Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, 32nd Parl, 1st Sess, No 70 (8 September 1983)
By: Canada (Parliament)
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Thirty-second Parliament, 1980-81-82-83
SENATE OF CANADA
Proceedings of the Standing
Senate Committee on
The Honourable JOAN NEIMAN
Thursday, September 8, 1983
Issue No. 70
Second proceedings on
The 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 Paragraph 25(b) of the Constitution Act, 1982 is repealed and the following substituted therefor: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, 1967, 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 discussion 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:
“61. 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 now 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
THURSDAY, SEPTEMBER 8, 1983
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 9:10 a.m., the Chairman, the Honourable Senator Joan B. Neiman, presiding.
Present: The Honourable Senators Deschatelets, Flynn, Frith, Godfrey, Haidasz, Lapointe, Neiman and Tremblay. (8)
Present but not of the Committee: The Honourable Senators McElman and Steuart.
In attendance: Mrs. Barbara Plant Reynolds and Mr. Bruce Carson, Research Officers, Research Branch, Library of Parliament.
The Committee resumed the examination of the subjectmatter of the Constitution Amendment Proclamation, 1983.
From the Native Women’s Association of Canada:
Ms. Donna Phillips, Member of the Constitutional Committee of the Association.
From the Council for Yukon Indians:
Mr. Dave Joe, Chief Negotiator;
Mr. Harry Allen, President.
From the Native Council of Canada:
Mr. Smokey Bruyere, President;
Mr. Gary P. Gould, Chairman of the Constitutional Committee of the Council.
On direction of the Chairman, the brief of the Council for Yukon Indians is printed as an appendix to this day’s proceedings. (See Appendix 70 -A).
Each witness made a statement and answered questions.
At 12:55 p.m., the Committee adjourned until 3:15 p.m. this afternoon.
At 3:25 p.m., the Committee resumed.
Present: The Honourable Senators Flynn, Frith, Godfrey, Haidasz, Lapointe, Neiman, Stollery and Tremblay. (8)
Present but not of the Committee: The Honourable Senator Steuart.
In attendance: Mrs. Barbara Plant Reynolds and Mr. Bruce Carson, Research Officers, Research Branch, Library of Parliament.
From the Meets National Council:
Mr. Fred House, President, Louis Riel Metis Association of British Columbia;
Mr. Clem Chartier, National Representative of the Metis National Council;
Mr. Don McIvor, President, Manitoba Metis Federation.
Mr. House made a statement and he, and the other witnesses, answered questions.
At 5:10 p.m., the Committee adjourned until 8:00 p.m. this evening.
At 8:05 p.m., the Committee resumed.
Present: The Honourable Senators Godfrey, Haidasz, Lapointe, Neiman, Stollery and Tremblay. (6)
Present but not of the Committee: The Honourable Senator Steuart.
In attendance: Mrs. Barbara Plant Reynolds and Mr. Bruce Carson, Research Officers, Research Branch, Library of Parliament.
From the Inuit Committee on National Issues:
Mr. John Amagoalik, Co-Chairman;
Mr. Charlie Watt, Co-Chairman;
Mary Simons, President, Makivick Corporation, Kuujjuaq, Que.;
Mr. Mark Gordon, Representative.
Mr. Amagoalik made a statement and he, and the other witnesses, answered questions.
At 9:05 p.m., the Committee adjourned until 8:00 p.m., on Tuesday, September 20, 1983.
Clerk of the Committee
Ottawa, Thursday, September 8, 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 9 a.m. to consider the said subject matter.
Senator Joan Neiman (Chairman) in the Chair.
The Chairman: Honourable senators, this morning we will hear from the Native Women’s Association of Canada represented by Ms. Donna Phillips and Mrs. Leona Blondeau, Ms. Phillips, who is on the constitutional committee of that association, will make the presentation this morning.
Ms. Donna Phillips, Native Women’s Association of Canada: Thank you, Madam Chairman. Honourable senators, the Native Women’s Association of Canada wishes to express its thanks to the members of the committee for giving it an opportunity to address once more the concerns the members have regarding the Constitutional Accord. The following wording is now part of the 1983 Accord: “Notwithstanding any other provisions of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons”. That is definitely much more limiting than the wording endorsed and tabled by the NCC, the ICNI, the Native Women’s Association of Canada and some of the provinces.
It is our understanding that the negotiating process leading up to the signing of the Accord affirmed three major points: First, the inclusion of the word “Notwithstanding;” second, the placing of the equality clause in section 35, within Part II, under “Charter of Rights of the Aboriginal Peoples”; third, the rights are guaranteed equally to male and female persons. However, in the urgency of the moment a careful analysis of the effect of the wording was not scrutinized before the signing of the Accord. Although the constitutional amendment proclamation, subsection (4), offers immediate guarantees and protection of the equality rights upon the passing of the resolution by the Senate, the House of Commons and provincial legislatures, the Accord limits the equality rights to existing and treaty rights as specified in subsection (1) of section 35, Part II, under Rights of Aboriginal Peoples.
There appeared to be apprehensions surrounding the equality rights clause which resulted in a lack of consensus and support for the current amendment. We have expressed concern that the equality rights amendment, subsection (4), will not be passed by the Senate, the House of Commons and the provincial legislatures prior to the December 31, 1983, deadline.
To avoid any postponement of the equality rights resolution by all parties involved, the Native Women’s Association of Canada finds the current wording of the Accord to be an immediate and interim solution for those rights that have been or may be acquired by way of land claims settlements. We recognize that the equality rights principle acknowledges existing aboriginal and treaty rights to be guaranteed to male and
female persons; however, we are aware that the current amendment will need to be amended as future rights are identified, defined and added to section 35 in the ongoing process.
The Native Women’s Association of Canada finds it necessary to amend subsection (4) to ensure that those future rights are guaranteed equally to male and female persons. There is currently no interpretation, explanation or clarification to the word “existing”; therefore, we cannot support the words referred to in subsection (1). However, taking into account the time, energy and good faith of the signatories to the 1983 Accord, the Native Women’s Association of Canada is satisfied to deal with its concerns during the course of the ongoing process.
We urge this committee to pass the resolution approving the Accord as swiftly as possible so that we may proceed without delay.
Thank you for your attention.
The Chairman: Thank you, Ms. Phillips.
Senator Deschatelets: I understand that you have expressed some reservations about certain aspects of the resolution, but am I correct if I sum up your submission as stating that, whatever your reservations are, you are asking that this resolution be passed? Is that an accurate assessment of your submission?
Ms. Phillips: Yes.
Senator Lapointe: A few months ago a group of native women appeared here who were opposed to equal rights. They said that, if an Indian woman were to marry a white man, she would have to pay for that and would have to leave the reservation. They were very articulate in their submission to us at that time.
Do you think that that group constitutes a minority of native women, or do you consider that to be an important element?
Ms. Phillips: No, although we have heard the same thing in various parts of Canada over the past year or so. As far as we are concerned, the equality clause does not refer to section 12(1)(b) of the Indian Act. We have asked that the equality clause be placed in section 35 because we do not believe that sections 15 and 28 protect us enough. There are many things that will happen when the rights of the aboriginal peoples are defined and agreed to under section 35. We need the protection of equality in that section, not just for Indian women who marry non-Indians, but for Indian women who live all across Canada-even those who live on the reservations. There is inequality because of the legislation that was imposed upon the bands, not just because of section 12(1)(b).
Senator Lapointe: You speak of future rights, and you say you also want to protect existing rights. What future rights are you speaking of?
Ms. Phillips: Those could be defined as what might result from the ongoing process. I think it is premature to secondguess what is going to be included in section 35.
Senator Lapointe: I ask that because it is a little obscure when you ask for the protection of existing rights and then include the term “future rights”.
Ms. Phillips: No one has defined what “existing” means, and until that is done we have to have a guarantee of equality in section 35.
Senator Lapointe: Your group is composed of status and non-status Indians, and that is why you do not benefit from moneys from the Department of Indian Affairs and Northern Development and why you are sponsored by the Secretary of State.
Ms. Phillips: Yes.
Senator Lapointe: So your association is composed of two native women’s groups?
Ms. Phillips: Three.
Senator Lapointe: Who are they?
Ms. Phillips: The status, non-status and Metis women.
The Chairman: May I ask Ms. Phillips to give us some numbers?
Ms. Phillips: The National Women’s Association represents provincial associations across Canada and in each of the territories. Those groups vary in size. Since I am from Ontario, I will use that group as an example. The Ontario association represents approximately 1,000 to 2,500 people at various times. We represent 47 locals in Ontario, and the size of those locals depends on the migration of people back and forth from the reservations.
The Chairman: Are they mostly status Indians? Can you give us a breakdown of that figure?
Ms. Phillips: The Ontario association consists of 90 per cent status women, and most of them live off the reserves.
The Chairman: Is that typical for Canada in general?
Ms. Phillips: No, I do not think so. I think Ontario has one of the largest groups. That would be the situation in the provinces where the majority of aboriginal peoples are Metis, such as Manitoba, Saskatchewan and Alberta. For those provinces, those figures would be different.
Senator Lapointe: Did you appear before the special joint committee on the Constitution a few years ago?
Ms. Phillips: Yes.
Senator Lapointe: Did you say approximately the same thing in your presentation at that time as you have said today?
Ms. Phillips: Our position paper was based on the equality clause. We are saying today that it is limited in the resolution.
Senator Lapointe: I should like you to develop your thoughts on that. When you say that this is not sufficient protection for future rights, what do you mean?
Ms. Phillips: I say that because it only refers to subsection (1). When you start to develop other subsections in 35, how will that affect the wording in the Accord? That is why we are saying it is limited. It is limited only to the words that are expressed in subsection (1).
Senator Lapointe: Therefore, you object to “notwithstanding”?
Ms. Phillips: We object to the words referred to in subsection (1) in the Accord.
The Chairman: Did you say in your presentation that this had been changed?
Ms. Phillips: Yes, it had been.
The Chairman: At what point?
Ms. Phillips: I think it had been changed during the night. I attended the Constitutional Conference as part of the Indian delegation and it was part of the proceedings but the Accord that was agreed to in the afternoon of the 15th was not what came out in the draft copy on the morning of the 17th.
Senator Godfrey: Could you give us the details of the change?
Ms. Phillips: They added the words referred to in subsection (1).
Senator Godfrey: Were they added overnight?
Ms. Phillips: Yes.
Senator Steuart: Madam Chairman, I think this is quite an important point. The witness was here yesterday when we questioned the Minister of Justice and the Minister of Indian Affairs and Northern Development and some of the other witnesses and this very point was brought up. We were assured at least two or three times, if you recall, by both the ministers and the other witnesses that it had not been changed and that they had contacted leaders of the native groups and that they had agreed that it had not been changed. Is the witness saying then that these people were either wrong or were misinforming us?
You are saying flatly that it had been changed?
Ms. Phillips: Yes, if you refer to the previous drafts.
Senator Steuart: You do not have them with you?
Ms. Phillips: Not right now.
Senator Steuart: Do copies exist of that original draft?
Ms. Phillips: Yes, they do. The final draft is Draft 5. There are four other drafts before that.
Senator Steuart: It is possible for them to make an agreement to amend between the fourth and fifth draft. I think it would be helpful if you could send Madam Chairman a copy of the fourth draft.
The Chairman: Perhaps the Clerk could get a copy of the fourth draft of the Accord from Mr. Grave lle’s office.
Ms. Phillips: They drafted another one after that.
Senator Godfrey: Are you saying that the last draft did not include that subsection?
Senator Steuart: The clause in that draft you say was changed and was the one that has your support?
Ms. Phillips: Yes.
Senator Lapointe: What do you say is not included in here?
Ms. Phillips: It did not include the words referred to in subsection (1). It had “Notwithstanding any other provision in this Act, the aboriginal and treaty rights are guaranteed equally to male and female persons.” So the words “referred to in subsection (1)” were added.
The Chairman: The Clerk will get a copy of that fourth draft. Is that the only other change, Ms. Phillips, in the Accord?
Ms. Phillips: Yes, that is the only one that we were concerned about. We have talked with some of the premiers and they assured us that they would bring the item to the table again in order to determine if there was a need for an amendment to the resolution.
Senator Steuart: Premier Hatfield said publicly that it was changed. He also said so in his legislature. Did any of the other premiers agree with you that it had been changed? I do not want to put you on the spot.
Ms. Phillips: Certainly Ontario, because we have an ongoing process with them, and I talked with Mr. Wells two days after the Accord was signed and he assured me that it had been changed and he was not sure if Mr. McMurtry had agreed to the change in the caucus meeting that morning.
Senator Steuart: Was that caucus meeting private?
Ms. Phillips: It was for the Attorneys Gen and the technical people who were drafting the final draft.
Senator Steuart: It is possible they could have changed it there by agreement.
Senator McElman: Were there no representatives of the aboriginal peoples present?
Ms. Phillips: Yes, there were.
Senator McElman: Who were they?
Ms. Phillips: I am not exactly sure who they were. I know they had technical people present, but I am not sure if they had any of their political people there or not.
The Chairman: Can you tell us if you feel that the othere signatories-the native signatories to the agreement-were aware of this change and agreed with it or disagreed with it?
Ms. Phillips: To my knowledge they were not aware of the change at the time they signed it.
The Chairman: They were not aware of the change?
Ms. Phillips: No. This part was not included on the presentation. This is the presentation they signed and they did not see the schedule.
The Chairman: They did not see the schedule?
Ms. Phillips: It was not attached when they signed the Accord.
The Chairman: They signed the Accord without seeing the schedule?
Ms. Phillips: Yes.
Senator McElman: Madam Chairman, the Premier of my province, Mr. Hatfield, made the statement in his legislature that he had signed the document without reading it thoroughly, and that it had taught him a lesson that henceforth he had better read all parts of any of these agreements that he is signing.
The Chairman: Yes, I recall reading that, Senator McElman.
Ms. Phillips: Also, in a meeting with Mr. Davis, while we were waiting for the Accord to come down, one of his technical people went out to get it and no one in that room had seen the schedule. It was just statements Mr. McMurtry had told us concerning what was in it that they agreed to on that basis. He said that the aboriginal and treaty rights were guaranteed equally to both sexes. Those are the things that he told us and no one had seen the wording.
Senator Godfrey: What you are really saying is that there may be other rights acquired in the future that are not treaty rights but you want protection for equal rights. It is as simple as that.
Ms. Phillips: Yes.
Senator Godfrey: They can be obtained by constitutional amendments or anything else.
Ms. Phillips: Yesterday, the Minister of Justice could not say why the equality provisions were put in section 35. I think the reason was that, when those other rights are defined, we need to be protected. They might not be treaty rights and aboriginal rights.
Senator Steuart: It did not have anything to do with the question of equality in the Indian Act. I think I raised the question of why they put it in and he seemed kind of puzzled as to the reason. You have told us now why they put it in, but you are also saying that by watering it down that they really might have destroyed the meaning of it.
Ms. Phillips: Yes, because it is only referring to aboriginal and treaty rights. It is not referring to any legislation or any other rights that might be defined in section 35 in the future in an ongoing process.
Senator Deschatelets: Some of your representatives were present at the caucus meeting and they have signed the Accord. Are you saying that something was added or changed after their signatures were affixed?
Ms. Phillips: I am saying that the schedule was not attached to the draft Accord when it came from the caucus, so that the premiers and our leaders around the table did not see the schedule when they signed the Accord.
The Chairman: Senator Deschatelets, if I understand it correctly, there were, apparently, five drafts of the Accord with a schedule attached. They finally agreed to draft No. 4 in principle, perhaps with some minor changes. They took it away, brought it back presuming, I guess, that it was substantially the same as draft No. 4 and signed it without seeing the schedule, and the schedule itself had been changed. I think this is what we are hearing about at this point.
The Accord itself does not appear to refer to the schedule attached as would normally be done in a legal document. It merely refers to a schedule and it does not indicate what draft it was or anything else. The schedule, per se, is not referred to in the body of the Accord. It has not been signed or initialled in any way to show that this is the schedule which was approved.
Senator Godfrey: It is obviously something that can be corrected after a series of negotiations. A protest can be registered and it can be discussed.
Ms. Phillips: That is what we want to do. We have been assured by some premiers that they would consider putting forth an amendment to the Accord.
Senator Steuart: Some premiers have indicated to you that they would support what evidently was in the first, second and third drafts?
Ms. Phillips: Yes.
Senator Steuart: It is interesting to note that the politicians, who have been fooling native people for 100 years, are now fooling each other.
The Chairman: The problem we are dealing with here is that the schedule contains the actual amendments to the Constitution. It is very easy to amend an Accord, per se, but it is not going to be so easy to amend the Constitution on a very substantial point such as the one with which we are dealing.
Senator Godfrey: I would point out that, over the next five years, the whole process will be aimed at amending the Constitution, and this is part of it.
The Chairman: Yes.
Senator Godfrey: If we were trying to do it separately, it would be difficult, but it is going to be part of a whole process which will be included in what is agreed upon. You are in favour of it because you do not see it ending here; is that the case?
Ms. Phillips: We see an opportunity to amend in the ongoing process.
Senator McElman: Have you had any indication from the federal authority, as you apparently have had from some of the premiers, that they are equally prepared to go ahead with such change?
Ms. Phillips: No, we haven’t.
The Chairman: Have you asked them?
Ms. Phillips: I think we asked the Minister of Justice a couple of days after the Accord was signed, and he said that they were not going to change it.
Senator McElman: I think, Madam Chairman, to support what has been said, we asked the Minister of Justice, and he said that it was already covered. This is a point of difference between Premier Hatfield of New Brunswick and the Department of Justice in Ottawa. The Department of Justice says that this does not change things and that this gives the protection. They say that, as soon as the whole process evolves and this comes into effect, it will give the protection that is sought. Premier Hatfield says that it will not, and that, from speaking to his legislators, apparently there is no one who can clarify it. In his view, the only way this can be settled, unless it is amended, is by the Supreme Court of Canada. He is considering sending a reference to the Supreme Court of Canada for just that purpose.
Mr. MacGuigan told us, in effect, that they do not propose any change because they feel it is now covered. However, some of the provinces agree with the Women’s Association that further change is necessary. That is where we stand.
Senator Godfrey: When Mr. MacGuigan said it was covered, he was referring to women’s rights being covered under the Charter of Rights. I am not quite sure if he knew what was contained in amendment No. 4 and why it was there.
Senator McElman: In that discussion I specifically referred to the Lovelace case, and he said that the circumstances which developed in Lovelace were covered under the legislation that would now come into place. He made a very direct reply to that effect. That is the point of contention. Is he right or wrong?
Senator Stollery: Is who right or wrong?
Senator McElman: The Minister of Justice.
Senator Lapointe: Mr. Munro said that it had not been changed, and Premier Hatfield said it was changed. Mr. Munro said, “I defer, but it has not been changed”.
The Chairman: I believe that is what he said.
Senator Steuart: The statement was made that it was not changed. I cannot figure out who the “foolee” and the “fooler” are in this case.
Senator Stollery: This morning I was reading the evidence taken before the Indian Affairs and Northern Development Committee and I noted that Chief Ahenakew was very critical of Premier Hatfield. I would not want to misquote him, but my impression was that he was rather critical of Premier Hatfield.
The Chairman: Representatives of the Assembly of First Nations will be testifying before us at a later date, so we will be discussing this point again. We are just trying to get a copy of the fourth draft at the moment.
I wanted, as a representative of Ontario, to clarify the position of the Ontario government. Do you feel that you did get some assurance of support that this change would be made and that the spirit of the original version of this clause be supported by the Ontario government?
Ms. Phillips: Yes, we did. In my conversation with Mr. Wells immediately after, he assured me that, if it was limiting and if it excluded people, then they would be prepared to change it back to the original wording.
Senator Lapointe: In summary, are you in favour of our adopting this resolution in the hope that it will be rectified in the future?
Ms. Phillips: Yes, we are. We are asking you to adopt it, and we will deal with the amendment to the schedule in the ongoing process.
Senator Steuart: Were you invited to appear before the House of Commons committee when it had its one-day session on this?
The Chairman: In July.
Ms. Phillips: No.
Senator Steuart: You were not invited?
Ms. Phillips: I do not know whether our national president was invited.
The Chairman: Senator Steuart, I am advised national president was invited to attend.
Senator Steuart: That may be, but we read the testimony, and it certainly did not appear to me that this came out before the House of Commons. Of course, they were in a rush to get the hearing over with and to do their duty.
The Chairman: Senator Steuart, from reading our own summary of the proceedings, I see that Jane Gottfriedson of the Native Women’s Association of Canada was a little ambiguous in her point of view so far as the constitutional amendment is concerned. She said that, although they were not supporting the wording of the Accord, the Native Women’s Association wished to leave the equality matter open for discussion at future meetings.
Senator Steuart: I do not think the question of whether it was changed or not, per se, was discussed.
The Chairman: Apparently it was not raised at that hearing. Ms. Phillips, we will get a copy of the draft and circulate it to our members. We will then be aware of exactly what changes were made in the Accord. Thank you very much for appearing before us this morning.
Ms. Phillips: Thank you.
The committee adjourned.
At 10 a.m. the committee resumed.
The Chairman: Honourable senators, the representatives of the Council of Yukon Indians have been kind enough to rush over here somewhat early, at our request, in order to accommodate us. I have explained to them that we wish to complete this series of hearings this evening because our Conservative colleagues will be unable to attend the meetings tomorrow, and they are anxious to be part of all of the hearings. I wish to thank both representatives for coming to our assistance in this way, which will enable us to hold at least one extra hearing today.
On my right is seated Mr. Dave Joe, who is the chief negotiator for the Council for Yukon Indians, and on his right is seated Mr. Harry Allen, who is the president of the council. I understand that Mr. Joe has an oral presentation to give to honourable senators. He has informed me that the brief is to arrive shortly, and I would suggest that when we receive it we entertain a motion to have it attached to the minutes of these proceedings.
At this time I would ask Mr. Joe to proceed with his oral presentation.
Mr. Dave Joe, Chief Negotiator, Council for Yukon Indians: Thank you, Madam Chairman. The Council for Yukon Indians, as I am sure honourable senators are aware, represents 6,000 Yukon Indian people who reside in and outside the territory now known as the Yukon Territory. It additionally represents both status and non-status Indian people. About half of the people that the council represents make up what is now known in law as “non-status” Indian people. There now exist 12 Indian bands in the Yukon, and they have accepted into their membership all of the non-status people in the Yukon Territory.
In attempting to clarify with the Government of Canada what we consider our rights are to be, we have been at the negotiating table since 1973. This year we have finally come to the realization that there will be an overall agreement in principle reached by this fall. Currently, we have in excess of 60 agreements in principle, which cover such things as eligibility- that is, those people who qualify for our claim; hunting, fishing and trapping rights that our people will have in perpetuity; the amount of land that our people will have, and the degree to which our bands will control and manage themselves in the future. We are hopeful that, at the conclusion of these agreements in principle, the Government of Canada will additionally accept these agreements. That is conditional, of course, upon the acceptance of cabinet.
Upon acceptance of these agreements in principle, which would clarify our rights in Canada, it is our view that section 35 of the Constitution of Canada, as it now exists-
Senator Frith: As it exists without the amendment?
Mr. Joe: Yes, would constitutionally entrench and certainly clarify, pursuant to section 37, what our existing rights in Canada are with respect to those lands which are now known as the Yukon Territory.
With the Constitutional Accord that was signed last March, it is obvious, with respect to the proposed change under section 35(3), that our land claims agreements would include what is now known as treaty rights under section 35 as it now stands. It would be our position that these agreements in principle, having been accepted not only at the agreement in principle stage but also at the final agreement stage, would become constitutionalized in the sense that they would be entrenched within section 35. Therefore, we would view those agreements as being constitutional contracts between ourselves and the Government of Canada so that, in the event that there is a breach of those agreements, our council would be able to take action against the Government of Canada.
At this point in time, as all honourable senators know, we have the right to take action against the Government of Canada with respect to the clarification of the rights that we have in the Yukon Territory, and those rights are expressed in common law and statutory law. The applicability of statutory law is certainly open to question, but we do have common law rights in the Yukon Territory under which we can seek a declaration to determine the extent of the applicability of those common law rights in the Yukon Territory. What we are trying to do by way of these agreements is to clarify what are now rather vague rights under the common law. It is our intention to specify our ongoing rights in the Yukon Territory. The Government of Canada has agreed to those rights, subject to the 60 agreements in principle that we now have. It is certainly our intention not only to constitutionalize those agreements that we have, but also to equalize the benefits that may flow from those agreements with respect to all people who qualify for our claim, be they male or female.
We have not paid any regard to section 12.(1)(b) of the Indian Act. That is the section which deprived an Indian female of Indian status in the event that she married outside of her status group. We have said that we, as a people, should determine who will qualify for these rights that are specified in the agreements with the Government of Canada. That has received the acceptance of the government.
We have attempted to clarify our constitutional rights with respect to the Government of the Yukon. As honourable senators are aware, there was established in our territory in 1898 a Government of the Yukon. With that establishment, there was set up a Yukon Act-an act of the Government of Canada which transferred certain constitutional powers to the Government of the Yukon. We have simply said to the Government of the Yukon that we wish to clarify the rights we would have pursuant to the Yukon Act. We have not only specified what those rights are-be they with respect to child care, social welfare, education or any other matter that may have been transferred to the Government of the Yukon, but we have attempted to do two things: namely, to safeguard constitutionally what we consider to be important to our people through the agreements in principle and to attempt to involve our people in the overall constitutional process respecting the Yukon. We have signed an agreement with the Government of Canada and with the Government of the Yukon whereby our people would participate in any constitutional process that
may define or redefine the powers that are given to the Government of the Yukon. We have additionally agreed with the Government of Canada that there should be an amending process as part of our agreement in principle.
The point which I think must be clarified, certainly in a forum such as this and perhaps even within the forum of the courts, is that the process we have agreed upon with the Government of Canada is one in which we have said that it is impossible to assume that Dave Joe or any other Yukon Indian can clarify, with any degree of certainty, what our rights as a people should be now and in the future. We have said that we will have to append an amending clause to those agreements in principle that we do have. The Government of Canada has agreed. I would suggest that, as part of the constitutional entrenchment of our agreements in principle-given that they are respected by the laws of Canada, this constitutional amending clause with respect to their incorporation under section 35(1) is one which would supersede the amending formula under section 38, because it gives a greater degree of specificity in terms of how we would amend those agreements in principle as opposed to the general amending clause under section 38.
We have sought the advice of separate constitutional counsel on this and have been advised that, because of the nature of the specificity attached to the amending clause we will have in the agreement in principle, it would, in the constitutional sense, override the general tenor of section 38. Of course, that is an opinion and that certainly is subject to other opinions that may or may not be expressed in the future. It is, of course, our intention to attach that clause to determine how those agreements in principle can be changed with the consent of the parties in the future; and the concept of consent is certainly very important to us.
We have attempted to clarify once and for all, to the extent that we could, what our rights would be with the Government of Canada, and, knowing that we are bound to make some mistakes, the clarity and certainty with which we can say, “Yes, we have made a good deal”, is certainly in question. As a consequence, it has been very important for us to attach that amending clause.
Basically, that is the approach that we take with respect to the Accord that was signed last March. We take the position that the Accord should be accepted and passed and that, as a consequence of the passage of this Accord, there would be entrenched as part of it under section 35.(3) the agreements in principle of which I speak, as well as the final agreement which will result from the agreements in principle. The inclusion of our land claims agreements as part of treaty rights certainly is broad enough and certainly satisfies what we consider to be the constitutional entrenchment of those bargains that we have made with the Government of Canada.
That concludes, generally speaking, the essence of the presentation that we had hoped to make with our speech, which did not arrive.
The Chairman: In any case, we will wait for it.
Senator Godfrey: I was interested in what the witness said about 12.(1)(b). In effect, you are saying that you will determine, when you will determaine, who will qualify as an Indian and whether or not 12.(1)(b) will remain under certain circumstances. You are saying, therefore, that the Charter of Rights and Freedoms would not apply. The Minister of Justice told us that he did not consider that section 35.(4) would affect 12.(1)(b), but you are of the view that the final result will be that the agreements you enter into, and which will be constitutionalized, will override the Charger of Rights and Freedoms.
Mr. Joe: Yes, because of the saving clause under section 35, of course it would. As you know, in the Yukon we do not have any treaties. That is why we are coming to terms with the Canadian government. The Canadian government is concerned about the fact that we may discriminate against certain classes of people within the groups that we represent. They have been concerned about what we consider to be a very objective test. They have said, “So long as we can agree on what the objective test is for who qualifies, then we are satisfied”. The objective test by which we decided to class people who would qualify for a claim is that they have to have been born in the Yukon Territory, to be able to trace their ancestry back to an Indian person who resided in the Yukon Territory prior to 1941, and that Indian person had to have had 25 per cent Indian blood. That is the objective test that was required.
Senator Godfrey: You mean 25 per cent of Indian blood of the person?
Mr. Joe: Yes, the person back to which you trace your ancestry. For example, if I had a child here, that child would be one-eighth; but if my child could trace his or her ancestry back to, for example, a grandfather who had one-quarter blood and who had resided in the Yukon Territory prior to 1941, then that child would qualify. You may well ask, “Why did you pick 1941 in the Yukon Territory?” The answer is quite clear. The highway was constructed in 1942. We did not get this great influx of people until after the construction of the highway. As a result, we are quite satisfied with that objective test, and I believe that it satisfied the requirements of the Canadian government as to who would or would not qualify; they accepted that. Thereafter people would make application to the band councils saying, “Yes, I can trace my ancestry back to this person, who resided in the Yukon Territory at that point in time, and I think I belong to your band”. The band councils would then look at the applications and say “yea” or “nay” to them. If they accepted them, then the persons would go on that list. If not, the people would then have the right to appeal to what is called an enrolment commission, in which three parties would participate in determining their acceptance.
Senator Lapointe: Do they need documentation to support that?
Mr. Joe: They generally need affidavits sworn by them to support an application. In the Yukon we have council of elders who generally remember all of the people who resided in the Yukon prior to 1941. All they need is supporting documentation from the people who sat on that council prior to 1941 who
could say “Yes, I recall so and so resided at that place at that point in time”. The elders councils, as we call them, have the final say as to the acceptability of a person’s inclusion on the band list.
Senator Godfrey: Section 12.(1)(b) says that an Indian woman may qualify under your test, but, if she marries a white, then she loses. What do you propose specifically about that, because obviously her child would requalify?
Mr. Joe: We are saying that both she and her child qualify and that there is no exclusion with respect to the rights that she would enjoy.
Senator Godfrey: This would eliminate 12.(1)(b)?
Mr. Joe: Yes, completely.
Senator Stollery: That is because there were no Yukon treaties originally, and so the whole thing is starting from scratch.
Mr. Joe: That is correct.
Senator Steuart: I understand the process from your point of view, but what is the position from the point of view of the government? Does it have any right of appeal with respect to who is on or who is not on?
Mr. Joe: Yes.
Senator Steuart: Obviously, you are breaking new ground here and you are including status and non-status. I think you are going to set a pattern when we get to the question later of aboriginal rights concerning the Metis. I am sure that what you are doing now will be referred to when that question is finally dealt with. Does the government have a right of appeal?
Mr. Joe: Yes, it does, if the government decides to challenge a name included on any band list. For example, if we included the name of Pierre Elliott Trudeau on a particular band list, they could say “Hold it, this person does not qualify for the Yukon claim”. They do have that right. I should also add that the status rights that I as a status person now enjoy in the Yukon Territory would be such that they would continue to flow once I was outside of the Yukon Territory. Section 12(1)(b) has no application after our claims come into effect in the Yukon Territory, but we do not have any jurisdiction over its applicability outside the Yukon Territory. It may well be that, if a status girl marries a non-status person in the Yukon and then moves outside the Yukon Territory, her rights thereafter will be affected by whatever the national law is. If the national law is that the application of section 12(1)(b) should continue in its current form, then she would be subject to those rights as well. We do not have any jurisdiction with respect to that point but we do say that status persons would continue to enjoy the rights they currently have outside the Yukon Territory.
Senator Steuart: I realize you have not signed an agreement in principle yet, but you are hoping that it will be soon. Are you suggesting that that agreement in principle would be entrenched as well as the final agreement?
Mr. Joe: I may be wrong, but I am told that in law an agreement to agree is not a contract and that an agreement in principle, as now expressed in the proposed section 35(3) would not entrench an agreement in principle. I think an agreement would only become entrenched either at the time of the final agreement or when that final agreement was given lawful effect through the passage of legislation by the Government of Canada. I am assuming that these agreements of which we speak would be constitutionalized at the time of the final agreement.
Senator Steuart: You have the case of the COPE Agreement in principle.
Mr. Joe: Yes, exactly.
Senator Steuart: I don’t know what stage that agreement in principle is at, but I am told by the Department of Justice that it does not have legal status.
Mr. Joe: I agree with that. As I say, an agreement to agree is not a contract and, therefore, not enforceable.
Senator Frith: There is a difference between an agreement to agree and an agreement in principle. An agreement to enter into an agreement on points that you can understand from that agreement to enter into an agreement is a forceable and equitable agreement.
Senator Steuart: I wish you had not said that.
Senator Frith: Consider it not said but so long as you are looking at the agreement to agree, you can see the agreement you are going to agree to.
Senator Flynn: A promise to sell, for example, can be enforced by an action.
Senator Steuart: Do you represent the Old Crow Band?
Mr. Joe: Yes.
Senator Steuart: And there is agreement with the government negotiator that you are negotiating for both status and non-status people?
Mr. Joe: Yes.
Senator Frith: As I understand the logic of your position, it is this: We have provision in the constitution in section 35 that says that the existing aboriginal and treaty rights of the aboriginal people of Canada are recognized and affirmed. The question is what are the existing aboriginal and existing treaty rights? What is meant by “treaty rights”? You say that these treaty rights are entrenched in the constitution. In terms of its effect, we are elevating that phrase “treaty rights” because we are saying that it is in the constitution. Then you say, “Yes, it is in the constitution, but we want to know what ‘treaty rights’ means. Not only is it entrenched in the constitution but we have a legal opinion that it is better than most of the provision in the constitution because it escapes the amending formula.”
Mr. Joe: Yes.
Senator Frith: This amendment says that treaty rights include land claims agreements.
Mr. Joe: Yes.
Senator Frith: What are land claims agreements? It seems to me that those words, “land claims agreements” are not only elevated by being constitutionalized but make things better than any of the other provisions in the constitution because they escape the amending formula. And this is not defined anywhere.
Mr. Joe: No, it is not.
Senator Frith: So an agreement between two bands on a land claim could be a land claims agreement?
Mr. Joe: Yes.
Senator Frith: I raise this point because in his speech in the Senate, which in many ways triggered these hearings, Senator Steuart raised the question of the definition of this term. Has the term been defined, not only here but through cases that have gone before the courts? Do we know what a land claims agreement is legally, because we are making it into a sacred cluster of words, if your reasoning is right-namely, entrenchment plus escaping the amending formula.
Senator Flynn: An agreement could not be reached between two bands.
Senator Frith: That is what it says.
The Chairman: Mr. Joe, did you not make the statement that the government is going along with your reasoning or your legal conclusions? In other words, the government has accepted your opinion that any claims that you entered into and that became constituionalized were over and above the present constitution and would be unaffected by the amending clause?
Mr. Joe: Yes.
The Chairman: When you say “the government” who are you talking about?
Mr. Joe: I am talking about the chief negotiator of the Government of Canada. With respect to the applicability of the amending clause, he has agreed that we would have as part of our agreement on land claims paramount applicability with respect to section 38.
Senator Frith: At least you would have a special status; namely, that such agreements would not be affected by an amending formula so that in practical terms they would not require resolution of the Senate and the House of Commons and a certain percentage of the provinces?
Mr. Joe: Yes. All it would require is consent of the parties. I am told that that concept is acceptable in a constitutional sense.
Senator Steuart: I think the Minister of Justice said the same thing yesterday. The example of the James Bay Agreement was cited.
The Chairman: But Mr. Joe is saying more than that. He says that not only these peripheral agreements but the very basis of them, if constitutionalized, would be outside the Constitution of Canada.
Senator Stollery: I cannot agree that two bands could have an agreement with each other that would be protected by the constitution.
Senator Frith: Let’s be clear on this matter since I raised it. Let us say that there is such a thing as an agreement regarding land claims between two Indian bands. I am talking about draftsmanship here. The proposed amendment merely says “land claims agreements are . “; it does not say land claims agreements between the government and Indian bands. I am not trying to make out a case that land claims agreements between two bands should be constitutionalized. I am saying that that term should be defined so that what seems to Senator Stollery to be an absurdity cannot in fact exist. But on the plain words of the proposed amendment, that is all it says and that is why I was asking if there had been introduced any evidence on the matter.
Senator Steuart: “Treaty” is not defined either.
Senator Frith: A “treaty” is defined by saying that it includes land claims agreements. The point is that this amendment does try to define treaty rights and in the course of defining treaty rights it includes land claims agreements. So I ask “What land claims agreements?”
Senator Godfrey: What does the witness say?
Mr. Joe: In the event that the definition of land claims agreements is referred to a court, the court will have to look at the context in which these land claims agreements are being discussed today. It is obvious to me that a land claims agreement does not include a dispute between two bands over land. If it did, we in the Yukon Territory have in place a community court system that would be seized with clarifying the dispute between the two bands. So, that concept would not apply in the Yukon Territory because of the jurisdiction which the community court system would have, based on the band councils in the Yukon Territory. I believe that the courts would have to agree that a land claims agreement is an agreement which is signed with the Government of Canada in respect of those lands over which there are no treaty rights now, per se, in Canada.
Senator Flynn: I am sure that is a reasonable argument, but we are here now considering legislation and it is our duty to help the courts.
Senator Frith: He is saying it will be up to the courts to decide.
Senator Flynn: You can argue that. It can also be argued that this is the stage at which the courts are entitled to say, “Why didn’t the legislators tell us what they meant?” I was wondering whether, out of the cases dealing with land claim agreements, the court had already defined that expression. I
ask the question partly of the witness, Madam Chairman, and partly of you to determine whether the Minister of Justice, or anyone from the Justice Department, has said, “Do not worry, “land claims agreement” is a term of art. It does not have to be defined here since it has already been defined by the courts in other cases.” I take it we have no evidence of that, I am simply suggesting it would be a good idea if we did.
The Chairman: I agree, senator.
Senator McElman: When the Minister of Justice was before us yesterday there was a suggestion from the Chair, and from the floor, that it would probably be necessary for him to return. Could I suggest that we now itemize these matters, such as the one raised by Senator Frith, in order to pass them along to the Minister of Justice as quickly as they arise with the understanding that he will return and speak to them.
The Chairman: That is an excellent suggestion and we will follow up on it.
Senator Stollery: Madam Chairman, in reading the material provided to the committee, one matter which has certainly become clear to me is that there exists an element of vagueness. So long as that element exists we will never be able to reach any kind of agreement, and that should be kept foremost in our minds. In the evidence given before the House of Commons committee it was clearly stated that even that committee received this subject matter practically fait accompli. I feel it is important we alert the Minister of Justice in this regard. We must keep in mind that what we are talking about with regard to this definition is the people who will be the recipients of it.
Senator Steuart: Do you feel that in signing this agreement you are in fact giving up vague, general rights for specific rights? Is it your view that you are agreeing to extinguish your general rights for specific rights, which you are asking to be enshrined in the Constitution, as was the case with the James Bay Act?
Mr. Joe: An option which remains open to us as a people is to maintain our existing aboriginal rights, be they in common law or statutory law. With respect to the applicability of the statutory law which now exists-that being the Royal Proclamation and its application in the Yukon Territory-that is certainly a subject which remains subject to question. We argue that we do have rights under that law as it now stands. We have looked at the guarantee and rights which the existing law grants us, both in common law and in statutory law, and we have said that we do not have any real guarantee that these rights will continue. These rights continue, as it were, at the pleasure of the Crown; we seek to clarify the ongoing relationship with the Crown. What we are doing is taking vague concepts in English common law and clarifying them in contractual form with the Government of Canada. We do not see that as extinguishing the inherent rights we have as a people who have always resided on the lands known as the Yukon
Territory. The government may have that view but we do not. We are attempting to define the rights between two groups of people residing side by side and from time to time, in the Yukon Territory. We are saying that no one can ever clarify what those rights should be in perpetuity-that is insane. This is the reason why we feel the amending clause should be attached to the agreements we sign. By doing that the children of the people articulating the positions on behalf of the governments of the Yukon and of Canada can say, “Well, our grandparents made a mistake in this respect.” Or, they may say that they feel they have not received fair treatment. Our own children should be able to say that the circumstances have now changed, that the constitutional structures and agreements we have made with the Government of the Yukon, and certainly the Government of Canada, have also changed. Realistically, we should accommodate that; let us do it, if the parties agree it should be done. This would avoid any conflicts with respect to section 38.
Senator Steuart: I am aware that the agreements reached between the two parties can be amended. More specifically, in your land claims you will have specific title to a number of square miles of land. Do you take the position that in five years you may come back and say that you want more land? Do you say that you may then become specific about money or mineral rights in certain areas? Are you taking the position that that is fine today, but that it is no guarantee you will not come back later to the well?
Mr. Joe: No. I think that what the Government of Canada has said is that in the Yukon Territory we have an existing right to take them to court. That is their concern. We simply say we will clarify that right and promise not to take you to court in the future. We are not talking about extinguishing our rights; we are simply talking about the legal effect of a court case. We say, if you give us these rights and these guarantees, we promise you-to the extent that I can promise you at this point in time-not to take you to court based on this existing concept. That is not to say that my children will not take you to court. That is your concern.
Senator Godfrey: The children, however, could take us to court.
Mr. Joe: Yes, of course. It is also left up to the Government of Canada to say 20 years hence, “There never existed in English common law the concept of aboriginal title and, therefore, we are going to pass a law and extinguish it completely in Canada.” It is certainly open to the Government of Canada to do that and, even if it is contained within the Constitution, it can be challenged with respect to its constitutional effect, but it is open to their side. Also, our children could take the Government of Canada to court in the future, but I am saying we will not go on the general title.
Senator Flynn: It is frightening, really.
Senator Godfrey: Now you have got me really confused. If you enter into an agreement and it is constitutionalized, then surely it cannot be changed except by consent of both parties. Are you saying that one of the parties could go to court and have that changed?
Mr. Joe: I am assuming two things: First, that the Government of Canada has the legal authority to enter into this constitutional contract. If they have that authority, then the second thing I am assuming is that they can give it legal entrenchment. If they are not assured of the first thing, it is obvious that they will not enter into this constitutional contract.
Senator Frith: This is an amendment. Everybody has to agree; the provinces have to agree; not just the Government of Canada. This particular amendment does not escape the amending formula.
Mr. Joe: No, of course not. The question that you would have to ask is, is it constitutional for the Government of Canada to enter into a land claims agreement for the areas in Canada that are non-treaty and, if you say it is, then it can become constitutionally entrenched.
If, in fact, you look at the Canada Act and if there is no process that constitutionally entrenches a bargain between two people in those areas which are non-treaty, then I would suggest we have a problem.
Senator Frith: I think you do. That is a big jump from saying, “Can the Government of Canada enter into a contract with Indian bands who are clearly under their jurisdiction under section 91 of the Constitution?” The answer to that is: Unless there is some particular detail, generally yes. But then to say, therefore, they can constitutionalize that contract is a bigger jump. That is a different point. If you are saying “constitutionalize”, you mean amend the Constitution and the Constitution says you can only amend it in certain ways. Now it is true that, in this case, the proposal is to amend it in that way but the question is, in the future, do they have to amend it in this way each time?
Mr. Joe: I am assuming this: I am assuming your government feels satisfied that it has constitutional jurisdiction to sign a land claims agreement with us.
Senator Frith: No question.
Mr. Joe: And I am assuming that they give that jurisdiction under section 52 of the Canada Act, part of which process includes-and I could be wrong on this-the process that was established under the Royal Proclamation of 1763 in which they entered into deals made between Indian bands and the Crown. I am assuming, because of that, that, historically and legally speaking, they feel there is an entrenchment of that process, and with respect to its applicability in extension to the Yukon Territory, they feel justified now in signing a land claims agreement with the Yukon Territory. That is my assumption.
Senator Flynn: I have been trying to put your proposal in the context of the James Bay Agreement. The James Bay Agreement provided for the aboriginal rights to be ceded to the government against some consideration-land appropriation and a certain sum of money. That is a contract.
Mr. Joe: Yes.
Senator Flynn: It was not inserted in the Constitution at that time, but you suggest that one side or the other could change that without compensation? Possibly Parliament could do something about it but normally it would generate a claim in damages against the government if it were to do so.
Mr. Joe: Yes. In the event that the Government of Canada decided to breach an agreement that they had either with the James Bay Cree or with ourselves, I assume that we would have the right in contract to sue them, and that that right in contract would be constitutionally entrenched. That is my assumption.
Senator Flynn: I am not sure what the constitutional entrenchment really adds to your right under these contracts. In the James Bay Agreement, you will remember, we were providing for the extinction of rights of people who were not parties to the agreement. You remember that? We fought that, and Senator McElman also remembers that. The government was doing something that I thought was completely unfair, although legal, and in fact and in practice they recognized that they would have to compensate those who were not a party to it. I am wondering, however, if the entrenchment adds to my rights, if there is a contract of that kind, an agreement that defines my rights as provided in that agreement, and that is the end of it.
Mr. Joe: I think what it adds is a degree of constitutional protection that we would not-
Senator Flynn: What is constitutional protection?
Mr. Joe: I will give you an example: We have signed an education agreement with the Government of Canada. Education is one of those matters that are now classed under section 92 of the Canada Act. It belongs to a province or a territory. The guarantees which we have got with respect to the teaching of our children become constitutional guarantees that cannot be voided by the Government of the Yukon. However, if the Government of the Yukon were to pass a law inconsistent with the agreement in principle that we have, I would prefer not to sue in contract to seek damages against the Government of the Yukon; I would prefer to take constitutional action to strike their action down, reflecting in a specific act its being unconstitutional. That is what section 35(1) would do for me. That is why I want it to become constitutionally entrenched.
Senator Frith: The constitutional entrenchment gives you another string to your bow.
Mr. Joe: Yes.
Senator Flynn: You raise a very difficult question, however, because the agreement with the federal government, if it
covers something that is under a provincial jurisdiction, cannot affect a province, in my thinking.
Senator Frith: For constitutional reasons, that is-
Mr. Joe: South of 60, I would agree with you.
Senator Flynn: If you get the approval of the province concerned, that is something else because, if it affects only one province-and especially a province-to make it constitutional in the sense that you mean, you would have to have the approval of that very province on top of the seven provinces; they would all have to agree to a general amendment.
Mr. Joe: Yes, south of 60, I would agree with you. However, we are talking about north of 60, under which the Government of Canada has complete jurisdiction at this point in time with respect to the Yukon and the Northwest Territories. The territories north of 60 come under the jurisdiction of the Government of Canada, and they can detract or add to whatever powers there may be in the Government of the Yukon. They certainly cannot do that with respect to the provinces south of 60.
Senator Steuart: Is the Government of the Yukon a signatory to your agreement in principle?
Mr. Joe: Yes, they are, and they have agreed to all of the agreements that we have signed thus far, but, constitutionally speaking, that is also a problem that we have. One would ask what authority or right does a province or a government of the territories have to sign those agreements in principle, because, constitutionally speaking, those agreements are supposed to be between the Crown and the respective Indian tribes or bands across Canada. There is nothing that is said about a province or a territory having to sign these agreements.
It is only a sad reflection of the fact that the Constitution of Canada was designed without the consent of our people.
Senator Flynn: That may be, but the Crown residing in the Government of Canada is the Crown in the right of Canada or the Crown in the right of a province. There is duality. The concept of the Crown is dual.
Mr. Joe: Yes, and I am saying that that dual concept does not apply where I come from.
Senator Flynn: Why do you say that?
Mr. Joe: Under section 146 of the BNA Act I believe Canada has complete authority with respect to those territories that are now in northern Canada. The Yukon Territory has established what is called the Yukon Act …
Senator Flynn: But the territories and the provinces are under the jurisdiction of a territorial or provincial government.
Mr. Joe: Yes, but to give you one example, I, as a status Indian, have the right to hunt for food year-round in the Yukon Territory. There is no game law that the Government of the Yukon can pass that can take away that authority, despite the fact that under section 16 of the Yukon Act the
Government of the Yukon has jurisdiction with respect to game.
I, as a status Indian, or even as a treaty Indian, cannot go to B.C. and enforce my hunting rights, clearly because that jurisdiction was transferred to the Government of British Columbia. If that jurisdiction were transferred to northern Canada, it is obvious that the Government of Canada would detract from that constitutional sphere, as it were, of the Government of the Yukon with respect to the passage of game laws. Therefore, I have the right to hunt in northern Canada, but the Government of Canada can change that tomorrow, if it so wishes.
It can add to the powers-
Senator Flynn: I think you are going much too far by saying that the government can do that without giving compensation, because, after all, your rights have been recognized by the Royal Proclamation. Whether it is the Crown in the right of Canada or the Crown in the right of a province, that does not affect your rights. That is the situation which prevailed in the Province of Quebec with respect to the Montagnais and their rights to hunt in a certain territory. Those rights are not affected by any powers of Canada or the Province of Quebec.
Mr. Joe: You are saying that, in the event the Government of Canada were to change a constitutional power granted to the Government of the Yukon, the Government of the Yukon, should it lose that constitutional power with respect to our rights to hunt, fish or trap in the Yukon, would have a right to be compensated.
Senator Flynn: Taking “hunting” under the Charter of Rights, yes. Any legislation that takes away some of your rights will provide compensation.
Senator Stollery: It seems to me that the situation is quite different in the territories as opposed to the provinces.
Senator Flynn: Technically, yes.
Senator Stollery: That is true in two senses, the first being that in many of the provinces bands have recognized treaties with various levels of governments in the past, but have not done so in the territories; second, there has never been a provincial government established for the territories which would have rights given to it by the federal government which were received from the Crown.
So, if what we are doing now becomes part of the Constitution, the federal government could not say to a provincial government of the territories, if there were one, that the provincial Government of the Yukon had the right to set provincial game and fishing laws for the Yukon vis-à-vis native peoples. That cannot be done because that is part of the agreement about which we have been talking. Is that not correct?
Mr. Joe: Genly, yes, the Government of Canada can transfer to the Yukon Territory those rights that would normally flow to a province, except for those constitutional guarantees we have in the agreements in principle on land claims.
Senator Frith: I have trouble following the logical coherence of your whole presentation.
Mr. Joe: Assuming that there is one.
Senator Frith: You are quite right, so let us see if there is. On page 3 of your letter, and I am only repeating this-
The Chairman: You are speaking of Mr. Pearson’s letter?
Senator Frith: Yes.
The Chairman: I shall give Mr. Joe a copy of that letter so he can follow your question.
Senator Frith: I should like to bring one sentence to your attention because it expresses your opinion also.
The third paragraph on page 3 states:
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 changes to these rights.
This is what you are saying, in effect, as I see it. You want to have those rights constitutionalized or constitutionally entrenched or constitutionally protected.
Mr. Joe: Yes.
Senator Frith: What does that mean? There is a magic to the word “constitutional.” There is something special. Those rights are not set by ordinary law, but are constitutionalized. What does that mean?
What that means is that the Constitution cannot be amended without going through an amending formula. That is what makes a constitutional provision entrenched, and snore important, that means that you can tell any legislature that it cannot pas a law, that it cannot go ahead and change a law or agreement with an Indian band. You can tell those legislatures that they cannot do that because those rights are constitutionalized and to change them requires the use of an amending formula.
I am with you so far, but all of a sudden you say, “But we don’t want those rights to be affected by the amending formula.” If they are not affected by the amending formula, they are not constitutionalized. That is the point. The whole point of constitutionalizing those rights is so that they can only be amended by use of an amending formula, so you are like a snake eating its tail; you are right back at the beginning and have said that you want to see it constitutionalized.
You cannot have it both ways.
Mr. Joe: If the Government of Canada, the Government of the Yukon and ourselves are parties to agreements–
Senator Frith: What agreements?
Mr. Joe: The land claims agreements that spell out our rights in the Yukon Territory. If that is the case, what have the Government of B.C., the Government of Alberta, the
Government of Saskatchewan and the Government of Manitoba to do with those rights to fish, hunt and trap and live as we used to live in the Yukon Territory? Why do we have to apply section 38?
Senator Frith: You do not.
Mr. Joe: Exactly, and that is why the Government of Canada and the Government of Yukon and ourselves have agreed to contract out all the applicability of section 38 with respect to not only constitutionally entrenching these agreements we have, but also amending thereafter the constitutional entrenchment of those agreements once they are in. That makes complete sense to me. It is practical.
Senator Frith: Exactly, and, therefore, if it is not the business of the Province of British Columbia, if it is not the business of any of the provinces, it is not the business of the Constitution.
Senator Flynn: Oh, yes, it is.
Senator Godfrey: I do not agree with that.
Senator Frith: When I say something, I do not expect everyone to agree with it. That is my opinion.
Senator Godfrey: I shall attempt to explain what I thought you meant, and please correct me if I am wrong.
I thought you said that an agreement between the Yukon Territory arid the federal government would have included in it the formula, for amending it.
Senator Frith: Yes.
Senator Godfrey: So even if the agreements are protected constitutionally so that no one can amend them unilaterally, and the land claims agreements provide for the amendment in the formula, they are constitutionalized and no one can unilaterally amend them, but, if the parties to the agreements amend them according to the formula, then that is fine.
Senator Frith: No one can amend agreements unilaterally.
Senator Godfrey: Governments can pass laws abrogating agreements. That has been done.
Senator Frith: That is not amending agreements.
Senator Godfrey: That is what I thought you meant. When one has constitutional protection of certain rights, the federal government cannot unilaterally pass an act affecting those rights.
Mr. Joe: That is exactly what we are concerned with, the concept of parliamentary supremacy. All we are saying is that, if the Government of Canada makes an agreement with us, it should respect that agreement, and, if the government wants to give it that sort of respect, then it should abide by the existing laws; and we say that, if that existing law is the Constitution of Canada, the agreement should be entrenched.
Senator Flynn: Section 43 would cover the case where an agreement is between the Yukon, the federal government and your band or nation because it says:
An amendment to the Constitution of Canada in relation to any provision that applies to one or more, but not all, provinces, including
(a) any alteration to boundaries between provinces, and
(b) any amendment to any provision that relates to the use of the English or the French language within a province,
may be made by proclamation issued by the Governor Gen under the Great Seal of Canada only where so authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province to which the amendment applies.
If only one province is concerned, the other provinces have nothing to say. It is practically a bilateral agreement that can be changed at any time by the consent of all parties concerned. It means nothing constitutionally.
Senator Frith: The point is whether it means something constitutionally. In other words, the constitutionalization that you are talking about is really different from what I was talking about. When you entrench something constitutionally, normally what that means is that the most important element- not the only element-is that you can only amend it according to the amending formula.
The explanation that you gave to Senator Godfrey is that all you want is for the Government of Canada, in effect, to say that when we make an agreement on this subject, we agree not to pass laws abrogating that agreement.
Mr. Joe: Yes.
Senator Frith: I am saying that is something for the Minister of Justice because there is serious doubt, as you know, as to whether Parliament can say, except by Constitution, that we now pass a law that says that successors to us will never pass a law contrary to this law.
Senator Flynn: You never say that.
Senator Frith: That is what it comes down to on the answer he gave Senator Godfrey. In the answer he gave Senator Godfrey he said that what we want is for the Government of Canada to say that they will not. I say that you cannot unilaterally amend an agreement. That is the normal rule. If you are a government, as Senator Godfrey says, you can because you can pass a law changing the position. The witness says that is what we want. We want them to agree that they will not pass a law. If you put it in the Constitution, that is the question as to whether one of the parties to the Constitutionthe Government of Canada alone-can agree never to pass
another law contrary to it, so there is something for the Minister of Justice to consider.
Senator Flynn: You cannot abrogate the Constitution.
Senator Frith: That is fine. Do not abrogate it. It seems to me there is an inconsistency in asking for one thing and not taking the consequences of it. If you say you want to change it, then there is a serious question as to whether the government, except by the Constitution, can bind itself not to pass laws.
The Chairman: Is this not a basic concept of the supremacy of Parliament, that Parliament will not bind itself or try to bind future parliaments?
Senator Godfrey: It has to be in the Constitution. I do not see any legal problem at all. I do not think that we have to ask the Minister of Justice anything. It is similar to the case of what Newfoundland did about their power agreement. They passed an act cancelling it with Quebec. If it is not in the Constitution, you cannot do it.
Senator Frith: You are missing the point, Senator Godfrey.
Senator Godfrey: I do not think I am missing the point.
Mr. Joe: We have in terms of straight consitutional law a court case now. In the event that our hunting, fishing and trapping rights are lost, we can sue. What you are saying is that if we do not put it in the Constitution-we have agreements now with the Government of Canada that give us these hunting, fishing and trapping rights-and in the event that the Government of Canada, because of the principle that they are supreme, can pass a law inconsistent with those agreements and in the event that they do, we cannot bind them because it is not in the Constitution. Therefore, they can take away these rights at their whim. You have a right again in contract to sue them. Big deal! I have that right now and I am simply saying that once we make a deal with a government or governments in the Yukon Territories, let us make that deal stick.
Senator Frith: What you are saying is that you want to have rights that the rest of us Canadians do not have regarding agreements with the government.
Mr. Joe: Yes.
Senator Frith: If I make a contract with the government they can by their whim pass laws. They cannot break the agreement or amend the agreement just by themselves as a government. They have to go to Parliament and get Parliament to pass the law. It is not exactly just at a whim.
The Chairman: I really think we have to give our witnesses a chance to make their points without too many comments. It is not only confusing for the witnesses but it is confusing for our staff who are reporting the proceedings.
If there are any further pertinent questions to put to the witnesses, I would be glad to hear them because I should like to point out that our next witnesses, the Native Council of Canada, are here and prepared to go on. I would be very pleased to have them give their evidence to us now. The clerk has just informed me that they have not arrived yet.
We have been trying to accomodate everyone with regard to the balance of our schedule and the Native Council of Canada said they would go on this morning. They were to appear at 2 o’clock this afternoon. The Weds National Council was scheduled for 3.30 p.m. Their principal speaker is arriving by plane and will not be able to arrive earlier than that.
As you know, there was discussion about our meetings which were scheduled for tomorrow and due to the meetings of our Conservative colleagues we have tried to re-arrange those. I have to accommodate the Inuit Committee on National Issues because they came here especially for this hearing. We will have to schedule them for 8 o’clock this evening. We are making arrangements for the coalition not to appear. I believe they are on the phone with them right now in order to schedule that meeting for two weeks from now. Senator Tremblay indicated that he wanted to be here tomorrow morning. It is a question of how many committee members can be here at that time if we were to go ahead.
Senator Flynn: Madam Chairman, I already mentioned that if the committee saw fit to have the meeting tomorrow as already scheduled, we would have no objection because the committee is only hearing evidence and with Senator Frith, Senator Godfrey and Senator Steuart, I think the opposition is well represented.
The Chairman: Good point. Senator Stollery, Senator Godfrey and Senator Lapointe said they would be available tomorrow morning. Would you be available tomorrow morning, Senator Frith?
Senator Frith: Yes.
The Chairman: We would have four committee members available tomorrow morning if he would prefer to appear at that time.
We have just made arrangements with Mr. Nichols, who in view of the fact that he is in court today, would have to take a late plane tonight and consequently would prefer to appear here on September 20, at 8 p.m. to attend at that time. The Senate will sit at 2 p.m. that day, and we will have a meeting at 8 p.m. that evening.
We have also arranged now to have a meeting at 8 o’clock this evening, which means we will not meet tomorrow morning.
Senator Frith: I have a pencilled note in my diary indicating that we have a Senate Liberal caucus meeting for that day.
The Chairman: That is why the change was made. Are there any further questions senators wish to put to our witnesses?
Senator Godfrey: I would like to congratulate the witness on the clarity of thought which he has displayed and which I had no difficulty understanding.
The Chairman: Thank you very much for appearing before us this morning.
Senator Stollery: Do I understand correctly that the Minister of Justice will be informed of our concerns?
The Chairman: Absolutely.
The committee adjourned.
The committee resumed.
The Chairman: Honourable senators, we now have with us Mr. Smokey Bruyere, President of the Native Council of Canada. With him is Mr. Gary P. Gould, chairman of the Constitutional Committee of that council.
We are very grateful to both of you for rushing over here to allow us to hear you this morning instead of later in the day as we had originally arranged.
I understand, Mr. Bruyere, that you have a brief which you will summarize?
Mr. Smokey Bruyere, President, Native Council of Canada: I would prefer to read the brief.
Senator Godfrey: In view of the fact that we have not seen this brief before, I would like to have it read.
The Chairman: Very well.
Mr. Bruyere: Madam Chairman, members of the Senate committee, the primary purpose of the Native Council of Canada in appearing before this committee is to urge you to see that the Accord resolution receives speedy passage through the Senate.
Many of the remarks we will make in the next few minutes will appear critical of the content of the bill, and of the process in which we are all involved. This does not mean that we expect you or your associates in the Senate to delay passage of this resolution or to consider any amendments or alterations. On the contrary, we are only too aware that this resolution must be passed by all of the governments involved by December 31, 1983 to at least maintain the momentum that the process to date has generated.
The Accord represents years of intense and often painful interaction between the governments of Canada and the aboriginal people of Canada. It is a workable beginning. To maintain that workability, we must get on with the business ahead of us. We, as an oboriginal organization, have the same problems that the Senate is now experiencing in terms of getting information and responses to questions. The fact is, we cannot even begin to get our answers until the Senate has completed its deliberations.
We had hoped to have a preparatory meeting with conference participants sometime this month, and now we learn that the Senate is planning another set of herings for the week of September 20. We appreciate that the Senate has serious concerns, but we urge you to keep in mind that the future of our people is at stake, and there are deadlines to meet.
In a letter to the NCC, the Senate committee has said that it wishes to understand “what the various signatories to the accord and the representatives of the aboriginal people believe the proposed amendments to mean and to encompass.”
We understand that other aboriginal organizations have received similar letters, and that provincial delegations have also been asked to respond. We hope you have better luck than we have had in the last year in getting those responses. In support of your initiative, we intend to formally request that each provincial government send us a written response to the same questions we are being asked to answer.
As spokespersons for many of the aboriginal people to be affected by this Accord, the basic meaning is very clear: The Accord is a mechanism by which a beginning is made in the process of guaranteeing the survival of our people in Canada.
This Accord is the first hesitant step in establishing a basis in the highest law of this land by which the aboriginal people of Canada are guaranteed the fundamental aboriginal rights necessary to our present and future survival as a distinct people with an integral part in the Confederation of Canada.
This Accord is a mechanism whereby, for the first time in Euro-Canadian history, abnoriginal people have had a significant input into the structure of their own country.
This Accord established a basic understanding by which it is mutually agreed that there are specific areas to be explored in relation to the aboriginal and treaty rights of Indian, Metis, and Inuit people, with a view to arriving at mutually beneficial solutions to the many problems involved.
In that same letter from the committee, the NCC was prompted to address six specific questions. We must admit that we find the basis of this approach ambiguous and confusing. The letter states that the committee will not involve itself in “general or specific aspects of constitutional discussions” and yet the six questions, in effect, ask us to present our position on several of the main issues to be discussed over the next several years.
We will, however, attempt to address these issues as a demonstration of good faith in the potentially productive role
the Senate can play in this process. Our answers to these questions are intended to contribute to a better understanding by this Senate committee of the issues involved. We should point out, at the same time, that our answers to these questions have already been presented, and are on the record of the constitutional conference meetings. Had the members here done their homework or, even better, if there were more senators of aboriginal ancestry to explain these issues, many of these questions would not be necessary.
Your first question deals with the issue of “existing aboriginal rights”. The NCC already proposed that the word “existing” be deleted altogether. As Chief Sanderson pointed out yesterday, this word was inserted by the governments involved without the participation of any aboriginal people. If you want to know what that word means, you had better ask those responsible for inserting it into the Constitution.
Our reason for proposing the removal of that word is quite simple. Whatever it means, one thing is certain-it has generated confusion. It has given rise to a whole range of arguments, pro and con, which could keep lawyers and academics busy for years. At best, it has detracted from the central issue here, the aboriginal rights of aboriginal people. The meanng of those words are clear to us.
The term “aboriginal rights” includes all of those titles, entitlements, privileges, and responsibilities which accrue to Indian, Metis, and Inuit peoples who are descendants of the aboriginal inhabitants of this land.
As a starting point for discussion, the NCC has tabled a document during the constitutional conference-840-245/ 004-which describes in some detail how the NCC perceives the constitutional application of aboriginal rights.
It is the position of the NCC that a significant form of these rights must be incorporated into an aboriginal Charter of Rights in the Canada Act. This is one of the major priorities of the NCC in the context of the ongoing conference process.
The central element that must be understood is that aboriginal rights are the foundation upon which the survival of Canada’s aboriginal people depends, and through which the land, resources, and self-governing structures necessary to our survival must be mutually understood and forever established in law.
Before we leave this question of aboriginal rights, I must tell you we were alarmed by some of the statements we heard several senators make during the various question periods yesterday. Time and again we heard committee members refer to the “rights” that the federal government was going to “confer” on aboriginal people.
The use of the word “confer” exposes a gross misunderstanding of the entire aboriginal rights issue. We had hoped that the paternalistic attitude that spawned that concept was long dead, but it appears to have survived.
There is not a government on earth which has the power to confer rights on an aboriginal people. Governments can refuse to recognize those rights, they can adopt policies which deny or promote access to those rights, but they cannot confer those rights-they are a birthright of aboriginal peoples by virtue of their relationship to their lands. We will address another aspect of this question when we deal with definitions of “aboriginal people.”
Your second question on the “constitutionalization of land claims agreements” to a large extent begs its own answer, as you discovered yesterday. “Constitutionalization” is a mechanism by which present and future agreements between the Government of Canada and the aboriginal people of Canada can be protected more successfully than were the treaties of the last several hundred years. Changes to such agreements, where such changes are mutually aggreeable, can be built into the structure of the agreements themselves. But unilateral changes to agreements, by either party, would not be possible without engaging in the complicated process of constitutional amendment.
Your third question, which addresses the issue of legally binding definitions, may well be the fuse on the most explosive issue facing future constitutinal conferences. In fact, the very nature of the question itself exposes several culturally offensive elements.
Historically, the legally binding definitions which have been unilaterally imposed on aboriginal people in the past have always incorporated two destructive characteristics: one, the definitions have always included a reference to an aboriginal interest in the land which could be terminated; and two, the definitions were always structured in such a way that the number of persons so identified would inevitably shrink over a number of generations.
In short, the concept of a legally binding definition of aboriginal peoples has always been a tool of a policy of cultural and racial genocide which was often thinly disguised under a paternalistic concept of assimilation. Little wonder that aboriginal people are anxious about this issue.
We heard several statements in this room yesterday to the effect that it is impossible to “confer” rights on a class of people unless that class of people is first defined. You already know what we think about the possibility of conferring rights, and we have a parallel concern about defining “classes” of aboriginal people.
Aboriginal people are not created by virtue of a legally binding definition. They are created by virtue of the simple fact that they are a people indigenous to the land in which they were born. The fact of “aboriginality” is a birghright, not a label conferred by law.
As in the case of aboriginal rights, the law may be used to deny recognition of aboriginal status or to promote recognition of aboriginal status, but it cannot create or destroy the fact that an individual is, by birthright, an aboriginal person in the land in which he or she was born.
We do, however, have to face the fact that the law in Canada-more specifically the Indian Act-has been used for more, than a hundred years to deny recognition of aboriginal status to literally thousands of aboriginal people who are now labelled as non-status Indians, and, more indirectly, to thousands of other aboriginal people who now identify themselves as Metis. In this very room yesterday we heard the Minister of Indian and Northern Affairs deny responsibility for Metis people. That same minister also shunted aside the decades of injustice and deprivation the Indian Act has so cruelly inflicted on non-status Indians, many of whom have no intention of repatriating to status Indian bands. It can be well understood how this issue is the most central issue for the aboriginal people which the NCC represents.
In the hopes of generating a more thorough understanding of how this issue is perceived by our constituency, we intend to outline it in some detail. We will begin with our non-status Indian constituents.
As we told the House of Commons committee last spring, the NCC is very concerned that the rhetoric in both houses which is being expressed around the Accord resolution has over-emphasized the concerns of status Indians. If I am not mistaken, there was only one senator here yesterday who even used the words “non-status Indian.”
Intentional or otherwise, the emphasis has been on reservation issues, band councils and band governments. Certainly these are critically important issues to our status brothers and sisters, but to emphasize them to the point of excluding the equally important issue of our non-status Indian constituents simply cannot be tolerated.
By any realistic set of statistics, it is obvious that there are far greater numbers of people who identify themselves as Indians who do not live on reserves, who cannot participate in band councils or band governments, and who are not recognized as Indians under the Indian Act. Even the most conservative estimates of three non-status for every status Indian makes it evident that forms of accommodation, other than those being proposed for status Indians, must be developed.
There seems to be an unspoken assumption-despite all our warnings to the contrary-that, by virtue of constitutional guarantees and revisions to the Indian Act, all non-status Indians will be repatriated to existing Indian bands and reserves and that all Indians in Canada will then, by definition, become Indians under some form of Indian Act.
Each of our member provincial and territorial organizations has held its annual assemblies over the summer months, and they have confirmed what we have already said at the conference table. When the process of repatriation to Indian bands and reserves is complete, the majority of Indian people in Canada will still not live on reserves and will still not be participants in band governments.
The NCC, as the only spokesperson for the non-status Indian constituency in the whole of Canada, recognizes its responsibility-not only for establishing a higher profile for these non-status issues, but for bringing forward creative and mutually beneficial proposals for the accommodation of our constituents in a constitutional context.
These proposals will have to address a wide variety of local and regional concerns. The tribal and neo-tribal forms of organization being developed in British Columbia will require a very different accommodation from that of the urban native communities in southern Ontario. Those regions in which native people are a majority will develop very different forms from those in which aboriginal people are a minority. Ready access to viable natural resources will obviously dictate different support mechanisms from areas in which some kind of transfer payment may be necessary for economic viability.
There are no simple solutions and there will be no solutions at all unless we all recognize, from the very outset, that we must design a flexible master plan which can accommodate a broad range of national, regional and local needs. At the very least, whatever form of definition is finally created in this conferencing process, it, too, must have the flexibility not only to accommodate regional and local differences but to guarantee the continuing existence of the people involved as a distinct aboriginal population.
For the rules of discussion, if we were to abstract the characteristics of our non-status Indian constituents and apply them to the implications of a legally binding definition of “Indian”, we could easily determine those elements which we could not accept. We could not accept any definition which amounted to a constitutionalization of the Indian Act definition of “Indian;” which limited the definition of “Indian” to those persons who live on a reservation or are participants in band councils; or which was worded in such a way as to decrease the numbers of persons who could, over time, qualify under such definition, i.e., or a policy of title.
Although we are not prepared to put forward a specific definition at this time, we can assure you that such a definition must be developed by all of the Indian people concerned; it must be flexible enough to accommodate cultural differences and practices in regional and local communities; it must be specific enough to enable such Indian communities to determine and monitor membership or citizenship in that community in relation to participation in benefits; and it must be structured so as to guarantee, as far as is possible, the continuity of the Indian nation, tribe, or community established by such a definition.
As you may be aware, the events of the past year, in terms of the actions of the prairie provinces and the formation of the Metis National Council, have had an unfortunate side effect which appears to be generating considerable confusion around
the identification of the Metis constituenocfy the NCC. As an organization, we are willing to comply with the decision of the federal government to permit the three prairie provinces to represent the interests of their Metis constituents and to occupy a separate seat at constitutional conferences for that purpose.
However, we cannot and will not, under any circumstances, forgo the responsibility under our federally granted charter, to fully represent the interests of the Metis people in all of the other provinces and territories in Canada.
The determination of how many Metis constituents live outside the prairie provinces is a complicated problem. Certainly any attempt to apply census figures to that determination- which would produce a figure of some 15 per centwould clearly indicate that the user of such statistics has little or no concept of the reality of non-prairie Metis.
Certainly, the problem is compounded by the fact that non-native historians have most frequently applied the term “Metis” to Louis Riel and his followers in Manitoba and Saskatchewan. This practice may well serve the narrow interests of academic historians and those professional camp followers who have a vested interest in restricting the term to the prairie provinces. But that narrow application imposes a grave injustice on the majority of mixed blood people who do not live on the prairie-those who do not identify themselves as Indians, but who certainly perceive themselves as an aboriginal people.
This is neither the time nor the place to expound a detailed history of the mixed blood aboriginal people of Canada. In fact, the incredible variety of historical and current situations in which mixed blood people were, and are, involved really defies simplistic description. From Newfoundland to British Columbia and from the Arctic Circle to the Gulf of Mexico, mixed blood people, under a bewildering variety of names, have struggled to establish recognition of themselves as aboriginal people.
Just to highlight the confusion in terminology, Canadian history books apply almost three dozen terms to those people who will be identified as Metis under the Canadian Constitution. The problem is focused very clearly in the only treaty ever signed by the Government of Canada with Metis peoplethe halfbreed adhesion to Treaty Three in the Rainy River area where I come from. Because of the linguistic makeup of the mixed blood population, the treaty was written in both English and French. The French version refers to the signees as Metis. The English version refers to those same signees as halfbreeds. Correspondence in the following years shows the same pattern-although the word “Metis” is rarely used after the defeat of Riel in 1885.
Whatever the terms used, the intent of the language is unmistakable. The mixed blood population-by whatever term they were labelled-were recognized as an aboriginal population with aboriginal rights which must be dealt with before the
Government of Canada could justly lay claim to title to the land in the name of the Crown.
No one could expect us to accept the argument that because colonial governments of yesteryear found ways to subvert or ignore the aboriginal rights of an aboriginal population who happened to be of mixed blood and had evolved a way of life distinct from both Indians and whites, that the descendants of those same aboriginal people should be denied those rights today. Yet those who would argue that the term “Metis” should be confined to the descendants of those people who received scrip as means of extinguishing those rights come perilously close to saying just that.
If we were once again to apply the characteristics of the Metis constituency to the process of developing a legally binding definition of Metis, we could contribute to a discussion on that issue by saying that we could not accept a definition which:
1. Restricted definition of “Metis” to mixed bloods of French descent, or to descendants of those prairie Metis who received scrip.
2. Was based on a maximum or minimum blood quantum.
3. Was structured to provide recognition to a diminishing number of persons over a number of generations.
4. Was developed without the participation of Metis from all parts of Canada.
In a more positive sense, we can advise you that any legally binding definition of Metis could only be achieved if the following conditions were met. The definition must:
1. Be developed with the full participation of Metis from all parts of Canada.
2. Include all persons of aboriginal ancestry who identify themselves as Metis.
3. Be flexible enough to meet national, regional, and local cultural differences and practices.
4. Be specific enough so that Metis communities and collectivities can determine and monitor membership and citizenship in relation to access to benefits.
5. Be structured so as to guarantee as far as possible the continuity of the «hfMetis community or collectivity as distinct aboriginal people.
Before we leave the question of definition, we should make you aware of another aspect of this issue that is rarely discussed. We, along with the other aboriginal groups, are concerned that all aboriginal people should be provided access to the birthright of their aboriginal rights. But this does not automatically imply that every person of aboriginal ancestry in Canada will automatically get a quarter section of land and a lifelong pension based on oil revenues.
Certainly we insist that every aboriginal person in Canada has the right to identify him or herself with the realistic term
that most describes his or her cultural heritage-as Indian, Inuit, or Metis. Certainly we insist that any aboriginal person who can demonstrate that he or she was unilaterally deprived of benefits which he or she would have enjoyed had that unilateral action not taken place, is entitled to restoration of those rights, and compensation for the loss of benefits.
We were very disappointed yesterday to hear so much talk of costs. Would you really have us believe that the birthright of the aboriginal people of this land must, in the final analysis, be measured in terms of dollars and cents? Do you expect us to accept the idea that the future of our children is to be plotted on a balance sheet in the Department of Indian Affairs? Do you really think that our people have struggled against insurmountable odds only to settle some kind of outstanding debit account? We hopw not, because nothing could be further from the truth.
Your questions four and five are so closely related in terms of the equality clause and section 12.(1)(b) of the Indian Act that we would prefer to deal with them together. Contrary to Mr. Munro, and in support of Premier Hatfield, we can flatly state that the present wording of section 35.(4) is not the wording that the first ministers agreed to. The wording shoudl read:
Notwithstanding anything in this part, the rights of aboriginal people are guaranteed equally to male and female persons. We fully intend to pursue the reinstatement of that wording
during the upcoming constitutional meetings.
The meaning of that clause to our constituents is both clear and crucial to the entire constitutional process. As originally expressed, the clause was intended to guarantee, beyond any doubt or ambiguity, that female aboriginal persons would never again be subjected to the unilateral deprivation of their aboriginal rights.
Every aboriginal woman who spoke to this issue at the First Ministers’ Conference made it unmistakably clear to even the most obtuse government bureaucrat that the primary target of the equality clause was the elimination of section 12.(1)(b) of the Indian Act, and the reinstatement of those who wanted repatriation to their bands.
The fact that we sat here yesterday and heard the Justice Minister-whose officials redrafted the text of the clause-say that the equality section “does not reach” section 12.(1)(b) had the more cynical of our members gloating with “I told you so”. For our non-status constituents in particular, this clause was not only intended to “reach” section 12.(1)(b), but it was intended virtually to destroy it. We still dedicate ourselves to that intention.
When queried on this issue last evening, Mr. Munro mentioned a document which he had placed before Cabinet and which, he implied, would satisfy the senators as to the disposition of 12.(1)(b) and would provide for a satisfactory measure of reinstatement of non-status Indian women. It so happens that we have seen and studied that document. I cannot say
whether or not the proposals contained in that document would satisfy the senators here, but I can assure you that it does not even begin to satisfy us.
Once again we find ourselves, as representatives of the largest number of aboriginal people in the country, at the mercy of a government department whose primary mandate is the management of some 300,000 status Indian people. The minister of that department all but admitted a conflict of interest within his department in the case of Metis people. Although he claims no responsibility for Metis, his department is negotiating a comprehensive land claims agreement with N.W.T. Metis. We are beginning to suspect an equal conflict of interest as regards non-status Indian people.
That, however, is our problem and our responsibility to correct. We point it out here only to press home our concern over the predominance of a status Indian perspective in the constitutional process to date. We can almost believe Chief Sanderson when he said here yesterday “we wrote the Accord.”
We heard a good deal yesterday too about a bilateral process between the federal government and status Indians. We heard glowing praise for a committee which is ready to make recommendations on Indian government, and some reports on another committee discussing revisions to the Indian Act. With all of these legislative processes in the works, we might begin to wonder what will be left for the constitutional conferences to deal with.
We can assure this Senate committee, and any of the conference participants who are listening, that everyone involved is certainly going to have to deal with us. We are not going to stand by and watch a bilateral process undermine the rights of our non-status Indian constituency. And we are certainly not going to permit the diminution or whittling away of the birthright of our Metis constituency.
In a sense, I suppose the last question the Senate committee asks, regarding the legitimate authority of one aboriginal organization over another, is the last gasp of a futile challenge as to the validity of the entire constitutional conferencing process. We are almost at a loss as to how to answer this question without getting very, very angry. We could not help but notice this was the only question which was not asked out loud yesterday.
We might well return the question and ask how you are going to determine who sits across the table from us at the conference. We understand the present government, as of today, has only 28 per cent of the popular vote. Perhaps we should be talking with the Conservatives; or considering the fact that the NDP was the only national party to adopt wide-ranging support resolutions for aboriginal rights, perhaps
we should be dealing with them, or at least give them a seat at the conference.
From another point of view, we could say that all aboriginal organizations in Canada today are-at least in terms of financial support and operational charter-creatures of federal and provincial governments. Perhaps we should be asking those governments what the significance of opposing organizations are in the constitutional process.
Speaking for ourselves, the NCC does not have that particular problem. We are mandated by our charter and by our constituency to represent the national interests of the nonstatus Indians and the Metis people of Canada. We have agreed, in order to accommodate the express wishes of our former prairie members, that a separate seat be established at the conference table for the prairie Metis who now identify themselves as the Metis National Council. We do not oppose the constitutional positions of this group and, to the best of our knowledge, they do not oppose our positions. Perhaps we can assume the question was not directed specifically at us, particularly since the same question was addressed to the Metis National Council with the single change of the word “Indian” to the word “Metis”. It is hard to understand what productive purpose this question might serve.
After hearing all of these concerns you might wonder why we are sitting here at all. We are here because we have a right and a responsibility to be here. In spite of the difficulties we are prepared to move ahead to the next series of discussions prior to the First Ministers conference in March. And so I will end our remarks with the same idea that started this presentation. We urge you to give this Accord as speedy a passage as possible so we can get on with the difficult work ahead.
In his opening address to the conference, the Prime Minister said:
It is more fitting, at this new point of departure in our constitutional development, that we should be turning our full attention to questions which very much concern three quite distinct groupings among Canadian citizens, the Indian, Inuit, and Metis, the descendants of aboriginal peoples living in this land when the European settlers first arrived. Canada’s constitutional process cannot be held to be fulfilled if these people, whose ancestors have been here longest, find that their particular rights are not adequately reflected and protected in the constitution.
The Accord bill is the first essential step in that process. I can do little better than quote his closing remarks:
The peoples we represent look to us to move as quickly as we can along the paths to a new consensus, one which all Canadians can share with pride and dignity.
The Chairman: I thank you for your very comprehensive brief. In your opening remarks you mentioned that you were concerned about the speed with which this committee is moving. I might say that we are trying to accommodate all the groups that have asked to appear without delaying the process unduly. The second point, of course, is that only four provincial legislatures have dealt with and passed this resolution and you need seven provincial legislatures, including the legislature of the province of Ontario.
Senator Godfrey: Madam Chairman, the witness states on the first page of his brief that they cannot even begin to get answers until the Senate has completed its deliberations. I think we should point that out to the Minister of Justice. Are they holding up anything?
Mr. Bruyere: The point is that as long as the Senate is studying the resolution the provincial governments feel that there is no great rush because it is still being reviewed by the Senate.
Senator Godfrey: But you say that you cannot begin to get answers. Are you referring to answers from the provincial government or from the federal government?
Mr. Bruyere: Both.
Senator Godfrey: Do you mean that they refuse to deal with you?
Mr. Bruyere: That is right. Meetings were scheduled for this past summer and for this month, and one of the reasons that nothing has gone ahead is that there is a reluctance to go ahead because the matter is before this committee. In effect what you are doing is the work of the new office set up by the Prime Minister. By asking the six basic questions, you are doing the work that that office was supposed to do over the summer.
Senator Frith: What are the other reasons they give.
Mr. Bruyere: That is the main reason.
Senator Frith: The main reason that the provinces give for not dealing with you is because the Senate is dealing with the matter?
Mr. Bruyere: No, I am saying that that is one of the reasons they could use.
Senator Frith: But they have not actually done so?
Mr. Bruyere: No.
Mr. Gary P. Gould, Chairman of the Constitutional Committee, Native Council of Canada: I had dealings with Premier Hatfield of New Brunswick prior to the introduction of this resolution in the legislation there. We had a meeting with Mr. Hatfield the evening he introduced the motion in the legisla-
ture. One of the reasons he gave for delaying the introduction of the resolution into the legislature was that according amending process seven to the legislatures are required and, therefore, there was all kinds of time. It is that attitude that is dangerous. The premier was open and honest with us and he said that we did not even need New Brunswick to pass the Accord because there were plenty of signatures representing provinces on the Accord. That, too, is a danger because other provinces can say, “We can hold off because nine of us signed the Accord and only seven are needed”.
With the Senate taking the time to look at this question, the bureaucrats and the governments can say, “We can hold off because we only need seven signatures and we have all kinds of time”. There is a great deal of serious discussion yet to be held on the agenda items, which are very important to the next constitutional conference.
Senator McElman: Madam Chairman, for the record I would like to add something to what Gary has just said. When Premier Hatfield presented this resolution to the legislature he also went on to state that there was some urgency about the matter. He was asked by a member of the legislature, an office holder, whether the resolution should not be sent to the law amendments committee for further discussion. The decision was made that since there was a sense of urgency about the matter it would not be sent to the committee and it was on that basis that the resolution was passed on June 28. So there was no attempt on the part of the Province to make any reference to the Senate or anybody else at that point in time but simply to get on with it.
Mr. Gould: I hope my remarks were not interpreted in that way. It is very important to understand that we met with the premier between the time the proclamation was introduced and the time it was voted upon in the legislature. The premier’s actions were even misunderstood by both sides of the legislature. After discussing the matter with him, the premier moved very quickly to ensure that the resolution would pass through the house speedily. Incident ly, the question has been referred to the Law Amendments Committee of the Legislature even though the motion has already passed.
Senator Stollery: I would like to ask a question with regard to the concept the Metis have of their own rights. I gather that some Metis feel that their aboriginal rights have diminished in past years. Is that so?
Mr. Bruyere: This matter came up a number of times in a number of different areas across Canada. That comment has been made but I do not believe it to be fact. But if people want to say such a thing that is fine because they can say what they
want and I will say what I want. That is why there were discussions on the matter at the First Ministers’ Conference.
Mr. Gould: There is also the reality that what has happened in the historical past, not only to Metis but to Indian people as well, is that laws have been passed affecting aboriginal peoples’ interests. Laws are not always just. For example, there is the problem in Manitoba with the rights of francophones. Many laws have been passed which have taken away people’s rights. Whether they are morally or historically right is the issue with which we are involved. Hopefully we are not dealing in this constitutional process with sheer legal interpretations. One of the main reasons why our prairie brothers felt they needed their own organization is that they fear the legal interpretations of the past with regard to their lands and their rights which have always worked against them. Also, within the Native Council of Canada, there is still a large majority of Metis people who have a very strong philosophical interest in having their rights entrenched in treaties, royal proclamations and other agreements entered into in the 1600s and 1700s maintained. This all has to do with law. Parliament could pass a law tomorrow such as the Indian Act. As we said in our statement, the Indian Act has a profound constitutional affect on the discussions.
Senator Stollery: So with regard to the Metis, the complexity of this whole question and the element of vagueness about it is because there are different ideas amongst the people themselves as to just where they stand vis-à-vis their aboriginal rights. Is that so?
Mr. Gould: You are absolutely correct. It does not only exist within the Metis community, it also exists in the status communities. There are groups called treaty Indians and groups called registered Indians. There is the AFN and various other groups wishing to have their perspectives presented. That is the complex nature of 500 years of history in this country. As the white settlers came the relationships and interaction with the aboriginal peoples differed depending on where they were.
Senator Steuart: In this brief there is some implied criticism that we have been audacious enough to even sit down and talk about this matter. What I would like to point out is that until such time as we are reformed out of existence-and I would not hold my breath waiting for that to happen-we are part of Parliament. I hope that when you next sit down with the federal government you will impress upon them that they had better get back to the people from whom their authority is derived, that is, Parliament-the House of Commons and the Senate. You should point out that they should not sit on this matter for over three months and then toss it to us like a bone and ask us to rubber-stamp it.
We do not intend to hold this matter up. In Saskatchewan our legislature has not met. I have talked to some members of the cabinet there and it is their intention to pass this resolution some time in the early fall. I believe we will have considered it well before some of the provinces have considered it.
Your organization should give some consideration to the way in which this first amendment is being handled by the federal government. It has been handled in an unbelievably casual manner and there was a great rush put on it. This is an amendment which you happen to like. I am aware you do not agree with all of it. Every group which has come before us thus far has said that they are not satisfied with it but that it is a step in the right direction and let’s get on with it so that we can take the next step. We appreciate that. I am sure that somewhere down the road there will be a time when amendments may be proposed which you do not like. I think at that time you will be hopeful that there will be some legislatures in the country, some parts of Parliament, who will say, “Let’s hear the people and see if this is what they want.” Surely a basis of constitutional law is that it should not be impossible to amend; but, by the same token, it should not be allowed to be amended casually and in a great hurry.
I want to put these statements on the record, although I am sure you heard them yesterday. In our opinion we are doing exactly what we are supposed to do and it really is not our fault we received the subject matter of our discussion so late. We will deal with it as fast as we can.
Mr. Bruyere: My criticism of the Senate is that it is involved in the process. I have met with a number of senators to discuss what it is we are hoping to accomplish here and in order to inform you what the federal and provincial governments are telling us. You, Senator Steuart, and other senators, some two years ago sat on a joint committee of the House of Commons and the Senate which studied this bill. At that time some of the questions now being raised were answered. Many of the questions being raised today were answered at the First Ministers’ Conference. Also, many of the questions were answered at ministers’ and officials’ meetings which were held. This is why I mentioned in my brief about doing your own homework. In spite of many meetings having been held we are once again being asked to come here before you to repeat what has already been said-maybe not to you specifically but to others. Those matters are now on the record. We are not telling you anything new; it has all been said before. The federal government is simply adding new aspects to it in terms of where we are all going. We have a concept of self-government which includes the Senate as well as the House of Commons.
Senator Steuart: I appreciate the point you are making. However, I point out that even though you may feel some of our questions are redundant, within the two days we have been here new matters have arisen. For example, Premier Hatfield’s disagreement with this matter was never mentioned to us before. We were told by the Minister of Justice and the Minister of Indian Affairs and Northern Development that there was no disagreement, that the final clause is exactly the way it was presented. We asked the Minister of Justice about some of the matters under discussion, as well as some definitions, and he obviously did not have any answers for us. I hope that by the time we report we will cause the federal negotiators to sharpen up for the next time around. I do not think this exercise has been in vain and I believe some good will come of it.
Senator Godfrey: I am interested in the question of this definition. When I read your brief the thought floated through my mind that Winston Churchill was a Metis since he had some Indian blood. We heard this morning from the Council for Yukon Indians that their definition of an Indian included any person having 25 per cent Indian blood. How do you distinguish between Indians having a very small amount of Indian blood and Metis? On page 14 of your brief it is stated:
Certainly we insist that every aboriginal person in Canada has the right to identify him or herself with the realistic term that most describes their cultural heritage-as Indian, Inuit, or Metis.
That really sums up your definition and I do not think it is unreasonable.
Mr. Bruyere: That is one aspect of it.
Senator Godfrey: What other aspects are there?
Mr. Bruyere: No one has asked the French people in this country how they define French. We have French people outside of Quebec and they have not been asked to define themselves.
Senator Frith: That is linguistic and not ethnic.
Mr. Gould: I challenge that. I come from New Brunswick and my father’s line was Acadian. They were forced to, assimilate when they moved to the Saint John area. Because of constitutional rights entrenched in the Constitution there are many Acadians who are discovering their roots. In Saint John you will find many Acadians with names such as Young, McGarrigle and many other Anglo sounding names who have the right to identify themselves as Acadians-francophonesin New Brunswick. What we are saying is that the same sort of mentality must be developed in regard to aboriginal people in order to break this notion of blood quantum or a legislative definition to decide who the people are. I honestly say that Canada is still a racist state. Any notion of blood or legislative definition will always have a limiting factor.
Senator Frith: Wait a minute, I would just like to say something in answer to that. The point I was making is that the rights that are described in the Official Languages Act and the rights that are described in the Constitution based on French-English are not based on blood quantity or ethnicity. Certainly people can call themselves French or not French, but these rights we are talking about here are legal rights, constitutional rights and my point was that, so far as French-English is concerned, those rights are for the use of the language. Not for someone saying, “I have ,, a right because my grandfather-
Mr. Bruyere: What is our Constitution now saying about the two founding nations of this country? There were people here before the French and English came.
Senator Frith: Let’s see what it is saying. It talks about the use of the languages. That is the point. I am not saying the your case is not right. I am saying that it is not right to assume-
Mr. Bruyere: But the assumption that people put to that, whether it be just on a question of language or whether it be on a cultural basis, where you come from and so on-
Senator Frith: But the point is this: That the essence of what we are talking about, rightly or wrongly-and I am not getting into the issue of whether it is right or wrong-but the point is that it is a right that is essentially based on ethnicity. It is talking about native people and it is essentially based on ancestors and blood, and I am simply saying that, to confuse that with the English-French question is not reasonable. Your case can be reasonable without getting it confused with the English-French question because, so far, this country has based the rights, as far as English and French are concerned, on language use, not on ancestry. That’s all.
Senator Godfrey: Do I still have the floor, Madame Chairman?
The Chairman: Yes, Senator Godfrey.
Mr. Gould: Madame Chairman, I would just like to add one thing to what Senator Frith has said. He said it is based on blood and if anybody has really taken the time to understand native culture, there were many people without a drop of Indian blood who were adopted into the societies and became Indians.
Senator Frith: I was talking about the law.
Mr. Gould: This is the problem. Governments always talk about the law; aboriginal peoples talk about aboriginality, and what we are saying is-
Senator Frith: I am sorry I brought it up.
Senator Godfrey: May I get back to what I was asking? I had said that that was probably a pretty reasonable definition, and you immediately seemed to argue with me that it was not, so there must be something else. What else is there? That may
be the solution. What else are you suggesting should be there besides that simple definition?
Mr. Bruyere: Well, as we said in our brief, we will not be giving you any specific answers because-
Senator Godfrey: Well you must have some idea.
Mr. Bruyere: Yes, we have listed a number of them there.
Senator Godfrey: You say on page 14, ” … include all persons of aboriginal ancestry who identify themselves as Metis.” That is simply refining what was said. There is not any other suggestion that there should be any other definition and surely you must have given some thought to some area other than what is included in that paragraph. Just give us a little inkling.
Mr. Gould: Well, senator, there is all kinds of material and I am sure that the Metis from the prairies will have some idea as to that.
The Native Council of Canada, back in 1980, had its commission on the whole issue of the Constitution, and one section of that was, “Who is a Native Person?”, and I want to read number 2 of the section called “Native Collectivities” and “Who is a Native?”, and its states that:
2. Broad, realistic and equitable definitions of Indian, Inuit and Metis should be adopted for the purposes of the constitution and subsequent legislation in order to avoid the fragmentation of Native collectivities which has hitherto occurred.
These definitions should include notions of:
i descent from common ancestors; which is our primary definition:
ii a common and continuous history;
iii a form of social organization rooted in distinctive modes of economic enterprise;
iv distinctive cultural attributes, values and willingness to identify as part of the Indian, Inuit or Metis collectivity.
So there are other definitions.
Senator Godfrey: I get the impression from that last section that, if you get into some community or organization, that helps you to define whether or not you are; whereas if you are out by yourself and not identified with a group-I am just trying to get some sort of feel for this, that’s all.
The Chairman: Could I just ask this: When you are talking about collectivity or organization, I assume you are talking about a social rather than a geographic collectivity, because you have also said that your people are scattered; a lot of them are now in urban centers and are not part of any easily defined geographic or organizational group at this point. Therefore you are going to have to find other ways to identify them, or define them or whatever term you want to use.
Mr. Gould: A good example, if anybody wanted to do some research into this, is the Maori definition in New Zealand. You can be a Maori whether you live in your community or whether you do not, and it is amazing; when the Maori people meet, they all identify; they all say, “I am from such and such a community.” They do not give their name; they give the community that they are from, and they could be from the other side of the world. That is their definitiveness as a Maori person, and nobody denies them their Maori identity simply because they do not live in a homogeneous group.
Senator Flynn: For what purpose do you want to have this definition? What right would you give to someone who is not in a social group or a geographical group? For instance, down in Quebec City, I know of people who have left the Huron band there and they are completely outside of this community. What rights do you want to give those people?
Mr. Bruyere: The rights that that person is entitled to in terms of self-government. There has to be some way that that person can fit into that structure so as to have some say in the native community as to what is going on.
Senator Flynn: They would have to go back to the band to express any opinion. How can they express a special right if they live in the general community?
Mr. Gould: Well senator, this is what we alluded to in our paper when we said that the whole emphasis so far has been upon bands and band governments-
Senator Flynn: I do not disagree with you. I know that you want to cover as many people as is possible, but what does it mean in practice for people who are not within a band or within a territory or within a social group which is easily identified? If they are out of that group, why do you want to give them the right to participate?
Mr. Bruyere: Do Canadian soldiers lose the right to participate in elections if they are not posted in Canada?
Senator Flynn: No.
Mr. Bruyere: By that same extension of rationale-
Senator Flynn: But what right to vote do you want for these people?
Mr. Bruyere: What we are talking about is that there is need for recognition that we cannot just have one form of aboriginal self-government.
Senator Flynn: If they are outside the band, self-government means nothing.
Mr. Bruyere: The first choice that we list in our document is that the individual should have the right to participate in that band government.
Senator Flynn: They would go back, then, to the band?
Mr. Bruyere: They could if they so wished. We will have to wait and see whether or not that is taking place in the self-government committee report that is coming down.
Senator Flynn: I have no objection, but I can assure you that when you get out of a specific group, I find it difficult to see how we can give tham this right unless they go back to the social group.
Mr. Bruyere: You have the army as an example. Wherever the soldiers happen to live, they do not have to come back here to Canada to vote. They can still vote.
Senator Flynn: They vote? What kind of vote do they get?
Mr. Bruyere: They are allowed to vote in federal elections.
Senator Flynn: Well sure. That is everyone’s right.
Mr. Bruyere: But they do not live within the constituency, or they do not live in the country. They may be in Europe or some place, but they still have the right to vote within their own community.
Mr. Gould: Senator, we are saying that that option should be available to those Indian people who wish to do that.
Senator Flynn: To do what? To go back to the band?
Mr. Gould: We recognize that all the status aboriginal groups are not going to open their arms and accept that, because of the historical development of the Indian Act and the whole historical pattern. What we are saying is that, because of that, there is also a need for the recognition of developing alternate forms of self-government for aboriginal people, firstly who may not wish to return and secondly, who might be denied that opportunity to participate in that form of self-government.
Senator Flynn: If they do not want to return, then they want to have their cake and eat it. If you want to give them the right to go back, that is something.
Mr. Bruyere: At the same time, you have your personnel in the armed forces. Are you going to force them to come back? Are you saying you are going to change the laws in this country so that they have to come back here in order to participate in the democratic process here? That is what I am saying, that that is one of the rights we want to put forward for our people.
Senator Flynn: I do not think you can make that comparison, but in any event, I was wondering If you have something specific.
Mr. Gould: We have alternate forms of self-government-
Senator Flynn: But that is impossible, outside of a specific group-
Senator Stollery: To come back to what we are looking at, it seems to me that this is a very complex and difficult business and that there must be a variety of opinions in your own community as to how this is all to be sorted out. It seems to me that it is impossible at this point to go very far with it. In terms of the amendment that we are looking at, I suppose that the idea is that this is a first step. But then you get into all of these
discussions and arguments, upon which I would not want to comment because they sound very complicated.
Senator Flynn: They can find something.
Mr. Bruyere: I will respond to that question specifically in terms of hunting, fishing, trapping and so on. If a person chooses to leave Metis community to move into the city-even if he is on welfare in the city-he should still have the right to fish, hunt and trap. That is why we also said in our presentation that we hope the system we are trying to put in place will be flexible enough to accommodate everybody and not simply a select group of people.
Senator Flynn: You will not grant rights to those people enabling them to hunt-
Mr. Bruyere: We are not granting any rights.
Senator Flynn: . . . but you will force the community to accept them when they return. That is quite different.
Senator Lapointe: Did you agree with the definition regarding non-status Indians which was given at the First Ministers’ Conference? That definition was to the effect that a group of non-status Indians generally includes Indian people and their descendants who, for one reason or another, lost their right to be registered as Indians as defined by the Indian Act.
Why did those people lose their rights?
Mr. Bruyere: They are still Indian people. I believe you talked yesterday of conferring rights.
Senator Lapointe: I never used the word “confer.”
Mr. Bruyere: Well, somebody used that word yesterday, because I sat here and listened to that term being used on a number of occasions. One cannot confer rights.
Senator Lapointe: Why did those people lose their rights, though?
Mr. Bruyere: Those people lost their status but not their right to be Indians. They might have lost their status because of marriage, and some because, when the Department of Indian Affairs and Northern Development representatives went to the communities and signed up Indians, they happened to be out of the community on a fishing or hunting expedition. If a brother or a sister did not name them, they lost their right to be an Indian.
That is not our attitude; that is the government’s attitude. Our attitude is that if you are born Indian, you remain Indian until death.
Section 2 of the Indian Act makes people Indian who do not have one ounce of Indian blood in them. That is one of your laws; not ours.
Senator Godfrey: Are you objecting to that?
Mr. Bruyere: In some forms, yes.
Senator Godfrey: But you said that the blood count should not matter.
Mr. Bruyere: How can someone trace their aboriginality back if they do not have any at all? Would you want to be an Indian?
Senator Godfrey: If I had been adopted by Indian parents, I would want to be an Indian.
Mr. Bruyere: There are many people in that situation today.
Senator Godfrey: Let us take as an example a man who leaves the reservation as a child, is educated and becomes a bank president and lives in the Toronto suburb of Rosedale, which is where I live. Do you say that he should maintain his hunting rights and can return to his native community?
Mr. Bruyere: Why not ask that question of the Prime Minister, who is part Indian, or of Peter Lougheed, who is part Indian, or of James Richardson of Richardson and Sons of Winnipeg, who is also part Indian?
Senator Godfrey: I am asking for your opinion. You are giving evidence before the committee.
Mr. Bruyere: I think that that person and his or her descendants should have the right to decide that for themselves. If that is a right given to the aboriginal peoples, then they should have that right just as their descendants should.
Senator Stollery: I realize that what I am about to say will only take place after this resolution is enacted, but it seems to me that a great deal of money might be involved.
If I were observing this from the sidelines and became aware of someone who left the native community as a child and became a bank manager rsiding in Rosedale trying to cash in on the benefits of a native community striking oil, I would certainly question whether he should have the right to a percentage of the royalties. That is for you to determine, but that sounds like a rather complicated procedure to me.
Mr. Bruyere: Are we not involved in a complicated issue?
Mr. Gould: Allow me to break it down on a more personal basis. If you left your father’s home as a young child and had not returned for many years, and your father suddenly struck oil on his land, would you not have the rights of an heir to the moneys resulting from that find?
First of all, we are saying that aboriginal peoples have the right to their identities. When we get into what you are talking about, identity has nothing to do with whether a person is rich or poor, because there are many French Canadians who are rich, but simply because they have so much money does not mean that they are not French Canadians.
What needs to be recognized is that with self-government the aboriginal peoples are capable of putting in place safeguards. We can put into place institutions and safeguards that say that, if I were a millionaire, I would still be entitled to my identity as a Metis person. But when it comes down to educational benefits those same institutions and safeguards can tell me that the people who really need education are to be
taken care of first. By the way, there are many people in this country, believe it or not, who identify with the native way of life. They go canoeing, hunting, fishing and trapping, and that is an aboriginal right people have.
The issue is very complex, and we are the first ones to admit that, but the major point is that we should not deny people the right to be who they are. If there is a concern with respect to resources and access to those resources, I am positive that the aboriginal peoples can put in place safeguards so the abuses you people tend to think would occur will not occur.
The Commissioner of Human Rights last year, before the committee dealing with the Indian Act and Indian womenand I was a member of that committee-stated clearly, when asked a question about dollars and cents, that one cannot tie rights to dollars and cents.
The social and economic positions of individual aboriginal peoples can be taken into consideration by the aboriginal communities themselves. There are many things that need to be put in place. First of all, we are not trying to establish a Department of Indian Affairs and Northern Development for the Metis people and the Inuit people. Let us be sure of that. We are not trying to create a Metis affairs department. We simply want control of our own destiny, and our people will guarantee that safeguards will be put into place so that some of the problems that have developed historically around the Department of Indian Affairs and Northern Development will not exist, but we will oppose any attempt to deny our people, regardless of their socio-economic standing, the right to be who they are.
Senator Godfrey: May I make a comment with respect to the father who struck oil? If I were the father and had a son who departed and had not been in touch for 40 years and if I also had two or three other children who stayed around during that time, by God, it that son who left 40 years ago suddenly turned up after I struck oil, I would not give him a nickel. I would divide everything among the two or three who stayed around.
Mr. Gould: If you put that in your will, which you have the right to, that is fine.
Senator Godfrey: Certainly I would.
Senator Steuart: You never heard of the prodigal son?
Senator Godfrey: The prodigal son did not wait until the father struck oil.
Mr. Gould: Neither have the aboriginal peoples in this country. Everybody thinks the aboriginal peoples are jumping on a bandwagon for socio-economic benefits and that is not the case at all. My mother who has not lived on a reserve for 54 years is as much aboriginal as her brothers and sisters who live on the reserve and we go there as often as we are allowed to. They decided to throw my father in jail 54 years ago because he was a “bludgeman,” which in our language is the word for “Frenchman.” My mother said, “if my husband cannot stay
here with me, then I am leaving,” but she returned every summer and that is her birthright.
Senator Lapointe: Yesterday we heard about self-government for the Indians. What do you mean by that? Is it only one Indian government for all the aboriginal peoples in Canada, or would there be Indian governments in every province?
Mr. Bruyere: There are many structures that have been talked about. You heard some of them here yesterday from Chief Sanderson. You have your own system of government. You have a provincial government in every province.
Senator Lapointe: He seemed to indicate that you could have more than 10 or 12.
Mr. Bruyere: It depends on the economic condition in parts of the country in one sense. It depends on many things as to where that self-government is going to take effect and whom it is going to affect. The bill that is coming forward now for Indian self-government is comming from the Standing Committee on Indian Affairs. That may be only one aspect. I am sure that you will not find all the Indian people across Canada agreeing with that, but you might find some of them agreeing with it. I am sure with the way it is set up that the Metis non-status and the Inuit are not going to agree with it. It is one option that has to be looked at, and there are many other options that have to be looked at as well. The non-native people in this country have a federal, provincial and local form of government within your own system. We are now putting forward some of our ideas based on that same formula that we have to look at some sort of self-government for our people in which they can develop their own way of life, which is very foreign to some of you. I would have a very difficult time going back to my community and living there under the conditions that those people are living in, but at the same time I know that many of you would not even want to go near the place. I would because that is where I come from, but whether I could live there the way the other people do, I do not know. There has to be other forms to look at in terms of self-government.
Mr. Gould: What we are talking about is that there needs to be recognition of options. One of them might be the band, one of them might be regional tribal-types of government that are being talked about in British Columbia and in parts of the Territories. Then there is the form of self-government of the eastern Arctic aboriginal peoples called Inuit. These things will evolve but I can assure you that we are not talking about hundred of different types, but we are talking about four or five basic types which have enough flexibility within them to allow the aboriginal people to make them work for themselves depending upon the social, economic and geographical conditions under which they find themselves.
The Chairman: May I try to suggest a scenario of perhaps what you have in mind as one of the forms? Are you thinking in terms of the Native Council of Canada being incorporated like a municipality of some kind and that that incorporated entity would be responsible for administering certain rights,
money and privileges that you would work out by agreement as part of your self-government? Is that this what you are thinking of in that the Inuit be doing this in another way and that perhaps Indian group would be doing it in yet another way so that there is a flexibility that it would be an incorporation and that you would be able to identify the people who would belong to that-corporation, whether they were there or overseas, as you mentioned, serving in the Armed Forces, but they would have certain rights and privileges that would adhere to that corporation as being part of the group?
Mr. Gould: That would be one of the notions that we talked about. Right now the Department of Indian Affairs is talking about this new Indian government bill but they have given the bands the option of opting into it or maintaining the Indian Act form of band government. What we are saying is that, hopefully, there will be alternative forms, not just one or two, but four or five that would enable people to choose which form of self-government suits their personal desires and needs.
Senator Godfrey: You told us about your own background. How do you regard yourself? Are you a Metis or a non-status Indian?
Mr. Gould: If you use the strict definition of the Indian Act, I am non-status but due to the social interaction in the community in which I was brought up I prefer to identify as Metis. Of course, that is a personal choice. One of your own senators, Senator Robichaud, has aboriginal ancestry but I am sure that he identifies as an Acadian. That is his personal choice, but I will open my arms to him and accept him into our organization any time he so desires because I am sure if he identified as an aboriginal senator in the chamber and was indoctrinated into some of our thoughts, he could prove to be very useful.
Senator Godfrey: In fact, you make up your own mind as to how you regard yourself.
Mr. Gould: That is right that an individual has.
Mr. Bruyere: Originally, my family came from Three Rivers, Quebec. They moved to Norway House, Manitoba, as half-breeds. Then my grandfather moved to Fort Frances, Ontario, to a half-breed reserve. Because he was an alcoholic, the priest made him an Indian because at that point in time that was allowable. I am now non-status.
The Chairman: Why did the priest make him an Indian?
Mr. Bruyere: They made him an Indian because Indians could not have booze.
The Chairman: I have one further point dealing with the question of trying to define, whether you like the term or not, a Metis or a half-breed or a non-status Indian or whatever it may be. You are talking about blood and there has to be a point of diminution when you no longer can claim to be an aboriginal. I do not know whether it is when you get down to one-hundredths or one-thousandths but it is strung out so far
down in history that I am trying to understand how you determine that.
Mr. Bruyere: We are not talking about blood. What we are saying is if you come from aboriginal ancestry you have the right to be within that group. It is like what Mr. Gould was saying earlier in terms of the Maori people. As long as you consider yourself to be Maori and come from a community where the people know you as a Maori, you are considered as a Maori, regardless of what the blood quantum is. It was the American government that first started with the blood quantum and the Canadian government took up on that aspect in trying to institute that in the James Bay Agreement, and they are not talking about it for the Council for Yukon Indians Agreement.
Senator Godfrey: They have the double motherhood clause in the Indian Act which, of course, only affected it from the mother’s side.
Mr. Bruyere: We are not talking about blood quantums whatsoever; it has to do with whether you believe and people know that you come from a community as an aboriginal person.
Senator Steuart: Your message to us is that, while there are some things in the Accord that you are not totally satisfied with-for example, section 35(4) and you intend to get it back on the table-you want us to pass it without amendment and then you would like us to deal further with the matter.
Mr. Bruyere: Exactly.
Mr. Gould: Some answers to questions the Senate has asked could help us enormously. We hope that the Senate will be involved in the process on a continuing basis. We understand that our appearance before this committee today is part of the legislative process, but you could be of enormous assistance to the aboriginal groups, on an ongoing basis, in the next stages of the constitutional talks, by keeping informed of the situation. We are not going to tell you how to do your business.
Senator Steuart: Why not? Everybody else does.
Mr. Bruyere: Wait until September 23.
Senator Steuart: Chief Sanderson gave us a dissertation on Indian government, which was off the immediate question in front of us, but it was welcomed by senators. It gives us some idea of your concerns. You are giving us your point of view on the same subject. It would be helpful to keep us informed as to any studies that you carry out and any conclusions that you come to. We are aware that the findings of the committee of the House of Commons may be pretty narrowly defined in dealing with status Indians. You are looking for a forum in which to voice your thoughts and to discuss your research on the same question as it refers to your people. That would be helpful to us.
Mr. Bruyere: We would be more than glad to keep you informed.
The Chairman: I should like to state for the record that the questions and the letter to which you referred were not formulated with any predetermined idea in mind. We had adjourned at the time, and it was my responsibility to formulate the letter and not the responsibility of the committee as a whole. We wanted to clarify a lot of questions for ourselves and to get your responses to them.
I think you have been very frank with us and I think you have been very helpful. I would assure you that there was no question of bias or predetermination in our minds. We were simply attempting to clarify the issues in our minds and formulating questions to which we required answers.
Thank you very much for attending this morning.
Senator Godfrey: If we change the word “conferring” to the word “confirm,” would that satisfy your objection?
Mr. Bruyere: What about the word “recognize?”
The Chairman: Thank you very much for your attendance. The committee adjourned.
At 3.30 p.m. the committee resumed.
The Chairman: Honourable senators, our witnesses this afternoon represent the Metis National Council. On my right is seated Mr. Fred House, President of the Louis Riel Metis Association of British Columbia; on his right is Mr. Clem Chartier, the national representative of the council, and on his right is Mr. Don Mc Ivor, President of the Manitoba Metis Federation.
I believe that Mr. House is going to present the brief.
Mr. Fred House, President, Louis Riel Metis Association of British Columbia: The purpose of our appearance today is to clarify some serious misunderstandings regarding Metis participation in the constitutional ongoing process which have arisen since the First Ministers’ Conference. As you may recall, the Metis National Council was formed at the beginning of March after the prairie Metis were expelled from the constitutional talks by the national organization they had formed 13 years earlier, the Native Council of Canada. The Metis National Council launched legal action to prohibit the Prime Minister from holding the Constitutional Conference until the Metis participation was secured. In a spirit of good faith, we negotiated an out-of-court settlement with the Prime Minister, providing for our representation at the conference and the re-inclusion of a Metis land base on the agenda for the ongoing process.
Prefacing his prepared text for the opening address of the conference, Prime Minister Trudeau stated:
… In recent months it had become evident that the Metis people in great majority felt that they were not properly represented under the National Council of Canada and for that reason, I invited a representative of the Metis people to sit with us this morning, a representative of the Metis National Council.
At that time we felt confident that our legitimacy as national representative of the Metis was beyond doubt and that we could get on with the task of defining the nature and extent of
Metis rights. Since then, certain federal departments and agencies-most notably the Secretary of State and the Office of Aboriginal Constitutional Affairs-have tended to undermine the Prime Minister’s recognition of the Metis National Council by dealing with non-Metis organizations on Metis issues. In fact, one of the very questions in your letter of invitation, making reference to “more than one Metis organization which purports to speak for its native people,” challenges the political legitimacy of the Metis National Council.
Needless to say, a precondition for our effective participation in future constitutional discussions is unequivocal recognition by other parties of our status as representative of the Metis people. In March we demonstrated the determination of the Metis people to speak for themselves on constitutional issues, even if it meant missing the Constitutional Conference. We do not intend to limp into a negotiating room attached to a ball and chain of quasi-recognition. In order to lay this issue to rest, we will explain to you and to the Government of Canada why the Metis National Council was formed, whom it represents, and how it intends to identify its constituency for the purpose of accessing Metis rights.
Although mixed-blood people had appeared in eastern and central Canada since initial contact between Europeans and Indians, it was on the prairies that they evolved into a distinct people: the Metis. During the eighteenth and nineteenth centuries the Metis developed their own cultural identify, life-style and political consciousness or Metis nationalism, and asserted their national rights through the formation of provisional governments in both Manitoba and Saskatchewan. It is no accident that the only areas in Canada where the federal government made land grant and scrip provisions for Metis were the prairies and immediately adjacent areas, such as northeastern British Columbia and the Northwest Territories, into which Metis had moved following the second Riel resistance.
Outside of this historic Metis homeland a Metis identity did not emerge, with the result that, to this day, people of mixed ancestry in the maritimes or the Yukon, for example, generally identify either as Indians or whites. The point we wish to make is that, contrary to the assumptions of many, being Metis is not just a matter of being mixed-blood. If that were the case, many, if not most, Indians, both status and non-status, and indeed many white people, would be Metis. They are not Metis because they do not share our nationality, which has been moulded by a common history, culture and political will. The Metis nation is an historic national minority conceived and developed on the soil of western Canada.
Perhaps the best way for us to respond to your questions about how we will define ourselves is to ask you how you define yourselves. Those of you of English descent or German descent would probably say just that, even though the English and Germans evolved out of a mixture of different peoples. The Metis, too, were conceived as a mixture of different peoples, but once they emerged into a new nationality, it did
not matter how much of this blood or that blood their members had, any more than it matters how much Norman blood or Jute blood an Englishman had.
Every nation must have a starting point, and for us that point was the Red River settlement in the early nineteenth century. Since then, however, we, like other nations, have gone on to absorb others into our nation. What we are seeking through the constitutional process is to gain the right as a people to define ourselves and to determine membership in our own collectivity. Only then can we feel protected from the assaults on our nationality which have occurred in the past and are still occcurring today.
Metis associations have always played a major role in expressing Metis nationalism. The first Mods association, l’Union Nationale Matisse Saint-Jospeh du Manitoba, was founded in 1887 to promote an understanding of the history and culture of the Metis people. During the depression, the Metis Association of Alberta was founded to press for a Metis land base.
At this point I might say that, in the province of Alberta, there are eight Metis settlements which come under the jurisdiction of the government of the province of Alberta. They do have a council to run their land, to run their programs in terms of a land-based self-government. I make mention of this simply to inform honourable senators.
In 1970 the Manitoba Metis Federation, the Metis Society of Saskatchewan and the Metis Association of Alberta were instrumental in forming a national federation, the Native Council of Canada. Over the years, aboriginal associations from other parts of the country, with a predominantly nonstatus Indian membership, were admitted into the Native Council of Canada. The Native Council of Canada was a marriage of convenience between two distinct peoples-one Metis, the other Indian-who allied themselves, during the period when neither people had legal recognition, for the purpose of attacking common social and economic problems. However, it was always understood that the political aspirations of the two peoples were fundamentally different. Whereas the Metis based their identity and rights the non-status Indians based their identity and rights on their Indian ancestry, title and treaties, and generally sought reinstatement to Indian bands.
The recognition of the Metis as a distinct aboriginal people in the Constitution marked a turning point in the evolution of the Metis movement. With section 37 providing a constitutional conference where rights of the aboriginal peoples would be defined, it became clear that the Metis, with their unique aspirations, would have to steer their own course through the process. By this time, however, the prairie Metis discovered that on major political decisions within the Native Council of Canada, they were regularly outvoted by the more numerous but generally less populous non-status Indian associations. In effect, the Metis people could not express their nationalist aspirations through the Native Council of Canada.
The focal point of conflict was the debate on aboriginal title. Whereas the non-status Indians and other aboriginal peoples viewed this and treaties as a major source of rights, we viewed them as “existing” rights under section 35(1) and, therefore, as subject to the interpretation of the courts. We did not wish to leave the definition of our rights to the courts, in view of their tradition of narrow interpretations, but instead sought to define rights through a political process provided by section 37. In other words, “existing” rights were a fallback, if political negotiations failed.
Reserving section 35(1) as a fallback position, we decided to base our approach to the First Ministers’ Conference on section 35(2) and section 37. Recognized as an aboriginal people, the Metis would attend the conference for the purpose of identifying and defining –and let me emphasize this-the rights of the aboriginal people. Section 37 does not refer to aboriginal title or aboriginal rights but to rights of aboriginal people. We believe that our fundamental right as a people was a land base and self-government and we pressed for the inclusion of these items on the agenda for the First Ministers’ Conference.
It is not the purpose of this brief to recount the unfortunate series of events culminating in the legal action by the Metis people against the Prime Minister. Suffice it to say that at a preparatory meeting of ministers and aboriginal leaders on February 28 the Metis were denied seating at the table by the Native Council of Canada and in their absence other aboriginal peoples tabled a joint agenda for the First Ministers’ Conference which deleted a Metis land base. Following the negotiation of an out-of-court settlement, we participated in the First Ministers’ Conference where we reiterated our determination not to dwell on “existing” rights such as aboriginal title but to negotiate, in the tradition of Riel’s provisional governments, our rights as a people.
Obviously, we raised eyebrows when we called aboriginal title a legal fiction foisted on our people to strip us of our rights as an aboriginal nationality. At the same time, we proposed and still propose separate schedules of rights for the different aboriginal peoples and separate processes for defining these rights so that different peoples may pursue their different aspirations without jeopardizing the positions of others. Following the first ministers conference, we proposed a tripartite process, involving the Government of Canada, the three prairie provincial governments and the Metis National Council, to identify and define the rights of the Metis. Today we wish to renew that invitation.
There is a tendency among governments to lump all aboriginal peoples together when considering their rights. For you to
consider the Indians, Inuit and Wads the same because they are all aboriginal is comparable to our considering the Spanish, Austrians and Swedes the same because they are all white. Because the Indians, Inuit and Metis are fundamentally different peoples, it is likely that collective rights will vary from group to group. Our proposal for separate schedules and processes is designed to accommodate these differences. It should not be construed as promoting divisions, for it is premised on the unity and integrity of each aboriginal people.
On this note let us return to our concern over the challenge to our political legitimacy as national representative of the Metis. Question 6 in your letter of invitation refers to “more than one Metis organization which purports to speak for its native people”. This is an affront to our integrity. Historically, the nationalist aspirations of Metis have developed and been expressed organizationally only in western Canada, and to this day that Metis nationalism has not been expressed anywhere else in Canada.
This is not to deny the existence of Methis outside their historic homeland. Census figures indicate that a small portion of the Metis population live in other parts of Canada. However, they confirm the irrefutable fact that the vast majority of Metis, as many as 90 per cent, inhabit the prairie provinces and those parts of British Columbia, Northwest Territories and Ontario immediately adjacent to the prairies.
One of the largest pockets of Metis outside of the prairies lives in British Columbia. Most are historic Metis with roots on the prairies. Since the inception of the Metis National Council, their association, the Louis Riel Metis Association of British Columbia, has unanimously requested and received membership in the Metis National Council, joining the three prairie Metis associations.
At this point I would like to add as the President of the Louis Riel Metis Association of B.C., that the provincial non-status Indian organization known as the United Native Nations has supported the Louis Riel Metis Association as being the representative to represent all of the Metis in the Province of British Columbia. The assembly last spring of the United Native Nations unanimously passed a resolution supporting the Metis National Council as being the sole spokesperson on behalf of the Metis people in Canada. I would like to urge that the national organization, the Native Council of Canada, take the same steps as they did in British Columbia.
Continuing with my brief, your question raises a more serious concern in that it suggests that, if there is more than one representative of the Metis people, it will have to be determined which “shall have the legitimate authority to agree to a constitutional resolution that may be aproved by one organization but opposed by another”. As we have pointed out, there is a small minority of Metis outside the historic homeland, but the position of the organizations presently representing them is based on Indian title and treaties. In the event of any organization other than ours being recognized as spokesman for the Metis, there is a real possibility of government choosing to deal with its position based on Indian title rather
than the real Metis issue of an autonomous Metis land base. That would be a negation of the Prime Minister’s constitutional obligation to ensure Metis representation and would force us into the same situation as that which existed prior to the litigation leading to Metis national representation at the First Ministers’ Conference.
We realize that as a result of the recent realignment of the Metis, there is still a slight overlap in the membership of the Metis National Council and the Native Council of Canada. However, this should not be used by government to foster factionalism in the Metis movement through the promotion of a minority Metis position at the constitutional level. We recognize the Native Council of Canada as constitutional spokesman for their non-status Indian membership and expect government to respect the national integrity of the Metis National Council. At the same time, we have provided for the future admission of other Metis into the Metis National Council.
In order to define how we wished to fit into the new federation through constitutional reform, the Metis people had to unite in the formation of the Metis National Council. In the process we had to separate from another aboriginal people. At the same time that we have to exercise our right to self-determination, we fully support the right of non-status Indians to realize their Indian destiny. We are nauseated by the sanctimonious hypocrisy of federal officials who claim we are abandoning the non-status Indians. Through its racist legislation, the federal government created the problems of nonstatus Indians and we resent any attempts to shift federal responsibility for these problems to the Metis.
In conclusion, Madam Chairman and honourable senators, we must emphasize that the Metis people are an historic nationality. Our existence is a fact. The formation of the Metis National Council is a realization of that fact. Thank you. Merci beaucoup.
The Chairman: Thank you, Mr. House. Senator Godfrey, would you like to commence the questioning?
Senator Godfrey: This morning we heard from the Native Council of Canada and others, and we spoke about people moving to Rosedale, Toronto, and so on. I asked one of the representatives whether he considered himself a Metis or a non-status Indian, and he replied, “Metis”. However, I think we have received a much clearer picture of the situation from Mr. House’s brief.
Mr. House, when you speak about Metis outside of the western provinces, no doubt you are referring to people whose ancestors started off in the province as Metis. You are not referring to what might be called mixed blood Indians and so on. They must have their historical roots back in the Metis settlements at some point. Is that so?
Mr. House: Yes. A process is being developed whereby Metis can trace their roots back to the homeland of the Metis. You referred to people who are of mixed blood and considered
Metis. Any such applications for membership in a Metis community are reviewed and the decision is made by the , communities and the people involved at that level.
Senator Lapointe: So the man this morning who was Acadian by his father and Indian by his mother was not a Metis in your opinion?
Mr. House: We go by the homeland and we say that the Metis nation was born in the Red River area. People who claim that they are Metis will have to make application to the community to which they wish to belong or to the organization. A processing system is being developed to accommodate these people.
Senator Lapointe: According to the dictionary the word “Metis” means “of mixed blood”.
Mr. Clem Chartier, National Representative, Metis National Council: We do not profess to go by a dictionary made up by another nation of people. The Metis nation is based on nationalism. When we write our dictionary we will define words in a way that have meaning to us as a Metis nation. However, the definition you gave is broadly accepted so it is not only the people who write dictionaries who have a misunderstanding. I was talking to an ex-member of Parliament who he had no concept of who the Metis are. It is wrong to assume that everyone of mixed blood is Metis. Perhaps part of this misconception is due to the fact that the Metis nationalism which began to flourish in the 1800’s did not gain in momentum, though it has somewhat in recent years. Metis nationalism is coming to the forefront again. As the brief states, the Metis cause is based on Metis nationalism and on the homelands of the Metis; the prairies, where this group of distinct people evolved.
There are mixed blood people in the Maritimes but they are not automatically Metis. Judging from the meetings we have attended, they seem to be pursuing aboriginal title and a number are pursuing reinstatement in the Indian Act. People who feel that they are Metis will not be denied membership into the Metis nation. The Metis nation has over the years been adopting people into it, the same as your Canadian nation has been adopting people. The Metis nation will not close its doors to aboriginal people who feel they are Metis. But the vast majority, 90 per cent, of the Metis live in the historic homelands of the Metis. However, in dealing with the specific benefits that may flow from becoming a Metis, that is something that would have to be negotiated and we cannot give you an answer on that matter at this time. We would have to negotiate between ourselves and those pockets of Metis who live outside the national homeland. But, again, the definition of Metis is not based on mixed blood.
Senator Lapointe: But the word “Metis” existed in French vocabulary before the Metis nation you describe existed. Anyone of mixed blood was called a Metis. For example, in Mexico someone of mixed blood would be “Metisse”.
Mr. Chartier: The same can apply to the word “Indian”. The word “Indian” existed before Columbus hit the shores of
America. So the definition really does not mean anything, at least not to me.
Senator Flynn: Would you use a capital M in your case?
Mr. House: Yes.
Senator Stollery: The word “mestizo” is more common in the Americas than Metis. There are tens of millions of people south of the Rio Grande River who are called mestizo, which is the Spanish word for Metis. But in your case Metis are people who can directly trace their heritage back to contact with Europeans who settled in the Red River Valley which, presumably, was when the French went to the prairies in the latter part of the 17th century?
Mr. Chartier: That is part of it, though not all of it. I think there is also a misunderstanding with regard to the word “mestizo”. I think that the mestizo population in Central and South America is more synonymous with the term “mixed blood” as it is used in Canada. I would not go that far. Mestizos do not necessarily view themselves as aboriginal people. In fact, there is a conflict in South America as to who are Mestizos and who are Indians.
Senator Stollery: But it is common in Spanish to hear people say, “That fellow there is Mestizo and I am Indian”.
Mr. Chartier: But that situation does not apply in Canada. You cannot compare the Metis of Canada with the Mestizos in South America.
Senator Stollery: But didn’t the group this morning do that?
Mr. Chartier: The group this morning identified themselves as mixed-blood Indians. Mestizos may be closer to being of mixed blood; I do not know. We are Metis and we don’t talk in the same way as the Native Council of Canada of the mestizo.
Senator Godfrey: You want constitutional protection of land rights on which your settlements are found. Do you wish to expand those settlements, preserve them or ensure that they will not be interfered with? Do you also want the same kind of self-government as the Indian people say that they want? What is your ultimate objective when this is all wound up?
Mr. House: As an example I will use the Alberta Metis settlements. They were created by Order in Council of the provincial legislature in 1939. The provincial government set aside, in consultation with the Metis, areas of land. I come from the Paddle Prairie Metis Settlement in Northern Alberta. We have 20 townships. The lands involved are under the jurisdiction of the provincial government but they are developed by the local government, which is the local council elected by the Metis people within that particular land area. The local council makes decisions as to land development, timber resource harvesting, housing, economic development, job opportunities and so on. Presently they are facing a court case in which they are fighting for surface and subsurface rights. The indication from the provincial government is that they agree with the council, if one goes by the fact that they were offered an out-of-court settlement, which was refused.
These lands yeild oil and gas royalties and the court evolves aroung arguments case relating to these issues.
In terms of self-government, discussions are going on with the provincial government with regard to taking over more control of government housing, education, economic development, recreational programs, agricultural programs and so on. The eight colonies have formed a federation which is an umbrella organization. That is the thrust with regard to the lands in Alberta. However, in my Province of British Columbia there is a great deal of crown land in the northern part of the province that is not being used by anybody and we are saying that we will develop that land and its resources so that we may become self-supporting people. Why should the land lie there and go to waste? With regard to the self-govern- ing of those lands I would ask Mr. Chartier to comment.
Mr. Chartier: The Metis are pursuing a land base with self-government. This matter was pursued approximately 100 years ago and again 98 years ago. Of course, the last answer from the government was to send in British and Canadian troops and Orangemen from Ontario to Batoche and they ended up massacring about 51 half-breed people. The Metis have not given up the legitimate struggle to have their rights recognized.
We are not asking for anything. We, as a nation of people, have a legitimate right-that is our land. We want recognition in the Constitution, and protection of our lands and the right to self-government. Basically, what we are looking for is that recognition. After all, it is our land and although it is now occupied there is no reason why some of those occupying it cannot move off and allow us to live as a nation of self-governing people on that land. In terms of self-government we are looking at a third order of government. Currently, there are the federal and provincial governments-we are looking at a third level of government. I do not think our government will be the same as what the Inuit and Indians are looking to. We are willing to enter into negotitions the result of which would give us enough autonomy as a people to survive in areas which we feel are important to us. We do not have a bottom line, but when we do reach a negotiated agreement we want it constitutionalized in order to have a third order of government in this country. This Metis government will have supremacy, if that is what you want to call it, within its level of government. We are looking at that matter and we are, of course, looking at a land base with adequate resources upon which to carry that out, which will enable us to flourish as a people. We do not want to be confined to small geographic pieces of land where we will have to remain in abject poverty for the rest of our days. That is not what we are talking about. We want adequate land and resources.
Senator Steuart: I would like to refer to the Accord and to the proposed amendments. Does your organization support the Accord and these amendments and do you want to see these passed as they are?
Mr. Chartier: Yes. We participated in the discussions leading up to the Accord. We signed it and we support it the way it is.
Senator Stollery: What is the situation now with Metis settlements? I am afraid that I am ignorant on that subject. Are there areas which are reserved or which are now Metis land in Manitoba, Saskatchewan and various parts of the prairie provinces? Is there something which will be expanded or is there something to be instituted?
Mr. Chartier: No. Other than the situation which Mr. House described with respect to the province of Alberta there are no lands which are specifically identified for the purpose of Metis people. There are small Metis farms in Saskatchewan, but they are not on the scale of what is to be found in Alberta. The situation in Alberta resulted from the problems experienced in the 1930s-what the government called a socioeconomic problem but what the Metis called a question of rights. The government did set up legislation which provided for Metis settlements, and those are now in place. In the 1800s there was a move to allocate lands to the Metis, but that move was not made in a fashion which protected Metis lands. In fact, land was unilaterally given out to the Metis on a set formula basis. That land went directly from the hands of the Metis into the hands of speculators, which stimulated the economy in the west for the white settlers.
Senator Stollery: There is none of that as far as the Metis are concerned in the existing aboriginal and treaty rights as set out in section 35(1)?
Mr. Chartier: No, that is not correct. There is no land available. As I say, our land is being occupied. It is there; we just have to regain it.
Senator Stollery: There are aboriginal rights but no treaty rights?
Mr. Chartier: Yes. Our position is that we have existing aboriginal rights but we do not want to approach it now in a legal content. We can always go to the courts and do that. At this time we have been afforded the only opportunity we have had in the last 98 years to deal at the highest political level. We will not throw away a political forum to go to a court where we may not be received favourably, perhaps as a result of a technicality, or maybe even on a racist basis. We cannot take that chance.
The Chairman: Mr. Chartier, when you say that the land is there, are you speaking of presently identifiable land?
Mr. Chartier: Yes, if you wish to put it in that context. I am from Buffalo Narrows in northwestern Saskatchewan, which is a Metis community. I would say we have eight Metis communities in northern Saskatchewan. In fact, the whole of northern Saskatchewan is predominantly Metis. If you wish to talk about Metis land, which is under provincial jurisdiction and control at the present time.
Senator Flynn: Is it held collectively or is it held individually?
Mr. Chartier: No, it is not held at all. It is held by the government and we are just living on it.
Senator Flynn: Is there no lease or title to the land at all? Is it held by the Crown in the right of Saskatchewan?
Mr. Chartier: Yes, it is all crown land.
Senator Flynn: Do you come to be on it by way of a provincial permit or a lease?
Senator Stollery: Perhaps they have been living there for hundreds of years.
Mr. Chartier: People have been living there and over the years villages and towns have developed, which the province has divided into subdivisions.
Senator Flynn: Do you yourself have a house there?
Mr. Chartier: No, I do not. I live in Saskatoon.
Senator Flynn: Does someone living in Buffalo Narrows own a house there?
Mr. Chartier: What has happened is that northern communities have been developed to the stage of a southern white village.
Senator Steuart: The use of individual title is there?
Mr. Chartier: Yes.
Senator Stollery: How many people are there?
Senator Flynn: The title which they have is like the title anybody else would have?
Mr. Chartier: That is right.
Senator Steuart: There are some white settlements and some Indian settlements in northern Saskatchewan but there are a great many Metis.
Senator Stollery: Can you give us an idea of how many people we are talking about?
Mr. Don McIvor, President of Manitoba Metis Federation: In Manitoba we have 120,000 Metis people as opposed to the provinces of Saskatchewan and Alberta which have something in the order of 85,000 Metis.
Mr. Chartier: There is no accurate census. In fact, one has never been carried out. I think a close approximation for the prairie region would be something in the order of 400,000. That figure would include only those people who come forward and identify themselves as Metis. Of course, there are quite a number of people of mixed blood who do not identify themselves. Our position is that if they do not identify themselves they are not Metis. We will not force people to come forward and identify themselves.
Senator Stollery: So there are 400,000 people?
Mr. Chartier: Roughly.
Senator Godfrey: Let us consider northern Saskatchewan where there are these Metis settlements. What more do you want up there besides self-government, so far as land claims are concerned?
Mr. Chartier: Those settlements are the end result of the colonization process. Our people were taken off the land and forced to come into communities. I do not want to talk about government specifically, but the past administration in Sas-
katchewan set up the Department of Northern Saskatchewan, and the biggest push from that department was to get the people off the land and into the communities. The point of view put forward by that department was that, if you wanted water and sewers or a new house, you would have to move into a village setting, you could not live scattered throughout a whole area. People generally stayed a few miles apart with their community gardens. If the people living in these communities wanted to obtain modern facilities, such as power, they were forced to move into a community. The communities are subdivided. What you then have is a people with a traditional lifestyle of living off the land and living in small communities I think the radius of the community jurisdiction is something in the order of three miles. There is not an indigenous people anywhere-whether in Canada, Australia or South America-who could survive as a people upon being herded into villages. What we are looking at is an adequate land base where people can survive as a people. The Indian people have reserves. They are small and scattered around. We are looking at fewer areas of land with greater resources within a geographic area.
Senator Godfrey: Well, when they moved into the village what happened to the land? Do they drive out and farm it or do they band on the land or what happens?
Mr. Chartier: No, in northern Saskatchewan it is forests and lakes. People still have trap lines, other than where multinationals have kicked them out. So people are still using all of the resources of northern Saskatchewan except where they have been forced off. We still want to keep our traditional lands. We want to be able to continue in a lifestyle that people want, and we want recognition of our homeland.
Senator Lapointe: Your local government in northern Saskatchewan, is it replacing the municipal government? Do you have municipalities just the same? For instance, for a village, is there a mayor or is it your community that is governing the village?
Mr. McIvor: Yes, in Manitoba we have 50 community councils. In the community where I was the mayor there are about 800 Metis people, including the mayor and the council, and we handle practically all the direction of the community. What has happened here is that we have been consolidated, as Mr. Chartier has said, and we do not have those resources on a land-base situation where we can do our own timbering and fishing and things like that. We get people from the outside who have that opportunity, and we have 50 councils which are predominantly Metis councils which operate like municipalities.
Senator Lapointe: Do your people pay taxes to your council? With what money are you governing these communities?
Mr. McIvor: Perhaps I could answer that by saying that we are not all on welfare. We are all taxpayers in that community. We are fishermen, we are trappers, we are miners, we are
timber cutters, we are just about everything, and just as in any other community, as in Toronto or any other place, there are some welfare recipients, and that applies in the same fashion in our communities.
Senator Flynn: You are governed by the same law as in any other municipality?
Mr. McIvor: Yes, in some cases, but from 1969 to 1977 under the NDP administration in Manitoba, we did have a lot more flexibility in determining some of our own rules within the boundaries. We were able to make our own laws in terms of, for example, allowing people to vote at age 18. When I was there, Wabowden was allowed to make its own rule and people could vote by the time they were 18 rather than waiting until they were 21.
Senator Flynn: And they were not Metis?
Mr. McIvor: Yes.
Senator Lapointe: Are there some Metis who are still sticking with the Native Council or are they on your side now?
Mr. McIvor: Officially there are only four provinces, Manitoba, Saskatchewan, Alberta and British Columbia and, as Mr. House said, immediately to the east of Manitoba, there is a Metis pocket there which have not aligned themselves with us yet.
Senator Lapointe: They are with the Native Council?
Mr. House: They are presently with the Native Council and the four provinces are with the Metis National Council
Senator Nurgitz: The Metis in the Northwest Territories are not aligned with you, are they?
Mr. House: Not at this point.
Senator Nurgitz: You are working on that?
Mr. House: Hopefully, by next week, we will have them all.
Senator Nurgitz: Can’t you push Burke around a little?
Mr. House: There is a new gentleman there who was formerly a Member of Parliament for the Northwest Territories, Mr. Wally Firth, who is the new president. Perhaps if you talk to your former colleague in the House of Commons there, we might have that association by next week.
Mr. McIvor: I suppose that other people who have come to these Senate hearings have made a point of saying we are a sovereign nation and we want to have the same kind of government as the Government of Canada. I do not believe it has ever been our concept, especially in Manitoba where we have decided that our concept of self-government would have a land base, and this self-government base would be a base between a municipal and a provincial government where you would have some of the provincial powers and some of the
municipal powers to expand the kind of resource uses and other uses of land.
Senator Lapointe: Sort of like a regional government?
Mr. McIvor: Not to that extent. I think it would have to be based on the already established community councils that are there.
Mr. Chartier: If I might interject, when we were talking about self-government, we also have agreed that we will not be deciding on just one model. The Metis in Manitoba may have something that they feel best suits their needs. The Metis in Saskatchewan and Alberta may have a concept that they want to share but they are not necessarily all the same. What we want to look at are the general principles of self-government and then work at specific implementation of that.
The Metis in Manitoba are talking not only in terms of assuming some provincial jurisdiction, but are also talking in terms of assuming some federal jurisdiction and coming up with a third level of government. We would not, however, take things like the mint or the post office or the armed forces but we might be looking at other areas.
Senator Nurgitz: Could you give us an example?
Mr. Chartier: For instance, taxation. On our Metis land bases, we would reserve the right to be the sole taxation authority. That is probably direct taxation.
Senator Nurgitz: And opt out of Revenue Canada. Does that involve opting out of Revenue Canada?
Mr. Chartier: We are not yet experts in this field. We have only developed in March and right now we do not have the resources to even set up an administration, so we do not have any employees to be able to come up with this kind of technical assistance. We can talk in terms of principles but I cannot get into the specifics that you are getting into right now.
Senator Nurgitz: In terms of broad principle, what about things like the administration of justice–well, no, that is a bad example because that is a provincial matter, but-
Mr. Chartier: We are looking at setting up our own judicial system. We are looking at enforcement, and we are looking at quite a number of areas.
Senator Nurgitz: If you seek the judicial and law enforcement functions, would you seek any sort of methods of selfdefence, for example?
Mr. Chartier: No, as I said earlier, we would not get into the armed forces. When we talk about a judicial system, we would not be taking it over exclusively. We would still, eventually, tie into the over-all justice system. So there would have to
be a sharing of jurisdiction. Now we have not developed it that far. One of our papers does address this point and I would assume that, in the end, we probably would use the Supreme Court of Canada as our court of last resort, but we would want them to follow the Metis laws that were acceptable.
Senator Nurgitz: Would you codify your laws? That is, would you seek to have your laws written out or would you seek to have them established over periods of time by practice?
Mr. Chartier: I think we would probably look at a notion of both, but we would still have to use some traditional means of resolving disputes or traditional, indigenous ways of doing things that are already in existence. I do not know how far we would get in codifying some of the unwritten laws. In your system, you have the common law. We would probably still retain that, but it would have to be sufficiently explained, in other words. The Supreme Court of Canada would have to know what the traditional laws are, and perhaps we would want a Metis judge sitting on that bench to ensure that the other judges know what the Metis law is.
As I said, we have not reached that stage. There is a lot of work to be done and we can only talk in terms of principles. We cannot get into the fine points yet.
Senator Nurgitz: In your general concept of things, would you think you would look, for example, to such areas as trade and customs? By the use of the term “customs” I mean customs duty on imported and exported goods.
Mr. Chartier: That is something we are looking at. That item was identified earlier as an item capable of non-constitutional resolution. So, there will be an ongoing process and ongoing discussions with the Department of External Affairs. We intend to address such things as border crossings, tariffs and customs. I suppose we would also be looking at involvement in such things as the Law of the Sea Treaty, the Migratory Birds Convention Act and tariffs, if we are to export goods from our land base to the United States or to any other country as an indigenous nation. We will deal with all of the aspects you have raised.
This is not a simple matter. You cannot say, “We will give you the land base and programs to deliver to your people, such as social services.”
Senator Lapointe: You said that the Secretary of State does not want to recognize you in the same way that Mr. Trudeau has done, or the way other agencies have done. Why is that?
Mr. Chartier: I think the brief says that the Prime Minister recognizes us and recognizes that there should be, I suppose as long as he is in power and the Senate agrees-
Senator Lapointe: But the Secretary of State and other government agencies do not recognize you in the same way Mr. Trudeau does.
Mr. Chartier: I think that relates to the bureaucracy and how slowly it works. It could be because the bureaucracy has developed alliances with other groups. It seems that it has moved slowly with respect to matters concerning the Metis National Council. It seems that the bureaucracy is almost deliberately frustrating the initiatives of the Metis National Council, and if this frustration goes on for more than another month, we will not be in any position to be at our finest at the next constitutional conference.
As I said, we do not have the resources which we feel are legitimately ours to enable us to establish our administration.
Constitutional funding has come through from the Secretary of State, but we have not been able to hire people to work on constitutional issues because we do not have an office for them to work out of.
This seemingly deliberate frustration may simply be the result of misunderstanding. Perhaps another meeting with the Prime Minister and officials responsible to the Secretary of State might clarify things, but there is a sort of impasse now.
Senator Godfrey: I have a little difficulty with your concept of self-government and why it is needed as far as the Metis people are concerned. I can understand that that might be needed for the Indian nation because they have reservations and Indian councils.
You are already operating under a municipal government system, such as is in place in Alberta and in northern Saskatchewan. In Ontario education, to a great extent, falls under local government. Perhaps you could make a special arrangement for that.
Why is what you have been operating under not sufficient?
Mr. McIvor: Although we have operated under that system, we do not have an expanded land base to work out of. All we deal with is the people within that system. Wabowden has only a three-mile radius, and anything outside of that for tax purposes falls under another jurisdiction. Those taxes go into the general pot and we do not have access to them. What we have does not give us a sufficient operating knowledge to expand the community’s resources, and such things.
The government has control of that, and when we are sitting in the way of development they automatically move us because we are on crown land.
Senator Godfrey: I can see that argument. When travelling to Gravenhurst, Ontario, the sign announcing you are in Gravenhurst is located ten miles outside of the actual town.
I can understand that you want to broaden the base of the municipality, but would it not be sufficient to extend the current, municipal government to a wider area, which has happened all the time in Ontario settlements?
Mr. Chartier: I do not know if I can answer that question, but I should like to give you a personal observation. I do not feel that I live in Canada. I think that you people are an occupying force in this country, which is our country. We want to establish our own land base and self-government so we can operate,as a distinct nation of people, just as other people in the world do.
The United Nations holds with high regard the right to self-determination. The Metis are a people; the Indians are a people; and the Inuit are a people. We have that same right to self-determination as anybody else has.
If another force occupied this country, you would be kicking and screaming. You would want them to leave so that you could govern yourselves. Although the example may be three times removed, we still want our country back. We want to be a people who are self-governing in their own land, but we have chosen to do that within Canada. We have not chosen to engage in guerilla warfare or use violence, but we want, through a negotiated, political process, our homeland and our right to self-government. That is the bottom line. Nothing else will satisfy us.
Senator Frith: And you support this amendment because it is a step towards that goal?
Mr. Chartier: That is right. We have consciously taken the position that we will negotiate a political settlement and remain within this country. We will accept you as having a right to live here alongside us. We are not taking the notion that we will kick you out of northern Saskatchewan and will shoot anyone who does not leave. We want an accommodation. It is our land; we are not kicking you out of it, but we are willing tp share it with you.
Senator Steuart: On page 2 of your presentation you talk about certain federal departments and agencies and the treatment they have given you. Is your main complaint lack of adequate funding?
Mr. House: The Metis National Council has asked for core funding for the Metis National Council itself. The Honourable Serge Joyal made a commitment that he would fund the Metis National Council along with our association, the Louis Riel Metis Association, which was just organized provincially last June 24 and 26. There is a commitment to fund both groups.
However, the minister funded the Metis National Council a very minimal amount compared to other national organizations.
Senator Steuart: How much was that?
Mr. House: That amounted to $163,000. Other national organizations received in the area of $700,000.
Tied into that, the Louis Riel Metis Association asked for funding and received a commitment for funding from December 1 to the end of the fiscal year and then would receive new funding. We received word that Serge Joyal went back on his decision to fund the Louis Rid Metis Association when he said that it would not be fair to split funds from an organization in British Columbia known as the United Native Nations. Its President, Mr. Bill Lightbown, is in the room and he has stated clearly to the Secretary of State and our organization that in British Columbia the Metis will be represented by the Louis Riel Metis Association.
We are not asking you to take funds from Mr. Lightbown’s organization; we are saying that under the current formula and policy of the Secretary of State there are provisions to fund a Metis organization in each province and a status Indian organization in each province.
We are saying that we want the Metis portion of that funding. It is up to you to decide where that comes from. That is not our problem.
So, at this point in time we are not funded in British Columbia. We have been organized since 1978 and were incorporated on April 12, 1979, and have been operating out of our own pockets. At the same time when the minister stated to the Metis people of this country that, “there will be adequate funding for you to prepare yourself for future constitutional talks,” realistically in British Columbia we say that we cannot do that. We cannot prepare without the necessary funding. I am not talking about constitutional dollars. There were constitutional dollars given to the Metis National Council who said that they could use the money the way they saw fit with their member associations. We were not members of the Metis National Council when that contract was signed committing X number of dollars to them.
Since the time we joined we became a load on the Metis National Council to which, of course, we said that we have a right to a portion of that funding. There is a supplementary budget going to Serge Joyal for additional funding in terms of constitutional talks for the new member association, the Louis Rid Metis Association, and we hope that we get that because the next constitutional talks will be held shortly. In British Columbia we are prepared to start holding regional meetings in our seven regions to consult with the Metis so that British Columbia can put forth a position.
The other thing that is not going right and we turned thumbs down on was the Economic Development Fund because we felt that it was not going to work. It is presently set up so that the Metis do not have a chance to get adequate proposals approved. We proposed to Mr. Rompkey, the minister who was in power at that time, and who is now replaced by the Honourable David Smith, that the Metis associations
would develop a provincial elective development corporation where dollars would be earmarked for the Metis corporations. We suggested that X amount of dollars as a block funding be set up in order to assist the Metis in terms of training programs, in terms of front-end financing, in terms of loans and in terms of bid-bond backing and that type of thing. We also suggested it set up a pool of resource-people in order to assist them to develop their proposals for economic development.
We do not have a system in place to be able to apportion those dollars. We are saying that the Indian people will get most of those dollars because they already have Indian Affairs, they have their bands and they have their land. They are going to take all those dollars and that is why we are saying to the ministry that they should earmark a certain number of dollars to the Metis to ensure that we have a chance to set up a system that our people will use to be able to take advantage of those dollars through Metis economic development corporations.
We said that this should be used as a step towards self-government in terms of the talks that we are having on an ongoing process in regard to land base and self-government. Things are not happening that way at this time.
Mr. Chartier: I am not sure what you are referring to on page 2, but funding is not the major problem. What has developed since the March conference is that although the Prime Minister spoke in terms of fairly high principles with respect to aboriginal government and basically getting the Metis involved in this process and recognizing the Metis National Council, you are beginning to see some erosion of those stated principles. That is what we have difficulty with. Our difficulty is that the funding is minimal and we basically reject it because it is a slap in the face. What is at issue is the integrity of the minister. Here is a cabinet minister who makes a firm commitment and then turns around and breaks it. If a cabinet minister is going to deal with the Metis in that fashion, what can we expect as a people at the constitutional table? That is what is at stake. It is not the minimal amount of $163,000 because we will not starve or die.
The other thing is the Native Economic Development Fund which was mentioned. Again, the Prime Minister is talking in terms of aboriginal self-government, or some form of aboriginal government, and we are trying to work towards it. At the same time cabinet comes out with this program and states that we are going to set up a bureaucracy of Indian business people and they will decide how that money will be disbursed and it is going to go to individuals at the community level. They are totally bypassing the legitimate local governments of the aboriginal peoples. The Metis are saying that we, as the people who are forming the Metis government-our organizations in the provinces,-should be getting that money in block funds and we will decide how best to use that money in our communities for the benefit of our communities but we are being bypassed there again. That principle that the Prime Minister is
espousing with respect to the aboriginal government is not being followed by the cabinet itself.
With respect to the office of aboriginal constitutional affairs and our discussions with them to date, we say, “here is what the Metis want,” and they say, “we will go talk to the NCC and see what they want.” Again, they are saying to us we are not the legitimate representatives of the Metis people although the Prime Minister invited us to that conference and did recognize us as the legitimate representatives of the Metis people. It is those principles that are stake.
The Chairman: I should like to interject again because I would like some clarification on some figures. I have some background figures and perhaps you could comment on them or correct them if they are not right. With respect to the Native Council of Canada it says that recent data from Statistics Canada indicates that there are 75,110 non-status Indians and 98,260 Metis in Canada. However, the NCC disputes these figures claiming that there are more than 1 million Metis and non-status Indians.
The other note I have states that your council represented approximately 240,000 Prairie Metis when your council was formed in early March. Which part of these figures is right? In order to give us an idea of the comparative size of these organizations, or how they are broken down, can you clarify these figures for us in order that it would give us some idea of what you are talking about in terms of equitable funding?
Mr. Chartier: First of all, these figures of Statistics Canada are definitely off. I cannot account for the reason for that other than on the questionnaire the question posed with respect to the Metis was very misleading in that it said: “What were you before you came to this country?”
The Chairman: You are talking about the question posed in the Stats Canada questionnaire?
Mr. Chartier: Yes. They went selectively, I believe, to every tenth household. From the point of view of the Metis that is not an accurate census.
The Chairman: What is your figure?
Mr. Chartier: As we said earlier, we would be looking at a figure in the neighbourhood of 400,000 Metis in the prairie provinces and British Columbia.
The Chairman: As far as you know-I do not think I clarified this with the Native Council of Canada-how many people do you think the Native Council of Canada represents, and do you have any idea how they are broken down? Do they still represent a certain number of Metis as well as non-status Indians?
Mr. Chartier: They would represent, I suppose, anywhere between 1 to 15 per cent of the Metis in Canada that would still be part of the Native Council of Canada. I would not be able to guess how many non-status Indians there are in Canada.
The Chairman: You really cannot tell us then how inequitable the funding may be as between your two groups because it is hard to pin down the actual size of the group and the numbers you represent?
Mr. Chartier: We have gone on the premise that the Metis formed over half of the Native Council of Canada.
The Chairman: Before you formed it?
Mr. Chartier: Yes.
Senator Steuart: Would there not be just as many Metis in Canada as there are status and non-status Indians put together, if not more?
Mr. Chartier: If you count the Quebecois, there would be millions, but we do not do that.
Senator Steuart: You are talking about 400,000 and perhaps another 50,000 or 60,000 in the non-status group. I do not think there are 400,000 registered non-status Indians and Inuit.
Mr. Chartier: I do not know.
The Chairman: Altogether?
Mr. Chartier: We do not have that down to a science.
Senator Steuart: They can count those who are registered.
Mr. Chartier: That is right. Although I am saying it is 400,000, it could be upward of 600,000. I am really throwing figures around.
Senator Steuart: I realize that, but if you look at the figures, you will find that there are at least as many Metis as there are Indians classified in other groups, and perhaps more.
The Chairman: Within the other groups they all come under the jurisdiction and, therefore, the patronage of the Minister of Indian and Northern Affairs.
Mr. Chartier: All aboriginal people come under the jurisdiction of the federal government; it is just that the federal government chooses to abdicate its responsibility for some of them, notably non-status Indians and Metis.
Senator Steuart: The figures, as of February 1, 1983, indicate that there are 292,700 status Indians; 25,890 Inuit; and 75,000 non-status Indians. The Metis Indians are then lumped in the 98,000 figure, but, according to you, that figure is low. There certainly seems to be an accurate count of Inuit and status Indians.
The Chairman: I am sure that part of the challenge you have is establishing that you are representing a substantially larger group of Metis than the statistics would indicate to be the case.
Mr. Chartier: I should mention that the Metis National Council has been attempting to enlist the co-operation of the federal government and, at least, the Saskatchewan provincial government in order to establish an enumeration process. The Metis will, of course, determine its own citizenship; that is
something we will never give up. The criterion is in place and we have actually submitted it to the government.
We want to see the federal government pass either enabling legislation or an Order in Council which would set up a commission made up of the Metis, the federal government, and a representative of the particular provincial government involved. We want to do an enumeration which has been advertised properly and, therefore, giving people a chance to step forward and say, “Yes, I am a Metis,” and gather all the relevant data necessary.
We have discussed this with both the provincial government in Saskatchewan and the Office of Aboriginal Constitutional Affairs. Of course, the response to date from the federal government is that there is going to be a decennial census and they would like us to co-operate on formulating a questionnaire which would be sent to every household. Again, we are not going to abdicate our jurisdiction in determining our own membership. That system is unsuitable. It is also unsuitable because data would not be available until 1988, which is after the conferences will be held.
We ourselves would like to know how many Metis there are in Canada or within the Metis nation. When we talk about land rights or land base, it is important to know how many people are going to be on that land base because the size would depend on the number of people. We want to have that done. If the Parliament of Canada were to co-operate in that matter, we could, hopefully, get this done within one year.
Senator Stollery: In 1956 I took a train through Manitoba on my way to Churchill. At that time they were opening up a mine at Moak Lake, Manitoba, and I was going to work there. I remember the train stopped at a town called Wabowden. As the train pulled into town, everybody ran from the train to a hotel to have a beer. As the train was leaving, a stream of people ran out of the hotel to jump back on the train to continue up to Thicket Portage. Do they still do that?
Mr. McIvor: They still do it, but, since I married seven years ago, that does not go on to the same extent.
Senator Lapointe: Would you prefer to fall under the jurisdiction of the Department of Indian Affairs and Northern Development instead of the Secretary of State?
Mr. Chartier: No, but that is a good question. Under section 91(22), the federal government has the responsibility of dealing with Indians and Indian lands. The federal government’s position is that it has exclusive jurisdiction to deal with Indians and Indian lands. The point of view of the Indian people is that it is only that level of government that has the right in Canada to deal, on a bilateral basis, with Indian people as equals.
However, section 91(24), passed in 1867, encompassed all of the aboriginal people as defined today.
It is clear from the Supreme Court of Canada decision in the Re Eskimo Case of 1939 that the term “Indian” was used
in a wide generic sense to include all of the aboriginals from the provinces who entered Confederation and all those that would enter Confederation.
It is the position of the Metis National Council that the federal government does have that same responsibility for the Metis people, and the federal government has abdicated jurisdiction to deal with the Metis people and has foisted them onto the provinces. Some provinces deal, to a certain extent, with Metis issues, but not to the extent that they should. It is not their responsibility anyway.
The federal government has to start exercising its responsibility for the Metis. With respect to non-status Indians, Parliament has also abdicated its jurisdiction by removing Indians from the Indian Act and, therefore, from services that rightfully belong to them. The federal government has to begin a re-thinking process and start dealing, on an equitable basis, with all aboriginal people.
The Secretary of State does not have jurisdiction for Metis people. He deals with Germans, Ukrainians or anyone else on a cultural basis only. The office does provide core funding to political organizations and also to native organizations, but it does not have jurisdiction as such. The Secretary of State treats us like any other multicultural group. We are not treated like multinationals.
Senator Godfrey: You say that you want to decide who are Metis. I want to draw your attention, as I did this morning with the Native Council of Canada, to the definition which includes all persons of aboriginal ancestry who identify themselves with Metis. You have put in an extra stipulation and say that they have to show that they are descended from the Red River Settlement.
Mr. Chartier: No, we do not say that.
Senator Godfrey: I thought they had to have ancestry somewhere on the Red River.
Mr. House: That is where the nation was born.
Mr. Chartier: That is the origin. Basically, that is our definition. We took it with us when we left, and they still incorporate part of it. We are saying that we will determine who is a Metis on the basis of aboriginal ancestry. You cannot be an aboriginal person if you are not. This will be done by self-identification and acceptance by the community.
As stated in the brief, the Metis nation has already incorporated people other than direc descendants of the Red River, such as half-breed people and people who have moved and become incorporated; they have become part of the Metis nation. Citizenship requirements are not too strict.
Senator Godfrey: The representative of the Native Council of Canada went on to say:
Certainly we insist that every aboriginal person in Canada has the right to identify him or herself with the realistic term that most describes their cultural heritage-as Indian, Inuit or Metis.
Would you agree with that?
Mr. Chartier: No, we do not. Again, we are saying that the Metis is a people that has emerged as a distinct nation of people-one which is distinct to western Canada. Therefore, we do not agree with that statement, no.
Senator Godfrey: I think that, within the definition, the real test is whether, because of background and everything else, the people themselves identify with you.
Mr. Chartier: Yes, senator, that is one aspect of the issue. There is then the other aspect: acceptance by the community. If they identify themselves with part of the Metis nation, we will take a look at the situation. If it is legitimate, we can include them; we will not exclude them.
Senator Godfrey: They must generally identify with the Metis or they will not be accepted by the community? They will be looked upon as outsiders?
Mr. Chartier: I do not want to put it crudely, but we do not want foisted upon us what some people refer to as “left over Indians” or “rejected Indians.” If they feel they cannot get back into their Indian nations, either because they are rejected or because they feel they would rather be part of the Metis nation, we will then take a look at it. We are not, however, about to start accepting people or have the federal government force people upon us because they are rejected by some other nation. I repeat that if they legitimately feel that they would prefer to be a part of the Metis nation, we will consider the matter.
Senator Godfrey: In other words, you are going to have your own immigration laws as a nation.
Mr. Chartier: Yes.
The Chairman: If there are no further question, on behalf of all honourable senators I would like to thank the witnesses who have appeared before us today. We are grateful for your testimony.
Mr. House: Thank you, Madam Chairman. There is one point that I would like to leave in the minds of honourable senators, and it is this: we wish that it be clear cut as to who represents whom at the future constitutional conferences. We are clearly stating to honourable senators that the majority of the Metis people come under the Metis National Council. If this is not agreed to, then of course we will have the problems that you have said we will encounter when more than one Metis organization purports to speak for its native people. The issue must be clear cut or the government might take the Indian title away and leave the majority of the Metis people out of the constitutional talks. We are going to stand strongly behind the view that we do represent the majority of the Metis. We request that honourable senators respect our decision, that
they support it and that it go forward to the Prime Minister for the future constitutional conferences.
The Chairman: Mr. House, I think I can say, on behalf of the committee, that there will be no question of our making a decision one way or another as to who should represent which people. As you have said, the Prime Minister has already made that decision. I am sure that it will continue to be the decision of the government. As I understand it, you do have a seat at the negotiating table. That has already been decided, has it not?
Mr. Chartier: Yes, Madam Chairman, we have been informed that we will have the regular two seats-representation equal to that of the AFM or the ICNI.
The Chairman: Thank you very much. Honourable senators, we are adjourned until 8 o’clock tonight, at which time we will hear from the Inuit Committee on National Issues.
The committee adjourned.
At 8 p.m. the sitting was resumed.
The Chairman: Honourable senators, our witnesses this evening represent the Inuit Committee on National Issues. On my right is Mr. Charlie Watt, and on his right is Mr. John Amagoalik. They are the co-chairpersons of the Inuit Committee on National Issues. I understand that Mr. Amagoalik will be presenting their brief this evening, following which both of them will, of course, be available to answer questions.
Before Mr. Amagoalik begins, I would like to thank him and his group for being kind enough to respond to the presure that I put on them to appear this evening rather than tomorrow morning. I know that it has probably caused them some extra grief and overtime work that had not been anticipated, but we were attempting to accommodate some of the committee members who could not be here tomorrow morning but who particularly wished to hear their presentation. So we thank our witnesses for helping us out in this way. Mr. Amagoalik, would you like to commence, please?
Mr. John Amagoalik, Co-Chairperson, Inuit Committee on National Issues: Thank you Madam Chairman. First I should introduce our representatives. Mr. Charlie Watt has already been introduced. He is the co-chairman of the Constitutional Committee. On my right we have Mary Simon, President of the Makivik Corporation in northern Quebec. On her right is Mark Gordon who is the Vice President.
Thank you Madam Chairman and honourable senators. We represent the Inuit Committee on National Issues, a body created in 1979 by the Inuit Tapirisat of Canada, to represent Canada’s Inuit on Constitutional Issues.
Since its creation in 1979, ICNI has been quite active in all phases of the constitutional reform process. In 1979 and 1980, we met with the Continuing Committee of Ministers on the
Constitution. When the federal government announced its plans to move unilaterally on patriation of the Constitution, we appeared before the Special Joint Committee of the Senate and House of Commons on the Constitution, in December, 1980. As a result of our presentation and those of other aboriginal associations, and the intense lobbying efforts which followed, aboriginal peoples succeeded in having several amendments introduced in the patriation resolution.
A separate part was created, entitled “Rights on the Aboriginal Peoples of Canada” and two clauses were inserted, one recognizing our aboriginal and treaty rights, the other defining the aboriginal peoples of Canada. There was to be two future first ministers conferences, which would involve the direct participation of aboriginal leaders to discuss “the identification and definition of the rights of the aboriginal peoples to be included in the Constitution of Canada.”
ICNI gave full support to the government as the amended resolution was sent by the joint committee for passage in the House of Commons and this house in April, 1981. The provisions pertaining to aboriginal peoples were dropped by the government when it signed the November 5, 1981 Accord. We then joined with other aboriginal associations to form the Aboriginal Rights Coalition and mounted a concerted campaign to have our rights restored. We succeeded, but only partially: The word “existing” was added to the section recognizing our rights, and there was now a requirement of only one First Ministers’ conference, which had to be held before April 17, 1983.
The First Ministers’ Conference, as this committee is well aware, ended with the signing of the 1983 Constitutional Accord on Aboriginal Rights. Amendments to the Constitution of Canada were negotiated and accepted by all delegations, with the exception of Quebec, and Quebec indicated that it was in agreement with the spirit of the amendments. The resolution containing those amendments is now before this committee. We are here today to seek your support, to have this resolution pass the Senate and thus be ratified by both houses of Parliament. Under our Constitution, this house has a vital role to play in the amendment process. We recognize that you must give considered and thoughful examination to the proposed amendments now before you.
While the committee has indicated that it wishes to confine itself to the purely legal aspects of the resolution, we believe that it will be helpful for it to consider the context in which the proposed amendments took form and were agreed to, both by the governments in Canada and the aboriginal peoples.
Our fundamental premise has always been that the elaboration of our rights in the highest law of the land can only come about by a process of direct involvement of the aboriginal peoples with the several governments in Canada. Our place within the Canadian federation must be determined in a forum
that includes aboriginal peoples as full and equal This has not, of participants. course, been fully achieved.
The process for the elaboration of our constitutional rights was initiated in 1982 by the Constitution Act, 1982, section 37. That provision contained an important recognition-that the discussion, negotiation and entrenchment of our rights in the Constitution must be carried out at the highest political levels. Our leaders and the First Ministers of Canada committed themselves to the resolution of these issues in a unique political forum.
This year, an ongoing process was again agreed upon, involving three more First Ministers’ conferences over the next four years. This process will focus, in the coming years, on the numerous and complex issues pertaining to the rights of the aboriginal peoples, and it is the most appropriate forum for the constitutional recognition and entrenchment of our rights.
This was gained after a long and arduous struggle. Other amendments included in the proposed resolution were also the result of lengthy debate and negotiations. Although our objectives were not fully realized by the Accord of Marcn 16, we are hopeful that these amendments mark the beginning of a fuller elaboration of our rights in the years ahead.
The committee has asked us to respond to four questions, as set out in a letter sent by the chairman, Senator Neiman on July 22, 1983. Questions (1) and (3) relate to terms now found in section 35 of the Constitution Act, 1982. The first question concerns the meaning of “existing aboriginal rights”, referred to in section 35(1). Question (3) concerns the definition of aboriginal peoples as found in section 35(2).
Both questions relate to sections of the Constitution which this house reviewed and considered throughout the lengthy patriation debates of 1980-81. In voting on the patriation resolution containing these provisions, the Senate had a full opportunity in April and December of 1981 to discuss and assess the implications of these provisions, to the extent it deemed fit.
Insofar as the Senate has already dealt with sections 35(1) and (2), and they are presently embodied in the Constitution, it is our view that questions (1) and (3) are not relevant to the resolution that is before the committee at this time. This is particularly true since the resolution does not propose to amend sections 35.(1) or (2). We believe that the definition and clarification of terms not included in the proposed amendments should be addressed and resolved at future First Ministers’ conferences.
Question (2) solicits our views on the proposed section 35(3) which makes clear that land claims agreement rights pertaining to aboriginal peoples are in fact “treaty rights” and are protected by the Constitution.
However, clarification of the term “treaty rights” does not imply that amendments to land claims agreements must now
be made through the constitutional amending process. In the absence of a specific amending process, modification can only come about through the mutual consent of the parties who have signed such agreements.
Where, however, a specific amending procedure has been provided for, as in the James Bay and Northern Quebec Agreement, any amendment to the agreement would be governed by the procedures set out, and would therefore not require a constitutional amendment.
The proposed subsection solely protects the rights of aboriginal peoples flowing from land claims agreements. Where changes to the terms of such agreements are desired at some future date, section 35(3) will guarantee that such amendments will not be made unilaterally by governments.
In regard to equality rights, we feel that all our rights, aboriginal, treaty, or otherwise, must be guaranteed equally to all aboriginal persons, regardless of sex. While the proposed section 35(4) covers aboriginal and treaty rights, it may not cover other legislated rights. However, we have made it clear, that any further elaboration of the principle of equality must be addressed in the ongoing process. Consequently, we do not believe that passage of the resolution should be placed in jeopardy as a result of this clause.
The March 16 Accord on Aboriginal Rights marked the first time in the history of this nation that we, as aboriginal peoples, played a direct role in determining and fashioning our constitutional rights.
The Accord and the resolution accompanying it, is of course, no ordinary piece of legislation. Nor is it a document conceived and drafted by governments alone. It is the product of co-operative effort based on mutual respect. The provisions before you reveal that essence of this give-and-take. ICNI views the adoption of this resolution by this house as a most vital step. Under Canada’s constitution, Parliament has a historical responsibility with respect to the aboriginal peoples. We expect that by passing this resolution this house will acknowledge its constitutional mandate.
Since a few legislatures have not yet passed the resolution, the Senate by signalling its approval can help to encourage early passage by those legislatures. We trust that this house, and particularly this committee, will review the proposed amendments in the spirit in which they were arrived at, and give its support to our continuing efforts to fully determine our constitutional place within Canadian society.
We thank the committee for this invitation to appear and we trust that your report to the Senate will help to ensure an early and speedy passage of this vital resolution now before you. Thank you.
Senator Godfrey: One of the things we have been talking about in this committee is the definition of aboriginal peoples. The Indians and the Metis seem to have their own definitions.
What about the Inuit? Is there any difficulty in determining who are Inuits?
Mr. Amagoalik: No, In the Canadian north we do not have problems with accepting who is and who is not inuit. A good example would be the James Bay agreement were the Inuit of the Province of Quebec had no great difficulty in defining who was eligible and who was not under the agreement. I think this holds true for the rest of the Canadian north.
Senator Steuart: With regard to the Inuvialiut in the Western Artic, the question is posed very clearly as to who is entitled to any benefits that flow from the agreement when and if it is finally signed. The Inuvialiut have said that in effect an Inuit is one who their organization says is Inuit. According to the agreement a committee will be formed. The committee will have a majority of Inuvialiut people on it but the government will be entitled to look at the list of people entitled to benefits under the agreement. The government may or may not object. There will be an appeal procedure. From the point of view of the Inuvialiut, the criteria will not be based on a measure or percentage of a particular bloodline, but on a combination of things. Is that the attitude that is taken generally by the Inuit north of 60°?
Mr. Charlie Watt, Co-Chairman, Inuit Committee on National Issues: Regardless of whether you have clearly defined who is and who is not eligible under the agreement, you still have to establish criteria or put in place mechanisms for people to enroll. Who knows, perhaps a person living in Manitoba for a number of years may decide to go back to his or her community. So there has to be in place a mechanism to allow that person to say, “I am an Inuit and I have rights.” Perhaps you are misunderstanding the discussions over the Inuvialiut aspect.
Senator Steuart: I don’t think so. I believe that their attitude is the same as your attitude, that there would be a mechanism and they would set it up and in the final analysis they would be the judges. The government has made it clear that they would want to look at the guidelines, since they will be responsible for the benefits that will flow from the agreement.
Mr. Watt: I dealt with this matter during negotiations on the James Bay Agreement. When dealing with the beneficiary aspect as to who would be eligible and who would not be eligible there were no problems. As far as I am concerned, the Inuvialiut will be going through that type of procedure and it is part of the negotiating process to establish the criteria to determine who is an Inuvialiut. Certainly the government has a lot to do with establishing and helping to establish the criteria.
Mr. Amagoalik: We have no such thing in the Inuit community in the Canadian north as status and non-status Inuit. So in that respect we are ahead of the game.
Ms. Mary Simons, President, Makivik Corporation, Kuujjuaq, Quebec: We agree that we would like to have a process whereby we would have a say in the membership. We have never had any difficulty with the membership criteria as far as
the governments are concerned and if such difficulty were to arise we would certainly be open to discussion.
Senator Stollery: So the difficulties faced by the Indian and the Metis simply do not exist in the same way with regard to the Inuit because of different conditions?
Mr. Amagoalik: That is very true.
The Chairman: Have you established sufficient criteria or are you in the process of establishing the criteria?
Mr. Watt: – No. We have as precedent the James Bay Agreement. Unless they come up with better criteria, I am pretty sure that the criteria of the James Bay Agreement will be adopted. You mentioned the problems of the Indian and Metis with regard to definition. I do not believe there is a great deal of difficulty. If they wish to establish what their membership will consist of, they simply have to sit down and say, “Okay, these are the members.” There will always be people trying to say that they are Inuits but if they do not meet the criteria they are not Inuit.
Senator Godfrey: Did I understand you to say that there are criteria in the James Bay Agreement that are satisfactory to you people as far as the Constitution is concerned?
Mr. Watt: We did not have any problem with it. Whether it is satisfactory or not is something that really never came into our minds.
Mr. Amagoalik: As Mr. Watt points out, a precedent has been set in the James Bay Agreement, I suspect that eligibility requirements in future settlements will be similar. They may not be exact copies of the James Bay agreement, but generally they will be the same.
Mr. Mark Gordon, Representative, Inuit Committee on National Issues: I would like to expand a little bit on the question of eligibility. Although we have been generally satisfied with the criteria which has been agreed to and established there are some shortcomings. We are working to amend those shortcomings; this is being done through the amendment process contained in the agreement. There are some problems involving people moving from one part of the country and coming into Northern Quebec who are not able to exercise the full rights of an Inuit in Quebec. This is one of the shortcomings which has developed because of the regionalization of our land claims. One way to address this problem is through the constitutional process where we will say that there are minimum rights which all Inuits across this country will have. For example, if an Inuit should move from Inuvik, in the west, to Quebec, he will enjoy all the rights and benefits which a Quebec Inuit would enjoy, with the normal residency requirements. This is one of the reasons why on the question of eligibility the Constitution could be helpful in establishing broader areas, even though we generally agree that these are the rights.
Because of the way in which Canadian law works in the provinces and in the territories, and under federal and provincial legislation, there are matters which tend to put little hooks
into us and which cause us to become tangled up. The eligibility question is a good example of this. It was not intentional that the people of the Northwest Territories were denied their rights as Inuit because they were not enrolled on the first list. We must make amendments now in order that these people will be able to exercise these rights when they do move to our territory. What we hope the constitutional process will do is rationalize some of these situations which have evolved quite separately because although they are on similar lines there is no connection with aboriginal rights. The constitutional process will enable us to do a great deal of housecleaning in working out these mechanical problems in greater detail.
Mr. Watt: I do not want senators to think that the bottom line of this whole issue comes down to the dollar. Mr. Gordon mentioned that the mobility aspect would have to be dealt with. This aspect deals with people who move from one province to another, allowing them to enjoy the rights they would have in that province and so on. This does not mean that they would be enjoying benefits at both ends of the country. It really is more of a problem related to mobility, rather than one of people being accepted by their own people. We are just like you people, too. We have our own problems and sometimes we run across certain things that we see must be modified in order to make a better system.
I do not want to leave the senators with the impression that after a person is eligible at one end of the country he will receive more dollars at the other end. That will not be so. There are many more aspects to consider apart from the dollar situation.
Senator Godfrey: As I have already explained, this is an educational process for me and some of the other senators. As far as the constitutional process goes, what is it your organization hopes to gain? We have heard from the other groups that they want to constitutionalize the agreements in order that nobody may amend them. They wish to have a certain element of self-government and so on. What are your particular aims which you hope to accomplish in the end?
Mr. Watt: Senator Godfrey, you are actually asking us to spell out certain things that we want to have entrenched in the Constitution. Are we not jumping the gun just a little bit by asking these types of questions?
Senator Godfrey: You do not have to answer if you do not want to.
Mr. Watt: We are in the midst of the negotiation process at the moment and we are nowhere near completion. As citizens of Canada, as a regional group, we are entitled to hold certain things to ourselves before the negotiations actually take place.
Senator Godfrey: If I were more knowledgeable on this issue, I would not have to ask the questions. I do not want you to reveal your hand. I just wish to know what is your principal aim. Every group which has appeared before us has told us in very strong terms what they hope to achieve in a broad way.
Mr. Watt: Maybe I can answer the question in broad terms, and I will do my best. When we negotiated the James Bay Agreement we knew from the very beginning exactly what it was we were getting into. We knew there would be certain objectives we would not be able to meet. We know that the James Bay Agreement is a document governed by legislation. Bill C-9 is the closest example I can use to illustrate the constitutional concept of binding the two governments, the provincial government and the federal government. So, if we do not have constitutional protection of these rights then they can be diluted, they can be washed away without our ever being consulted. We have already experienced that. We have won some cases in the court fighting the government’s unilateral actions knowing very well that it was supposed to consult with the other signatory parties to the convention. When this is not done they leave us only one recourse-that is the courts. All senators know how much that costs-it costs a great deal of money. Our daily life is affected every time we have to go to the court.
As the first people in this country, and as citizens of this country, it must be acknowledged and recognized that special treatment must be given to the entrenchment of our rights in the Constitution.
I will go one step further. Part of the problem is that legislative documents, ordinances, by-laws and policies are matters initiated from the south to the north. You know what that means to us. That affects our daily life. Sometimes it disturbs our livelihood and sometimes we ourselves recognize that it is not economically feasible. Perhaps we could introduce you to something that we know well, looking at the social side of it along with the economic opportunities. I think we also have this ability now to say, “O.K., this is what we are coming out with. You react: What do you think?”, instead of always putting us into the reactionary position. I think that that would be analogous. It has gone too far. Again and again we have been put into the position where we are the reactionary and we have had enough of it, and I think we ourselves can contribute something to the general public of Canada and to Canada as a whole so that senators, members of the House of Commons and the general public will accept and acknowledge that opportunities have not been available. Give us the chance to say what we think is more socially acceptable or economically acceptable.
Mr. Amagoalik: Perhaps I could just add something to that. The stated position of our committee is contained in the position paper that was issued on February 13, 1983 and it states that our position on aboriginal rights is that the aboriginal rights of the original people of Canada constitute both collective and individual rights, and include rights and titles in and to land, including water and sea ice, based on historical use or occupation. Also, the right to practise our customs and traditions and the right to use, retain and develop our languages and cultures; the right to each nation, band or group to
determine its own membership. Now these are the rights that we believe we have and intend to pursue in these negotiations.
In addition to the aboriginal rights that we are talking about, one must not forget that we are still trying to gain rights that are accepted by Canadians as everyday things. For instance, we really do not have the right to self-government, because self-government for, by and of the people has not arrived in the North. It has made a few tentative steps in that direction, but it has never really arrived. We feel very strange, living up there, looking at Alberta and seeing that the citizens of Alberta have the right to receive benefits from resource development. They receive royalties. But in northern Canada, for some reason, we do not have that right. When we ask Canadians why that is, they tell us, “Because you are so small in numbers.” What kind of reason is that these days? It is not a legitimate reason anymore.
In this day and age, every Canadian should have the same rights, and we do not. We do not get royalties and we do not have a say in the question as to how our lands and resources are managed. It must not be forgotten, therefore, that along with the rights that we are attempting to have recognized in the Constitution, we are also trying to obtain those basic rights as Canadians.
Mr. Gordon: Perhaps I could just expand a little on what John has been saying. We have always held the attitude that we knew that the governments did not create these laws to do something malicious to us, but that they made these laws with good principles in mind and with their own cultural bias. The Canadian Constitution, as it stood without any aboriginal rights in it, was something that was transported from the European societies, and even though we would agree to those principles and those concepts that you contained in that documents, their actual, practical application, when it comes to aboriginal people, is often the opposite or completely different in areas such as family law and things like that. It was not that you were trying to make laws against our practices; it was that, in making your laws for yourselves, you did not realize the effect it had on us. Now what we are being given here through the constitutional process is an opportunity to try and correct this problem. It is not one of your making; it is not one of ours. It is merely an event in history and now we have the opportunity to correct this so that we can actually have the benefit of the principles that are enshrined in the Canadian Constitution and the rights that are supposed to be given to us, but allowing us to practise those rights as Inuit-as distinct, separate people in this country.
On the other hand, we would not like to see the effect of these rights that we gained through the Canadian Constitution being that it would make us into a different society or would force us to amalgamate with another group. We want to be a contributing part of this country. As I said, we do not think that you have done anything malicious. That is not our interpretation. Thank you.
Senator Steuart: There is almost nothing to say, after that speech, and I am not speechless very often. In any event, I have one question: Your organization being an umbrella organization, do you represent all the organizations of the Inuit people in the north, including COPE?
Mr. Watt: Yes, we do.
Mr. Amagoalik: There are six original organizations and they all have seats on this committee.
Senator Lapointe: All in all, is your real number really 25,000?
Mr. Watt: Approximately 25,000 to 26,000, I believe, yes.
Senator Lapointe: Have you ever thought of delivering, for example, a certificate of Inuk identity to everyone with Inuk-
Mr. Watt: We used to-as a matter of fact some of us still have one. I myself still have one of my dog tags with my classification number to be able to identify myself as Inuk. I am A.820. That is my number. That system was instituted by the RCMP when they were exercising authority on behalf of the Government of Canada when that government started having some responsibility over the Inuit. Before that, it was the Hudson Bay Company and then the RCMP took over and set up administrative structures to deal with that situation.
Senator Lapointe: So when you have a child, for example, you can register him or her as an Inuk?
Mr. Watt: That system is being modified to a certain extent through the eligibility concept. We do register our people now. We always have registered them in the past, in the same way you register your people.
Mr. Amagoalik: The practice of giving out what was called disc numbers to new children is no longer in force. I think it was in the mid 1960s that that practice was discontinued, but everybody in this room still remembers. I remember my disc number. I think the hospital in Frobisher Bay still uses my number to find my file, rather than trying to say my name.
Senator Godfrey: I remember my air force number. C.1621.
Senator Lapointe: In your brief, page 4, you say that you have only partially succeeded in having your rights restored. Are you fully satisfied now with the resolution, or are you only partially satisfied? Even though you want us to accept the resolution, would you like something to be improved?
Mr. Watt: When dealing with a negotiated document, there are certain strains attached to it and a certain time related to it also.
This is something we feel we can build on. We are not entirely satisfied with all aspects, and I think some of you are aware of that because we highlighted that aspect publicly, even at the international level. The fact is that there is an
ongoing process and we hope and are confident that we will be able to deal with that.
Whether we are going to be successful when the time comes is unknown. We cannot project that in advance so that we could say we will be completely satisfied at the end.
Senator Lapointe: A group which appeared before the committee said that they were not entirely satisfied with the word “existing” in the resolution and that they wanted to put in the term “future rights.”
Mr. Watt: We did not want the word “existing” in the first place. We did not put that in there. That was agreed to by the then Minister of Justice, the honourable Jean Chretien. I believe that that word was suggested by Mr. Lougheed. That is now in there, so it was a watered-down version which was accepted by the authorities of the two governments in order to restore our rights in the resolution. We did not want that; we were not happy with it, but the fact is that it is already in the Constitution.
Senator Haidasz: Are there any land claims outstanding or pending with any government in this country?
Mr. Watt: Do we have any outstanding claims?
Senator Haidasz: Or pending claims.
Mr. Amagoalik: Yes, there are pending claims in Labrador and in the Northwest Territories. The only agreement signed so far is in northern Quebec.
Senator Haidasz: What is the nature of that claim?
Mr. Amagoalik: It is an aboriginal claim to the land and the resources.
Senator Haidasz: Do you have any problems with the territorial governments under which you operate?
Mr. Amagoalik: Yes, we do. You may be aware that in May of 1982 there was a plebiscite held in the Northwest Territories asking whether the existing Northwest Territories should be divided. The “Yes” campaign won and the plebiscite was passed by approximately 54 per cent of the total vote.
That is an indication that the people of the Northwest Territories are not satisfied with the government now in place, mainly because the Northwest Territories is just too big to be administered effectively and efficiently.
The seat of government is in Yellowknife, and because it is located there our people find themselves left out of the workings of government.
Our histories are different, our cultures are different and our economies are different. Wherever the Inuit live in Canada, they invariably live on the coast. In fact, almost 99 per cent of the Inuit population in Canada live on the coast. The rest of the territories-inside the Tree Line-base their economy on the land, meaning that they have different needs for transportation, and so forth.
In November of 1982, the Government of Canada agreed in principle to the division of the Northwest Territories. So, this process is ongoing. The Legislative Assembly of the Northwest Territories has agreed in principle to the division of the Northwest Territories as well and it is involved in the process of division.
Senator Lapointe: Where would the capital of the eastern Arctic be, or where would the main settlement be?
Mr. Amagoalik: We have dediced that we will not argue about that at this time.
Senator Stollery: If there were an argument, what would it be over? I would think that Frobisher Bay would be the logical choice.
Mr. Amagoalik: We would have to look at the existing infrastructures. Many things, such as lines of communication and transportation, would have to be taken into consideration.
Senator Godfrey: You are from the James Bay area of northern Quebec. What proportion of the Inuit population of 25,000 or 26,000 do not reside in the Northwest Territories?
Mr. Watt: That figure would be 5,500 or 6,000.
Mr. Amagoalik: Almost a quarter.
Senator Steuart: Is the area represented by the western Arctic to be part of the new territorial government?
Mr. Amagoalik: The leadership has certainly made up their minds that they want to be part of the eastern territory. That will have to be confirmed by the communities through a process that will be agreed to. I imagine that will be established by the Constitutional Alliance of the Northwest Territories which consists of the Legislative Assembly, the Dene Nation, the Metis Association of Canada, the ITC and COPE.
Senator Steuart: How would that affect the western Arctic? Will the Municipality of Warren be part of it or will it be separate?
Mr. Amagoalik: We have agreed in principle inside our own forum that regional governments will play a major role in the new government of the eastern territories. For that reason, the leadership of COPE was prepared to commit themselves to the eastern territory.
Senator Lapointe: Do you mean that all Inuit would like to be part of the eastern section?
Mr. Amagoalik: All communities have indicated that they would like to be part of the eastern territory. I am not 100 per cent sure about that, because there will have to be campaigns as to where the boundary should be. We are hoping that everyone has an opportunity to have a say in where their communities will fit.
Senator Haidasz: In view of the fact that the Inuit people have full political rights, do they take an active part in the territorial governments?
Mr. Amagoalik: They did not until a few years ago. The legislative assemblies or territorial councils, as they were called then, were not popular with the native people until the last election, which was held four years ago. That election changed the face of the council and the attitude of the council. Today the aboriginal peoples are very much a part of the Legislative Assembly. That does not mean that they are going to accept things the way they are. There will have to be major changes when division takes place.
Senator Haidasz: Do your people have any problems with regard to disagreements with your neighbours, let us say, with the Indians or the Metis groups?
Mr. Amagoalik: No. We have lived beside them for thousands of years and that has not changed.
Senator Haidasz: Did you participate fully in the Circumpolar Conferences?
Mr. Amagoalik: Yes.
Senator Tremblay: My question refers to the part of the brief where question two, which was sent to you, is answered. You make it clear that section 35(3) makes it clear that land claims agreements pertaining to aboriginal peoples are in fact treaty rights. That is a broadening of the notion of treaty rights.
You add at the top of page 10 the following:
However clarification of the term “treaty rights” does not imply that amendments to land now be made through claims agreements must the constitutional amending process.
It is not clear as to what you mean by that. I should like you to elaborate on that.
If I understand things correctly, your interpretation, for both land claims agreements and treaty rights, is that they could be amended by a further agreement which would mean that there would be no need to go through a constitutional amending process. Is that your position? If so, I would like you to elaborate on it. Some people have expressed the fear that by protecting those rights already existing through treaties or land claims agreements in the Constitution, if in future it became necessary to change anything about them, such a change would necessitate amending the Constitution.
Mr. Gordon: This was a very popular question with the provinces also when we were in our process last year. First, let us understand why we are asking for constitutional protection of land claim settlements. In these negotiations the positions of the negotiators are very unbalanced. The Governments have much greater political clout, much greater monetary clout and much more power than the native people with whom they make these agreements. They can bring many pressures to bear on these people. The native people do not have that many resources. Even though the negotiations may be unbalanced, as they are, if they should come to an agreement, that agreement is a contractual agreement or an agreement between the native people and that government. The Government has one tool
over and above the native people all the time and that is a sovereign Parliament. Parliament could always pass any legislation that could amend it because they are sovereign in their own right. Why we ask for the aboriginal rights, or the treaty rights, or land claim settlements to be given constitutional protection in the broad sense, is so that if and when these agreements have to be amended, the two contracting partners to that agreement would have to agree on the change. So the governments could not unilaterally take away something that they had agreed to with the native people.
Whether we would have to actually go into constitutional conferences or First Ministers’ conferences in order to amend a minor provision in one of these agreements, is a question that is always brought up, but this is not our intention. The idea is to give it general blanket protection in the Constitution and to give it legal validity. The actual amendment of those particular agreements would have to be done by the contracting partners to that agreement. The constitutional protection we are seeking here is so that the parliaments could not take away something that they had agreed to.
Senator Tremblay: In fact, if I understand correctly, what you want to protect is the principle that any changes should come through an agreement.
Mr. Gordon: Yes, and also that the rights and benefits contained in that agreement have a constitutional basis.
Senator Tremblay: I want to make sure that I understand what you are saying correctly. If you protect the process through which those rights can be redefined, for instance, you do not have to protect those rights in their material sense, so to speak, because you do not exclude that. Both sides could change their minds and redefine, through a new agreement, what they have agreed upon in the first agreement. Therefore, the real thing you want to protect is that mutual consent will be required, whatever the change might be. It is not the materiality of the rights.
Mr. Gordon: Yes, and also that these rights and benefits that are contained in these agreements are a derivitive of their aboriginal and treaty rights as expressed in the Constitution. It is an extension of that provision in the Constitution. Oten these agreements will require implementing legislation as in the case of the James Bay Agreement. These pieces of legislation would then be a part of the body of aboriginal rights, and would set out what exactly my oboriginal rights are in that particular area in the Province of Quebec. They may contain hunting rights. These agreements they may also contain monetary benefits as compensation for damages or for the derogation or diminution of the rights that I was supposed to have. These things would form part of these agreements. That is why we want to have the constitutional protection of the agreement. We also want to ensure that governments could unilaterally change everything through their general laws of application or even by enacting a piece of legislation directly attacking a agreements.
Senator Tremblay: Thank you.
Senator Stollery: Madam Chairman, I personnally would like to thank the witness for a very interesting presentation. We have ,had, as they can imagine, variety of presentation in the last two days and I must say I find this the easiest one to understand. If I have not asked as many questions as usual it is for that reason. That is certainly my position after two days of listening to quite a bit of information on th subject.
Mr. Gordon: We do not have 20 years if rhetoric to overcome either.
Mr. Watt: And we only have 25,000 people.
The Chairman: Your presentation has been very clear, precise and informative, and on behalf of the committee I should like to thank you for coming here this evening.
The committee adjourned.
HARRY ALLEN CHAIRMAN
COUNCIL FOR YUKON INDIANS
SENATE COMMITTEE ON
LEGAL AND CONSTITUTIONAL AFFAIRS,
SEPTEMBER 8, 1983
Madame Chairman, Honorable Senators
We thank you for this opportunity to appear before you today to present our views on the proposed resolution to amend the Canada Act in accordance with the agreements reached in March between the first ministers and the leaders of Canada’s first peoples. I must also say that we consider this opportunity a mixed blessing.
We have been advised by Senator Nieman of the list of issues which the standing committee would like to concentrate on. While we intend to speak to some of these, we would also like to state at the outset that there are certain related matters which the honorables senators should take account of, as they have a direct bearing on the proposed resolution before you. It was specifically stated that the Senate standing committee would not concern itself with process and procedures related to aspects of constitutional negotiations with the aboriginal peoples. Instead, the committee wishes to confine its reference to the legal and constitutional implications of the wording of the resolution itself. We would caution the committee that such an approach is, in our view, misguided given that the process of defining and entrenching the constitutional rights of aboriginal peoples is inextricably linked to the proposed resolution which you are considering. Indeed the constitutional process respecting the rights of aboriginal peoples constitutes a significate portion of the wording of the resolution.
We intend to return to the topic of process and procedure later in our presentation. At this point, however, we feel it necessary to address what we consider to be the most negative aspect of the terms of reference the honorable senators have created for this committee. That is, having studied the recent debates in this House, we as Indian people find ourserles once again having to explain, justify, and defend the inclusion of our rights within the Canadian Constitution.
We cannot help but ask why it is that we, the Indians, Inuit and Metis have to journey from all corners of the country to explain to the Senate … the legal and constitutional implications of the precise wording of the resolution.
We are aware of no other Canadians who have been subject to such treatment. No group has been called to explain the legal or constitutional implications of the mobility rights … no group has been asked to justify the equality rights contained in section 15 of the Charter. On these matters you were content to establish and constitutionally entrench the rights, bring home the constitution and thereafter allow the courts to determine the legal and constitutional implications from there.
Yet when it is the rights of the aboriginal people that are involved, the same rules do not appear to apply. As the honourable senators must appreciate this is both extremely discouraging and frustrating.
We do not question the Senate’s rights and responsibilities with regard to the serious matter of the constitutional amendment but we believe it is absolutely necessary that the honourable senators understand that the unique political process involving the representatives of the aboriginal peoples and the first ministers of Canada has produced a signed political accord establishing the ways and means of further elaboration and defining constitutional aboriginal rights. We have participated in good faith in this process, a process which will determine for the future, our relationship within this confederation. All of us who participated in the March conference are not without our reservations with respect to the accord. Consequently, most of our assemblies, including that of the Council for Yukon Indians have ratified it and we want to get on with the job. We ask you to understand that we do not appear before this committee to engage in that process of negotiation or definition of our rights. Rather we are here today to advise you of the reasons why we insist that the Senate approve the resolution to amend the constitution without further delay.
We have studied with interest the Senate Debates of last June. Of particular interest to us were the discussions and expressed fears regarding those amendments that would constitutionalize the terms of land claim agreements.
As many of you may know, we the Yukon Indian People have for the past ten years been negotiating towards a comprehensive land claim agreement with the Government of Canada. During the past three years, the negotiations have been extremely productive resulting in more that 55 Agreements- in-Principle. While there remains a number of issues which must still be resolved, most of the difficult areas have been agreed upon. The parties to the Yukon Land Claims Negotiations are confident that a comprehensive agreement-in-principle will be achieved in the very near future.
In your debates some honourable senators, led by Senator Stuart expressed alarm at the notion of entrenching constitutionally the terms of agreements not yet in existence. This analysis in our view is simplistic and misleading as some honourable senators familiar with the process, especially Senator Stuart, should know. The nature of the checks and balances in the claims negotiations process is such that the chances of producing an agreement unacceptable to Canadians are so remote as to be non-existent.
First the parties to a land claims process must achieve a comprehensive agreement-in-principle. This involves enormous research and protracted bargaining among the parties at the table. The agreement-in-principle must be ratified by the respective parties and, if it is, it is then released publically and circulated throughout government and interested groups. If the
agreement receives general approval, contrary to the committee on peoples entitlement’s experience, in which Senator Stuart was involved, the parties commence negotiations towards a final agreement. If the agreement attracts too much criticism, then it is back to the drawing board.
When the final agreement has been negotiated only then does it receive protection in the proposed resolution before you. The possible risk, therefore, of entrenching a pig in a poke by way of this amendment which seems to be at the heart of the senators concerns, in fact, is not risk at all.
On the other hand, we as Yukon indian people require constitutional protection for our agreements. Sadly, but true, the history of our relationships with non-native governments is such that we would be doing a great disservice to our people if we were to accept anything less than constitutional protection. Our land claims agreement means the future for Yukon indian people, their children, and their children’s children. Our rights determined through the process I have just described must never be subjected to the whims of government.
At this point, it is appropriate to address the senate committee’s interest in the ways and means by which constitutionalized settlements could be amended. It is the opinion of the Council for Yukon Indians that the land claims agreement will include is own internal amending process each time the parties agree to amend the settlement. On December 1982, we signed an agreement in principle with Ottawa which indicates this is the approach that will be taken. The essence of the amending formula we wish to stress is that the consent of the Yukon Indian people will be required prior to any changes being made to the settlement.
By your first question, we understood that you are trying to ascertain the extent of what we as aboriginal people consider to be our rights. Our participation in the ongoing national constitutional process is to determine these broad definitions and the entrenchment of these rights. It seems to us that you need only look at the mutually agreed upon agenda items in the accord to understand generally what we believe are the rights of our people. We have also answered by describing our claims process, a difficult and extremely time consuming process to more precisely define the rights of the Yukon indian people. The more than fifty-five agreements-in-principle already signed include a wide range of matters from land to education, justice compensation and indian government.
The point we wish to stress in regard to this question is that we join with the aboriginal organizations in continuing to insist on the removal of the word existing. As other organizations will say to you, its inclusion is at best confusing and ambiguous at worst, a signal to us that governments at the constitutional talks wish to limit and restrict our rights before the process these governments has provided us with a satisfactory answer as to why it was included. We have been told over and over again that it has no meaning. If that is true, then there should be no reluctance on their parts to remove the word.
With respect to the Senate standing committee’s interest in the membership of the Council for Yukon Indians, we would point out that the council represents all people of Yukon indian descent. In 1980, the Yukon indian people decided to
ignore the division and artificial distinctions created by the indian act. We amalgamated the then existing status and non-status organizations and, in accordance with the will of our people, established one central organization representing all Yukon Indians at the community level, this amalgamation of status and non-status has also occurred. Our people have retained the chief and band council system of local government, but all people of Yukon indian ancestry are elegible to participate.
Later in the same year, we signed an agreement-in-principle defining who is a Yukon indian. While the agreement of elegibility and enrollment contains criteria such as blood quantum and ancestry the final arbitrators are Yukon indians, more specifically, the Yukon indian elders.
Regarding the equality provisions the position of the Council for Yukon Indians is clear. We strongly support and believe in the need to establish equality between male and female persons. Since our inception as an organization, we have vigorously opposed those laws which have discriminated against indian women and we will continue to do so until equality is firmly entrenched within the Constitution.
As to the question of whether or not sub-section 4 of section 35 might abrogate 12(1)(b) and other discriminatory sections of the Indian Act, our answer is that we very much hope so. Nevertheless, in our view, the question is somewhat academic since, as the honorable senators will realize, section 15 of the new charter will most certainly invalidate the discriminatory provisions of the Indian Act, and this, of course is long overdue.
Earlier we stated that we would return to the matter of the process of constitutional negotiations with the aboriginal peoples. We do so now in reference to the issue raised in question number six of senator Nieman’s letter. Given that the honorable senators have stated rather emphatically that this committee will not concern itself with process, procedures or related aspects of constitutional negociations with the aboriginal peoples, preferring instead to deal with the legal interpretations of the precise wording, it strikes us a curious that question number six is raised … clearly it is a procedural issue.
Nonetheless, it is our position, and one which we believe the honorable senators would share, that the determination of who should have the authority to represent the various peoples is in the first instance, a decision to be made by the aboriginal peoples. If and when conflicts occur, the resolution will, of course, be achieved through our own political process as has often been the case in the past.
As we and others have said in the past, the March accord is far from perfect. There is a great deal more to be accomplished before we, as native people, can rest assured that the constitution of Canada gives due recognition and expression to our rights. Nevertheless, the accord, negotiated and designed in good faith, establishes certain principles and processes which represent the sound basis through which we will entrench and protect legitimate constitutional rights and freedoms of the Indian, Inuit and Motis peoples. We insist, therefore, in the strongest possible terms that the Senate
approve the resolution before it and allow all parties to proceed with the important task that lies before us.
From the Native Women’s Association of Canada:
Ms. Donna Phillips, Member of the Constitutional Committee of the Association.
From the Council for Yukon Indians:
Mr. Dave Joe, Chief Negotiator;
Mr. Harry Allen, President.
From the Native Council of Canada:
Mr. Smokey Bruyere, President;
Mr. Gary P. Gould, Chairman of the Constitutional Committee of the Council.
From the Métis National Council:
Mr. Fred House, President, Louis Riel Metis Association of British Columbia;
Mr. Clem Chartier, National Representative of the Metis National Council;
Mr. Don McIvor, President, Manitoba Metis Federation.
From the Inuit Committee on National Issues:
Mr. John Amagoalik, Co-Chairman;
Mr. Charlie Watt, Co-Chairman;
Ms. Mary Simons, President, Makivick Corporation, Kuujjuaq, Que.;
Mr. Mark Gordon, Representative.