agree without any problem on the content of a given resolution to amend the Constitution, but there are provisions in the Constitution where, if the Senate does not agree with the Commons on the content, or does not agree to make the amendment, the Senate has a six month suspension veto. If, after six months, the Commons again adopt the first draft, then the Senate has no power. Therefore I Say that we have to settle the problem at the federal parliamentary level first, before asking the provinces whether or not they are in agreement, otherwise the provinces do not know what position the Parliament of Canada is taking.
The Chairman: I see the argument you are making, that we should deal with it first.
Senator Tremblay: The way in which they have to express their views is to act as legislators. They do not have to express their views to the committee unless, after finding out that they are a minority, they want to present their point of view and defend their dissent before the Senate committee. However, before that, I do not see how, as a matter of principle or normal procedure, we could have communication with the provinces before we have settled the problem for ourselves as a Parliament.
The Chairman: Senator Tremblay, I think we are running into two competing principles here, if I may put it that way. I agree with what you are saying to a certain extent, but the other point that Senator Godfrey has made is that it is very much part of our responsibility to be cognizant of provincial points of view and to represent provincial interest, in a sense. Surely, then, we have to know about those points of view before we come to a decision ourselves. This committee has to be cognizant of those views so that we can present our report and our opinion to the Senate. It is then up to the Senate, as one of the chambers of Parliament, to debate the issue, taking into account the report that we make to it, and then follow the procedure which you have described. Even then, the provinces may or may not agree with it. It is their prerogative to do as they wish, but I think it is part of our duty here, as the Senate, to examine the issue from our point of view, representing provincial issues as we see them; not from the point of view of a provincial legislator but simply from our point of view.
For example, the Province of Quebec was not a signatory to this accord but I felt that it was incumbent upon this committee to send the communication to all provinces. All of the provinces signed the Accord, whether they agreed with it or not-and there seem to be indications that some of the provinces which did sign the Accord and, in fact, have passed the legislation are not entirely in agreement with it, and I think we have to be aware of that. That is part of our examination here. We do not have to make definitive judgments on that, but we have to lay out what we learn as a result of these hearings in order to report to the Senate, and then allow the Senate to make a judgment on that as a chamber of Parliament. That is the way in which I see the procedure at this point.
Senator Bosa: Madam Chairman, I just wonder if Mr. Gravelle could give us a brief account of what has taken place with respect to consultation with the provinces. This might clarify the point which was raised by Senator Tremblay, in the area of procedure, rather than in the area of subject matter.
The Chairman: That is exactly part of what Mr. Grave lle intends to do. He is going to give us this kind of background material, and I am sure that some of the questions that have been raised will be clarified.
However, Senator Tremblay, I am sure you will reserve your judgment on this to see how the situation develops. I hope and expect that we will be doing it in the way a Senate committee should.
Senator Godfrey: Excuse me, Madam Chairman. If I could return to a matter of principle-and again this came up in connection with another matter-in your letter to the provinces, you end up with the words:
We would therefore ask you to confine your submissions
to respond to the above questions and to others
which may directly relate to them, so that the committee
may obtain an enlightenment on these particular and
Why should the provinces be told that they should confine their submissions to certain matters as cited by the chairman of the committee? I would think it perfectly proper and very helpful to set out these questions, but I am wondering why you would ask them to confine themselves to that when they may not want to make any submissions. I am concerned about establishing a precedent. Surely, as a committee, we are inviting them to make representations and we ought not to ask them to confine themselves to anything unless such a request followed a decision of this committee.
The Chairman: Senator Godfrey, I may stand corrected on that. I will tell you that I made these decisions myself, without the benefit of my steering committee, and if I have been wrong, then I will not do this in the future, but I felt at that point, in order for us to focus our questions and our examination on certain areas that had been raised, that this was what I should do because I felt we were under considerable pressure of time. Now as I delve into this and read more of the background, I think we will find that it is almost impossible in one sense to divorce process and procedure from the actual questions that we may wish to put to the various witnesses.
They are probably so intertwined in some sense that it would not be possible to confine or restrict the examination and I do not intend that anybody should, in fact, do that. I am expecting that any member of this committee should be restricted in any sense to a range of questions that may be put.
Senator Godfrey: This matter also came up in connection with Bill S-31 where you wrote a letter saying, “Please confine yourself to constitutional matters”, when you were writing to the provinces and there was an objection raised. I think what you have done is fine but I do not think that in future when we are writing to the provinces or anybody else to ask for submissions, we should ask them to arbitrarily confine themselves to anything.
The Chairman: Perhaps I am being too peremptory with my provincial colleagues. I will apologize publicly for that.
Senator Godfrey: Therefore, it is understood from now on that they are not expected to confine themselves.
The Chairman: Subject to the direction of my steering committee, Senator Godfrey.
Senator Godfrey: I would say subject to the direction of this committee, with all due respect. I believe that fundamentals should be decided by the committee.
Senator Tremblay: Madam Chairman, I do not mean to sound critical of what you have done, but I believe that all of us have to look for the proper procedure to follow because it is the first case of that kind. Before we ask Mr. Gravelle to give us clarification of the point raised, I should like to make a distinction between normal legislation coming from Parliament, which may have implications for the provinces, and this legislation which is not legislation in the normal sense of the word but rather a resolution to amend the Constitution. The Constitution provides for amendments of that kind. I believe it is quite clear in the Constitution that all legislatures, including Parliament, have a specific role to play in the procedure to amend the Constitution. Even if we have perceptions, as a Senate committee, of provincial interests, it is not up to us to define those interests in that specific case in the same way as we would take account of those interests in the normal legislative process. it is a specific process to amend the Constitution. Again, I repeat that I do not want to be critical of what you have done, but I am just looking for the proper procedure because this is the first case of that kind that we have to consider. I would be pleased to hear from Mr. Gravelle on that point.
The Chairman: It would be very helpful to hear from Mr. Gravelle about the procedure you are discussing, Senator Tremblay, which, I agree, when it affects constitutional amendments should be and is quite different from ordinary legislation. It might also be helpful for this committee to have an in camera meeting at some point in order to clarify how we should deal with such matters in the future so that we are all agreed on the proper method of going about these hearings.
Honourable senators, I should like to call on Mr. Gravelle. I regret that we have kept you waiting, Mr. Gravelle, but we would be happy to hear from you now.
Mr. Pierre Gravelle, Deputy-Secretary to the Cabinet (Federal- Provincial Relations) (Office of Aboriginal Constitutional Affairs): Madam Chairman, I am very pleased to accept this invitation to appear before this committee in order to provide honourable senators with some background information on events which led to the resolution which this committee has been seized of, and to discuss, generally, events and initiatives which have taken place since the March 1983 conference on aboriginal constitutional issues.
As members of the committee know, the Minister of Justice and the Minister of Indian and Northern Affairs will be appearing before this committee later today, and they will be addressing the more substantive policy and legal considerations underlying the resolution which is now before you. I am sure that you will be most anxious to hear from these senior federal government spokesmen with regard to the resolution.
We have provided the committee with some background material. I understand that it has already been circulated to members of the committee. I am referring to a paper dated August 31, 1983, entitled “Identification and Definition of Rights of the Aboriginal Peoples to be Included in the Constitution.” I do not wish to spend too much time on this background information, but perhaps, Madam Chairman, the committee would allow me to simply highlight some of the key and pointed aspects. What we have attempted to do is simply to bring together some key material that would provide you with some background information as to the genesis of the aboriginal constitutional resolution.
Perhaps the starting point, Madam Chairman, is section 37 of the Constitution Act, which required the Prime Minister to convene within one year of the adoption of the Constitution Act of 1982 a conference to define the rights of the aboriginal peoples to be included in the Constitution. It also required the Prime Minister to invite representatives of the aboriginal peoples and elected representatives of the Territories, as well as the provincial governments.
In effect, after the adoption of the resolution in June, 1982, the Prime Minister held a series of meetings with aboriginal groups. These were the Assembly of First Nations representing the status Indians; the Inuit Committee on National Issues; and the Native Council of Canada representing non-status Indian and Metis people of Canada.
Those discussions were, obviously, very wide-ranging in nature, but the Prime Minister in those discussions indicated to these three national associations that with regard to the forthcoming constitutional conference, each association would have two seats and that they would receive appropriate funding to prepare for and participate in the various meetings leading to the First Ministers’ Conference. They also indicated at the time that as far as the federal government is concerned, it would welcome the exploration of the concept of an aboriginal government for aboriginal people.
In June of 1982, the Prime Minister also indicated that in his view one conference only could not adequately deal with the very complex and numerous issues that could be before the First Ministers’ Conference. He foresaw then additional meetings which were not provided for in section 37.
Soon thereafter, in September, we initiated a preparatory process leading up to December 1982 whereby representatives of the three national aboriginal associations, all the provinces, the two Territories and the federal government at the officials’ level met to try to identify the subject areas that aboriginal peoples wished to pursue at the constitutional discussions. We had three meetings in the fall and this led to the convening of a ministerial meeting in January 1983. The Prime Minister asked Mr. MacGuigan in his capacity as Minister of Justice to chair the ministerial meeting. Provinces were mainly represented by Attorneys Gen or Ministers of Justice, and some of them were also represented by ministers responsible for native affairs or inter-governmental affairs.
The object of the January 1983 meeting was to enable ministers and other participants to get a better sense of the issues and the problems identified by the native aboriginal associations. At that time we had roughly 19 items on the agenda, ranging from equality rights to the definition of treaty rights, aboriginal title, self-government, equalization, language and culture, the repeal of section 42(1)(e) and (f), and so on and so forth.
Ministers at the January meeting felt compelled to seek some consensus on the definition of a more workable agenda for the First Ministers’ Conference, realizing that it would be a two-day conference and that, if they wanted to do justice to the items, they would have to somewhat circumscribe the items and prioritize them if they wanted some resolutions and progress to be made.
In the end, it was felt, however, that the full 19 items should be referred to the First Ministers’ Conference, realizing that First Ministers themselves would set their own agenda, as they are properly entitled to do. Nontheless, the discussions at the January meeting were most successful in the sense that they enabled ministers to direct officials at the deputy ministerial level to meet again to start drafting possible amendments to the Constitution with regard to the definition of rights of the aboriginal peoples and, more particularly, with regard to the establishment of an ongoing constitutional process so that participants could have adequate time to consider these issues as they evolved.
This led to a second ministerial meeting at the end of February 1983 with participation from all provinces, territories and aboriginal groups. At that time, some tentative resolutions were tabled and referred to the First Ministers’ Conference. The resolution which is now before you, and which has been appended to Appendix A in the documentation that has been circulated, is the outcome of the decision or collective agreement of First Ministers in March.
I will touch briefly on the Accord to which was appended the resolution. This Accord, essentially, is a political document
or political agreement amongst the representatives of the federal government and nine provinces, signed in the presence of the territorial representatives and the leaders of the four national associations present at the conference, committing themselves to an additional First Ministers’ Conference with the participation of all interested groups within one year of the March 1983 conference. The resolution covers only two conferences while the Accord covers the third, which is the first in time chronologically.
As may have been explained by Senator Frith when presenting the resolution in the Senate, this was done because participants realized that it would take some time before legislatures and the Parliament of Canada would pass all the resolutions necessary for the proclamation by the Governor Gen. They wanted sqme immediate assurance that, within one year, participants would be back at the conference table to address the issues.
Finally, the accord simply recognizes that the multilateral constitutional process does not in any way, shape or form impinge on any bilateral discussions or relations that exist now or may exist in the future with regard to any subject area that aboriginal people would like to pursue either with the federal government or with the provinces.
In effect, this is a brief summary and overview of the events leading to the First Ministers’ Conference of March 1983 and to the adoption, by the conference, of the resolution which is before you.
On March 17, the day following the First Ministers’ Conference, the Prime Minister announced the establishment of the Office of Aboriginal Constitutional Affairs, which would report directly to him through the Secretary to Cabinet for Federal-Provincial Relations. At that time he also announced that the federal government would be providing further financial assistance to the four associations to enable them to participate in future meetings.
These funding arrangements with the four national associations are now virtually complete. The Office of Aboriginal Constitutional Affairs is in place. It has a small staff of roughly ten officers who are mainly assigned from within the federal public sector. The mandate of the office, as outlined by the Prime Minister, is generally to co-ordinate all the activities within the federal government relating to the ongoing constitutional process and to co-ordinate the bilateral consultations between the federal government and the provinces, the territories or the aboriginal groups. The office will undertake the preparation of briefs and policy positions, and will be responsible for the preparations of meetings of officials or ministers. Gen ly, it has a co-ordinating role and also a negotiating role.
Madam Chairman reported earlier on the status of the resolution in the provinces. In addition to what the chairman has said, I am informed that Ontario, Manitoba, British Columbia and Saskatchewan are expected to deal with the resolution fairly early in the fall. I have not been able to get any information from Newfoundland as to the timing of the examination of the resolution by that province’s legislature.
As we are preparing for the next First Ministers’ Conference, which will take place at the very latest on March 15 and 16 of 1984, I have had, with my colleagues in the Department of Justice and the Department of Indian and Northern Affairs at the officials’ level, several meetings of a bilateral nature with the four national associations. I have also had several discussions with most of our provincial and territorial colleagues.
On June 10, we convened a meeting with the representatives of the four national associations in an attempt to seek some consensus as to the priority items that should be addressed between now and the next First Ministers’ Conference. We were hoping that this would lead to a multilateral meeting at the end of June so that we could get on with work during the summer and fall. The representatives of the national associations indicated to us that they felt that the summer months should be taken up with bilateral discussions between governments and aboriginal associations but, more importantly, with appropriate adequate internal consultation with their respective constituencies. This has been happening throughout the summer.
The Assembly of First Nations and the Inuit Committee on National Issues have recently proposed that a meeting of ministers be convened at the earliest opportunity, that is, September or October. Political views could be expressed on the nature of the agenda to be pursued between now and the next few months when the First Ministers’ Conference will be held. As Mr. MacGuigan will report to the committee this afternoon, serious consideration is being given to this proposal so that, in fact, very shortly we hope to have discussions at the ministerial level with all participants.
As a result of our informal discussions with the aboriginal groups-and these comments are for your information and are by no means official; they are simply an indication of the kinds of issues that may very well be discussed in the next few months and may appear on the agenda at the First Ministers’ Conference-it appears that the following subjects are of key importance to them. One, of course, relates to equality rights which is unfinished business from the last conference. Others deal with aboriginal government, land base for Moils, treaty rights and, possibly, language and culture. This will certainly be more formally addressed when ministers meet and consider the agenda in September or October.
I spoke of the four national associations, and perhaps I owe honourable senators some explanation of that term. Initially, when the Prime Minister met with the aboriginal groups, there were only three national associations: the Assembly of First Nations, the Inuit Committee on National Issues and the Native Council of Canada. As we approached the conference in February of this year, representatives of this Metis in Manitoba, Saskatchewan and Alberta felt that the NCC was no longer representative of their interests. They therefore established the Metis National Council. Because the majority of the Metis people in Canada are in these three provinces, the Prime Minister felt compelled to invite the Metis National
Council to the table. Hence we now have four aboriginal associations participating in this constitutional exercise.
Madam Chairman, perhaps at this point I should conclude my presentation, which has been a brief survey of the main elements that have led us to this point. I believe that in addition to a ministers’ meeting sometime in the early autumn there may follow a number of other meetings between civil servants and representatives of native people’s groups, so as to define further the nature of the recommendations or draft resolutions that may be considered by the First Ministers early in 1984.
There could even be more than one meeting at the ministerial level, possibly in December, possibly in January or February, just before the next conference of First Ministers.
Thank you very much for your attention and I look forward to answering your questions as best I can.
The Chairman: Thank you, Mr. Gravelle. Are there any questions?
Senator Lapointe: Are all the 500 or more Indian bands in Canada willing to be represented by these four associations?
Mr. Gravelle: The question of the representativeness of native organizations is a very important one, Senator Lapointe. Up until the present time, and I’m speaking of June, 1982, the three national bodies-the Inuit Committee, the Assembly of First Nations and the Native Council of Canada were de facto and even de jure empowered by the provincial and regional native organizations, and even by individual bands, torepresent their interests at the national level.
Because of this, these native associations received care financing in the past from various governments, specifically for carrying on discussions with governments on the whole range of subjects that interested them. When the constitutional discussions proper began, some members of the first nations, some status Indians, thought that a constitutional process involving different jurisdictions might prejudice the privileged relationship that the Indians of Canada consider they have with the Crown and with the Parliament of Canada.
The reason that certain groups withdrew from the Assembly of First Nations to form the Coalition of First Nations, whom you’ll be hearing from later on in the course of your sessions, was perhaps to protest a multilateral process that might eventually, possibly, hypothetically, dilute that special direct relationship between the Crown, or the federal government, and the Indians.
I discussed this issue with Chief Ahenakew of the Assembly of First Nations. More recently, as he will tell you himself, he held the annual conference of chiefs in Winnipeg, and the Assembly of First Nations received a mandate to continue the discussions.
If bands that don’t want to be directly associated with the Assembly of First Nations for purposes of constitutional discussions- if they want to discuss constitutional matters on a bilateral basis, I am certain that the government’s representatives will consider it a pleasure and a duty to listen to them and hear what they have to say. For purposes of constitutional conferences, four native organizations have been officially recognized.
Senator Lapointe: So the Coalition probably will not be recognized as a fifth organization?
Mr. Gravelle: That’s right.
Senator Tremblay: Mr. Gravelle, I would like to return to the subject of the accord of March 15 and 16, 1983. In the document in which the accord appears, there is a sort of preamble with a list of all the possible issues, but in the end the subject of the accord is summed up in a single sentence, which reads:
The Government of Canada and the provincial governments hereby agree as follows:
And the first thing they agree is:
The Prime Minister of Canada and the First Ministers of the provinces will be convened by the Prime Minister of Canada within one year after the completion of the constitutional conference held on March 15 and 16.
You mentioned to us earlier that such a conference had been planned and will be held; is that correct?
Mr. Gravelle: That is correct, Senator Tremblay.
Senator Tremblay: Then the accord goes on to add certain items that must be placed on the agenda of the conference, that’s in the second paragraph. The fourth paragraph refers to the resolution:
The Prime Minister of Canada will lay or cause to be laid … and the First Ministers of the provinces will lay or cause to be laid . . prior to December 1, 1983—
Senator Lapointe: December 31.
Senator Tremblay: In the text I have here it says “December 1”. That’s the text of the accord, which isn’t necessarily the text of the resolution.
Senator Lapointe: On page 3?
Senator Tremblay: Yes.
Senator Lapointe: Well, it says “December 31”.
Senator Tremblay: I have “the first”.
Mr. Gravelle: There may have been a typo, Senator, because the correct date is in fact the thirty-first. It’s the same in both the English and the French versions.
Senator Tremblay: Well, I’ve got “the first”. So in fact it should read “December 31”?
Mr. Gravelle: Yes.
Senator Tremblay: It’s not a major problem, but it’s wise to get these things cleared up, they do affect work scheduling, after all.
So, as far as the resolution is concerned, the signatories bound themselves to tabling the appended resolution by December 31.
The resolution stipulates that there will be at least two constitutional conferences for the discussion of the issue of native peoples and the problem of aboriginal rights. The first is to be held within three years and the second within five years of April 17, 1982.
So putting the two texts together-and in so doing I see clearly that there’s a difference between the resolution and the accord-there will be an initial conference within one year following last March’s conference. The resolution only requires that a conference be held within three years, and now there will be one less than a year later. Does that mean that in all probability there will be more than one conference or that since the obligation has been strictly fulfilled the conference next February or March will be considered to have met the terms of the resolution?
There’s a sort of uncertainty here, between the accord’s timetables and the resolution’s timetable. Can you straighten this out for us?
Mr. Gravelle: Madam Chairman, the intention of the signatories is in effect to have three conferences between now and 1987. The accord provides for the first conference, since the paticipants knew that enshrining three conferences in the text of the constitutional resolution would not necessarily ensure that the first of these would be held within one year from 1983, given the amount of time required for the resolutions on the constitutional text to come properly before the different legislatures and the Parliament of Canada.
In answer to your question, Senator Tremblay, a first meeting is provided for in the accord and two other meetings are provided for in the resolution. This question was raised and discussed at the First Ministers’ meeting and was expressed by the signatories. So this is plainly the inteniton.
Senator Steuart: Chief Ahenakew, in his various representations to the House of Commons committee and elsewhere, has made it clear that the point you raised about the special status of status Indians would, in his opinion, call for bilateral meetings. Are you now telling us that they agreed to waive those bilateral meetings, at least for the time being?
Mr. Gravelle: No. The concept of the bilateral process between the Assembly of First Nations and the Government of Canada goes back to 1982, if I recall the date. Let me check my facts. Yes, it goes back to some discussions that Chief Ahenakew had with the Prime Minister, at which time they wanted to ensure that the informal bilateral discussions that took place on an ongoing basis in the past would have some
formal recognition, in parallel with the constitutional discussions in a multilateral setting. As a result, there was an exchange of correspondence between Chief Ahenakew and the Prime Minister of Canada, and the Prime Minister confirmed in his letter of December 20, 1982 that, in fact, the bilateral process between the Assembly of First Nations and the federal government was in existence, would continue and would be complementary to the constitutional discussions. But he reminded chief Ahenakew that when it comes to constitutional amendments, such amendments can only be made with the participation of the provinces, as per the amending formula. Therefore to effect constitutional change to satisfy the aspirations of the Assembly of First Nations could not be achieved solely through the bilateral process.
I might add one element of information for the honourable senator. Since then we have had, at the ministerial or official level, meetings with the Assembly of First Nations, and the role of the Office of Aboriginal Constitutional Affairs, in co-ordinating the activities of the federal government with ongoing constitutional discussions, is strictly complementary to the role and responsibilities of the Minister of Indian and Northern Affairs who continues to have this privileged relationship with the Inuit and Indians of Canada in terms of day-to-day administration of programs and policies, and so on.
Senator Tremblay: Madam Chairman, as a supplementary to Senator Steuart’s question, does Mr. Gravelle’s answer refer to paragraph six of the Accord?
Mr. Gravelle: There is a reference to the bilateral process in paragraph six.
Senator Tremblay: But nothing in the Accord is intended to preclude or substitute for any bilateral or other discussions between governments-not only the federal government-who might have bilateral discussions and agreements.
Mr. Gravelle: Participants at the conference felt that it was probably prudent and wise to reaffirm the existence of bilateral relations between the various participants. This was not limited to status Indians, but it could apply to Metis and non-status Indians, and the Inuit; that it was prudent and wise to have these ongoing bilateral discussions and negotiations with whatever government. For instance, we have status Indians under provincial associations who deal fairly extensively with provincial governments with regard to economic assistance, sewage treatment plants, and other facilities of community development, and so on.
Senator Tremblay: As a final supplementary, there is a clear distinction between stipulations which will be constitutionalized and other agreements or stipulations which can be the subject of an agreement between governments. There are two levels of status for agreement: those which will provide the substance, at least, of constitutional dispositions, and others which have only the force and significance of bilateral agreements. Is that the meaning of that paragraph?
Mr. Gravelle: You know, when we talk about these bilateral discussions, we’re talking about a lot of things. They can mean a study of amendments to the Indian Act. They can mean the implementation of an economic development program. These
discussions don’t necessarily lead to formal agreements. Even in the context of constitutional discussions, there could very well be what we’ve had up to now: strictly bilateral discussions on a given aspect of the constitutional agenda, perhaps just for purposes of clarification, negotiation, or whatever.
But the special characteristic of the constitutional exercise is that ultimately it has to lead to multilateral discussions and to the intervention of the provinces to activate the amending formula.
Senator Tremblay: And the definition of the rights to be enshrined in the Constitution.
Senator Steuart: Madam Chairman, there is no English translation.
Senator Tremblay: I was referring to that part of the constitutional law of 1982 where it is specified that the subject matter of those conferences is to identify and define the rights to be constitutionalized but not to provide agreements which might be reached between governments and the aboriginal people.
Senator Lapointe: Madam Chairman, why is it that so many groups wish to come before our committee? Are they all against our accepting the resolution? Why do they wish to appear?
Mr. Gravelle: Senator, I failed to mention that in the documentation that was made available to the committee, I appended copies of letters received from the four national associations urging Parliament to support the adoption of the resolution, which would then pave the way for ongoing constitutional discussions. It may be encouraging to see that so many aboriginal groups wish to appear before this committee to express their views, which may be an expression of support or expression of other views.
I shall follow with great interest the presentations that will be made to this committee, particularly with regard to the views of the various groups, with regard to the resolution. But I must say that on the basis of the correspondence we have received to date, the four national associations agree with the content of the resolution, recognizing that with regard to equality rights, section 35(4), this is unfinished business and this subject will definitely be on the agenda of the next conference.
Senator Tremblay: From your meetings with representatives of the aboriginal peoples and within your own sphere of responsibility, do you have the feeling that there is real confusion over this distinction, particularly with regard to the rights and interests of these people on a broad concept and the rights that will be put in the constitution? They have not stated the distinction very clearly and it is our task to define only the rights that are to be put in the constitution, which will not solve all the problems of the Indians.
Mr. Gravelle: I would hope that the ongoing discussions will provide some clarification and understanding of complex concepts such as aboriginal rights, treaty rights or other rights. I think we have to go back to the Constitution Act and review
the distinction between section 35 and section 37. Basically section 35 protects aboriginal and treaty rights. We have further amended, by virtue of the resolution which is presently before you, section 35 to define more clearly that treaty rights include land claims agreements already approved or passed or to come into effect. Aboriginal rights as such relate to the traditional occupancy of lands. Some may argue-and this remains an open question and one that the Minister of Justice could answer more appropriately-that aboriginal rights encompass everything. It includes the right to aboriginal government, to sovereignty, to citizenship and so on. But from a legal perspective-and I really defer to the Minister of Justice on this point-the concept of aboriginal rights has to be constructed and more narrowly defined.
Senator Godfrey: Do these four groups which agree on the constitutional amendments agree as to what they mean?
Mr. Gravelle: Having participated in the discussions at the First Minister’s Conference, I am convinced that participants fully understand the import of the amendments being contemplated in the resolution. But the resolution stopped short of defining the further rights of aboriginal peoples and this unfinished business has been left for further discussion and negotiation.
Senator McElman: Mr. Gravelle, you have just stated that all the participants understand. In the province of New Brunswick, which I represent, the premier, the Hon. Richard Hatfield, followed a most unusual procedure when this resolution came before that legislature. He stated that he had made a commitment to put the resolution before the legislature and to recommend its passage but because of the action taken by advisers or bureaucrats, changes had been made in the wording of the resolution that did not carry through the intent that had been reached by the first ministers. The premier carried out his commitment by recommending the passage of the resolution through the legislature, but to protest the changes in the wording and to draw attention to the fact, he indicated that he would vote against the resolution, which he did. According to the recorded vote, all members of the government and all members of the opposition voted for the resolution, except Premier Hatfield. The result was a vote of 41 to 1. In dealing with section 2(4), which deals with equality and which reads-
Norwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.
Premier Hatfield stated that it seems that restricting the equality of male and female persons to subsection (1) does in fact subtract further from the provisions of section 15(1) of the Constitution Act, 1982, which will come into force in 1985. He advised the legislature of New Brunswick that he and the Minister of Justice of Canada were in disagreement on this matter, that the Minister of Justice felt that this did not
diminish the equality of the rights of males and females. Mr. Hatfield further advised the legislature that in his opinion the only way the matter could be resolved was by reference to the Supreme Court of Canada and that he was giving very serious consideration to making such a reference. What have been the events since that vote in the New Brunswick Legislature on June 28 with regard to negotiations between the Province of New Brunswick and the Government of Canada on this matter? Has a reference been made to the Supreme Court of Canada? I suggest that what I have just said does not support the statement you just made to the committee, that all the participants in this matter understood the ramifications involved and were satisfied with the resolution.
Mr. Gravelle: There is reference to this issue of the equality clause in the correspondence which has been appended to the material distributed to you. All the aboriginal associations, particularly the Native, Council of Canada and the Inuit Committee on National Issues, recognize that the disagreement or the confusion that arose out of the formulation of subsection 3 of the resolution should be revisited.
Most provinces consulted by the Minister of Justice after the conference expressed the view that the wording as found in the resolution should be left as it is, but that the matter should be revisited at the next conference. Otherwise there was a fear that the whole resolution might be reopened without the prospect of any finality in terms of what had been agreed to up to now.
Senator McElman: Excuse me. You say “most provinces.” Were there others in addition to New Brunswick?
Mr. Gravelle: I would say all the provinces. I said “most,” because Quebec, to my knowledge, did not express a formal view on the matter, although they were present and participated and were represented by their premier at the First Ministers’ Conference or by officials at other meetings.
I think this whole issue is important. It is very important for native women in Canada. You will hear further about that from the Native Women’s Association of Canada, for instance.
With respect to the Government of Canada, we are most anxious to revisit the issue to see what further clarification needs to be made. This matter should be addressed by Mr. MacGuigan this afternoon, if I may suggest so, senator, because he was personally involved in the negotiations. The actual text of the resolution was arrived at through discussions in a parallel meeting of participants during the First Ministers’ Conference. They met twice. They met on the evening of the first day and then in the morning and throughout the lunch period of the second day, before they could report agreement on the final text to the first ministers.
Mr. MacGuigan may also wish to speak to you this afternoon about the exchange of correspondence that ensued between himself and the provinces and the other participants, and, more particularly, the Native Council of Canada, at which time it was finally agreed that we would go ahead with
this text, subject to having the question of equality rights re-examined at the next conference.
With respect to your second question, senator, I can confirm that no reference has been made to the Supreme Court on this specific question.
New Brunswick officials informed me about a month ago that the premier had simply agreed to refer the whole general question of aboriginal rights to a special committee of the legislature. That committee, I understand, has already started meeting and receiving representations from various aboriginal groups in New Brunswick.
Senator McElman: As you know, the Province of New Brunswick and the premier are supra-conscious of the equality question because of the famous Lovelace case which went before the United Nations. That nearly resulted in a condemnation of Canada for discrimination.
In view of that background, this matter is not only important to the nation but is supra-important to New Brunswick. I should state that Premier Hatfield informed his legislature that he had been urged by the signatories, to the agreement to proceed with it and have it approved so that further negotiations could follow along the lines you have suggested.
However, the Native Women’s Association of Canada has not given such support. But who represents the Native Women’s Association of Canada at the conference table? Which of the approved groups represents the Native Women’s Association?
Mr. Gravelle: There are several native women’s associations: the Native Women’s Association of Canada; Indian Rights for Indian Women, and several others. The national associations represent both male and female persons of native ancestry, who are a part of their constituencies. Recognizing, senator, the importance of these women’s issues in the context of these constitutional discussions, as part of the funding arrangements proposed to the national associations by the Government of Canada through the Secretary of State, there is provision for additional financial assistance to the four national associations to ensure appropriate consultation and participation of native women in the preparation of that association’s presentation or resolutions or recommendations to the First Ministers’ Conference. In other words, senator, this aspect of equality rights or native women’s interests in constitutional development as it affects aboriginal people is fully recognized and supported.
Senator Lapointe: Are you aware that there is a dissident group of Indian women who are against equality rights? They came here to lobby against them. Are they strong enough to be considered or not?
Mr. Gravelle: As a matter of fact, senator, I do not know of this particular group as such, although I have had contacts with Indian Rights for Indian Women and I have had contacts with the Native Women’s Association of Canada and others as well.
The Chairman: Senator Lapointe, are you saying they are against the clause as it now reads or are against the principle of equality?
Senator Lapointe: They are against the principle. They say that Indian women should always marry Indian men and that, if they marry strangers, they should have to pay for that. They came to our office. I am not of their opinion, but that is their opinion.
The Chairman: I would imagine that their opinion is well represented amongst the various male organizations of native groups. It is the other women who need a little representation, I would think.
Senator McElman: Madam Chairman, the whole matter comes down to one of culture and religion. It is highly involved. Judging from the standards most people use as a background in considering this question, the current situation might prevail; however, new standards are developing.
Of course, it is unfair of me to press Mr. Grave lle further on this. I propose to do that with the minister when he appears before us.
The Chairman: That would be more appropriate, I believe.
Senator Steuart: Mr. Grave lle, did I understand you to say that the question of rights guaranteed equally to female and male persons would be further clarified at the next meeting?
Mr. Gravelle: If I may, senator, just by way of a short preamble, I will highlight the nature of the disagreement with respect to the formulation of that subclause. Let me read it to you.
(4) … the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.”
The Native Council of Canada would have preferred to see a different wording as follows:
The rights of aboriginal people of Canada are guaranteed equally to male and female persons.
So, the amendment proposed by the NCC goes much further than subsection (4) which is in the resolution. We are talking in subsection (4) of aboriginal and treaty rights, while here it could be inferred that we are talking of other rights yet to be defined by virtue of the section 37 process in the future, which are not known yet; which have not been constitutionalized, if I may use that expression. Notwithstanding this, the Minister of Justice will certainly reiterate his position this afternoon but, as far as the Government of Canada is concerned, we felt that we did not necessarily require this amendment because of the Charter of Rights, section 15, which applies to everybody and, by virtue of section 15, within the next two years even section
12(1) (b) of the Indian Act will become ultra vires or unconstitutional, and will have to be amended. However, we agreed to go along with the clarification of the equality rights because it was, for a great majority of the native people, an issue of great concern that, for the sake of clarity, some equality provisions also be included in part 2 was as in part 1, which is the Charter of Rights.
Senator Steuart: I understand what you are saying. My question really is, if it is to be dealt with further, I presume it could be expanded, but what would happen if they decide to take it out? If you are going to deal with it, to me that opens up the question of whether you take it out, whether you expand it or whether you do anything with it, if you are agreed that you and all the participants are going to deal with it. I wonder what would happen then? You may not want to answer that question. In this case, all of the provinces, the Government of Canada and possibly the Senate are agreed; the Constitution of Canada is then amended. If they decide to change it in any way, I suppose it would have to be further amended-
Mr. Gravelle: Madame Chairman, I have not entertained the possibility that it might simply be withdrawn altogether at the next First Ministers’ Conference. I say this on the basis of my personal knowledge of the degree of support that a provision on equality rights has at the moment amongst native persons and women’s groups generally across the country. But, having said that, when we say it is unfinished business in the sense that it will certainly be addressed again in the ongoing discussions, it may be that, as a result of further discussions, the matter will have been clarified to the satisfaction of everybody. If there is yet another amendment to further clarify the equality provisions that affect male and female persons of native ancestry, then it will be simply another amendment to be considered probably in another resolution, but I do not want to entertain the possibility that, by considering subsection (4) as it is now, we may be doing something that is unnecessary simply because there may be something else in the future. This is very hypothetical and I cannot really respond adequately to your question, senator.
Senator Steuart: As I read what has gone on, the First Nations, as represented by Chief Ahenaken, have washed their hands of it. They have said, “You, the Government of Canada, created this situation 110 years ago when you arbitrarily decided who would be a status Indian and who would not be because of women marrying outside the status Indian group; you created the mess, now you clear it up. Do not ask us to condone what you have done or what you are doing.” Is that not right? Perhaps you do not want to comment on that.
Mr. Gravelle: I am sure that Chief Ahenakew would want to comment on that.
The Chairman: I think we should bring this hearing to a conclusion, because we must start again at 2 o’clock, honourable senators.
Mr. Gravelle, I wonder if perhaps you could furnish us with some information that you may not have readily at hand. I would bp interested in knowing, for the committee, what numbers we are talking about; the actual numbers of these four national groups that you have referred to with whom you are prepared to negotiate. I would like to know how many people each of these groups represents and how many people you estimate are not represented by those groups. In other words, how many Indian or Inuit groups do not consider themselves part of the Assembly of First Nations which might otherwise be represented, in order that we might have an idea of what percentage of the native groups you feel you would be dealing with here.
Mr. Gravelle: Madame Chairman, I can certainly provide the committee with the census and also the absolute numbers as contained in the files of the Department of Indian and Northern Affairs with regard to registered Indians and Inuit. I can also probably provide the committee with some approximation of numbers within the membership of those associations. However, those associations are probably in a much better position to state to the committee the scope of their membership. For instance, I am told that there are about 70,000 Indians who are members of the coalition of First Nations, but I have no way of ascertaining, really, whether there are 70,000, 65,000 or 50,000.
The Chairman: Whatever information you can give us, we will certainly cross-check it with those groups as we go along so that we may get a better grasp of the numbers with which we have to deal here.
Mr. Gravelle, I wish to thank you very much indeed for coming this morning and giving us the benefit of the information which you have provided to us and of what has happened to date insofar as the resolution and the negotiations are concerned. It has been very helpful.
Mr. Gravelle: Thank you, Madame Chairman.
The Chairman: Honourable senators, I have one piece of business that I think we should discuss quickly before we break for lunch. I have had a message indirectly from Senator Flynn, the Leader of the Opposition in the Senate, that there will be no opposition members available for these meetings on Friday morning, as we already anticipated might be the case, because they are leaving at 9 o’clock. Also, however, he would prefer that the meetings not be held without some representation from the opposition. This leaves us with a problem, because we have two groups scheduled for that day. It is possible that if the Inuit group is coming in anyway, they may be here by tomorrow and I will check if they are on their way before we resume this afternoon. The other group we may have to postpone for two weeks.
Senator Steuart: Is Thursday night open?
The Chairman: Thursday night is open, and that is a possibility. I will try and deal with this now and report to you later.
Senator Godfrey: Is Senator Flynn aware of the inconvenience to these groups? I certainly would want to accommodate
him, but perhaps if he had the whole story, he might change his mind.
The Chairman: Yes, and I will explain that to him. It may be that we will have to hear from the coalition group on Friday morning because that is the only time they can appear, unless we cancel their appearance entirely.
In any event, I shall attempt to clarify that before we resume.
The committee stands adjourned until 2 p.m., at which time we will hear from the Minister of Justice.
The committee adjourned.
The committee resumed at 2 p.m.
The Chairman: Honourable seantors, we are resuming our consideration of the proposed amendment to the Constitution with respect to aboriginal rights with the appearance this afternon of the Minister of Justice, whom we are very pleased to have with us once again.
As you know, Mr. Minister, Mr. Pierre Gravelle was here this morning to give us some background information with respect to the resolution itself, and the negotiations and events surrounding its preparation, as well as certain negotiations that have transpired since that time. Therefore, we have a bit of a feeling for what has occurred up to date.
We note that you have an opening statement; perhaps that will help to clarify some of the questions in mind.
The Honourable Mark MacGuigan, P.C., M. P., Minister of Justice: Thank you, Madam Chairman, and honourable senators. When I introduced the resolution in the House of Commons on June 27 of this year, I spoke in some detail about the provisions regarding our aboriginal people as those provisions now stand in the Constitution and about the amendments proposed in the resolution and their anticipated effects. I believe that Senator Frith covered much of the same ground when he introduced the resolution in the Senate.
I am given to understand that both those statements form part of the briefing material you have received as members of the committee. For that reason, I do not plan to repeat what I said in the House in my statement today. Of course, I will be happy to answer any questions you may have on this important aspect of the resolution.
I do not wish to occupy too much of the brief time available to the committee. There are, however, a few points I should like to make. To begin with, I would emphasize that it is common ground to everyone here that amending the Constitution is a responsibility that lies squarely on the Parliament and legislatures of Canada. Governments as represented by their executives cannot amend the constitution; they can do no more than lay a proposal to amend, in the form of a resolution, before their respective legislatures.
The Accord signed by the federal government and nine of the provincial governments, with the participation of the territorial governments and the leaders of the Assembly of First
Nations, the Inuit Committee on National Issues, the Native Council of Canada and the Metis National Council, was, accordingly, not an agreement to amend the Constitution but an understanding on the part of the federal government and nine of the provincial governments that a resolution would be laid before their respective legislatures.
Forgive me if I seem to belabour this point. There have been statements suggesting that it is unreasonable for the Senate, or any other legislative body, to take its own time to give this question of amendment of the Constitution the weighty consideration that it merits. This is not my view, Madam Chairman, nor is it the position of the government I have the honour to represent here today.
I would like to suggest that honourable senators, as they look at the resolution, may wish to bear in mind the long and careful process that has been followed, beginning with the entrenchment of sections 25, 35, and 37 in the Constitution on April 17, 1982, and culminating with the First Ministers’ Conference held pursuant to section 37 on March 15 and 16 of this year.
Two ministerial meetings have taken place prior to this conference, as well as four meetings of public officials at which all participants were represented. To the list of meetings should be added the exchanges of a less official nature which the government has conducted on a regular basis with native organizations and with the provincial and territorial governments. Similar exchanges have also taken place at the provincial and territorial level. During the conference itself, even though the agreements we are concerned with here were drawn up privately by a sub-committee which I chaired, they were adopted publicly in front of several hundred observers from press and television.
Since the agreement was signed, four provinces have adopted the resolution, and all the signatory governments have agreed to put the matter to debate before December 31 of this year. This should not interfere with the study of the resolution by the Senate, but the honourable Senators will, I trust, take note of the care that was taken in drawing up the resolution and the large consensus it received from those involved with its preparation.
I do not imagine that any one of the participants in that conference was completely satisfied with what it achieved, or with the preparatory process that led up to it. The procedure for the identification and definition of the rights of the aboriginal peoples to be included in the Constitution was both untested and untried. The Constitution gave us an instrument to work with. It was only the conference held last March that showed us that with goodwill, co-operation and hard work the instrument could serve our shared purposes effectively.
The achievements of last March may be modest, but they certainly are not inconsiderable. Those who signed the Accord thereby expressed their faith in the instrumentality we now have, not least by providing for three more conferences of the same kind within the next four years.
As we now approach the conference to be held early next year, we must try to benefit from what we learned last time and apply it in our forthcoming work. In particular, we, in the federal government, have noted the wish on the part of the leadership of the four aboriginal groups to start the preparatory process at the political level, and we will shortly be proposing that a meeting at the ministerial level with the participation of political representatives of the territories and the aboriginal associations be held later this year, to make a formal start on the preparations for the next constitutional conference.
I should like to turn for a moment to a subject that has been widely discussed in legislative sessions and in the press. I refer to the confusion that arose about the wording of the “equality clause” at the last conference. Let me say first and foremost that I believe it is remarkable that, in an untried procedure and under the time constraints inevitable in a meeting bringing together the first ministers of Canada and the leaders of the several aboriginal associations, such confusion arose around only one item.
As the committee members are aware, all participants in the agreement agreed that the wording of these provisions be retained, as long as the question will be re-examined at the next conference.
With characteristic broadmindedness, the various native associations have been good enough to write to the legislatures to press them not to let differences of opinion on the wording of these provisions hold up the adoption of the resolution. Copies of these letters are included in the documentation provided.
Perhaps I should deal briefly with the relationships between the different aboriginal peoples. Let me say at once that the government has no interest in homogenizing the Indian, Inuit and Metis peoples. Each has its own history, its own culture and its own aspirations. Within each of the broad groupings there is a tapestry of cultures and language that enriches Canada as it enriches the aboriginal peoples themselves.
While honouring and fostering the uniqueness and variety of each, it does appear to me that the Indians, Inuit and Metis have very broad interests in common. I would like to see the constitutional provisions protecting them drawn in such a way as to cover the essential shared interests of them all, but broadly enough to accommodate the essential differences between them.
The Indians-the first nations, as they describe themselves- place great importance upon their special relationship with the Crown in Right of Canada, founded in the Royal Proclamation of 1763 and based upon section 91.24 of the Constitution Act of 1867. The federal government honours this special relationship and conducts itself accordingly.
Many of our Indian compatriots would like to see this relationship as exclusive in nature, suggesting that they have no truck nor trade with the provinces. But Indian leaders in general accept the law as it stands-the law that requires the participation of the provinces in constitutional amendment. With great respect, Madam Chairman, I should like to call upon all of them to accept modern Canada as it is-a federation in which power and responsibility are shared between two orders of government acting interdependently.
May I assure the committee that the government enters upon the joint process of preparation for the next conference determined that, together with all other participants, we will progress rapidly and effectively from the starting point we reached last March.
Thank you, Madam Chairman.
The Chairman: We will open the questioning with Senator Godfrey, please.
Senator Godfrey: As lead questioner, I will stop at the end of each area of questioning and invite supplementary questions from my fellow senators.
I would refer to your opening remarks where you say:
There have been statements suggesting that it is unreasonable for the Senate, or any other legislative body to take its own time to give this question of amendment of the Constitution the weighty consideration that it merits.
This resolution was passed on March 18, and you waited until June 27 to introduce it in the House of Commons and until June 28 to have it introduced in the Senate. Do you really believe this should be given weighty consideration by the respective houses?
Hon. Mr. MacGuigan: Senator Godfrey, the controversy that flared up shortly afterwards about the wording, to which I referred, is well know. That consumed some time. Additional time was taken to draft resolutions in language which was considered acceptable by the constitutional authorities in Ottawa and in the provincial capitals. I do not know where that took us. I know that we were ready for debate probably several weeks before the day that we actually debated the matter, but, as you know, there is a considerable problem of management of government business in the House of Commons, and we had to reach agreement with the opposition parties that they would be prepared to put this through the house in a reasonable period.
In addition, I recall that we had to wait some considerable time for the letters, which you have from the four aboriginal groups, to be sent to the various parties and to all the governments of Canada. If I am not mistaken, I recall that for some time we had three of those letters but were not in receipt of the fourth. That, again, took up a certain portion of the time.
It was not as if, on March 18, we had a document which could have been, with goodwill on all sides, presented in Parliament the next day. Most of that time lag could not have been avoided; although I concede that there was probably a period of two or three weeks when the resolution could have been introduced, its actual time of introduction depended upon the negotiaton of house business.
Senator Godfrey: I gather that the hearing before this committee is not holding the matter up at all, that you are going ahead with your plans that the required number of provinces have not ratified and that there is no particular rush. Some people have suggested that we are holding this matter up.
Hon. Mr. MacGuigan: You are quite right; you are not, provided that you are able to, in accordance with your responsibilities, dispose of this within the current session of Parliament. That will, certainly, be at least as soon as some of the provincial legislatures will deal with it. At that point it will have received the concurrence of all governments of Canada.
Senator Godfrey: That is, as long as we do not hold it up after the required number of provinces have dealt with the matter.
Hon. Mr. MacGuigan: I might also add that, if you did not deal with it during the session, you would put us in considerable difficulties in the House of Commons by having to re-negotiate this agreement and having to come back to you again.
Senator Godfrey: I do not imagine there will be any real difficulty.
My first question deals with the matter of definition. In your speech in the House of Commons, you said that never before in any constitutional document or act of Parliament have the aboriginal peoples been defined, and the definition of aboriginal peoples includes the Indian, Inuit and Metis peoples in Canada. I do not find that to be a helpful definition unless you define who are Indians. Does that include both status and non-status Indians? Who are Inuits; and who are Metis? How much Indian blood do you have to have to be a Metis? Are you going to try to define this?
Hon. Mr. MacGuigan: Definitions are a question of degree, I suppose. The previous constitutional reference was merely to the federal power over Indians, and, by judicial interpretation, that was taken to include others such as the Inuit and, probably, the Metis. That was defined by the courts and not by the constitutional document. This is, at least, a definition -at large of what aboriginal peoples are. It obviously does not deal with the kind of question which you raise, which is, obviously, one of the matters that has to be elucidated in the courts and in the negotiations concerning new constitutional provisions
The problem is, naturally, at its most difficulty when it involves the Metis people where you have intermarriage. In any constitutional definition it becomes very difficult to define who is a Metis and who is not. At the beginning of the process, however, we certainly would not want to impose a restricted definition of these categories.
I might say that there has been considerable discussion over the census figures. The census figures released last winter or spring by Statistics Canada indicate that these groups are comprised of fewer members than the groups themselves believe there are. I do not know what may account for this, but it may be that, since census definitions depend on self-definition, perhaps not all of the people who by some other standard would fit into these categories consider themselves to be in them. Obviously, this principle of “voluntariness,” if I can call it that, as to who wishes to be included in these categories, is itself something that we would want to leave open, because we do not now want to foreclose the rights which anyone may come to have as a result of our constitutional negotiations over the next decade or generation.
Senator Steuart: I have a supplementary question. I realize that thisis a thorny problem. When rights are being conferred or guaranteed under the Constitution, and when one examines the treaty process and the land claim process to see what has taken place, and on which side, in an ongoing process-such as land claims which are attempting to be settled in various Inuit groups-and when one considers the whole question of the rights of the Metis people, it becomes evident that the government will be deciding some very practical issues related to land rights, hunting rights, and money and other aspects of the issue. Surely, before rights are conferred, we should define those to whom they will be conferred.
I was involved for a time in a land claim in the western Arctic. To this day they have not settled upon who the Inuit people are. At one stage in the negotiations it was suggested that a roll call be taken, or, alternatively, that, if a person had any Inuit blood, he be considered an Inuit. It seems to me that this definition process should be settled, because when you consider the Metis, the Inuit and the other native peoples, you are talking about approximately 1.4 million people.
Is this question in process of being settled? While the rights are being decided upon, is there a means by which we can say who will be entitled to these rights? In this way, we will at least know how many people we are talking about, where they are located and who they are.
Hon. Mr. MacGuigan: This is surely an incremental process, with the increments being determined by negotiation. Senator Steuart, I think the operative word in what you have said is the word “before”. Before we finalize stating the rights of the aboriginal peoples, it is extremely likely that we will be
more precise about the groups to which the rights are to appertain. I think that this will be worked out over a considerable period of time. I suppose it is fair to say that the definition of “aboriginal peoples” is not much more vague than the definition of “existing aboriginal and treaty rights.” Those rights are rather unsettled as well, so it is all of these generalities which, through the negotiating process, have to be given more precise content. The fct that this is to be done by negotiation indicates that we do not intend to impose them upon the native peoples, but rather that we want to work matters out in common with them. We believe that as we progress on one step, we will be closer to agreement on the next.
Senator Steuart: As I understand it, you are not in the process of attempting to define “rights.” I understand that during the meetings of some of the officials with the native groups some 90 rights have already been identified.
Senator Asselin: I think it will be rather complicated for the minister to define the rights of aboriginal peoples.
Senator Steuart: I think he might need some help, but I am sure that the native peoples are prepared to participate.
I presume there is an ongoing study on identifying rights. Is there an ongoing study to determine the definition of the people we are talking about?
Hon. Mr. MacGuigan: I would say that there are ongoing negotiations. I am not aware of separate studies-at least none that are being conducted commonly by the negotiating parties. It may be that each party has in its back pocket a definition that it would like to see as the final one, but, frankly, I doubt that; we on our side do not have such a thing.
Perhaps I might put it this way: when we have another meeting over the next month or two between the ministers responsible, I hope that we will try to identify some priorities within the dozens, the hundreds, or perhaps even the thousands of possible matters that are to be decided upon. If we could do that, we would probably make more progress than if we tried to consider everything at the same time. I think I might say, without any disrespect to the aboriginal peoples, that it was they who did not want to pursue this path in our negotiations. I think there was a feeling on their part-perhaps an understandable one, given our joint history-that they could not afford to leave anything out and, therefore, that everything had to be on the table at the same time. If, however, we are not able to identify some priorities-if we are not able to identify some things to work on this year, some for next year and some for the year after–I think we will progress much more slowly. I hope we will be able to reach agreement on that kind of process so that we can make rapid progress.
The Chairman: I wonder if I might press this point a little more, Mr. Minister. This morning Mr. Grave lle mentioned a list of some of the possible headings that might be considered of higher priority when negotiations are under way. as I recall-and Mr. Grave lle can certainly correct me, if I am incorrect in my recollection-this question of defining the classes of native people, to which Senator Steuart has alluded, was not one of those headings. It seems to me that, from a legal point of view, it would almost have to be a first priority. I understand that some of the groups who have not been signatories to the Accord might take quite a different position, in that they would like to be able to define their own membership. Therefore, they, in particular, might not agree to this process. It seems to me, however, that rights cannot be conferred onto a class of people, if the class of people has not first been identified. Further, presuming that this Accord is agreed to by the requisite number of governments and becomes part of the Constitution, if there were any problems in the course of negotiations, everything would likely come to a standstill while the matter was referred to the Supreme Court of Canada, where every point-including exactly who belongs in what class of aboriginal peoples-would be decided upon. I am sure you appreciate the possible problems there, and I am wondering how you can avoid them, if you do not make it a priority to try to persuade the native groups-if it is the native groups who are reluctant at this point-to sit down with you and decide who will belong in a class, or how the classes are to be defined.
Hon. Mr. MacGuigan: The list of subjects to be considered, as agreed on at the conference last March, was drafted and given to us by the aboriginal peoples. We have been, and I hope we shall continue to be, receptive to their sense of priorities. I do not believe that any one issue or kind of question can be said, a priori, to be more important than another, if that is not the way it seems to the native peoples; and I hope it is not too cycnical to say that since there is a very large element of self-selection among those who ultimately come to be considered to be members of the defined group of aboriginal peoples, the kind of rights they will receive may well determine how many of them will want to be included in that group. One could argue the other way around, that it is much more important to define the rights than it is to define the group. Actually I hope that to some extent the process will go on relatively evenly, but not in such a way as to preclude dealing with some questions before others. We would like to take our cue on this from the aboriginal peoples themselves. We do not have any hidden agenda or any list of priorities that we want to foist on the participants. We want to try to recognize, not only in the content of our agreement the true interests of native people, but also, in the very order in which we select. to deal with the subjects, their sense of what they need. Of course, we are talking about the future here and I can
only guess at how the negotiations will proceed. You are asking me to predict the future, but we are really in the hands of all the negotiators.
Senator Stollery: I guess I am belabouring the point somewhat, and I am not a lawyer. However, I cannot help but feel, following on Senator Godfrey’s line of questioning, that it is rather important that, if one is defining someone’s rights, there should be a definition of the people whose rights are being defined. Even as a layman in terms of the law, to me that seems to be self-evident. I want to emphasize that, because I know that you will be considering the comments we make on this proposal. I would like to know whether there is some precedent for defining the rights that a group has before having some kind of definition of what the group is whose rights are being defined. Is there some precedent for that in law which I am unaware of?
Hon. Mr. MacGuigan: I do not know that one can say that there are any precedents for very much of what we are doing here. We are breaking entirely new ground. However, I believe you have to recognize-at least in this document as it is now before you-and I should say here that what we are discussing is in the Constitution; it is not even in the changes being proposed; so even if we all agreed to change it, we would not have that option-that the definition of the group is very little, if at all, more general than the definition of the rights. They are at roughly equal stages of generality. So it is not right to say that the group is not defined at all. It is defined, but in a very general way; but then so are the rights. Our negotiations over the years to come will be to try to get more specific agreement on those.
Senator Tremblay: My question is in some ways complementary to those put forward earlier.
I think it is clear that we all agree that for the time being the groups in question-the Indians, Inuit and Metis–are not defined in the Constitution. You have informed us, Mr. Minister, that these definitions will be negotiated at a later date, and you made reference to entering into negotiations with the groups concerned.
My question is the following: however the definitions of the groups in question are arrived at, will these definitions be incorporated into the Constitution or will they not be written into the Constitution as such?
If they are included in the Constitution, they will acquire a value, a constitutional weight, and it will thus be according to the text of the Constitution itself that the courts will subsequently settle any questions of interpretation which will not necessarily be solved by the formulation presented in the Constitution. If there is no such definition of these groups in the Constitution itself, however, then there will be no other recourse than to let the courts define the groups. This is the
only way a constitutional debate can be settled, this particular debate being on the definition of the groups.
My question is thus as follows: however the definitions of the groups are arrived at, will the definitions in question be incorporated into the Constitution by means of a future amendment, and according to what rules will this be done? Will it be the rules which govern amendments, the same ones which apply to the resolution we are discussing? This is my question, Mr. Minister.
Hon. Mr. MacGuigan: Senator, your question concerns the future, and as is always the case the matter is a bit uncertain. However, it is certainly our intention to incorporate the changes into the Constitution itself, whether by means of definitions or by some other route which government and native representatives agree on.
Also, the amending formula certainly forces us to follow a very well-defined path in order to alter the Constitution. I can assure you that if we have other amendments to put forward in the future, they will be presented to you at the appropriate time.
Senator Tremblay: Can I then conclude definitely and categorically that, even if this is a matter to be settled later on-and conferences have already been set up-can I conclude definitely and categorically that the definitions of the groups involved will eventually be made part of the country’s Constitution?
Hon. Mr. MacGuigan: That is our intention, and I believe it is also the intention of the other governments and native representatives.
Senator Tremblay: And as long as no adequate agreement exists on this matter, we will be left without any definitions. This means that anything accomplished as far as the definition of rights is concerned will be invalid.
Hon. Mr. MacGuigan: According to the Supreme Court of Canada, I cannot totally exclude the possibility of reaching agreements on the Constitution. It is certainly our intention to reform the Constitution in the light of future agreements between ourselves and native people.
Senator Tremblay: And so, by not leaving it up to the courts to define the groups in question, you feel that this is a matter to be decided by Parliament.
Hon. Mr. MacGuigan: In the long term, certainly. The possibility must not be ruled out that native people may, even right at this moment, ask the courts to make a ruling before the process you described is complete.
Senator Tremblay: I have one final question. Assuming that this in fact happens, that native people themselves bring before the courts the problem of their definition as groups disticnt from the four listed here in the text, and assuming that the courts arrive at a definition, would Parliament intervene and
modify the terms defined by the courts if such a decision did not meet its approval?
My question is basically one of principle. Is it clearly established that we will not leave it up to the courts to make these definitions, considering this a parliamentary responsibility to be accomplished by means of the amend ment procedure and its provisions after consultation and negotiation as detailed as possible with the parties involved, but that in the end the position of the present government is clear that it is a parliamentary responsibility and thus will be carried out by a constitutional amendment, and I am referring here to definitions.
Hon. Mr. MacGuigan: The courts have the power to interpret the Constitution. This is another matter entirely, one beyond our jurisdiction; the courts can interpret the Constitution as they see fit when a case is brought before them.
We intend in this section of the Constitution to spell out the interpretation before court action is undertaken, although there is no guarantee that we will be able to do this before the courts do. This is our intention, but that is all I am able to say at this time.
Senator Deschatelets: I have a supplementary question on this point, Mr. Minister. There have been negotiations and discussions with various groups. During this process of discussion and negotiation, was the problem of identification or definition brought up by any of the groups? Do they consider this issue a priority at this time?
Hon. Mr. MacGuigan: I have been informed that the matter was raised in the course of a bilateral discussion with one native group, but was not discussed with the groups as a whole. Thus it remains for the governments and representatives of native groups as a whole to address this topic without preconceived notions or restrictions.
Senator Deschatelets: Am I thus to understand that at the present time these groups consider the definition of their rights as more of a priority than the definition of the groups?
Hon. Mr. MacGuigan: That would he my assessment of the present situation.
Senator Bosa: Madam Chairman, because the recipients of these treaty rights have not been defined, does it not present the government with the problem of providing adequately for the obligations it undertakes? Is it not a logistical problem?
Hon. Mr. MacGuigan: The principal obligations of an active kind which the government considers it is bound by would be established, I should think, by laws and policies under the Indian Act and under the Department of Indian Affairs and Nortern Development.
The rights that are conferred in section 35 are not defined in such a way that it could clearly be said at this stage of negotiations that the federal government had certain positive duties to perform specifically under section 35, apart from
those that it is fulfilling under the Indian Act and the department.
Senator Godfrey: There is a second point I should like to question you about. The definition of “treaty” includes “land claims agreements.” Does that wording entrench both the existing and future land claims? For instance, is the James Bay Agreement entrenched by that?
Hon. Mr. MacGuigan: It is intended by clause 2 of the proclamation that agreements such as the James Bay Agreement would be given protection, yes. Such agreements would be included in the notion of treaty rights that is presently in the Constitution. That, I might say, was our interpretation of section 35 in any event, but it was certainly not clear and it was a point on which the native peoples felt the need for reassurance because, if they were not to have the protection of section 35, there would be no advantage. to them in negotiating such agreements with either the federal government or provincial governments.
So the word “existing” always has a present context. As new rights are adopted by way of agreement they then become existing aboriginal treaty rights and they, too, receive the protection of section 35.
Senator Godfrey: That means, then, that agreements such as the James Bay Agreement would be able to be amended only by a change in the Constitution.
Hon. Mr. MacGuigan: Well, there is much debate as to what kind of protection section 35 gives. If you were to read section 35 as giving an absolute kind of protection to the rights that might be deemed to be included under it, then I would answer your question in the affirmative. However, it is by no means clear that that is the case. It speaks of its being recognized and affirmed, but those are general words.
Senator Godfrey: Well, if it is unclear, what was intended? Is anybody aware of what was intended? You say it is not clear, but what did they intend it to be, whether or not they achieved their purpose by the drafting?
Hon. Mr. MacGuigan: As you know, at the time the constitutional provisions were adopted, the general frame of mind was that they would be adopted in a way that was not unfair to the native peoples in terms of the present recognition of their rights and that under section 37 of the Constitution those rights would be defined by subsequent negotiation with the native peoples.
Senator Godfrey: So you think it might be made clear later on, then, what section 35 really does mean?
Hon. Mr. MacGuigan: If we do not succeed in making section 35 clear, we will not have done very much. One might almost say that that was the point of the whole exercise, but I would not want to limit it just to that, obviously. There might well be, and, indeed, in the views of the aboriginal peoples
there certainly are, rights that they would claim are not under section 35, depending on how you interpret section 35.
Senator Steuart: In that connection, what is your understanding of the term “extinguishment”? That term was certainly used when the James Bay Agreement was brought before Parliament and my understanding is that the aboriginal peoples did not like it.
My understanding is quite clear, however, that when you negotiate land claims–which I suppose is a modern word for treaties-you exchange the general rights of the aboriginal peoples, their general claims or general rights, for very specific claims, specific rights-specific amounts of land, specific amounts of money, specific hunting and fishing rights and all of the other rights that are being included in the land claims.
Is it your understanding, then, that that will be the process or is it your understanding that, even though we signed a James Bay Agreement, we may still sign an agreement with the Inuvialuit people, or other people who have no treaty signed up to this point, and they they will not in fact be extinguishing their rights but will still have, not the general rights that Canadians have, but still more rights later on? In other words, their general rights will not be extinguished.
Hon. Mr. MacGuigan: I would not attempt to give any definitive statement on that. Barring developments that the future may bring, agreements such as the James Bay Agreement are in our view even now-and they certainly will be under the changes we are proposing and which we hope you will accept-given the same protection as other kinds of agreements as they refer to aboriginal treaty rights which the native peoples have entered into. They will have that much but no more. I put it that way becausekno one knows the extent of the protection under the present law. Section 35 may merely codify the existing law.
It is a very hazy area. It is really impossible to be precise about it. In a non-negotiating situation, I am not sure it is even desirable to be precise about it.
Senator Tremblay: My question stems from the one just asked. I would like you to clarify for me how the text, as it now stands, is to be understood.
Looking first of all at the James Bay agreement, in many ways the establishment of a contractual relationship between the Quebec government and some, if not all, of the native groups involved has been seen to grant certain rights to native people, although these rights are different from those I believe we are referring to when we speak of constitutional rights. There seems to be some ambiguity here, since the James Bay agreement, as Senator Steuart mentioned, includes some very specific provisions; I do not believe, however, that these provisions are so specific that they can be raised to the level of
constitutional rights. Therefore, is it possible to make a distinction between constitutional rights and other rights which may be recognized as a result of negotiation? The formulation in this regard is so vague that the meaning is not completely clear. It states:
Rights that now exist by way of agreements …
The expression “that now exist” in the above can have meaning only in reference to a specific date. If such rights existed prior to the agreement, then they do not arise from it. If they are created by the agreement, my question becomes the following: does every right granted by an agreement, no matter what kind, automatically become a constitutional right? Because this is where Senator Godfrey’s question would apply, that an agreement granting or creating such rights can never be changed without changing the Constitution. Obviously this would be embarassing and inconvenient for all concerned. It is this point that I am concerned about; I do not understand clearly what this means.
Hon. Mr. MacGuigan: The new Constitution does not represent a constitutional protection of the ancestral rights of the native people, of Canada or their rights arising from treaties. However, once the new Constitution is declared, any right that can be defined as an ancestral right or a right arising from a treaty becomes under constitutional protection, and is thereby a constitutional right. Perhaps there are agreements in some provinces which are not treaties, I do not know, but certainly after the adoption of the amendments we are putting forward for your consideration, there is no doubt that the rights will be formally recognized, and will be protected by the Constitution, as is the James Bay agreement.
Senator Tremblay: All of its provisions?
Hon. Mr. MacGuigan: Yes, but the degree of protection is not at all clear.
Senator Tremblay: What is the duration of the James Bay agreement? The lease? I gather that it is very long, is it not, and isn’t all of that now protected?
Hon. Mr. MacGuigan: It is protected under the Constitution, but it is not part of our Constitution; it is the 1981 constitutional document here, or rather the 1982 document.
Senator Tremblay: Yes.
Hon. Mr. MacGuigan: Yes, but the other documents are protected under the provisions of the Constitution.
Senator Tremblay: Including the aspect of the agreement by which natives in signing relinquished their territorial rights? Is this now enshrined in the Constitution?
Hon. Mr. MacGuigan: Yes, they relinquished some of their rights in signing the agreement, and I believe these rights no longer exist. But in any event, this constitutional protection does not mean these agreements are directly enshrined in the Constitution.
Senator Bosa: Madame Chairman, the minister used the words “codifying the existing agreements” in relation to the James Bay question raised by Senator Godfrey. If I recall correctly, some legislation was passed by the Parliament of Canada in the Spring of 1978 extinguishing hunting rights for some of the peoples who live in that area. Not all of the Indian, Inuit or aboriginal people who live in the James Bay area were signatories to that agreement with the Province of Quebec. Does section 35 resuscitate those extinguished hunting rights for those people, or is that an unfair question to put to you?
Hon. Mr. MacGuigan: They are not existing; they would not be revived, no.
The Chairman: You are speaking of the people who were not signatories to the James Bay Agreement?
Senator Bosa: Yes, those who never signed the James Bay Agreement.
Hon. Mr. MacGuigan: Their rights would not be negatively affected by the Constitution. There are real questions as to how much protection they have as a result of aboriginal rights, which is a very general term. However, with respect to the law that you are probably referring to, I am advised that those rights were extinguished by law.
Senator Bosa: Yes, that is what I mean. There were some communities, whether Indian or Inuit, I cannot recall now, who were not signatories to that agreement, and their hunting rights were extinguished by legislation.
Hon. Mr. MacGuigan: There would be no difference, legally. It depends on what the law said. The words of the law at that time would determine their rights.
The Chairman: Senator Asselin?
Senator Asselin: Madame Chairman, I would like to return to a subject which we discussed earlier, As I understand it, a federal-provincial conference took place to which representatives of native people were invited to come and discuss their ancestral and acquired rights. As a result of this conference there was an agreement signed between the various governments to the effect that-and here I am trying to summarize the situation-the federal and provincial governments, as signatories to this convention or agreement, would undertake to have their respective legislatures adopt an amendment to the 1982 Constitutional Act whereby in the future when native rights were discussed, the natives themselves, divided into four groups, would be represented on an equal basis with other government representatives when it came to discussing their rights. Is this accurate?
Hon. Mr. MacGuigan: It is difficult to say . . .
Senator Asselin: Mr. Minister, perhaps to clarify my question- as you stated a short while ago, we are not here to define native rights; these rights will be defined later at confernces
between public officials and native representatives and a later conference between the governments involved and native people. At that time native rights will be defined. Is this accurate? I ask this because you are not here today to define these rights, but your constitutional document speaks of nothing else but rights, and does not speak of definitions of rights.
Hon. Mr. MacGuigan: I am not sure 1 understand w hat you are driving at. First of all, it cannot be said that representatives of native people and representatives of government are on an equal footing.
Senator Asselin: As far as the discussion of their rights is concerned, they are not on an equal footing?
Hon. Mr. MacGuigan: No–for the discussion, yes.
Senator Asselin: This is what I meant. I do not question that they are on the same footing when it comes to discussing other constitutional questions, but when it is a matter of their rights and privileges, are they on the same footing as other government representatives?
Hon. Mr. MacGuigan: No.
Senator Lapointe: Section 2 of the 1983 Constitutional Accord on Aboriginal Rights states, in part, as follows:
-the Prime Minister of Canada shall invite representatives of the aboriginal peoples of Canada to participate in the discussions on those items.
Hon. Mr. MacGuigan: Yes, but the consent of native representatives is not officially required for the Constitution, since it is only governments that can amend the Constitution.
Senator Asselin: Of course.
Hon. Mr. MacGuigan: So there is a different formula for the signing of an agreement between the government and native participants. The governments signed in the presence of native representatives.
Senator Asselin: Is that …
Hon. Mr. MacGuigan: Let me explain this point; it is the difference between the law and reality. In reality the consent of native representatives must be obtained for such amendments, although legally only the consent of governments is required. Thus we should have a legal formula which exactly represents the procedure as it is in reality. It is a question of law.
Senator Asselin: Yes, but are you telling me that if later on native rights are defined and a consensus is not reached between the various governments and these native groups on the definition of these rights, then are you saying that the governments of the various provinces and the federal government can impose their own definition of these rights on native people?
Hon. Mr. MacGuigan: Constitutionally speaking, govern. ments can do this, yes. But, in reality, I am not in a position to
say, because the decision will lie with the governments of the day; I cannot state what will happen in the future.
Senator Lapointe: You mean to say it would be wiser to obtain the consensus but you do not have to.
Hon. Mr. MacGuigan: That is right, and I cannot say what future governments will do. It is certainly the intention of our government to try to obtain the consent of the native peoples. We would prefer not to move without at least substantial consent on the part of the native peoples.
Of course, you should realize that there are four different groups of native peoples and that you may not always obtain unanimous consent, so I cannot forecast how this will proceed.
Our task is to try to proceed with the consensus of all participants, particularly the native participants.
Senator Asselin: Have all the provincial governments, following their last constitutional meeting on this question, signed the agreement? How many provincial governments have not?
Hon. Mr. MacGuigan: Only the Quebec government has not signed.
Senator Asselin: But is the province of Quebec going to submit this question to its National Assembly anyway?
Hon. Mr. MacGuigan: No, only a certain number of provinces is necessary for the Constitution.
Senator Asselin: Are you not telling me that you are still going to proceed unilaterally, that the federal government along with some of the provinces is still going to decide on the definition of native rights without the participation and approval of Quebec? Is this true?
Hon. Mr. MacGuigan: Quebec attended the conference and chose not to participate in the general agreement. Quebec is not opposed to the solution in this case since it does not recognize the new Constitution, including Section 38 which defines how the Constitution can be amended, and Quebec was absent when it was signed.
Senator Godfrey: Two of my four questions have been dealt with. My third question deals with section 35(4) which states, in part:
-the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.
We are all aware of the section in the Indian Act which states that if an Indian woman marries a non-status Indian she will lose her aboriginal and treaty rights.
Does that have any effect on that?
Hon. Mr. MacGuigan: I believe this will not reach that situation.
Senator Steuart: Then what is the point of putting it in here?
Hon. Mr. MacGuigan: There may be other benefits which would accrue. I think that section 15, which guarantees the equality of individuals before and under the law-equal protection through the benefit of the law-and section 28 of the existing Constitution will achieve the purpose which you are speaking of, Senator Godfrey.
Senator Godfrey: I see. The Charter of Rights in itself will take care of that, will it?
Senator Steuart: I will go back to the question I interjected; What was the point of putting it in here?
Hon. Mr. MacGuigan: The technical reason for this provision is that the rights in Part II-which is, in effect, section 35-are not part of the Charter, and the Charter, as yo know, ends with section 34, the section immediately before. So the effect of this would be to carry into the Charter of Rights the rights that are guaranteed by sections 15 and 28 of the Charter.
In other words, it extends the effect of those sections of the Charter to section 35.
Senator Steuart: Does the problem arise here of the question of equal rights for women in regard to the treaty Indians, and, if so, is it back-dated, or do you know when it begins?
Hon. Mr. MacGuigan: Section 15 of the charter on equality rights, aided by section 28, would apply to section 12.1(b) of the Indian Act when it comes into effect. It is already in the Charter and when section 15 comes into effect, it will have a binding effect on the Indian Act. The additional rights, whatever they may be, that may be recognized or even created by section 35 would not have this principle of male and female equality attached to them, if it were not for this amendment, because being outside the Charter they would not have the benefit of it.
Senator Steuart: Therefore, in effect, what happens from here on with regard to this section is guaranteed for males and females.
Hon. Mr. MacGuigan: That is already covered in principle, although you are aware of the delay in the coming into effect of that part of the charter.
Senator Tremblay: Could it be that the rights mentioned in section 35 are collective rights and that by introducing subsection 4 regarding both sexes you had in mind reintroducing individual rights which are mentioned in the Charter of Rights which might not otherwise have applied within the context of collective rights mentioned in section 35? Is that the point or is that irrelevant?
Hon. Mr. MacGuigan: I suppose that is one way of interpreting it. Section 35 is clearly not a section which deals only with group rights without an individual application; but, if that were so, it would certainly, at least with respect to the male and female question, be individualized by the effect of this.
Senator Bosa: Was section 12.1(b) of the Indian Act placed there at the request of the native people or was it impose upon them like the question of equality?
Hon. Mr. MacGuigan: I do not know how much consultation there was when that was enacted some years ago, but I doubt that it could be said to have been enacted at the request of the aboriginal peoples; but I am not an expert on that. Presumably, it was in accordance with their attitude at the time, in that it was acceptable; but I really should bow to other people’s experience on that particular point.
Senator Bosa: Are you aware, Mr. Minister, through your officials, whether there is insistence on the part of the natives on having that discrimination removed from the Indian Act?
Hon. Mr. MacGuigan: Section 12.1(b), as it is, is very controversial within some of the communities and we all read about that from time to time. I do not know where the weight of preference would lie.
Senator Godfrey: As chairman of the Committee on Regulations and other Statutory Instruments, I know there is a procedure by which Indian bands can in effect appeal section 12.1(b). That is perfectly legal, but only a very few of the Indian bands have availed themselves of that. I would say that the answer to your question is that an overwhelming majority, judging by the response of the Indian bands, are in favour of section 12.1(b).
Hon. Mr. MacGuigan: I should say, quite frankly, that not even that part of the Indian Act that has direct relevance to human rights comes under my jurisdiction; so I do not have any competence to speak on that.
Senator Godfrey: I believe this amendment affects provincial property rights as well as federal rights; so it certainly affects the provinces with respect to land claims and so on. Hon. Mr. MacGuigan: Yes, the notion of aboriginal and treaty rights affects the rights of the aboriginal peoples regardless of what government might be affected.
Senator Godfrey: That would be rights against provinces as well as the federal government.
Hon. Mr. MacGuigan: It could be, yes.
Senator Steuart: In the case of Saskatchewan, if there are additional land claims, because the Government of Saskatchewan is responsible for residual land claims as a result handing over the mineral rights of land in 1930, they would definitely have to be involved. If more land is allocated and as I understand it the treaty Indians are claiming more land-the Province of Saskatchewan, at least in my opinion, would definitely be involved, would it not? It would have to put up some of it.
Hon. Mr. MacGuigan: You will note that the amendments we are proposing to the Constitution Act of 1982 do not really deal with such questions at all. Of course, the provinces have signed it and the provinces are passing it; so in whatever way it
affects them they are agreeing to be affected. However, there is nothing about land rights in this other than the validation of new claim settlements which are reached by agreements between the provinces and the native peoples.
Senator Steuart: Not really. Is it not indicated in here that any change in treaties or in new land claims will be part of the Constitution?
Hon. Mr. MacGuigan: That is what I am saying; but for those agreements to be agreements, the provinces have to consent to them so there is no way this is being done without the consent of the provinces.
Senator Steuart: If you make an amendment to Treaty 6, that, for example, affects Saskatchewan, that amendment or change would be between you and the Indians. The province would not have anything to do with it. They would not have to be a signatory to it, but you might make an agreement that would affect the province.
Hon. Mr. MacGuigan: Unfortunately, I do not know what Treaty 6 is, but I am told that the Supreme Court of Canada has ruled that any additional land in relation to that treaty is provincial land, so, obviously, it would require the agreement of the province to transfer any lands which is provincial land. The federal government does not have any rights by the Constitution, that I am aware of, to transfer provincial land to anybody. It has to limit itself to its own jurisdiction.
The Chairman: I understand Senator Tremblay has a very short question requiring a very short answer.
Senator Tremblay: As I read it, the old Part IV is still contained in this booklet even though it has been abrogated by section 54. You just add Part IV.1 after the old Part IV which is no longer in force because of section 54. You have added another section, section 54(1). When will the nettoyage be made according to the proclamation provided for in section 54?
Hon. Mr. MacGuigan: We are adding a new Part IV,1. It may be that Part IV is spent.
Senator Tremblay: The old Part IV is no longer in force as of April 17. Why did you not just replace one with the other?
Hon. Mr. MacGuigan: It is more for exactitude of reference than anything else.
Senator Tremblay: If I read it incorrectly, I might understand that it is still in force.
Hon. Mr. MacGuigan: If you are as expert as I think you are, you will not do that.
Senator Tremblay: I am thinking of the average citizen.
The Chairman: You are an exception, Senator Tremblay.
Senator Bosa: I was puzzled by the wording in the new section 35(3). It states:
For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired.
As I understand it, it means future agreements which are not defined. Are we not leaving ourselves wide open?
Hon. Mr. MacGuigan: I suppose one might say that the present is that part of the future which is at hand. An agreement which is made then becomes an existing agreement. As I mentioned earlier, the word “existing” always speaks to the present. Once it has come to be, then it falls under the definition of “existing.”
Senator Bosa: Does that not have to be specified? If a land claim becomes an agreement, then it is an existing agreement after it is accomplished. Does it have to be specified?
Hon. Mr. MacGuigan: We did not think it did. It was certainly very important to give the native peoples at least the psychological security of knowing that, when they signed an agreement on a bilateral basis with one of the governments in the future, they were not, with this new kind of treaty right, going to lose whatever protections former rights had.
Senator Godfrey: It applies to future agreements as well as to present agreements.
Hon. Mr. MacGuigan: Yes, that is right; when they become present, yes. In effect, we add to aboriginal and treaty rights the notion of claims agreements. You could almost write those words in and get the same kind of effect.
The Chairman: Thank you very much, Mr. Minister. We were very happy that you appeared before us this afternoon. I am sure senators still have many questions, and it is possible that we will call on you at a later date. We hope to complete these hearings in a few weeks. As a result of our consultations with the native groups, some questions may arise, and we would appreciate it, if we could call on you at that time.
Hon. Mr. MacGuigan: If there is an area which you feel needs elucidation or elaboration, I will be glad to return.
The Chairman: Thank you very much.
Honourable senators, we have with us representatives from the Federation of Saskatchewan Indians, who kindly accommodated us, when we had to make a sudden change in our schedule, by agreeing to appear before us this afternoon. Representing the federation are Chief Solomon Sanderson and Delia Opekokew, counsel for the association. The federation’s brief has just been distributed. Chief Sanderson tells me that
there was insufficient time to have it translated into French; however, Delia Opekokew will summarize it for us. I would ask for a motion that the entire brief be appended to this hearing.
Senator Godfrey: I so move.
Hon. Senators: Agreed.
The Chairman: In addition, we have with us Mr. Wilfred McDougall and Mr. Peter Manywounds, of the Indian Association of Alberta. They are here with Chief Sanderson.
At this point, Chief Sanderson will deliver an opening statement, after which Ms. Opekokew will provide us with a summary of the brief.
Chief Solomon Sanderson, President, Federation of Saskatchewan Indian Nations: Thank you, Madam Chairman. Honourable senators, we want to thank you for providing us this opportunity to appear before you today. I want to make the introductory remarks based upon some understandings that we have reached in participating in this process.
First, it is our understanding that Canada is constituted not only by the Constitution Act, 1982 but also by the proclamations, the agreements, the treaties, and other acts and certainly by practice. It is also our understanding that the concepts of Indian government and the treaty process are very much alive and continuing; that Canada will be prepared to change or to introduce new institutions in order to accommodate a government- to-government relationship, and that there will be continuing constitutional processes. It is our understanding as well that there will be new accommodation in Canada for the constitution of Indian law by Indian governments for Indian peoples. We understand that there will be a continuation of the construction of Indian law by the federal government.
Our participation in the constitutional arrangements cannot be limited to so many constitutional conferences. I know that honourable senators would not want to promote a closed constitution with respect to our future involvement, whatever it may be, in Canada. Canada should not lose this opportunity to allow for an open constitution involving our relationships. Constitutional process will also have to address more clearly the application of international standards and laws, where they are applicable, to Indian people and Indian communities in Canada.
With those brief introductory remarks forming the basis of our participation in this forum, over which honourable senators have jurisdiction at the moment, I believe I have described the spirit in which we have appeared today before this special Senate committee and have provided honourable senators with some insight into our position on some of your concerns. I will now turn matters over to Ms. Delia Opekokew, who has been our legal adviser for a number of years and has been involved with us in the constitutional process from day one. She will highlight for honourable senators the brief that has been prepared. After she has done so, we would like to deal with our
concerns on the implementation of the Accord and will invite Mr. Peter Manywounds to expand upon our position with respect to the bilateral process.
Ms. Delia Opekokew, Federation of Saskatchewan Indian Nations: Thank you. This submission is from the Federation of Saskatchewan Indian Nations and will cover the treaty position of the Indian peoples of Saskatchewan. At a later date, Mr. David Ahenakew will provide honourable senators with the national position.
In their letter to the Assembly of First Nations, honourable senators covered a series of questions, the first having to do with our understanding of the term “existing aboriginal rights.” Treaties were entered into by the Indian nations to reserve lands and resources to themselves and to guarantee this way of life in perpetuity. In other words, our ancestors, through their treaties, were confirming what honourable senators call “aboriginal rights”, rather than extinguishing their land rights, as is the interpretation of the non-Indian Canadian courts. This great difference in interpretation between our peoples and your governments is the basis for the need of an ongoing forum in which to discuss constitutional matters that directly affect aboriginal peoples, as was established in the 1983 Constitutional Accord on Aboriginal Rights. The first ministers and the First Nations are being held responsible to allow themselves such a long process of trying to understand each other’s position. They are not, as has been said, “giving carte blanche to an agreement between aboriginal organizations and the government to changes about which they know nothing.” Instead, they are establishing a process in order to know and to achieve a common solution.
In answer to honourable senators’ first question, we will identify our interpretation of “treaty rights,” from which honourable senators can get a sense of the vast differences between, on the one side, your courts’ interpretation and, hence, your governments’ position, and, on the other side, our position.
Within the term “existing aboriginal rights” as later confirmed by both sides within the treaty-making process, we include our inherent right to self-government and the lands and resources which were retained as the infrastrucutre for the retention of our way of life within the Canadian system.
The Indian peoples of Canada and the United States generally hold a common view that the exercising of the treaty-making power by Great Britain and the United States is, in itself, the recognition of an Indian group as an independent, sovereign power.
Your Supreme Court of Canada has recently, in Nowegijick vs Her Majesty the Queen, followed United States jurispru-
dence on the interpretation of treaties. In an American case which was cited at that time it was stated that:
Indian treaties must be construed, not according to the
technical meaning of their words, but in the sense in
which they would naturally be understood by the Indians.
The United States Supreme Court, in the case of Worcester vs Georgia, stated that international law is invoked by the Europeans when entering into treaties with the Indians.
The words ‘treaty’ and ‘nation’ are words of our own language, selected in our diplomatic and legislative proceedings, by ourselves, having each a definite and understood meaning. We have applied them to Indians as we have applied them to other nations of the earth: they are applied to all in the same sense.
Throughout the political history of Indian nations and the colonial powers, the struggle over which government would prevail in a particular situation has been crucial. Which power may exercise sovereign powers has sometimes been determined by military force and at other times by political arrangements in the form of treaties and agreements. The result of these struggles was that powers were dispersed among the various units of government. Indian governments reserved power to themselves in certain situations. For example, in present Treaty No. 6 which was signed in 1876 on the prairies, it was stated:
. . . and they will maintain peace and good order between each other, and also between themselves, and other tribes of Indians …
We understand that to mean that, if we are going to maintain peace and good order, we must have recognized our own adjudicative systems in order for us to properly exercise that power.
The treaties are evidence of the distribution of powers established in our early relations. It then becomes important to understand the motivation of each side as to the terms of the treaties. The point to remember, however, is that all of the powers were held and continue to be held residually by the nations, not by the Canadian or any other government. Whatever powers the federal government may exercise over Indian nations it received from the nations, not the other way around. What, then, did Indians give to the Canadian government and what did they retain for themselves? Because the motives of Indian people are not easy to ascertain, they must be inferred from speeches recorded at the treaty councils or through oral history. Furthermore, Indian motives have to be understood in the context of specific Indian cultures, the conditions of the day-such as local policies and political ambitions-and the strength or understanding of the Indian nations, all of which affected the consensual nature or otherwise of the written treaty or agreement, or of promises which were not properly recorded. Such variables are the evidence by which we can understand the acceptance or non-acceptance of the treaty terms.
The Indian Nations’ position is that they effectively controlled the territory and that they effectively had political,
economic, adjudicative and military powers as well as structured forms for decision-making.
The British Crown acknowledged the title of the Indians to the territory. At no time was it claimed that such territorial rights could be extinguished by occupation or conquest. Consent always became essential to all of these arrangements.
At page 6 of the brief we itemize some of the points that we wish to raise as to what our forefathers had reserved to themselves. Keep in mind that it was not reserved for them by the commissioner. It was their retaining of the following rights:
(1) To reserve or set aside land; (2) That the lands reserved would not be disposed of without their consent; (3) To provide medicine chests and schools and other types of social services; (4) They would reserve for themselves their traditional harvest rights and hunting, fishing and trapping rights.
Additionally, oral promises which become part of the treaties included that their tribal autonomy would be respected and that they would suffer no direct or indirect compulsion to alter their traditional ways of life; that they would continue to exercise hunting, fishing and trapping on both ceded and unceded lands, and would continue to enjoy all sub-surface rights in respect of their traditional lands. They would also be provided with services when in need and they would not be conscripted into military service, nor taxed without their consent. This again involves an element of international law.
The Saskatchewan Indians maintain that royal proclamation has recognized that international status. The reason we pursue the international status of our original signatories as nations is that we say that, because they were reserving for themselves those rights that were not expressly written, they did have vested inherent rights that they have never extinguished which they continue to vest in themselves.
Getting back to some of the questions that you have asked, your interpretation of existing aboriginal rights is unclear for our purposes. I refer to the Canadian government and the Canadian laws. We have been advised that that means nothing, but on the other hand we have also been advised that it could add some aspects to our rights. This position will be expanded fully by Chief David Ahenakew when he appears before you.
Your second question appears to focus on ongoing processes within the Constitution. We submit that the early treaties established the process of reviews to accommodate changes. This exists today and there continues to be opportunity for treaty-related negotiations.
In Saskatchewan an addition was made to one of the treaties as late as the 1970s. It is our position, then, that where a term was not expressly considered, it was retained by the Indians as an “inherent right”, and such rights which become relevant in today’s world must be included in the bundle of rights reserved by Indian peoples.
We have received some support from the courts, and because of the earlier quotation that I provided senators from
a recent Canadian Supreme Court decision, U.S. jurisprudence must be used as a precedent. There they have established clear rules of construction starting from the landmark case Worcester v. Georgia. The ruling that “the language used in treaties with Indians shall never be construed to their prejudice”, has been expressly adopted by our courts in Canada.
In any event, the United States Supreme Court has developed a set of rules which states that they must be fair to Indian people. Some of the rules they have established provide that ambiguities are to be resolved in favour of the Indians. In one case a tax exemption had not been expressly stated and the highest courts stated clearly that that right was vested in the Indian people. Another example was that water rights had not been expressly written into a treaty, and the court stated that they were implied because of the type of land holdings those people had been left with and their rights had to be preserved.
Another principle that has been adopted is that the technical meaning of the words must not be narrowed and must be interpreted according to the natural understanding of the Indian people at time of signing. Also Indian treaties must be liberally interpreted in favour of the Indians.
Finally, treaties with Indian tribes are of the same dignity as treaties with foreign nations. The complaint had been made that Indian tribes were not nations and the Supreme Court stated that those words must be applied to Indians equally. The court recognized that Indian nations are “distinctive political communities, having territorial boundaries within which their authority is exclusive, and having rights of all lands within those boundaries”. Because of this notion of distinct political communities, Indian nations have not lost their sovereignty and the non-Indian American laws continue to accept that status. As such the United States Indian governments have preserved their political, adjudicative and other institutions. They can make laws in all areas of their jurisdiction.
However, the Canadian government has chosen to define and identify the rights in express consultation with the Indian peoples as opposed to leaving it to the courts. The courts have followed that principle in their independent manner by stating that the government must discharge its political responsibility, and in other case law they have also stated they do not want to become involved in the definition of aboriginal rights.
Indian people prefer that treaty rights be constitutionalized, but the procedure for defining those rights must include a process for their consent. The specific process for constitutional amendment must be developed at the ongoing process, which has been established by the Accord, as it is now premature to do so.
With regard to your questions three, four and five, our position in Saskatchewan is that our ancestors have already worked out a binding definition of the citizens of our nations. Historically, the beneficiaries of the treaties were determined in consensus. The treaties were seen to enure to the benefit of
the descendants of the signatories as determined by the internal political rules of the nation or community.
The Assembly of First Nations, of which the FSIN is a member, agreed to include that provision in the Accord as a guideline to our inherent right to reserve the power of deciding our citizenship to ourselves as nations. We, for instance, believe that a person’s birthright, even if marrying outside his or her nation is paramount and that guarantee would be included in our internal laws. This matter of First Nation’s citizenship will be pursued at the constitutional discussions, as was agreed to on March 16.
With regard to your question related to representation, we in Saskatchewan speak with a common voice through the FSIN and therefore our advice can only be based on our own experience as to the determination or our representation.
The Federation of Saskatchewan Indian Nations has had a long history. Over the years different groups have amalgamated and in 1982 the amalgamation changed the format. Previously, the governing document had been only that of the articles of incorporation. Now the governing document is that of a convention by which the powers of the individual Indian nations are recognized, and we are clearly established as a machinery in order for them to enhance their powers. The chief and councils were conscious of the need to unite in a common front to protect and preserve the Indian way of life. As such, over the last seven years they have negotiated different arrangements among themselves so that on questions, for instance, on education, if the group is too small to handle it adequately, they will delegate that power to their district group. For that reason we have now in Saskatchewan about six councils and one agency which controls different programs and services. They then delegate matters affecting us on a provincial basis to the Federation of Saskatchewan Indian nationssuch matters as, for instance, the constitutional position, which is represented by our group-rather than having 69 people speak on the subject.
But both conventions, the district and the provincial, clearly confirm that Indian government powers are at the local level and that the FSI is only a collective machinery to enhance those powers. That is our submission. Thank you.
The Chairman: I would like to conclude these hearings no later than 5 o’clock and I understand that Mr. Manywounds has something to say. Is it possible to confine your collective remarks to the next 10 minutes, which will give senators sufficient time to put questions to all of you?
Chief Sanderson: Yes, Madam Chairman. 1 would like to reinforce some of what Ms. Opekokew has introduced. It is high time in Canada that we be allowed to provide for internal accountability through our own Indian government structures, institutions, laws and policies. I cannot see us continuing to try to deal with the symptomatic problems which you are addressing daily in Parliament. I speak of questions of membership and other issues. We are talking about equality. We do not see equality coming to any degree until there is formal recognition
of government to government relationships as they apply to the Indian and non-Indian communities.
In dealing further with the Accord and the purpose of the Senate hearings, you hesitated in promoting the Accord based on certain concerns. We are also concerned That is not to say that over the delays. we want to take away from your examination of the ministers, because you have been effective in drawing more information from them than we have up to this point on the provisions, even though they are not that clear yet.
I have asked Peter Manywounds to join us to elaborate further on paragraph six, which deals with establishing a formal bilateral process between the AFN and the federal government on a government-to-government basis. I would ask Peter Manywounds to introduce the subject to you. I would emphasize that more work is needed on the matter.
Mr. Peter Manywounds, Sarcee Band, Council Member: Thank you, Chief Sanderson. Madam Chairman and senators, I intend to be brief and to meet the deadline that has been set. The discussions tha took place in the bilateral process during the First Ministers’ Conference were based on the concept of a relationship between Indian governments and the federal government. However, there was never any substantive work done on just how this particular bilateral relationship would be effected. It has been an ad hoc, haphazard, inefficient, expensive and fairly unproductive process up to this point. We are presently in the process of developing, in conjunction with people in the government and the Department of Indian and Northern Affairs and, I would expect, other arms of the government at some point, an understanding of how this particular process will be effected. We have laid on the table a number of suggestions as to how we view the workings of this particular process. The relationship would be one of negotiation. When an agreement is reached on a particular aspect, each side in the relationship will, of necessity, go back to its ratification process, whether it be through cabinet or Parliament on the government side or, on our side, through a process that goes down to the local level, the level where the actual nations exist. The collective process outlined by Chief Sanderson of meetings in assembly would be the decision-making process. Many details remain to be worked out but there does seem to be an understanding of the concept, as it was put into the Constitutional Accord under Clause 6, and of some of the mechanics or the framework that will allow us to discuss these matters as they exist between the federal government and the Indian nations of this country.
At this point in time it is not necessary for the provincial government to be involved in any way, shape or form in the bilateral process. The process has been confirmed throught the constitutional process which does not of necessity require the involvement of the provincial governments.
I am not sure at this point in time that I can give you any further details. There may be certain aspects of the concept which we have developed that may interest you, in which case
we would be glad to answer your questions. We hope that the information we have given you today will alert you to the fact that there is not merely one process taking place at this time. The constitutional process is not the only process that affects relations between Indian nations and the federal government. Thank you, Madam Chairman.
Chief Sanderson: In concluding, I would like to say that we have tried to avoid the pitfalls that have often been present when dealing with these issues throughout our history. We would like to move forward on the treaty position, the constitutional position, the Indian government position and the legislation position. This committee is concerned with a number of details dealing with the constitutional entrenchment of the resolution. What will you do when the parliamentary committee findings come forward with major legislation which will be proposed sometime this fall? We would like to discuss formal relationships on a government-to-government basis so that we can get on with this matter in a formal way. Stop passing the buck. Stop passing on to the provincial and federal jurisdictions the Indian issues, ultimately leaving them unresolved.
There is currently underway in Saskatchewan a treaty conference which has national participation. There will be a round table discussion later on in the next few weeks on the implementation of the treaties.
We are also looking to create internal accountability by constructing Indian law. For example, we narrowed discussions on membership and equality to either discussing women’s rights or men’s rights. However, it is not realized that we are losing more children right now through the adoption process than we are women. So, if we are going to get on with the equality question, let us address it at a level where the French-English conflicts in this country have been dealt with. The constitution now provides for equality between the English community and the French community, not only within government but in institutions, programs and law. It is recognized in this country that we have two systems of law, the civil code for Quebec and the French community and English common law for the rest of Canada. Surely, there is room for the presence of Indian law, constructed by Indians for Indians. Then, for example, we will be able to get a larger picture of the membership issue as it applies to Indian citizenship, Indian government law and policy, treaties, Canadian law and policy, international standards and laws. These kinds of areas can be addressed at a much higher level than they are at the present time. To promote the implementation of international standards and law in Canada, we suggest that a convention be signed between Canada and the AFN, to apply formally the principles and standards of international law where they are applicable to the Indian people in the community.
So, while you are dealing with these technical legal concerns which are important to you, we are also dealing with the instruments and the different forms of institutions. We wanted to alert members of the committee to these facts. Thank you.
Senator Steuart: Madam Chairman, since I made the motion ‘to refer these proposed amendments to this committee, I would just like to explain very quickly my reason for doing so. David Ahenakew mentioned, when he spoke to the House of Commons committee, that they felt that they were asked just to rubber stamp something that had been agreed to somewhere else-either by bureaucrats or by some committee of the Government of Canada. He said they feel they are called in simply to rubber stamp things.
I would like the FSI to understand how we felt. They came to an accord early in March. The Senate received this first amendment to Canada’s Constitution only two days before the adjournment. We received an explanation of sorts from the Minister of Justice as to why that took place. I think his explanation accounted for some of the time but it certainly did not account for the period over three months.
I and the majority of Senators feel strongly that, whether the Senate is to be reformed or done away with or whatever happens in the future-it is totally unacceptable to us as part of Parliament to be expected to rubber stamp such an important amendment to the Constitution of Canada with next to no debate, simply dealing with it for a day or a day and a half. We did not have the time, as they did in the House of Commons, to refer it to committee-not even for one day’s hearing. We have no intention of holding it up unless, perchance, the Senate decides not to pass it, which is its prerogative, but I do not think there will be any need to hold it up. The provinces have not ratified it yet; we are told that, so long as we get it back to the Senate for consideration before the end of this session, that will do. By the way, this session has already lasted for something over three years now, so I do not think there is any mad rush. We are just fulfilling our responsibility.
The second question which I think you should address to yourselves in this first amendment to Canada’s Constitution refers specifically to your rights and your future: if amendments can be passed this casually, what real protection do your rights have? It I were as a member of the Federation of Saskatchewan Indians, or a member of any one of the aboriginal groups, I would be concerned that the government could casually pass amendments with just one day’s consideration. These are amendments that you happen to support, but what will your protection be should the government decide to pass amendments you do not support, if it can do so in the same casual manner? Some members of different native organizations have criticized us for daring to hold this up; I am not suggesting you have. I want to make it clear, howerver, that we have every right to look into this-indeed it is our responsibility. As well, I think the native people should be taking a hard look at how this first amendment has been handled, because that may set the precedent for the way in which other amendments will be treated in future, and they may not like that. In any event, up to this point this matter has been handled in too casual a fashion and much faster than I feel an important amendment of this sort deserves.
I appreciate the point you are making. Let’s address ourselves to the larger questions. We have talked about citizenship. We have talked about the definition of “Indian.” We have talked about the definition of “Metis.” I think those matters are important. You have asked us to raise our eyes to the larger issues, for example, Indian government. I would like you to explain to me and to the committee, briefly if you can, the difference between your concept of Indian government and the concept that seems to have been put forward by the Prime Minister. If I am right, he implied that Indian government, from the point of view of the federal government, was somewhat more powerful than, say, municipal government-which as you know is the creature of the provincial governments in this country-but certainly not as powerful as I think you envision. You are talking about sovereignty. You are talking about a level of government which I presume would be in many ways the equal of the federal government in those areas over which you feel you should have control. Do you feel there is in fact a sharp difference of opinion between your view of Indian government and the view held by the present Government of Canada?
Chief Sanderson: Madam Chairman, just on the lighter side, senators may be aware that we have a great deal of respect for elders in Saskatchewan and Alberta. We have a formal group of elders who are in council and who have veto power. I paid an informal visit to Macdonald in Toronto prior to his coming out to Saskatchewan. He asked me my opinion of the Senate; I said it should stay but that it should be empowered to veto certain activities. That is on the lighter side and that is to give you some assurance that you have our permission to stay in Ottawa.
Senator Godfrey: We do not like to, be referred to as elders.
Senator Steuart: You can refer to me as an elder, but I realize these other oldsters care.
Chief Sanderson: With respect to protection we have gone to great lengths to make the government understand why the issue of consent must be more formally addressed as it applies to Canada-Indian relations on all levels. Those positions have been clearly stated time and time again with respect to our concern about the ongoing process, and we have reached the point in Saskatchewan and Alberta of looking at introducing an amendment to the amending formula, to put in place Indian government in federal government jurisdictions. We will then be able to amend the Constitution and initiate constitutional amendments without provincial involvement. That level of discussion must take place somewhere. At this point in time our discussions with the governments are not formal enough to introduce those concepts and to discuss them and debate them fully. The only time we are able to deal with them informally is in arrangements similar to this.
On the other question people have been fearful of dealing with the concept of Indian government. It is only five years ago, Senator Steuart, that Indians and non-Indians alike were afraid even to mouth the words “Indian government”. I noticed, for example, that Madam Chairman introduced the Federation of Saskatchewan Indians. She very carefully took notice of the “Federation” of Saskatchewan Indian nations. Those types of terms are important to us; they are the key to lending support in the discussions that are required to the concepts which are being introduced.
The Prime Minister said he would look at anything from absolute Indian sovereignty to assimilation but that assimilation is out. There are different concepts and different approaches, but we must respect the political autonomy of all bands and their governments. How we structure our political institutions will be a matter for internal debate and internal accountability through conventions and institutions, resulting in the creation of Indian law for Indians by Indians. That is, for example, one area where we hold a vastly different point of view on the former bill that was introduced informally by Indian Affairs whereby they wanted Indian government by federal Indian law. We are saying, no, we want Indian government so that we can construct Indian law for ourselves as Indians and for Indian policy. That is one difference.
We have not had the opportunity to discuss the degree of sovereignty that you either want or do not want to hear about. We have not had the opportunity to discuss and arrive at some solutions on the degree of First Nation status. We have not had the discussions because of the lack of formal governmentto- government relationships to discuss fully clear areas of Indian jurisdiction under Indian government; clear areas of federal jurisdiction under federal government, clear areas of provincial jurisdiction under provincial government and those areas where there will be shared jurisdiction. I welcome the question because at the last First Minister’s Conference we did not get a chance to explain Indian government and to discuss it more fully. Everybody else discussed it at length, but the First Nations, who were there to represent the Indian community, only got five minutes.
I do not, however, want to say that that is the only concept. Some of our people along the Canadian-American border have to address a different kind of sovereignty status and some of them are still saying, “Until you represent our interests with a little more concern at a much higher level, then they are not part of Canadian confederation.” That is why we were there at the last talks without some of the members of the First Nation.
How do we make those accommodations in order that we can get on with these formal discussions and debates about Indian government and how we are going to interact with respect to the development of Indian institutions in Canada? It
is very difficult, senator, to put in a nutshell your question regarding describing the differences in concepts. What you see at this level, you call your national government, a federal government. Our concept is that the bands have the power that nobody else has, collectively, through their constitutions, whether written or unwritten. The division of power between the bands and the chief-and-council and the delegated powers that flow on up, that is the basis for our government; that is true democracy.
It was someone in the Senate, I think, who was talking of the activities outside of the House of Commons or Parliament that are influencing government decisions. Try our system: We believe in becoming involved with our communities and we are attempting to construct infrastructure for our Indian government institutions so that internal accountability is allowed for, and we clearly establish what the power of the band is, collectively, versus that of the chief-and-council. We are also looking at expanding the chief-and-council concept that you are familiar with in order to involve more of our people in the government structures that we are working on. That, however, would take more time to describe than we have at this point. It is not limited to Saskatchewan. That activity is going on across Canada.
Senator Steuart: I was aware that you have done a tremendous amount of background work on this, but I felt that it was important to bring out that there is a wide divergence between your attitude and the general attitude at the present time, which possibly will change as these negotiations continue.
I have just one suggestion, because I know other senators have questions. You might distribute to the Senate and to members of the House of Commons some of the background materials which you have already developed. I have received some of this and I think it is very good. It will give them a concept of what you are talking about. They may not agree, but at least they will know what you are talking about.
Chief Sanderson: I have one more comment with respect to the question that you raised about the sensitivity of the present government. Yes, they are sensitized, now. You fought, all of you, to patriate the Canadian Constitution without us. You now have it; you have your independence; you have your Constitution but that is as far as you have gone. The government is trying to do what they can across this country but it is your institutions which are not responsive. How do you deal with the question of your own institutions to make them deal with reality as we talk about it right now? Your institutions want to maintain the status quo as it existed prior to patriation. On occasion, our discussions with some departments are similar to those that our ancestors had in the 1800s. How, then, do you get movement from those institutions?
The other thing I would like to say, and I have already said it with respect to the constitutional arrangements: Canada has spent millions of dollars in attempting to address these questions on a larger scale to resolve French-English conflicts in an
attempt to arrive at some meaningful understanding your institutions and through your legislation and so on. Why do you not pour in the same amount of money to resolve this? We are working on nickels and dimes right now. What is wrong with considering a special bill in Parliament that would allocate the kind of money needed to address these concerns? That is a suggestion that you might consider when you see the Indian Government Bill.
Senator Steuart: We spend a billion and a half in the Indian department. Although I do not suppose much of it filters down to you, perhaps you could help us redirect some of that.
The Chairman: Perhaps I could get some clarification on just one aspect of the position you are taking. How different is your particular position from that of the Assembly of First Nations? You are part of the Assembly of First Nations. Are you telling us that your position is quite different; that, even though the Assembly is a signatory to the Accord, you really do not agree with the process?
Chief Sanderson: No, we wrote the Accord. I just want to say that-
The Chairman: But you want to approach it in a different way?
Chief Sanderson: I know where you are coming from on that question. I do not know whether it was recognized at the constitutional table, but the Assembly of First Nations was the most representative group with respect to participation from across Canada, in spite of the absence of some of our own coalition members. We only had two seats st the table. What you are saying to me indirectly is, “Why are you not the same as the rest of the Indians across Canada?”
The Chairman: No, I am not saying that. I asked you a question and I just want clarification.
Chief Sanderson: It is implied, and we want to deal with that head on. The Assembly of First Nations is representative of Indian constituents across Canada, recognizing the particular autonomy of each Indian government of the respective bands, and there are going to be differences. As I said in my opening comments, you have had to make accommodation in your own Constitution to deal with the French-English presence in Canada; we have to be able to do the same type of thing. We have the Blood Tribe in Alberta; we have the Saulteaux Tribe in Saskatchewan. We have all the different tribes and yes, there are going to be some similarities on our approaches and in our developments but we have to allow for and accommodate the specific differences that exist as well.
The Chairman: I was really asking you a question. I was not trying to imply anything and I have not taken any position on this. I just wanted to clarify that in my own mind, because I was not quite sure, and I am still not, until we hear from the Assembly, whether the Assembly represents groups all of which feel precisely as your group does with respect to selfgovernment.
As I say, I do not know that personally, as yet. I read some of the material and that was not clear to me.
Senator Deschatelets: I have a short question of the gentlemen to your right who last addressed us. I took down some of the words from your last sentence and it meant to me that you do not want to see, in a solution of the problems, any involvement by the provincial governments. Did I understand you correctly?
Mr. Manywounds: That is correct. Perhaps I could expand on that point, senator. That is correct in the context of the relationship between Indian nations and the federal government.
We are not talking about constitutional discussions or what we call the “multilateral process”.
There are certain issues which have to be solved solely between ourselves and the federal government, and there are other issues of a constitutional nature, and this is one of the reasons you are holding this hearing. That cannot be solved at this particular point in time strictly between ourselves and the federal government. So, there is some provincial involvement in that process.
Senator Deschatelets: Does that mean you would like to be recognized by the federal government as a nation, and that your discussions will be held on a nation-to-nation basis with the federal government?
Mr. Manywounds: That would be a fairly accurate assessment of the kind of discussions that are being carried on from our side of the table. You heard from the Minister of Justice earlier this afternoon. I do not know how you interpreted his remarks regading the status of governement-
Senator Deschatelets: Let me get into that further. Suppose you claimed a certain territory over which the provincial had complete control; do you think that the federal government would be able to decide on the ownership of that territory, bearing in mind that it belongs to and is under the control of the Province of Saskatchewan?
Mr. Manywounds: Having used that example, I suggest Chief Sanderson answer the question.
Chief Sanderson: Since Mr. Manywounds comes from Alberta, and the question directly relates to Saskatchewan, I think that I should answer it.
You must appreciate the spirit of the intent of the treaties. In Saskatchewan there are several treaties, as our paper has pointed out. The territory of which you speak in Saskatchewan, while it was ceded to some extent with respect to surrender concepts, those surrender concepts that were introduced at that stage were conditional surrender, and we never ceded our continuing title to resources, for example. That is why the Natural Resouces Transfer Act Bill was introduced in 1930.
The federal government formally transferred those powers to the provinces under the Natural Resources Transfer Act of 1930, but the federal government did not have the clear mandate at that time to transfer those. Our consent was not given for the transfer to take place formally, and we have different types of Indian lands and Indian rights provided for in Indian treaties, not just reserve lands.
At the moment we are proceeding to put in place land rights under the treaties in Saskatchewan. We have claimed what part of Senator Steuart would consider to be his territory in Prince Albert, which caused a great deal of emotional debate.
Senator Steuart: I was on your side! What the hell are you talking about?
Chief Sanderson: There was a great deal of emotional debate, that involved only 49 acres of I don’t know how many hundreds of acres.
Senator Steuart: It involved 44 acres.
Chief Sanderson: We intend to look for more, but that process is still ongoing and there is interest because of the inherent conflict of interest on the part of any provincial government in putting in place those lands and those resource rights properly.
That is why we say there is a need for a convention applying international standards and laws so that those provincial governments will come into line on some of the agreements reached at this level. If we do not have anything, how do we enforce them? Right now we are winning court case after court case with respect to hunting rights and so forth, but all we are doing is sharpening up the lawyers’ pens in the Department of Justice offices in that they are creating new laws which will restrict our hunting rights and right of access to those resources.
That is what we should be addressing; that is what we want to get on with on a government-to-government basis. You used the term “nation-to-nation basis”-
Senator Deschatelets: I have nothing against that.
Chief Sanderson: We have not had the time to discuss all of that. We have nothing against that. We say that that exists, but you may see that existing and compare it to sovereignty association.
We have had difficulty introducing those concepts because of your struggles between French and English-and we are always caught in that conflict because the Accord has not been signed by the Province of Quebec yet.
So, dealing with those equality questions on a government to- government basis is important and is the key to resolving a great deal of the problems you raise.
In dealing with those problems, what we see taking place in the federal Parliament and in the provincial legislatures is the creation of regulation upon regulation in an attempt to regulate problems you are creating. Why not get to the root of the
problem and start dealing with Indian jurisdiction and Indian law and clear up those areas once and for all?
Senator Bosa: Madam Chairman, I should like to address my question to Chief Sanderson. I realize there are other delegations this committee has to hear from, and I also realize that up to the present time we have been dealing with very broad issues, but I should like to address my question to the point concerning the constitutional amendment before us.
Do you or your colleagues have any objections to any specific sections of the resolution with which we are dealing?
I appreciate that this is a broad subject, but we are not dealing with the broad issues; we are dealing with a constitutional amendment. If you want to philosophize on the broader subject, that is fine, and I find it extremely interesting,but there are other delegations that must be heard from. Can you or your colleagues make any observations on the constitutional amendment before us?
Ms. Opekokew: I shall attempt to deal with that, but I do not have a copy of the Accord in front of me. I shall give you an example which would involve one of the sections Chief Sanderson has spoken about.
With respect to the proposed resolution that touches on the constitutional conference required if any changes are to be made to Class 24 of section 91 of the Constitution Act, 1867, to section 25 of this act or to section 35, section 3 requires that the Prime Minister call a constitutional conference at which time he must invite aboriginal representatives.
Senator Bosa: Is that the third conference?
Ms. Opekokew: That does not have any deadline, although I have not looked at this in quite some time. I think this relates to section 35.1. That obviously continues the principle being established in that the Prime Minister and the first ministers have the final authority as to any amendments and that aboriginal representatives will only be consulted. That goes against our philosophy that we must be respected on a nation-to-nation basis. Although we appreciate the fact that we will be consulted, we think it does not go far enough. As far as we are concerned, our consent should be required and must be required as opposed to mere consultation.
Senator Bosa: You are referring to section 35.1, which states:
The government of Canada and the provincial governments are committed to the principle that, before any amendment is made to Class 24 of section 91 of the Constitution Act, 1867, to section 25 of this Act or to this Part,
(a) a constitutional conference that includes in its agenda an item relating to the proposed amendment, composed of the Prime Minister of Canada and the first
ministers of the province, will be convened by the Prime Minister of Canada; and
(b) the Prime Minister of Canada would invite representatives of the aboriginal peoples of Canada to participate in the discussion on that item.
Is that the section to which you are referring?
Ms. Opekokew: Yes, it is fine that it touches on the fact that we are guaranteed consultation even after 1987, but that is still only consultation. We will negotiate for more than that.
Chief Sanderson: That is what I said earlier, that we are not happy with that as it sits. We should like to introduce an amendment so that we can initiate amendments where it is clearly a matter of jurisdiction between the Indian government and the federal government.
Senator Bosa: So, does subparagraph (b) apply, which states:
the Prime Minister of Canada will invite representatives of the aboriginal peoples of Canada to participate in the discussion on that item?
What would you like changed in that?
Ms. Opekokew: It would not necessarily be in that clause. We would like to see something that ensures that it is not just the invitation but would deal with the kind of powers we have within that invitation.
Chef Sanderson: We have some questions about that form. For example, the clear mandate of the federal government in this Parliament is under section 91.24 for Indians and Indian lands. What business do the provinces have in dealing with that specific jurisdiction when its exclusive power in the Constitution impacts on federal powers? That form now allows the provinces to also become involved in determining that relationship under section 91.24.
Senator Boss: My understanding is that the procedure for a constitutional amendment requires agreement of seven provinces and the federal government.
Ms. Opekokew: We would like to be part of that.
Senator Bosa: You believe that you should be included as part of the Constitution.
Chief Sanderson: As first nations.
Senator Bosa: I think it is impossible to deal with that in this bill because it is such a broad subject.
Chief Sanderson: That is what I said earlier, senator. We intend to introduce a new clause that will address that more formally because we cannot get on with the bilateral process as formally as we would like to on a long-term basis until some of those issues are addressed. It does not mean that we cannot implement the bilateral process more formally today but-
Senator Bosa: Chief Sanderson, we have to be pragmatic. We know you would like to have this legislation passed as quickly as possible. If we are to pass this legislation, we must deal with what is possible to deal with.
Ms. Opekokew: We are not talking about it now but we are talking about the ongoing process. Your question was whether there was something that we were unhappy about and we alluded to that. We would like to have this Accord accepted as soon as possible so we can go on with our work.
Senator Bosa: That answers my question.
Chief Sanderson: We did put a qualifier on that in dealing with the clause concerning equal status for men and women. The qualifier is that we will be able to address more fully Indian citizenship policy under Indian government, and that was agreed to.
Senator Bosa: There is a provision in the bill for that now. It is not defined now but will be at a future date, and I presume you will have a great deal to say about that.
Chief Sanderson: Yes.
Senator Tremblay: Going back to section 34.35(1), am I right in understanding that with that section relating to section 91.24, which is one of the exclusive federal jurisdictions, your objection concerns section 35.1(a) where the provinces are introduced in conferences where an amendment to section 91.24 could be introduced? You consider that as a purely federal Indian-to use a broad term-matter, and you object to this new proposal which is the participation of the provinces in that debate?
Chief Sanderson: Yes. That was the spirit of understanding by the provinces as well when they signed the Accord.
Senator Tremblay: Before this amendment the provinces were not involved in section 91.24.
Chief Sanderson: Right.
Senator Tremblay: Therefore, that is your objection, if I understand correctly. Does your objection go further to propose to delete that at this stage or not?
Ms. Opekokew: At this stage we could not answer that because that would be part of the negotiations and it is second guessing ourselves as to what we will do at that point.
Senator Tremblay: As Senator Bosa has pointed out, we have a very specific job to perform here and now. Of course, I am very interested in knowing what objections you have, but how far are your objections going right now? If it becomes part of the Constitution, it will not be easy to change that through negotiation. Where do you stand exactly? Do you accept that for the time being as part of the Constitution, hoping that further negotiations might remove the provinces from that negotiation, or are you asking us to delete that paragraph right now?
Chief Sanderson: On that very point, you also have consideration with respect to section 109 of the Constitution-The BNA, Act-where it deals with various resource concerns and so on as they apply to federal-provincial matters. But at what stage, senator-and I will throw a question back at you-in that forum that is now clearly a federal-provincial one-that is why you received the answer you did from the Minister of Justice because they view it in that way because it is your forum-how do we deal with the concern of the other things that are implied here in these arrangements now and in the future when they get into discussions, for example, of revenues realized from resource rights and ownership versus the federalprovincial jurisdiction? At what stage does it become a first nation’s federal agenda item for constitutional consideration? You are here to provide some of those solutions and answers for us to accommodate our development. We should not be continuously moving in the direction where we reduce our powers and our involvement simply for accommodation purposes. We are not totally satisfied with the Accord until we sit down and start dealing formally as governments to governments.
Senator Lapointe: Why is it that the Assembly of First Nations has agreed?
Chief Sanderson: Yes, we agreed to the principles in there.
Senator Steuart: You take half a loaf and try to get the whole loaf later on.
Senator Godfrey: Your are not suggesting that we change that now, are you?
Chief Sanderson: Our people are reviewing all those things and as Peter Manywounds has said, we want to formalize that bilaterally so that we can get on to more formal discussions with these very concerns. Then we can provide you with some real answers to the questions you are asking us now. That is where you can lend support. Whether in your terms of reference or not, Madam Chairman, you are still very political.
Senator Godfrey: I ask this out of curiosity: If you do achieve this, would you consider that something like the Charter of Rights and Freedoms should be amended in some way to suit you, or would you accept the Charter of Rights and Freedoms as it applies to the Indian nation as well as everybody else?
Chief Sanderson: Your Charter of Rights and Freedoms are limiting to us in several ways.
Senator Godfrey: I realize that.
Chief Sanderson: Your first emphasis is strengthening individual rights; ours is strengthening collective rights, thereby strengthening individual rights. Those have to be considered very seriously with respect to our development, our government and our institutions and the basic laws that we implement based on our traditions and values and so on. There is no simple answer to your question except to say that again we had tabled a document, Madam Chairman, dealing with the specific
construction of Indian law by Indians, areas that would have to be addressed including those areas you point out and how there would have to be accommodations in the Charter of Rights and certainly accommodations in applying international standards and laws.
Senator Tremblay: I have a supplementary to Senator Godfrey’s question about the relationship between the rights included in the Charter of Rights and aboriginal rights. What is your interpretation of section 25 which I read as a protection for aboriginal rights as collective rights as opposed to other rights granted by the Charter of Rights? I am referring to section 25 as it is now, which has been amended by substituting a new paragraph (b).
Ms. Opekokew: It does cover the principle in that it is a notwithstanding clause. My interpretation is as vague as anyone else’s. It seems to say that treaty and aboriginal rights should not be restricted by the other clauses within the Charter of Rights. I gather that alludes to all of them, including the mobility rights and section 6, for example. We would be concerned about our reservations. We would also be concerned about section 15. I suspect that section 25 attempts to deal with those concerns, but how specific it is, and how far it goes in protecting our collective rights is very much up in the air.
Chief Sanderson: Expanding on your question, we understand that the federal government is reviewing regulatory matters now as they impact on various issues such as forestry, with a view to bringing them into line with the Charter of Rights questions. We are concerned about that review. We are left out of that formal review. This is what the bilateral process is all about. We want to be involved in those kinds of legislative concerns. We can reach all kinds of political understandings, but if we are not going to be involved in the area of preparation of drafting legislation and terms to be used, then we are going to be miscommunicating again and we will be debating these points forever.
A lot of time has been spent throughout the history of the constitutional arrangements, and since it was patriated, discussing what the word “existing” means. We can say that it means everything. It can mean all the inherent rights for Indians. It can mean all the treaty rights or ancestral rights. To us, the word was coined for political convenience and accommodation.
Now you are struggling with your onw words and trying to agree on a legal definition of your word “existing.” You created that word the same as you did in trying to deal with “title” under the concept of aboriginal rights. The courts have refused to provide a formal, legal definition of “aboriginal,” have they not? They considered it to be a political definition to accommodate your concerns to extinguish rights that are owned and controlled by Indians or original peoples around the world. Let us debate those political words that are coined for convenience purposes in that light.
I listened to the Minister of Justice giving his opinion about what “existing” means. I will not accept that. accept it. I will never I would not accept that legal interpretation from your own courts because it was a political accommodation in the first place to avoid dealing clearly with those areas of inherent rights as we see them.
Senator Tremblay: I think it might be useful to re-read section 25. I just want to have your views about the kinds of protection this section is granting. It protects Indian rights. It reads:
The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including-
It then refers to the Royal Proclamation of October 7, 1763.
My interpretation of that is that there was a sort of paramountcy regarding aboriginal rights over rights and freedoms granted by the Charter. I interpret that to be a protection against the Charter regarding aboriginal rights. However, am I correct in that your interpretation is not exactly the same as mine?
Chief Sanderson: It does provide limited protection, but the greater protection will come when we effectively define “Indian rights” through Indian law created by Indians through Indian government and enforced through Indian institutions.
Senator Tremblay: Just in passing, I would note that the word “existing” rights is not used in section 25. It refers to any other rights or freedoms. It is very broad and generous. Of course, it does not provide a definition. We all know that definitions will emanate from the conferences which are to be held in the future. Am I right that you do not feel that there is enough protection contained in there against the Charter?
Chief Sanderson: No, that is why we are also continuing to discuss other clauses that should be entrenched in the Constitution.
I do not know if you have considered, as part of the concerns you are dealing with, the next step on constitutional talks and how to entrench Indian government in the Constitution versus the type of enabling legislation Parliament might provide. That is where we are now at in our discussions at different levels, but we have not been able to debate that fully with the government or the people responsible. Until we are able to debate that more fully, we cannot provide you with clear answers.
If we were, for example, to attach a schedule of the treaties to that document, then what more formal status would that give your discussions as non-Indians in your institution?
If we were to add to that schedule the division of power for Indian government and the degree of first-nation status in the
Constitution, then that affords more protection in terms of what we are talking about in our relationships.
If we consider the Constitution to be the “Bible”-excuse the expression-that is, the instrument to govern our country, we have to be more broadminded than that and accommodate the recognition of treaties, other agreements, Indian conventions that will be signed between Indians and Indian governments.
Again I would ask you all, honourable senators, how do you intend to really enforce, equality under your international standards in law without formally addressing a convention between the Assembly of First Nations and Canada that will have the force to implement and enforce those standards in newly-created institutions? I can certainly guarantee you that I will be as whiteheaded as Senator Steuart is by the time we get some movement out of some of these governments towards respecting some of the decisions that are being made in the courts or in the political institutions.
Senator Tremblay: Thank you, I see your point.
Senator Lapointe: Is Indian law the same throughout Canada?
Chief Sanderson: That is a common question, senator. We do have a number of principles under Indian law that are the same or similar. As I said earlier, we believe in teaching differences and recognizing differences. That will avoid discrimination laws and enforcement agencies. We would like to allow the respective Indian governments to be able to legislate over certain specific areas that would differ from community to community, if you like, or from region to region, on much the same basis as that on which you accommodate your education systems.
Senator Lapointe: You spoke of an Indian government, after which you spoke of Indian governments, in the plural.
Chief Sanderson: Yes, senator, it would be in the plural, unless you would like me to impose the Cree Indian Government on everybody across the country, and I am not about to do that.
Senator Steuart: You would then be named “Manywounds,” I’ll tell you that.
Chief Sanderson: With respect to your question, however, those are areas that we are now formally working out in such a way that they can be accommodated internally. I spoke earlier of a need to provide for greater internal accountability, and those areas are being fully debated. Following upon the treaty conference that is to be held today, tomorrow and Friday in Saskatoon, we will be involved in hosting an Indian government conference so as to allow a specific debate on those areas which you have raised. We will also be holding an Indian justice conference on October 11, 12 and 13. We are going to introduce and implement these institutions; we are not waiting for some formal approval from someone else, although it would be helpful. We feel that we have waited long enough. In dealing with your question, therefore, in specific terms, we
cannot afford to regulate all of our Indians under the same laws. Some of the laws will be similar, but there will very real differences.
Senator Lapointe: With 573 bands, how many Indian governments do you expect will be formed throughout Canada? How many Indian governments governing how many tribes do you contemplate?
Chief Sanderson: Those are the accommodations we have to make internally, using various instruments. In Saskatchewan we have 69 bands, 133 communities and five different tribes, but, by convention, we have been able to organize into fairly effective political institutions so that this fall we will be able to pass formal Indian law.
Senator Lapointe: Would you be satisfied with one Indian government per province?
Chief Sanderson: We would be satisfied with the recognition of First Nations and the respective governments thereof, because we recognize the political autonomy of each band and its government. In Canada at the present time, similar forms of government institutions are accommodated, but these institutions differ. Different laws are also accommodated. Suppose, for example, we were to add up all of the municipalities in southern Saskatchewan. Senator Steuart, how many would you have?
Senator Steuart: I suppose that there are between 300 and 400 municipalities in the entire province.
Chief Sanderson: Yes, and you are able to organize and orchestrate that political force into expanding its jurisdiction on behalf of the federal and provincial governments and thus create a new presence amongst us. They have similar laws and bylaws, but I was a policeman and I know what it is to enforce different bylaws. We reserve the right to be able to do that.
We also, as Indian governments, have to reserve the right to declare which laws will be applied, and where. Right now the system is such that provincial and federal law is applid at will, as if we did not exist as a people. You people, in your municipalities and provincial governments, accommodate the public interest by declaring what is public and private property for purposes of the application of law. We have not been able to reach that stage in formal discussions with the federal government so as to deal with those matters.
Therefore, the question you ask is, at the same time, both complex and fairly simple.
The Chairman: We are grateful to you, Chief Sanderson, and to your colleagues for appearing here today. You have certainly given us another perspective which we will consider carefully as we hear our various witnesses.
Chief Sanderson: On behalf of all of us I want to thank all honourable senators for being prepared to deal with some of the questions which are outside their terms of reference.
The Chairman: Honourable senators, the committee is adjourned until 8 o’clock this evening, when the Minister of Indian and Northern Affairs will attend.
The committee adjourned.
At 8 p.m. the committee resumed.
The Chairman: Honourable senators, we are pleased to have with us this evening the Minister of Indian Affairs and Northern Development. He had asked to be able to appear this evening rather than this afternoon as he had so many conflicting committee appointments. I realize that he will no doubt speak to us extemporaneously since he has not had an opportunity to prepare a long statement-nor indeed should he have to. We can put our questions to him, but I will be happy to have him commence with any statement he might wish to make.
The Honourable John C. Munro, Minister of Indian Affairs and Northern Development: Thank you Madam Chairman and honourable senators. I am pleased to accept your invitation to take part in the deliberations on the motion concerning this series of amendments to the Canadian Constitution respecting aboriginal rights. It is an auspicious occasion for me, as Minister of Indian Affairs and Northern Development, to appear before this committee when the issue of aboriginal rights is being discussed. It is significant because the last occasion, when a federal minister with responsibilities for Canadian Indians and Inuit people appeared before you, concerned the rights of Indian and Inuit people of northern Quebec. Some of you may recall that occasion. That was as long ago as June 7, 1977 and the subject under review was Bill C-9, to declare the James Bay and Northern Quebec Agreement valid.
As we were then pioneering in the fragile territory of native land claims settlements, so, too, were we continuing to break new ground in our recognition of the rights of the original inhabitants of Canada and in redefining government relationship with them.
Honourable senators, this occasion is a testament to the seriousness with which this government views unresolved questions of aboriginal treaty rights. Less than a year after the Constitution was proclaimed, first ministers were meeting with native leaders to deal with some of those unsettled questions. While one means of clarifying the obligations of Canadians to aboriginal people was introduced with the 1973 policy to negotiate native claims, other fundamental questions were left unanswered; and this government has decided that it is time they were answered. That is why you have before you a resolution establishing a constitutional process that will get those answers. This process promises a new certainty and peace of mind for Canadian natives and for her other people, a certainty achieved through the most binding and lasting means available, namely, by constitutional amendment.
I do not have to remind honourable senators of the opening remarks of the Prime Minister at the first ministers’ conference. He stated:
Canada’s constitutional process cannot be held to be fulfilled if these peoples (Indian, Inuit and Metis), whose
ancestors have been here the longest, find that their particular rights are not adequately reflected or protected in the Constitution … I see it as a task of high importance and priority for all, for as long as it takes to achieve a mutually satisfactory result in the Constitution.
The Constitutional Accord of last March signalled that the support for many in the Constitution respecting aboriginal rights was coming from all fronts: the Prime Minister, elected representatives of the federal government, provincial legislatures, territorial assemblies, and Indian, Inuit and Metis leaders. By engaging the First Ministers in a series of three more constitutional conferences over the next four years, we are putting the redefinition of the relationship between aboriginal people and government at the top of the national agenda. This has never been done before, and there has never been an opportunity like this before.
The signatories have made a commitment that aboriginal leaders will participate with the First Ministers before any amendments are made to those parts of the Constitution dealing exclusively with aboriginal people. This gives aboriginal people a unique and ongoing political say in constitutional changes of special concern to them. They will be partners in redesigning Canada so that their people are better accommodated within Canada’s legal and political framework and have a more direct role in redefining the government-aboriginal-relationship.
In conclusion, let me assure honourable senators that there is no conflict between this multilateral constitutional process and the parallel process that we call bilateral negotiations. This special relationship with Inuit and Indian people has been a constant in this country since the last century. It was a feature of the British North America Act and it continues to be the basis on which we are now proceeding. Provincial involvement in native discussions will not undermine this relationship that we have built together.
I know there are those among you who already endorse the leadership that the government is providing during this constitutional renewal process. You yourselves are not new to the process. You have participated actively in the process which began formally in 1978. By December, 1980, Indian, Inuit and Metis leaders appeared before the Special Joint Committee on the Constitution of Canada. In its final report, the joint committee recommended that specific provisions on aboriginal rights be included in the new Constitution. I will not elaborate those developments which, since that particular time have led us to this auspicious occasion tonight, but I am pleased to appear before you to the best of my ability any questions you may wish to put to me. Thank you.
Senator Steuart: Madam Chairman, I join with you in thanking the minister for making himself available this
evening. We have been dealing with the question of aboriginal rights and we recognize, from the last paragraph of his brief, that the minister is dealing with status Indians, Inuit and Metis and non-status Indians.
Mr. Minister, I presume from what you have said, that you are a proponent of, or that you back up, the proposal of bilateral negotiations which the status Indians are pushing for and insisting upon. What steps are you taking to see that that takes place? What funding are you prepared to advance in that regard?
Hon. Mr. Munro: Senator, that is why in my few remarks and they were few and took up no more than four or five minutes–I made the point, as I think you noticed, obviously, from your question, that I did not see this whole constitutional process as in any way undermining the bilateral process that historically has been of such importance in the relationship between the federal government and Indian people. That is why I emphasized it to the degree I did. As to the steps I have taken, I have clearly indicated them to David Ahenakew, the elected head of the AFN, and, certainly, when I was up at Rankin Inlet with the Inuit people at their Circumpolar Cconference during the summer, to both groups I said that I saw no impairment whatsoever to the bilateral process. I was there with my officials discussing funding and further arrangements with them, as indeed I was with David Ahenakew only half an hour ago. I was talking about bilateral funding, as traditionally we always have done in this department, and I gave him some assurance that we would negotiate with the AFN for funding necessary to carry on bilateral discussions with the government over the coming months. We will do that as a Department of Indian Affairs, with the AFN, because I consider it to be part of the mandate of the Minister of Indian Affairs and Northern Development to get funding of that kind underway. That would of necessity involve our trying to negotiate with the AFN that the bilateral negotiations be by and large, of a nature that would involve principally my department. Obviously, other departments do get involved in issues that involve my department, simply because there are such comprehensive areas, from education to housing and economic development, and so on; but principally it would be my department with peripheral involvement of other departments. That provides a good deal of latitude for funding. I indicated that we would be prepared to undertake that.
Senator Steuart: I have three questions, and I will then welcome any supplementaries. One question arises from the discussions we first had in the Senate and other discussions we have had in connection with these hearings. The first nations say that a question which they should deal with is namely, who, in fact, is recognized as a status Indian. The question of the equality of sexes still enters into it. In the view of the public, and of a great many other people including native groups, it is an important subject. I have a copy of a press
report, that may or may not be accurate that indicates that the Indian Affairs Minister, John Munro, will likely recommend that Cabinet end the federal-Indian act which discriminates against women. The press release goes on to say that there is a possibility that you may bring in legislation in either this session or the next session to end that discrimination. The question raised by native groups, particularly by status Indians, is, if this is done, what is the government prepared to do about the costs entailed, especially for status Indians?
Hon. Mr. Munro: I don’t think that the government can entertain instituting a new policy, no matter how meritorious it is, if at the same time we don’t entertain the cost of the implementation of that program. For instance, if it means a great number of people-in this case perhaps women who have lost their status and their children who return to the reserve and I suspect that that is what you are referring to-
Senator Steuart: Yes.
Hon. Mr. Munro: . . . and create a further demand on the chiefs and band councils for housing and other services, we will have to make provision for this or we would be somewhat hypocritical in our efforts to correct the situation.
So these provisions will have to be made sometime in the future depending on what this policy entails. I do not think we can go back and correct the injustices of the past. That is my long answer. My short answer is that we have to take into account the cost feature, and this subject has been discussed with native leadership. As you know, we negotiated the terms of reference of the standing committee with all parties and were involved in active consultation with the Indian leadership on the matter. It was decided by the standing committee after consultations and I am not suggesting that the Indian leadership agreed with everything that was done in that committee that this issue would be dealt with first and that they would report on it, which they have done. AFN representation to the committee was ex officio but they were very much involved in ensuring that their point of view on any given matter was adequately expressed. That report is integral to our thought processes.
The reason I am going into this matter in some detail is that, if and when we do proceed on this issue, it will be after a horrendous effort to try to get some input from the Indian leadership on a question that for obvious reasons is very sensitive, and I have endeavoured to the best of my ability to have that consultation.
Senator Steuart: The proclamation amending the Constitution of Canada states:
Paragraph 25(b) of the Constitution Act 1982 is repealed and the following substituted therefor:
“(b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired.”
I was involved for approximately 18 months with land claims in the Western Arctic, so I have some knowledge of what is
involved in land claims. I realize that that land claim is not settled. The agreement in principle signed in 1978 involves a very complex settlement of land, money, hunting rights. On top of all that, there is a proposed wilderness park which will cover the whole area of the Northern Yukon and there are now problems with regard to the port at Stokes Point. If I can take you from that claim to the James Bay claim which has been settled, it is my undestanding that the ink of the agreement was barely dry before both sides were talking about amendments and changes. If this proposed amendment becomes law, then those agreements and any other land claims that are settled, such as, for example, the COPE Agreement, will become part of the Constitution of Canad and will be cast in concrete. What effect will such an event have on the native people, who, having settled, then see changes they would like resulting in changes to the constitution which will involve the provinces. Using the example of the northern park, it boggles my mind to think that the entire definition of a wilderness park will become part of the Constitution of Canada. There will be many mistakes, as this will be a new area, and changes will be demanded. How do you foresee these demands for change with regard to amending the Constitution of Canada? Will we have to change the constitution to change what is basically a simple agreement between the aboriginal peoples and the Government of Canada?
Hon. Mr. Munro: I have made some preliminary investigations of this matter because it is my responsibility to anticipate a matter of this kind arising. Though in some ways it would be more appropriate for the Minister of Justice or the Attorney General to give a legal interpretation, I believe I am on safe ground in saying that lawyers might argue that, if both sides agree-taking into account the section of the constitution you have just read and since the agreement was signed by mutual consent in the first place to negotiate a change, the change can be made without going through the protracted proceedings of legislation. There was legislation embodying the James Bay Settlement and there will be legislation embodying COPE when it is finally settled. I think that it is clearly indicated that, if parties wish to agree to amendments of a certain nature, they can institute those amendments without making constitutional changes. Based on my preliminary investigations, that is my view of the matter.
Senator Steuart: I realize that it is normal procedure for any two parties who make an agreement to change that agreement with mutual consent-
Hon. Mr. Munro: That is what I am saying.
Senator Steuart: But what if someone comes along and says, “You have changed that and we don’t like it. You did not go through the process of amending the Constitution, when that is guranteed in the Constitution.” Could we not find ourselves facing a real problem in that regard.
Hon. Mr. Munro: The constitutional legal opinions of the Indians are the same as ours and I suspect that they would be the same on that question. Certainly, somebody can question the matter, but I don’t think they would get very far. I would
think that the legal people on both sides would feel that they were on safe ground in changing an agreement, if there was mutual consent. As you know, anybody can sue and go to the courts, if he so wishes, but I do go to the not think he would stand much chance of success.
Senator McElman: When this matter was discussed with the Minister of Justice this afternoon, the minister stated that the James Bay agreement and other similar agreements would not become part of the Constitution, though they are protected by the Constitution. From that comment I made the assumption that if the parties to such an agreement-and I think the minister was referring to a tripartite situation, federal, provincial and aboriginal peoples-were to re-negotiate any clause of the agreement it would not require a constitutional amend- ment. On the other hand, by being protected by the Constitution, no single party to the agreement could of its own make changes to the agreement-neither the two governments nor, indeed, the aboriginal people. The protection of the Constitution is there but it is not part of the Constitution; therefore, you do not have to go through the constitutional formula for a renegotiation.
Hon. Mr. Munro: Yes, I agree that mutual consent would be required, and if it is not there then the situation is quite clearly far more difficult. You are quite right on that and I agree with the Minister of Justice. The Constitution protects those agreements, and “protection” is the proper word.
Senator McElman: The James Bay Act was one of those few occasions in the Senate when I found myself closely allied to my good friend, the Honourable Jacques Flynn, in trying to change that section of the Act which called for the extinguishment of rights of those aboriginal peoples not then party to the agreement. You might be surprised, Mr. Minister, that, between us, Senator Flynn and I almost succeeded in turning it back, much to the consternation of the government.
I am sure you are aware that the premier of my province took rather extraordinary action in his legislature in recom- mending the resolution. He asked all members to vote for it but in protest voted against it himself, his being the only vote cast against the resolution. He said he did this to draw to the attention of all concerned that in his opinion the drafters-the bureaucracy-changed the intent of the First Ministers with respect to the clause dealing with equality of the male and female.
Is it your understanding that there was actually a change from the intent agreed upon by the First Ministers at that meeting?
Hon. Mr. Munro: No. I feel strongly that what was agreed upon is what is in the Constitution. I agree with the letters which followed from the national organizations, speaking principally of the AFN and the Inuit, which are covered by my particular mandate. They still want the matter further discussed. They want the Accord approved now even though they may feel it is still not adequate. We are agreed that it will be further discussed at the First Minister’s Conference but in the meantime they want to go ahead with the approval as it is
written. I am in agreement with that position. I do not agree with Premier Hatfield at all on that question.
Senator McElman: But you do agree that this matter, which has now been agreed to by all parties, should have further close study to ensure that the protections which everyone believes should be there will be there?
Hon. Mr. Munro: They asked for it and I think they understand that we are in agreement that that should be a very high priority in the discussions at the next conference, if indeed those organizations want it.
Senator McElman: In cases such as the landmark Lovelace case, which is presently before the UN, do you feel that those circumstances will be covered?
Hon. Mr. Munro: I believe that they will certainly be covered in the future. Clause 15 will automatically come into effect after a three-year period, and in terms of timeframes that is coming up on us fairly soon. Irrespective of the Accord before us now that will prevent situations such as this Lovelace case developing in the future.
Senator Haidasz: We have heard the minister this evening speak of particular rights of the aboriginal peoples. We have heard from other quarters the term “inherent rights”. Is the minister prepared this evening to give us a detailed list of all these rights to which he has referred?
Hon. Mr. Munro: If we were to look in the Oxford dictionary for the definitions of “inherent rights” and “aboriginal rights” we would probably find-and this is a bit presumptuous of me-that “aboriginal rights” refers to a first people’s attachment to land and resources and to additional patterns derivative therefrom. I think, senator, that you can extrapolate from there.
We are doing the best we can in terms of native leadership and ourselves in coming to grips with comprehensive land claims based on traditional use and occupancy. In the land claims settlement area we have reached agreement in principle in one case and are reaching agreement in some of the other cases. I am speaking particularly about the CIY. I use this as a vivid example of how the native leadership and the government are trying to reach land claims agreements and trying to put some flesh on what “aboriginal rights” may mean. Let me tell you that that is not easy, but we are doing it. It is a package of things. A purist talking about aboriginal rights may think it includes matters which traditionally would not be thought of as being included in that category. There are others who will always argue the contrary. We are speaking of land, surface rights, subsurface rights, hunting, fishing and protection of traditional life styles. We are talking about educational agreements and transfer payments of one kind or another. Under one master agreement we have signed as many as 50 subagreements.
Senator Steuart will tell you about all the subagreements which come under the COPE agreement covering housing, social assistance guarantees and CYI elders payments. This is in an ‘effort to reach a lasting settlement called a “comprehensive land claim” which is fundamentally designed to give an economic underpinning to Canada’s first peoples in that particular region of the country to ensure that they may participate fully in an independent way in the future with other Canadians without having to lean on governments, thus perpetuating the dependancy they abhor so much.
This is their right; it is their land which is embodied in the settlement and it is sufficient to give them an economic base to maintain themselves on an equal basis with the rest of the country, and for their children for the future. That is the rationale, and much of it is traced back to the operative definition of “aboriginal rights” and will be until such time as the native people and the government further define it. In a pragmatic, practical way, we are trying to make it work and trying to arrive at these settlements-and they want to get these things settled; they do not want to wait endlessly for constitutional development to define what aboriginal rights mean. They do not want to wait for years and years for court appeals. Bearing in mind the Eastern Arctic claim and the CYI claim, they are impatient to get at it so that they and their people can participate now.
We are doing the best we can, but when it will finally be settled so that somebody can answer your questions in a much more specific way will be up to the Indian people and the federal government to effect through the provisions we are here deliberating tonight. When this is approved through the Accord and is dealt with at future First Ministers’ Conferences and all the meetings intermittently between now and those conferences-at the official level, the political level and the ministerial level, the First Ministers’ Conferences will be coping with that very question, Senator Haidasz. I trust they will finally answer it. In this Constitution they talk about “aboriginal rights”, but they do not say what that means. If they knew, and were agreed on it, it would be in there, I can assure you.
Senator Haidasz: I wonder if the minister would care to recall the good old days of 1970, when he was the Minister of National Health and Welfare and I was a parliamentary secretary there at the time. I am sure the minister would agree that proper health care is an inherent right of the native peoples, and right now there is a big issue over an amendment to the Canada Health Act to improve our medicare system. Can the minister tell us whether anything is being done in that area to inform the native people of what they can expect in the new Canada Health Act?
Hon. Mr. Munro: No, in the sense that, if anything special is being done on major social issues of the kind that you have just identified, the Indian people have astute political leadership which can assess the impact of such issues. When issues other than purely native issues confront Parliament, if they
feel that it impacts on their people in any way, they make their feelings known in no uncertain terms. So I think they have their communication techniques which are just as sophisticated, if not more so, than the non-native populations in matters of that kind. I think that they are quite aware of the national debate on medicare at this time; certainly, they are as aware as anybody else.
Senator Haidasz: Mr. Minister, you did not make any reference to self-government. Have you considered self-government of the aboriginal peoples to be a right, or is that a constitutional matter which is dealt with in paragraph 37 of the Constitution in the resolution?
Hon. Mr. Munro: I do not think they are mutually exclusive. Judging from any discussions I have had with the native leadership, I think, by and large, that we can proceed down the road to implementing the concept of Indian self-government. Although complete accord is not possible within any groupand that is why I emphasized the bilateral process in my opening remarks, as referred to by Senator Steuart-I think we can proceed in both the manner the Indians want and bilaterally, and it is my hope that we have all matured to the point where we can do that without having to wait for the constitutional process.
The constitutional process is good, but it is long and tends to have to deal in generalities such as “aboriginal rights”. We give them constitutional protection and then we have to argue what that means. Through the bilateral process, perhaps we can do a lot of that work in advance and implement it bilaterally to the point where it can move up from there into the constitutional form and have the additional constitutional protection when it eventually gets around to that.
In the meantime, I think we can both use the bilateral process beneficially to do a lot of the work and perhaps get it done in a bilateral way and then have the constitutional process come in behind to perfect it. In that way, these processes can be mutually reinforcing and complementary.
Senator Haidasz: One last question, Mr. Minister. In the process of coming to grips with this constitutional matter of self-government for the aboriginal peoples, does the minister ever envisage provincial status for the Yukon and Northwest Territories?
Hon. Mr. Munro: Status for whom, senator?
Senator Haidasz: Provincial status for the Yukon and Northwest Territories. Would that stand in the way of achieving self-government for our aboriginal peoples?
Hon. Mr. Munro: It very well could, senator. I think this is something that the press and a lot of people, including political people generally in Canada, have missed. I am not at all satisfied that the native peoples north of 60 want provincial status. They want to avoid disputes and animosities wherever possible, and I do not blame them, but in a crunch they let it
be known that, until they get land claims settlements and until they know what their rights are in a very tangible fashion through the land claims settlements or through the constitutional ‘process of aboriginal rights, they are not likely to look favourably upon any federal government who will turn over land and resources, which are usually part of provincial jurisdiction.
Certainly, most people would not want provincial status unless they had the ownership of resources as all provinces have. However, the native peoples who are such a significant element of both territories, would not look favourably upon any federal government turning over mineral resources to the Yukon and the Northwest Territories, before a determination of comprehensive land claims, with all the implications that would have for aboriginal rights. They would accuse the government of betrayal on the basis that we were prejudicing their negotiations by turning matters over to another level of government prior to a settlement of their claims.
That could be the reason why a couple of years ago the Council of Yukon Indians insisted that I tell Mr. Pearson of the Yukon government that there whould no longer be any significant land transfers from federal crown lands to commissioner lands-in other words, handing more lands over to the jurisdiction of the territorial government of the Yukon. Because it was going to rock the boat too much on the Yukon land claims settlement, I was required to tell Mr. Pearson that I would not be prepared to approve any more transfers. That is an example of exactly what I am talking about, and what I think you are getting at.
Senator Haidasz: I know your department is busy, but, in view of all of these things happening with reference to the Constitution, is your department either overhauling or dismantling the Indian Act?
Hon. Mr. Munro: Yes we are. About a year ago, there was a very remarkable understanding among all three political parties in Canada. Also not very long ago and as a result of some very constructive consultation, if you like-if not “consultation”, let us say “discussions” with some native leaders-we obtained a mandate whereby a standing committee of Parliament could write its own terms of reference. That mandate was negotiated with all-party agreement and then accepted by the cabinet. That committee, with government approval, is now looking at the whole question of self-government for the Indian people.
Further to that, to break precedent, that was the first time-and some of our parliamentary historians can check on this-a standing committee of Parliament was comprised of Members of Parliament as well as native peoples. They had representation on the standing committee and they had the rights of all members except, of course, the right to vote because they were not elected representatives. They were ex
officio members of the committee and had full rights to cross-examine, and so forth.
That committee is now at the stage of making a report to Parliament, such report being prepared with input from native draftsmen.
I do not mean to say that the native peoples are locked into accepting the report when it is published, not at all, but certainly they have been involved in its preparation. I suspect that that report will be published in a couple of weeks, and that that report will put very heavy pressure on the government, if there is all-party agreement and native leadership approbation, to consider it on an urgent basis and think it through and give it some attention. I think that is a challenge that this government is prepared to meet.
Senator Steuart: I have a supplementary question for the minister. By the time the Inuit of the western Arctic, the central Arctic and the eastern Arctic are finished with their land claims, do you really think there will be much land left for the Government of the Northwest Territories? You do not have to answer that.
Hon. Mr. Munro: I can answer that: Yes, I do.
Senator Bosa: Mr. Minister, this afternoon we heard Chief Sanderson, President of the Federation of Saskatchewan Indians, make a presentation to the committee, along with two of his colleagues, namely Mr. Peter Manywounds and Ms. Opekokew. They presented a scenario which was well beyond the constitutional amendment before the committee. They spoke of self-government, the military consequences of that and of a constitutional veto. Those are their aspirations, but the presentation did not relate to the contents of the constitutional amendment which is before the committee for consideration at this time.
As the minister responsible for Indian, Inuit and Metis groups, could you tell us whether there are any objections to any specific parts of the resolution which is before the committee?
Hon. Mr. Munro: Would you mind repeating the last part of your question?
Senator Bosa: Are you aware, as the minister responsible for the Indian, Inuit and Metis groups, of any objection to any specific sections of the amendment before us, or whether they object to the overall amendment?
Hon. Mr. Munro: No. But I should say that I have just received some helpful advice and I am glad to have received it because it makes my answer more guarded. As a cabinet minister, I am responsible for all native organizations in Canada. I do not have any specific responsibility as Minister of Indian Affairs and Northern Development for the Metis. That, traditionally, has been the responsibility of the Secretary of State, because it avoids invidious conflicts the Minister of the Department of Indian Affairs and Northern Development could be involved in. That has proven to be a wise decision.
I simply want to correct you on that aspect of your question.
All of the traditional groups with which I have dealt in one way or another over the years, be it the AFN, the Inuit Tapirisat of Canada or the NCC, have indicated in writing that they want this resolution passed.
Senator Bosa: With no changes?
Hon. Mr. Munro: No, they want it passed as is. They want to get under way with the first ministers’ meetings and all other meetings leading into and from them to obtain further improvements. This is not the be all and end all by any means, but it is a good beginning and they want us to approve it.
I think that they have appeared before some of the provincial legislatures which have already approved the Accord and have indicated to those premiers and provincial politicians the same thing that they have indicated to us here.
There is a break-away group which may appear before this committee which may not agree with it, but I consider the national leadership as the legitimate body to listen to, and I think that they want us to pass it.
Senator Bosa: Then your overall recommendation, based on the knowledge you have to the aspirations of these representatives of the native people, is that we should pass this without amending it.
Hon. Mr. Munro: I think it would be most detrimental to the Indian people to have this amended, because we would then have to go back to the provinces with it which would spin things out intolerably, causing some slippage on this.
This is a new plateau on which they wish to build. They do not want to have to come back again and again to reach the plateau they consider they achieved in March of this year. So, bearing that in mind, I think any amendments to this would be harmful.
Senator Bosa: I am pleased to hear you say that. Section 35(4) states:
Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.
I heard you say earlier in answer to Senator Steuart’s question that there are cost considerations involved in the application of that particular section.
Are you aware whether there are any objections from the Indian, Metis and Inuit peoples to the equal treatment of male and female persons as far as aboriginal rights are concerned?
Are there objections on their part, or is this merely a question of dollars and cents?
Hon. Mr. Munro: Objections on the part of whom?
Senator Bosa: On the part of the aboriginal peoples. Are they objecting to having equal rights institutionalized?
Hon. Mr. Munro: That raises the question of who you mean by “they.” In my analysis, I would say that we are talking about certain people within the native community, as I know it, who might like to let themselves come to grips with it and deal with it without the necessity of politicians, mostly non-native ones, dealing with it. They realize that this is an embarrassing issue internationally and think that they could probably come to grips with it without us having to pass laws in Parliament.
I think most of them also realize, from a pragmatic point of view, that political imperatives insist that we do something about this now. We have dragged our feet on this for a long time hoping that we could come to grips with this.
A lot of this delay is, as they will remind you, the result of their wish to have a little more time to cope with it themselves. They also remind us, with a good deal of accuracy, that this type of thing come about because of the manner in which the Indian Act was drafted which embedded this type of so-called discrimination in the first place. So, they should not be held responsible for this or bear the brunt of these outbreaks by people who feel so injured by this perpetuation of discrimination.
You will get that type of feeling amongst some of the Indian leadership, but I happen to have made a value judgment here, and a very dangerous one, probably. I think the majority of the Indian leadership is prepared to accept this provided that they are involved in how it is worked out and is implemented without serious dislocation. They are probably prepared to come to grips with it and have it dealt with and finally resolved, even with some misgivings.
Senator Bosa: Has your department endeavoured to find out what constitutes a “female” Indian who would have “equal rights” under the proposed constitutional amendments? Is it the case of one female who breaks away and becomes a so-called non-Indian? Are the offspring of that female considered to be Indian? Is it at the first or second degree stage that you break off?
Hon. Mr. Munro: I have a paper going through cabinet now that I think comes to grips with the results of the discussions I have had with native leadership. I would appreciate it if the committee would let me get it through cabinet before I discuss it too publicly.
With all respect, if you could read a copy of the standing committee’s report-the report they gave with all party agreement, I believe, as to how we should cope with this discrimination question about six or seven months ago that that would give you all the hints you would need.
Senator Bosa: Mr. Minister, you spoke of the cost feature. How do dollars and cents relate to human rights and people’s rights as set out in the Charter of Rights? What part does the question of dollars and cents play in establishing equality? Is this a concern of the federal government and of the provinces, or is this a concern of the aboriginal peoples?
Hon. Mr. Munro: It is a concern of all of us, native and non-native, in the sense that here we are dealing situation where there with a are reserves in isolated areas. They are spread throughout the northern parts of some provinces where you cannot even get at by road. Thank goodness that the Indian people decided to live there. They have some presence in our part of the country but it is a pretty isolated area and the situation is a poverty situation that we are all trying to cope with. If it means there is going to be a greater load on the chief and band council in terms of expense for housing units, water and sewers, economic development and money to sup- port people on that reserve where ressources are already too thin, we have to cope with that. It is one thing to pass a law guaranteeing human rights that we all extol, but to do so in the realization that you are not prepared to back it up with adequate resources to make it a reality is the worst type of hyprocisy that I can think of. I think we have to deal with practical considerations like dollars or else the human rights that we entrench are meaningless.
Senator Lapointe: Do you have any idea of the approximate cost of these changes? Would it be billions or millions or hundreds of millions of dollars?
Hon. Mr. Munro: We have given it some thought and we have a rough calculation.
Senator Steuart: Is in the region of hundreds of millions of dollars or not?
Hon. Mr. Munro: Senator, I do not think it is in the hundreds of millions of dollars.
Senator Steuart: In an article I have before me you are quoted as saying it is $210 million.
Hon. Mr. Munro: I think that is misleading. Somebody asked me the question as to the cost if we wanted to go back and cure all the injustices of the past where Indian women have lost their status and have had children since they lost it. Of course, every law that we pass corrects an injustice of the past. If we tried to correct all the historical injustices, it would cost a fortune. I am assuming that when we pass this law it will correct the situation and such injustices will not be allowed to occur in the future. I think that is the point of the question I am asked by Senator Bosa. He is not asking what it would cost if we entertained any notion of redressing injustices of the past.
Senator Steuart: Madam Chairman, I think it is encouraging that they do not intend to pass human rights legislation without being prepared to face the consequences.
Senator Bosa: This is not the first time that the honourable minister appeared before a Senate committee and I hope he gets used to it and will join our ranks sometime in the future so that we will have a real expert on the subject.
My final question is the following: Section 31.1(b) states that the Prime minister of Canada will invite representatives of the aboriginal peoples of Canada to participate in the discussions on that item. Is this window dressing? Is that saying that they can present a brief and you will listen to it and then decide what you will do with whatever is before you? At what stage will the Indians have some influence on the decision as to what recommendations will be implemented or accepted? At what stage will they have some negotiating clout with the federal government?
Hon. Mr. Munro: There is an implication there that they do not have clout. I think they have had some real clout lately. If you watched television as I did as well as being at the conference, you would have appreciated that the native leadership were as articulate and as astute as any leadership I have seen at a first ministers’ conference for some time. I have attended all sorts of labour meetings and all sorts of negotiations at federal-provincial meetings and I think that they have used the political instruments rather effectively to achieve their ends. I cannot agree that they do not have clout. I think that relative to their numbers they have done surprisingly well.
Senator Bosa: I am sure that they have clout or otherwise we would not be dealing with this resolution on the proposed amendment. This particular clause says that the Prime Minister will invite representatives of the aboriginal peoples of Canada to participate in dicussion on that item. So they will have an opportunity to discuss it.
Hon. Mr. Munro: That is all they had at the last meeting. There was not exclusivity of discussion. The first ministers had other matters to discuss. As I recall, the native leadership captured the attention of the whole conference by the large successfully by and presentation and did rather well. These are guarantees that they will discuss. I do not see, Senator Bosa, how you could expect a group of first ministers to agree in advance as to what they will attain before they have even discussed it. I think that first ministers, as practical political people, are fully aware that the Indian people will be gearing up to meet the challenges of those three conferences and are prepared to make accommodations to meet their aspirations. I think there will be some real gains out of it.
Senator Lapointe: This afternoon we heard that we had re-written the Constitution without the input of the aboriginal peoples. Do you think we did not consult them enough during the joint committee sittings?
Hon. Mr. Munro: You will never get Indian leadership, any more than you will get any other leadership in Canada, when they are in a bargaining posture, which they continually have to be in, to say that they are happy with everything that they get; it undermines their bargaining stance for the next few
decades. I would not do it, and I would not expect it. I do not think them to do you should expect them to do it either, senator.
I think it is unrealistic to expect an Indian leader, with a dissatisfied clientele and facing some very trying situation, to indicate that he is completely happy with any situation. Sure, we have consulted. I think we have consulted as throughly with the native leadership on these breakthroughs as has been done at any time in Canadian history. From a historical point of view, I think we have done quite well.
Senator Lapointe: Are aboriginal rights based mainly on documents or do you also accept the oral tradition of their tribes?
Hon. Mr. Munro: I think even the courts are starting to accept some oral evidence now with respect to Indian claims. Yes, we do, senator.
Senator Tremblay: You do? That is a question.
Hon. Mr. Munro: Yes.
Senator Tremblay: Thank you.
Hon. Mr. Munro: You’re welcome.
Senator Steuart: That is the briefest question you have ever asked.
The Chairman: I think we would be well advised to close our hearing on that note. The minister asked if we would be good enough to end our meeting after an hour, and we have almost accommodated him on that point.
Mr. Minister, we are very grateful to you for having taken the time to attend this hearing at the end of a long, busy day. We thank you very much.
Hon. Mr. Munro: Thank you.
The committee adjourned.
Office of the Government Leader
P.O. Box 2703, Whitehorse, Yukon Y1A 2C6
September 2, 1983
Senator Joan B. Neiman,
Standing Senate Committee on
Legal and Constitutional Affairs,
The Senate of Canada,
Dear Senator Neiman;
Thank you for your gracious invitation to submit to you the views of the Government of Yukon on certain aspects of the proposed constitutional resolution on aboriginal rights.
Aboriginal concerns are fundamental to Yukoners. Twenty percent of Yukoners are aboriginal people. Today Yukon Indian people are in the final stages of negotiating a comprehensive settlement of their traditional claims. The Government of Yukon is concerned that the vague wording of some of the aboriginal rights provisions of the Constitution may prejudice the validity and ultimate success of this settlement, and that the proposed resolution does little to help this situation.
Yukoners were impressed with the spirit of good will which surrounded the March 1983 Constitutional Accord on Aboriginal Rights. In this regard, our Government was honoured to be a signatory to the Accord. Nevertheless, we had some ongoing concerns about the wording and possible effect of sections 35 and 37. We had hoped that the proposed resolution would alleviate some of these concerns. It did not do so. Indeed, some of the provisions in the resolution seem to assume a clarity in the original provisions that never existed. As a result, we in Yukon are moving toward completion of one of the most significant and far-reaching land claims agreements in the country, in an atmosphere of constitutional uncertainty.
Before we present our specific concerns, we would like to respond directly to the questions you have asked of us. Few of our responses are unequivocal, a reflection, perhaps, of the ambiguity of some of the proposed provisions and their uncertain constitutional context.
In response to the first question, we think it is certainly possible that a constitutional provision including rights pursuant to land claims agreements as treaty rights could be regarded as going beyond exclusive federal responsibility. For example, the courts could arrive at such a conclusion if they decide that the subject matter of land claims agreements is significantly different from that of the traditional treaties. The broad scope of modern land claims agreements and the inclusion of groups of people such as Metis might induce courts to conclude that these agreements are not precisely analogous to
Indian treaties, and are to some extent matters of shared federal and provincial (or territorial) responsibility.
In response to the second question, we think that the proposed provision including land claims agreements rights as treaty rights would probably not have the effect of entrenching land claims agreements in such a way as to require formal constitutional amendments before they could be changed. At first, it might seem that if treaty rights are entrenched in this way, this provision would have the effect of entrenching land claims agreement rights as well. However, if section 35(1) treaty rights are entrenched in this way, so are section 35(1) aboriginal rights. If section 35(1) aboriginal rights are entrenched in this way, then changes to these rights cannot be effected by land claims agreements alone: formal constitutional amendments are required. If the provision including claims agreement rights as treaty rights had been intended to serve as a new form of amendment process, enabling aboriginal rights to be changed by claims agreements alone, then “reentrenched,” the provision would have indicated this much more clearly. If this were the effect of the provision, it could not become effective without unanimous provincial consent because it would constitute, in effect, an amendment to the process for amending the Constitution. In sum, if aboriginal and treaty rights in section 35(1) are not entrenched, the provision including claims agreement rights as treaty rights will not entrench the former, and if section 35(1) aboriginal and treaty rights are entrenched, then at least in the absence of unanimous provincial consent, the provision will not take the place of the formal amendment required to give a land claims agreement constitutional validity in the first place.
Regarding question three, we think that a land claims agreement with groups of people who are mentioned but not defined in the Constitution, is on shaky ground. Since the Constitution has not defined Metis, Indian or Inuit people for the purposes of section 35, it will be up to the courts of law to do so. The courts’ definitions may well diverge from those employed in the various land claims agreements. Like the two major concerns of our Government discussed after our response to question four, the basis of this problem is in the Constitution Act, 1982, and the resolutions of 1983 does nothing to resolve it.
In regard to question four, we think that the proposed new subsection 4 of section 35 of the Constitution Act, 1982, would probably be held to override section 12(1)(b) of the Indian Act the moment subsection 4 came into effect. The new subsection would not be subject to the time constraints of section 32(2) of the Constitution Act, 1982. Its clear wording would appear to leave no room for the “constitutional umbrella” erected over
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section 12(1)(b) and similar Indian Act provisions as a result of the Supreme Court of Canada’s decision in Lovell.
As well as the difficulties implicit in our responses to the questions above, the Government of Yukon has two basic concerns about the wording of the aboriginal rights provisions of the Constitutional Act, 1982 which the proposed resolution of 1983 fails to resolve. The first of these concerns is for the initial constitutional validity of a land claims agreement such as that nearing settlement in Yukon. The second of these concerns is for the finality of agreements of this kind.
Our concern about constitutional validity is based on the possibility that the courts may conclude that section 35 entrenches aboriginal rights in such a way as to require formal constitutional amendment in order to make a change to these rights. Frankly, we have been surprised at the almost total lack of federal or provincial concern expressed in regard to the dramatic potential effect of such an interpretation on federal and provincial legislation in areas such as conservation and natural resources. Our immediate concern is that such an interpretation could render land claims agreements constitutionally invalid unless they are ratified by formal constitutional amendments. For an agreement such as that in Yukon, this would mean that a settlement agreed to by the federal government and the relevant territorial government and aboriginal people would be impossible to achieve without formal approval by two-thirds of the provincial legislative assemblies and the other formalities required by section 38. This formal approval might take years or decades to achieve, thus paralyzing or even killing an agreement desired by all the local parties affected.
For the reasons given in our response to question two, we feel that the provision including agreement rights as treaty rights is virtually ineffective if aboriginal rights are held to be entrenched in the sense described above, and none of the other provisions in the 1983 resolution does anything to resolve this problem. Indeed, because of its introduction of the verb “guaranteed,” the proposed new subsection 4 of section 35 may exacerbate the problem by increasing the possibility of this kind of entrenchment interpretation of section 35.
Our concern about finality is that further national constitutional conferences convened pursuant to section 37 of the Constitution Act, 1982 may result in national constitutional guarantees which duplicate, conflict with, or otherwise undermine those which have been negotiated and agreed to in land claims settlements in the various regions of the country. If these “comprehensive” settlements of claims based on traditional occupancy and use rights are no longer final, but can be overrun and overruled by national provisions derived not from specific occupancy and use claims but from national constitutional conferences, what is the purpose of continuing to negotiate and sign comprehensive land claims agreements?
We feel that the proposed resolutions of 1983 do little to remove this concern about finality. Although there is a provision in the Accord indicating intent not to prejudice bilateral or other aboriginal-government discussions or agreements, it is difficult to see how the parties can hope to realize this objective in light of the scope of proposed Agenda set in the Accord. Moreover, despite the request of our Government, no similar protection for land claims agreements has been included in the provisions in the resolution itself.
The Government of Yukon feels that there are two main possible routes out of the entrenchment problem, and its adverse consequences for land claims agreements. The first would be an addition to section 35 of the Constitution Act, 1982, as follows:
In the event of a conflict between the aboriginal rights referred to in section 35(1) and otherwise competent legislation, the legislation shall prevail to the extent of the conflict.
The second possible route would be an amendment to the Constitution Act, 1982, as follows:
Nothing in this Act shall prevent the various aboriginal peoples of Canada from entering into land claims agreements agreeable to them, subject to ratification in appropriate legislation.
The Government of the Yukon suggests that the finality problem for land claims agreement could be resolved by an amendment to the Constitution Act, 1982, as follows:
Where land claims agreements so provide, the aboriginal people to whom such agreements apply may elect to be subject to the provisions of such agreements instead of such aboriginal rights as may be defined and incorporated into the Constitution after April 17, 1982.
Without measures such as those suggested above, hundreds of millions of dollars and years of efforts could be wasted on comprehensive claims agreements which prove to be neither comprehensive nor final, and face the prospect of constitutional invalidity. The constitutional resolution before us now could have averted these problems. Instead of doing so, it compounds the original risks and uncertainties with ambiguities of its own. The Yukon Government asks the Senate, with its historic ties to the regions of this country, to draw attention to these concerns before it is too late.
Government of Yukon
Minister of Justice
Attorney General of Saskatchewan
The Honourable Joan B. Neiman,
Chairman, Standing Senate Committee
on Legal and Constitutional Affairs,
The Senate of Canada,
August 24, 1983
Your letter of July 21, 1983, to Premier Grant Devine regarding the resolution to amend sections 25, 35 and 37 of the Constitution Act, 1982, with respect to aboriginal rights has been referred to me for response.
I note that you pose several questions regarding the proposed resolution which raise issues of constitutional law and statutory interpretations. Frankly, I am reluctant to simply provide you with the legal opinions of officials in my department on these issues since I am sure that this would merely duplicate the legal advice available to you through other channels.
I can advise, however, that as a government, we are satisfied with the terms of the resolution and we are convinced that the proposed amendments represent a positive step towards identifying and defining the rights of the aboriginal peoples of Canada. In particular, we do not feel that the proposed amendment with respect to land claims agreements represents a significant de parture from the current state of the law regarding aboriginal and treaty rights. Rather, the proposed amendment will merely ensure that present and future settlements will attain the same legal status as existing treaties, no more and no less. With respect to the equality rights clause and its impact upon section 12(1)(b) of the Indian Act, since federal legislation is at issue, I am sure that the committee will receive the appropriate legal advice from federal officials.
In closing, let me add that Saskatchewan is committed to working with other governments and with the representatives of the aboriginal peoples at future First Ministers’ Conferences to achieve resolution of the many complex issues which remain outstanding regarding the constitutional rights of our aboriginal peoples. No doubt many of the uncertainties which may now exist regarding aboriginal and treaty rights will be dealt with through that process and I urge the Senate to endorse it.
c.c. Premier Grant Devine
CHIEF SOLOMON SANDERSON,
FEDERATION OF SASKATCHEWAN
SENATE COMMITTEE ON
LEGAL AND CONSTITUTIONAL
SEPTEMBER 7, 1983
This submission is from the Federation of Saskatchewan Indian Nations and will cover the treaty position of the Indian peoples of Saskatchewan. Mr. David Ahenakew will cover the national position of later submissions.
In your letter to the Assembly of First Nations, you covered a series of questions you would like us to answer, and the first covers the term “existing aboriginal rights”. Treaties were entered into by the Indian nations to reserve lands, and resources to themselves, and to guarantee their way of life in perpetuity. In other words, our ancestors through their treaties were confirming what you call “aboriginal rights” rather than extinguishing their land rights as is the interpretation of the non-Indian Canadian courts. This great difference in interpretation between our peoples and your governments is the basis for the need for an on-going forum to discuss constitutional matters that directly affect aboriginal peoples established in the “1983 Constitutional Accord on Aboriginal Rights” which is embodied in the Resolution to amend Sections 25, 35 and 37 of the Constitutional Act, 1982, you are now reviewing. The first ministers and the First Nations are being responsible to allow themselves such a long process of trying to understand each others positions. They are not “giving carte blanche to an agreement between aboriginal organizations and the government to changes about which they know nothing”. (Senator Steuart) Instead they are establishing a process in order to know and to achieve a common solution.
In answering your first question, we will identify our interpretation of treaty rights, from which you can get a sense of the vast differences from your courts’ interpretation and hence your government’s position.
Within the term “existing aboriginal rights” as later con- firmed by both sides within the treaty making process, we include our inherent right to self-government, and lands and resources which were retained as the infrastructure for the retention of our way of life within the Canadian system.
“Treaty” is a word that Indian people have heard since their first contact with non-Indians. Although “treaty” is not an Indian word, the idea of treaty-making was well known in our past. Indian nations made formal agreements with other Indian nations long before whites came to North America. As with all people, Indians found that it was occasionally necessary
to settle differences among themselves by establishing guidelines for each nation’s international behaviour, and by promising to follow them.
A treaty is a binding, legal agreement between two or more sovereign nations. Treaties have been utilized as long as nations have existed. They are made because of the need for mutual understanding and agreement. Usually, the subject matter of treaties relates to one of the following:
1. Peace and Friendship
2. Military Alliance
Indian peoples, therefore, clearly entered into treaties with the Europeans on a nation-to-nation basis.
THE SASKATCHEWAN INDIANS’ POSITION
The Indian peoples of Canada and the United States generally have a common view that the exercise of the treaty-making power by Great Britain and the United States is in itself the recognition of an Indian group (whether designated band, tribe, or nation) as an independent, sovereign power.
Your Supreme Court of Canada has recently in Nowegijick v. Her Majesty the Queen handed down in January 25, 1983, followed United States jurisprudence on the interpretation of treaties. In that case it was stated that,
“It is legal lore that, to be valid, exemptions to tax laws should be clearly expressed. It seems to me, however, that treaties and statutes relating to Indians should be liberally construed and doubtful expressions resolved in favour of the Indian. If the statute contains language which can reasonably be construed to convey tax exemption that construction, in my view, is to be favoured over a more technical construction which might be available to deny exemption. In Jones v. Meehan, 175 U.S. 1, it was held that “Indian treaties must be construed, not according to the technical meaning of their words, but in the sense in which they would naturally be understood by the Indians”.
The United States Supreme Court in Worcester v.Georgia, stated that international law is invoked by the Europeans when entering into treaties with the Indians:
The words “treaty” and “nation” are words of our own language, selected in our diplomatic and legislative proceedings, by ourselves, having each a definite and understood meaning. We have applied them to Indians as we have applied them to other nations of the earth: they are applied to all in the same sense.
Throughout the poltiical history of Indian nations and the colonial powers, the struggle over which government would prevail in a particular situation has been crucial. Which power may exercise sovereign powers has sometimes been determined by military force, and at times by political arrangements in the form of treaties and agreements. The result of these struggles was that powers were dispersed among the various units of government. Indian governments reserved power to themselves in certain situations: ” … and they will maintain peace and
good order between each other and also between themselves, and other tribes of Indians … ” (Treaty #6, 1876).
The treaties are evidence of the distribution of powers established in our early relations. It becomes important, then, to understand each side’s motivation as to the terms of the treaties. The point to remember, however, is that all of the powers were held by the nations and continue to be held residually not the Canadian or any other Government. Whatever powers the federal government may exercise over the Indian nations it received from the nations, not the other way around. What then did Indians give to the Canadian Government, and what did they retain for themselves? Because the motives of Indian people are not easy to ascertain, they must be inferred from speeches recorded as the treaty councils or through oral history. Furthermore, Indian motives have to be understood in the context of specific Indian cultures, the conditions of the day such as local policies and political ambitions, and the strength or understanding of the Indian nations, all of which affected the consensual nature or otherwise of the written treaty or agreement, or of promises which were not properly recorded. Such variables are the evidence by which we can understand the acceptance or not of the treaty terms.
The Indian Nations’ position in Saskatchewan is that they effectively controlled identifiable territory within those lands now known as Canada. Within such territory their Bands or Tribes exercised government over their peoples. This government had political, economic, adjudicative and military powers as well as structured forms for decision-making. These Bands or Tribes were Sovereign within their territory, not being subject to any other power, and under no other effective control. By their arrangements and compacts with each other and with the British Crown, they demonstrated their authority and capacity to enter into treaty relations as subjects of international law.
The British Crown acknowledged the title of the Indians to the territory. At no time was it claimed that such territorial rights could be extinguished by occupation or conquest. On the contrary, it was declared in the Royal Proclamation of 1763 and afterwards that all dealings with the Indians were to be on the basis of mutual respect and consent and Indian lands were only to be acquired by the Crown with such consent. Without it, no individual subject of the British Crown could purchase, settle upon or take possession of Indian land. Neither might provincial governments grant patents of land or survey warrants, At no time did the Crown express any doubt as to the capacity of the Indians to enter into Treaties, itself choosing to designate the instruments as Treaties, rather than as agreements or contracts.
The British Crown, rather than any department of government or ministry, entered into the treaties. The negotiations leading to their conclusion were conducted on the basis of mutual Sovereignty. Mutual acceptance of them was solemnly accompanied by ceremonies appropriate to the conclusion of international treaties. Further there have been adhesions to
these treaties. This is the appropriate method for later participation by other parties in international treaties.
By the treaties, the Commissioners acting on behalf of the Crown agreed to the Indian nations’ retaining the following:
(1) To reserve or set aside for the sole and exclusive use of the respective Bands or Tribes plots of land to be allocated in the manner prescribed in the respective Agreements.
(2) That the lands so reserved would only be sold, leased or otherwise disposed of by the Crown for the use and benefit of the respective Indian Bands or Tribes, with their consent thereto first had and obtained.
(3) To provide medicine chests and maintain schools for the Indian inhabitants of the reserves, and assistance in economic development.
(4) That the Bands or Tribes should have hunting, fishing, trapping rights over the lands referred to in the Treaties.
During the preliminary negotiations and in order to induce the Indian nations to execute the treaties, the Commissioners agreed orally that the Indians could also retain the following powers, and which powers are part of the treaties:
(1) Their tribal autonomy would be respected and they would suffer no direct or indirect compulsion to alter their traditional ways of life.
(2) They would continue to enjoy the unrestricted rights to hunt, fish, trap and gather over their traditional lands (whether ceded or not), to the exclusion of non-Indians.
(3) They would continue to enjoy all sub-surface rights in respect of their traditional lands.
(4) They would be provided with prompt and adequate relief in times of famine, and proper medical care, and those who were aged or infirm would receive all necessary attention.
(5) They would not be conscripted into military service nor taxed without their consent.
The Saskatchewan Indians maintain that the Royal Proclamation of 1763, which has the force of law and has never been repealed, applies to the lands which now make up Canada. The Proclamation refers to “the several nations or Tribes of Indians with whom we are connected, and who live under our protection: and to “certain lands which were reserved under our Sovereignty, protection and dominion, for the use of the said Indians.” The Proclamation established a monopoly by the Crown on the acquisition of Indian lands, so as to avoid the “great fraud and abuses” committed upon the Indians in previous dealings. By this the Crown acquired greater rights and duties in respect of the Indian Bands or Tribes than it possessed in respect of any of its other subjects in Canada.
While the Saskatchewan treaties were signed, it is clear that the Indian nations were the supreme military force. As such, both sides agreed to settle their differences, and to define their jurisdictions by entering into a treaty on a nation-to-nation basis as opposed to engaging in hostilities. This arrangement is a clear incident of international relations. More importantly, by entering into a treaty-making arrangement as opposed to a
contract, by instance, the Crown respected the Indians’ sovereignty. By agreeing to protect the “way of life” they were recognizing an unceded right to self-government derived from Indian nations, sovereignty.
Your interpretation of “existing aboriginal rights” is unclear. The purpose of the word “existing” is unclear and we are told on the one hand it means nothing. Our position will be expanded by Chief David Ahenakew.
Your second question appears to focus on on-going processes within the constitution. We submit that the early treaties established a process for reviews to accommodate changes. This exists today and there continues to be opportunity for treaty related negotiations.
Where a term was not expressly considered, it was retained by the Indians as an “inherent right”. As such rights which become relevant in today’s world, must be included in the bundle of rights reserved by Indian peoples.
We have received support from the courts. Because of the recent Canadian Supreme Court reference to U.S. jurisprudence we must review their precedents.
In recognition of the cultural differences and disadvantages under which Indians operated during treaty negotiations, several rules of construction have been developed by the United States courts to interpret Indian treaties. In the landmark decision of Worcester v. Georgia 31 U.S. 350, 393 (1832) the Supreme Court stated that, “the language used in treaties with Indians shall never be construed to their prejudice.”
In R. v. White and Bob in 1966, the Canadian courts expressly adopted the above clause.
Since Worcester v. Georgia, the Supreme Court has developed a set of rules for interpreting Indian treaties in general have been fair to Indian people. The courts have recognized that the wording of treaties did not always coincide with what was told to the Indians at the signing ceremony. United States courts have also recognized the difference between written treaties and the oral traditions of Indian nations, and have made an effort to compensate for the difference.
In accord with the above, the following interpretive doctrines have been carved out by the courts:
1. In interpreting Indian treaties, ambiguities are to be resolved in favor of the Indians. In McClanahan v. State Tax Commission of Arizona 411 U.S. 164, 174 (1973) the Supreme court held that Arizona could not impose its state income tax on a reservation Indian who earned her entire income on the reservation. The treaty between the Navajo and the United States which the court was called upon to interpret nowhere explicitly stated that the Navajos were to be free from state law or exempt from state income tax. However, the court interpreted the treaty as follows:
The treaty nowhere explicitly states that the Navajos were to be free from the state law or exempt from state taxes. But the document is not to be read as an ordinary contract agreed upon by parties dealing at arms’s length with equal bargaining positions. In return for their promises to keep peace, this treaty “set apart” for “their permanent home” a
portion of what had been their native country.” Williams V. Lee, 358 U.S., at 221, 79 S. Ct., at 271.
In Winters v. United States 207 U.S. 564 (1908) although water rights were not explicitly reserved by the Gros Ventre and Assiniboine bands or tribes in May 1888 agreement whereby they ceded their lands in exchange for the creation of the Fort Belknap Indian Reservation, these water rights were found to be implied through application of the above stated interpretive canon.
In finding that water rights should be interpreted to be implicit in the agrement, because they were necessary for the purposes for which the reservation was created, the court reasoned as follows:
By a rule of interpretation of agreement and treaties with the Inians, ambiguities occuring will be resolved from the standpoint of the Indians. And the rule should certainly be applied to determine between two inferences, one of which would support the purpose of the agreement and the other impair of defeat it.
2. Another principle in interpreting Indian treaties is that the terms of a treaty are to be interpreted or construed not according to the technical meaning of the words, but in the way in which they would naturally be understood by the Indians at the time of signing.
3. Indian treaties must be liberally interpreted in favor of the Indians. This principle has led the Supreme Court to extend the original rule that technical terms should be construed in the sense they would naturally be understood by the Indians, to include the whole treaty in general. In Choctaw Nation and Cherokee Nation v. State of Oklahoma 297 U.S. 620,630-631, (1970) discussed, supra, the Supreme Court said:
The Indian Nations did not seek out the United States and agree upon an exchange of lands in an arms length transaction. Rather, treaties were imposed upon them and they had no choice but to consent. As a consequence, this Court has often held that treaties with the Indians must be interpreted as they would have understood them … and any doubtful expression in them should be resolved in the Indians’ favor.
4. Finally, that the treaties with Indian tribes are of the same dignity as treaties with foreign nations is the principle which has been confirmed by the supreme court of the United States. When critics complained that Indian tribes were not “nations” in the European sense, the Supreme Court in Worcester v. Georgia responded that the terms “treaty” and “nation” must be applied to Indian equally. The court recognized that Indian nations were “distinctive political communities, having territorial boundaries within which their authority is exclusive, and having rights of all lands within those boundaries”. Because of this notion of distinctive political communities, the Indian nations of the United States have never lost their sovereignty, and the non-Indian American laws continue to accept that status. As such the United States Indian governments have preserved their political, adjudicative
and other institutions. They can make laws in all areas of their jurisdiction.
However, the Government of Canada has chosen to define and identify the rights in express consultation with the Indian peoples as opposed to leaving it to the courts. The courts prefer this process as recently stated in Her Majesty, The Queen v. Guerin by the Federal Court of Canada (December 10, 1982) which left the discretion on how the government chooses to discharge its political responsibility to the Indians to the Government.
Indian people prefer that treaty rights are constitutionalized but that the procedure for defining those rights must include a process for their consent, The specific process for constitutional amendment must be developed at the on-going process as it is now premature to do so. We will now provide you with short answers to the rest of your questions.
3, 4 and 5. Our ancestors have already worked out a binding definition of the citizens of our nations. Historically, the beneficiaries of the treaties were determined in consensus by Chiefs, Headmen and Commissioners. The treaties were seen to ensure to the benefit of the descendants of the signatories as determined by the internal political rules of the nation or community.
The Assembly of First Nations of which the Federation of Saskatchewan Indian Nations is a member agreed to include that provision as a guideline to our inherent right to reserve the power of deciding our citizenship to ourselves as nations. We, for instance, believe that a person’s birthright even if marrying outside his/her nation is paramount and that guarantee would be included in our laws. This matter of First Nations citizenship will be pursued at the Constitutional discussion as agreed.
6. We, in Saskatchewan, speak as a common voice through the Federation of Saskatchewan Indian Nations; therefore, our advice can only be based on our experience as to the determination of representation.
The Federation of Saskatchewan Indian Nations is currently composed of Indian groups which have been active in working for the rights of Indian peoples since the mid 1900’s. In 1944 the Saskatchewan Indian Association was formed. In the following year the Protective Association for Indians and their Treaties was formed. In 1946 these two associations merged and became known as the Union of Saskatchewan Indians. Shortly thereafter, in 1947, the Queen Victoria Treaty Protection Association was formed. At a meeting in October 1958, the Queen Victoria Treaty Protective Association and the Union of Saskatchewan Indians joined forces to become the Federation of Saskatchewan Indians. Since that time, the FSI an its successor-the FSIN-have been the sole representative bodies of the Indians of Saskatchewan.
The Federation of Saskatchewan Indian Nations was constituted as the legislative assembly of the Federation of Saskatchewan Indians by Convention dated 15 April 1982.
The passage of the Convention and Charter represented the culmination of the reorganization of the Federation of Saskatchewan Indians over a seven year period. From 1975, the bands ve expressed their desire for the organization to reflect their final authority. Since 1966, the governing document of the FSI had been its articles of incorporation under the Societies Act. The powers and duties of the FSI were designed to accommodate the Societies Act, not the membership, and because of incorporation the FSI, by law, lost its “Indian identity.” From the mid 1970’s onwards, therefore, the FSI coordinated many meetings to identify the common interests the bands.
The central reason for the establishment of the FSIN was the belief that the Chiefs and Councils are the representatives of the Indian governments of our nations, and that a machinery must be established to assist their individual and collective governments. The Chiefs and Councils were conscious of the need to unite in a common front to protect and preserve their Indian way of life. This inspired them first to reorganize into district or agency councils. There are six District councils and one Agency Council representing the bands of the areas. The Councils are named after their respective areas and also retain their FSI designation-for example, the “Shellbrook Agency Chiefs of the Federation of Saskatchewan Indian Nations.” District or agency representatives are members of the provincial FSIN executive, and each Council has an administrative office from which it operates programs. The powers, duties, and responsibilities of District and Agency Councils are codified in their Conventions and finally into a provincial convention.
Each convention clearly confirms that the Indian Government powers are at the local level, and that the FSIN is the collective machinery established to enhance the local powers.
The Honourable Mark MacGuigan, P.C., M.P., Minister of Justice;
The Honourable John C. Munro, P.C., M.P., Minister of Indian Affairs and Northern Development.
From the Prime Minister’s Office:
Mr. Pierre Grave lle, Deputy Secretary to the Cabinet (Federal- Provincial Relations).
From the Federation of Saskatchewan Indian Nations:
Chief Sol Sanderson, President;
Ms. Delia Opekakew, Solicitor of the Federation;
Mr. Peter Manywounds, Sarcee Band, Council Member.