Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, 32nd Parl, 1st Sess, No 71 (20 September 1983)
By: Canada (Parliament)
Citation: Canada, Parliament, Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, 32nd Parl, 1st Sess, No 71 (20 September 1983).
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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
Tuesday, September 20, 1983
Issue No. 71
Third 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 Paragraph 25(b) of the Constitution Act, 1982 is repealed and the following substituted therefor: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, 1867, to section 25 of this Act or to this Part,
(a) a constitutional conference that includes in its agenda an item relating to the proposed amendment, composed of the Prime Minister of Canada and the first ministers of the provinces, will be convened by the Prime Minister of Canada; and
(b) the Prime Minister of Canada will invite representatives of the aboriginal peoples of Canada to participate in the discussions on that item.”
4. The said Act is further amended by adding thereto, immediately after section 37 thereof, the following Part:
“PART IV.1 CONSTITUTIONAL
37.1 (1) In addition to the conference convened in March 1983, at least two constitutional conferences composed of the Prime Minister of Canada and the first ministers of the provinces shall be convened by the Prime Minister of Canada, the first within three years after April 17, 1982 and the second within five years after that date.
(2) Each conference convened under subsection (1) shall have included in its agenda constitutional matters that directly affect the aboriginal peoples of Canada, and the Prime Minister of Canada shall invite representatives of those peoples to participate in the discussions on those matters.
(3) The Prime Minister of Canada shall invite elected representatives of the governments of the Yukon Territory and the Northwest Territories to participate in the discussions on any item on the agenda of a conference convened under subsection (1) that, in the opinion of the Prime Minister, directly affects the Yukon Territory and the Northwest Territories.
(4) Nothing in this section shall be construed so as to derogate from subsection 35(1).”
5. The said Act is further amended by adding thereto, immediately after section 54 thereof, the following section:
“54.1 Part IV.1 and this section are repealed on April 18, 1987.
6. The said Act is further amended by adding thereto the following section:
“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
TUESDAY, SEPTEMBER 20, 1983
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 8:15 p.m., the Chairman, the Honourable Senator Joan B. Neiman, presiding.
Present: The Honourable Senators Bosa, Donahoe, Godfrey, Haidasz, Lapointe, Lewis, Neiman, Rousseau and Stollery. (9)
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.
From the Coalition of First Nations:
Chief Joe Norton, Caughnawaga Reserve (Quebec); Mr. Graydon Nicholas, President of the Union of New Brunswick Indians;
Mr. Ron Lameman, Co-ordinator, Treaty 6 Chiefs’ Alliance (Alberta);
Mr. Erick Robinson, Co-ordinator, Brotherhood of Indian Nations (Manitoba);
Chief Billy Two Rivers, Caughnawaga Reserve.
The Committee resumed the examination of the subject matter of the Constitution Amendment Proclamation, 1983. Chief Norton made a statement.
On motion by the Honourable Senator Bosa, it was agreed, —That “A Declaration of the First Nations”, the briefs of the Treaty Six Chiefs Alliance of Alberta and of the Brotherhood of Indian Nations in Manitoba be printed as appendices to this day’s proceedings. (See Appendices “71-A”, “71-B” and “71-C”).
Mr. Norton tabled a document appended to “A Declaration of the First Nations”.
Mr. Nicholas made a statement.
On motion by the Honourable Senator Lapointe, it was agreed, —That the document entitled “Presentation to Working Group on Indigenous Peoples” be printed as an appendix to this day’s proceedings. (See Appendix “71-D”.)
The witnesses answered questions.
On motion by the Honourable Senator Bosa, it was agreed, —That the Chairman’s direction on September 8, 1983, to print the brief of the Council for Yukon Indians as an appendix to that day’s proceedings, be confirmed.
At 10:20 p.m., the Committee adjourned until 3:30 p.m. on Wednesday, September 21, 1983.
Clerk of the Committee
Ottawa, Tuesday, September 20, 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 8 p.m. to consider the said subject matter.
Senator Joan Neiman (Chairman) in the Chair.
The Chairman: Honourable senators, this evening we will be hearing from the Coalition of First Nations and also from some individual groups. From the notice that honourable senators have received, they will be aware that Mr. Graydon Nicholas was to appear this evening. He is on his way in from the airport at the moment, and while waiting for him to arrive we will hear from other members of the Coalition.
On my right is seated Chief Joe Norton of the Caughnawaga Reserve, who wishes to read to us an Address of the Coalition of First Nations. It is not a terribly long document and I think it best that it be read into the record. Because it is fairly technical, however, I have arranged to have photocopies of it distributed to all members of the committee. I believe this document sets out an argument with respect to the recognition of the Coalition of First Nations.
Honourable senators have received the briefing note which was prepared for the purpose of providing some background information about the Coalition of First Nations. I believe that the presentation of Chief Norton will address some of the issues that are raised in that briefing note.
Seated to the right of Chief Norton is Mr. Ron Lameman, the Co-ordinator of the Treaty 6 Chiefs’ Alliance of Alberta. To the right of Mr. Lameman is seated Mr. Eric Robinson, the Co-ordinator of the Brotherhood of Indian Nations of Manitoba. These groups form part of the Coalition of First Nations, but these gentlemen were interested in appearing here tonight so as to make some comments and answer any questions honourable senators might raise. Chief Norton has agreed to go ahead with this presentation. We hope that by the time it is completed, Mr. Nicholas, who is the president of the coalition, will have arrived.
Chief Joe Norton, Caughnawaga Reserve (Quebec): Thank you, Madam Chairman. Honourable senators, I would like to read into the record a position that has been put together by the Coalition of First Nations.
We are the Coalition of First Nations. As the first nations of upper North America, we have exercised sovereignty over our territories for thousands of years prior to contemporary recorded history. During the past few hundred years, we have lived under circumstances of frequent conflict and constant siege, caused by the expanding colonialism of European kingdoms and status. We have made treaties with the British Crown to ensure peaceful relations, and to allow sharing of our lands and resources with her subjects. We have continued to live as distinct peoples, but our struggle to be free and to fully determine our future has been seriously undermined by Canada’s “internal” colonization policies. In response to such policies, and consistent with our struggles to remain distinct
peoples, the First Nations of Canada, in December of 1980, laid down the foundations of our position by the Declaration of First Nations, and Treaty and Aboriginal Principles. We, as the Coalition of First Nations, have never, and will never, waver from this Declaration. For the record, we would like to table the document, the Declaration of First Nations.
The First Nations of Upper North America are not, nor have they even been, a part of the Canadian Confederation. Somewhere along the line, the government got the idea that Indians are Canadians, but the relationship with the Government of Canada has never been formally clarified. The “patriation” of the Canadian Constitution from Great Britain was the final effort of the Canadian government to lend a cloak of legality to its efforts to grab our lands and resources and to terminate our politically distinct status. The “patriation” was the ways and means that the federal government could legitimize the involvement of the provinces in a process that is solely within the jurisdiction of the federal government. For many years, the federal government has been delegating its obligations to Indians to the provinces through section 88 of the Indian Act, and Department of Indian Affairs programs and policies.
The inclusion of section 37 in the Constitution Act established the provinces in a new relationship. The provinces were not even in existence when most treaties were signed, and why should a subgovernment now be allowed to identify and define our rights? For the First Nations, “patriation” of the Canadian Constitution represents the final stage of colonial imperialism.
The whole process before the actual bringing home of the Constitution was a struggle for the elites. We, as First Nations, were caught mercilessly in the power struggle of the federal and provincial governments. Our rights were kicked around as a football in a very political game. The result of this game was a very watered-down mention of our rights. The provincial and federal governments did not get what they wanted either, but for the sake of bringing the Constitution home, it was accepted.
The federal government is not interested in us and cares very little for the provinces. They were willing to patriate the Constitution unilaterally, and would have if the courts had not stopped it. The federal government officials were only interested in the glory of having their names go down in history at the expense of our rights and the rights of the provinces. The provinces were willing to sacrifice a fellow province at the expense of obtaining what they wanted. The whole patriation process was not for us or in our interests.
Canada is supposed to be a democracy and represent the people. Nations derive their power and sovereignty from the people. True sovereignty comes from the people, and Canada would be hard pressed to make this claim. We are truly sovereign, for we represent our people and are the voice of the people. We are not undemocratic, as Canada is.
The Canadian government has continually violated our rights to self-determination by depriving our people of most of their territories by occupation or by unequal treaties. The final gesture to smooth the dying pillow is the recent “consultation” with aboriginal people in Canada’s constitutional reform initiatives. The formation of the Coalition of First Nations is a giant step in the direction of true Indian self-determination.
We did not attend or allow anyone to represent us in the First Ministers’ Conference. To do so would be a violation of our Declaration of First Nations and Principles, and would be inconsistent with our Sacred Treaties and our Aboriginal Rights and Title to our land. We will only conduct our business with the Crown in right of Canada through a bilateral process, a process established by our forefathers. Not since the time of the signing of our treaties has a “true” bilateral process been utilized or allowed to be utilized.
We do not agree with the Constitutional Accord, as it is part of a process that we have never participated in. The Accord also denies us our right of self-determination. It denies us our equal participation with other participants; it denies us the right to consent to anything; and it also denies us of the political right to self-representation. The process is one that involves the province in the identification and definition of our rights. This is in violation of our treaties and our aboriginal rights, and is inconsistent with the relationship that was codified by the Royal Proclamation of 1763.
Again, as in the Constitution and in these hearings, we are only invited to present our views. This body decided to check into this whole amendment process. Why? It seems that it was not out of interest for the Indian people, but more of what infringements of the general populace’s rights would occur by such amendments. This body could have invited chiefs or representatives to participate further than just making presentations. It could have asked us to draw up terms of reference, or to be a much larger part of these hearings, but again, we are being ignored. We voiced our protests in England; we were the last in England seeking fair action. We have voiced our opinions in Canada, but the government refuses to do anything about our position, convincing herself that she is justified in her new Constitution and her relations with Indians by clinging to colonial law theories.
None of the colonial law era arguments, however, justifies the disposition and denial of the Indian nations’ rights to their lands or their original self-government, if closely examined. Canada’s jurisdictional and territorial claims to Indians and Indian lands are based on Eurocentric and now esoteric lore no longer acceptable in modern international law.
Yet, the November 5, 1980 First Ministers’ Accord established that all future constitutional rights discussions would be
based on this racist, self-serving legal deception. This was accomplished by the addition of the term “existing” to section 35. The political framework for discussion is, in future, to be based on rights that the courts have recognized to have existed as of that date, and there would be further negotiations on additional rights that could be recognized. The effect is to entrench colonialism.
The theory of discovery is often used to justify the taking of Indian lands and resources; yet, if it applies, then the Indians are the lawful owners. Discovery gives states valid claims if the lands are unoccupied, but North America was occupied by the Indian nations from time immemorial. European potentates issued a variety of charters, but as the U.S. Supreme Court ruled in 1832, “These grants asserted a title against Europeans only, and were considered as blank paper so far as the rights of the natives were concerned”. Some early legal theorists have argued that the lands discovered were unoccupied because the Indians were savages and were not civilized enough to have sovereignty. This theory is founded on ignorance or the unwillingness to appreciate the Indians’ special relationship with the land. In 1975, the International Court of Justice in the Western Sahara case rejected the concept of terra nullius, and held that the local population had legal rights to the land and the right to self-determination.
Professor Edward McWhinney has written that “the concept of terra nullius, as the principal source of Western colonialists” claims to the title to Canada, inter alia stands up, with difficulty, against contemporary, comprehensive re-examination according to the principle of inter-temporal law as authoritatively restated recently by the International Institute of Human Rights. A consequence of this is that any claims that Canada might have must be found on valid subsisting treaty agreements. From the time the first Europeans got off the boat, the Indians were willing to share the land, provided that they would live in peaceful co-existence. The principles of sharing and peaceful co-existence are prevalent in all of the treaties, and these treaties must be seen in this context today.
Concepts of a civilizing mission or trusteeship were used as justifications for colonialism, but they in themselves do not provide any basis for jurisdictional or territorial claims. The theory of conquest asserts that people must be conquered to allow jurisdiction over a people and its land. In most cases, and especially in Canada, the Indian nations were never conquered. In fact, treaties of peace and friendship were entered into by Canada and the Indian nations. Our nations of the maritimes are a good example of this. It was the policy of the governments to establish friendly relations with the Indians because of our numbers and possession of the land. The Indian nations were seen as capable of maintaining relations of peace and war, but unlike the United States, there was no “just war”.
Under the modern law of war, conquest does not give a basis for continuing possession of the territory.
In fact, the Indian nations were acknowledged as having a title to their territories which was recognized in international law by the Royal Proclamation of 1763, and article 15 of the Treaty of Utrecht. The rights of the Indian nations to autonomy in international law were acknowledged since a state could place itself under the protection of another without losing its right of self-government.
The sphere of Indian governmental autonomy, which has its roots in international law, can be seen to have been limited by municipal law if there was a conquest or cession. English common law, according to Professor L.C. Green, “recognized that the already existing law prevailed until such time as it was amended by the king … “, and this, underlays the judgment of Chief Justice Marshall in Worcester v. Gergia. So far as the North American Indians are concerned, America, separated from Europe by a wide ocean, was inhabited by a distinct people, divided into separate nations, independent of each other and of the rest of the world, having institutions of their own, and governing themselves by their own laws. This approach was confirmed by the U.S. Supreme Court in Ex parte Crow Dog, 1883, but altered by states two years later. U.S. jurisprudence has defined the political status of the Indian tribes as domestic, dependent nations, and this doctrine has been maintained by executive and congressional action to date.
Lord Denning in R. v. Secretary of State ex parte the Indian Association of Alberta, 1981, stated that the colonizing British authorities recognized an inherent right of self-government by traditional and customary laws of the Indian nations in 1763. Denning cites Campbell v. Hall, 1774, and the conquest approach. “A country conquered by British arms becomes a dominion in the right of his Crown; and therefore, necessarily subject to the legislature, the Parliament of Great Britain … that the laws of a conquered country continue in force, until they are altered by the conqueror”. Professor Mendes’ analysis of the Denning decision suggests that there now exists an inherent right of Indian self-government that flows from the Royal Proclamation of 1763, that this right is now entrenched in sections 5 and 35 of the Constitution Act, 1982, and that some provisions of the Indian Act could be unconstitutional. Canada, however, has consistently rejected the inherent rights doctrine because it would undermine its policy to deny any political status to the Indian nations and their treaties as evidenced by its response to British legal opinions supporting inherent rights.
To a lesser extent, the theory of cession has been applied to First Nations—Crown dealing subordinating them to the au-
thority of the Crown. In other words, by signing treaties, the First Nations extinguished their sovereignty. As we have stated before, under international law—and the Royal Proclamation is to be seen in terms of international law—association with another state does not necessarily mean a surrender of sovereignty. The Indian nations that signed the treaties did not agree to merge with Canada, but signed the treaties to remain as distinct political communities as long as the sun shines, the river flows, and the grass grows. Britain and Canada passed their Indian acts, and therein recognized the existence of a separate political order. Their thought was that, once the Indian was “civilized” and weaned from his tribal society, he could be admitted into full citizenship. On the Indian Act, Richard Bartlett has written, “The most singular feature of Canadian legislation concerning the Indians is that the governmental policy established therein, that of civilizing the Indian population …”
The ultimate goal of assimilation received explicit declaration in the Civilizing of the Indian Tribes Act of 1857. Canada, in seeking to destroy the Indian society and government through its legislation, is in violation of all of the treaties it is heir to. In fact, the issue of Indian self-government was not raised in the treaties because it was non-negotiable from the Indian point of view. Canada claims that there was consent on the Indians’ part to its jurisdiction over Indians in their territories, but this is not the Indian understanding. The did not agree or understand that they were agreeing to a wholesale transfer of their autonomy. Treaties were written in English, and the contents were misrepresented by negotiators and translators.
Canada has been obsessed with the property consequences of Indian treaties, relying on decisions of the Judicial Committee of the Privy Council. There has never been a clear definition of the status of Indians or of treaties in the Canadian courts, but there has been consistent denial of their rightful status as agreements in international law. The Indian nations did not agree or understand that they were to be excluded from their traditional lands. Any rights that the Indian people now claim under treaty are over and above what they already possessed at the time of the treaties—that is, education, health, economic development. Canada views post-confederation treaties as a complete extinguishment of Indian title in return for reserves and hunting rights. Our elders provide us with the correct interpretation. The Crown wanted lands for its subjects to farm, so only the right to farm was given. That is, rights to depth of a plow. There was no surrender of the minerals. The term “treaty” is subject to deliberate semantic confusion by non-Indians, and because they considered Indians to be uncivilized, these treaties fell into some lesser jurisdictional category of accord, assimilated to the ordinary status of municipal laws and subject to overriding, amendment, or recall by later inconsistent legislation. Canada has now recognized the existence of Indian treaties in its constitution, but it tends to maintain its hypocritical practice of denying that they are, in fact, true treaties in the full meaning of international law.
The U.S. Supreme Court acknowledged that Indian treaties are of an international law character in 1832 in the Cherokee cases, and affirmed it in 1979. The Supreme Court said that, “a treaty between the United States and an Indian tribe is essentially a contract between two sovereign nations. When the signatory nations have not been at war and neither is vanquished, it is reasonable to assume that they negotiated as equals at arms length. Accordingly, it is the intention of parties, and not solely that of the superior side, that must control any attempt to interpret the treaties.”
Thus, we have explored the doctrines that Canada has been relying on and have cited authority disputing these outmoded theories. We were not discovered or conquered, nor did we give consent to any jurisdiction over us. You have the choice before you to amend, reject or pass these amendments as were conjured up at the Constitutional Conference, or perhaps we should say First Ministers’ Conference. We are not here to persuade you to do any of these things. What we do ask is that you request Canada to appear before you—extend the time period of your hearings if you have to—and respond to her view of obligations under international law.
All nations that are signatories to the United Nations Charter and its covenants have certain international legal obligations. Among those are the people’s inherent rights to self-determination and the recognition of these nations’ governments and institutions, both in fact and in law. Since Canada is a signatory to the various United Nations, the following instruments apply:
1. Universal Declaration of Human Rights;
2. International Covenant of Economic, Social, and Cultural Rights;
3. International Convention on the Elimination of all Forms of Racial Discrimination;
4. Convention of the Prevention and Punishment of the Crime of Genocide; and
5. International Convenant on Civil and Political Rights.
Canada must, therefore, give full legal and political recognition to the Coalition of First Nations. We want assurances that, in the future the nations of the Coalition of First Nations will be recognized, as we were recognized under the Royal Proclamation of 1763, and that we have an equal role with Canada in discussions and the determination of any matters
that commonly affect us in our co-existence as nations, whether it be land or resources. We intend to maintain this nation-to-nation relationship with Canada. In conclusion, may we once more refer you to our Declaration of First Nations which summarizes fully our position.
The Chairman: Thank you, Chief Norton. As Chief Nortion has requested, I ask for a motion that the Declaration of First Nations be appended to the minutes of this meeting following his presentation.
(For text of Declaration see Appendix, page 71A : 1)
Chief Norton has also provided us with additional material which may be of interest to Senators. I shall arrange to have it photocopied and circulated among members of the committee.
Chief Norton: The two gentlemen beside me also have presentations or written documents from the organizations they represent which they also wish to be included in the record.
The Chairman: Could I have a motion that the presentations of Mr. Robinson and Mr. Lameman be appended to the minutes of this evening’s proceedings?
Senator Bosa: I so move.
(For brief of Treaty 6 Chiefs’ Alliance see Appendix, page 71A : 2)
(For brief of Brotherhood of Indian Nations see Appendix, page 71A : 7)
The Chairman: Mr. Nicholas, President of the Coalition of First Nations, is now with us. I understand that he has a very short presentation to make and perhaps some additional material that he would like appended to the proceedings.
Mr. Graydon Nicholas, President, Union of New Brunswick Indians: Thank you, madam chairman. First, I am President of the Union of New Brunswick Indians. I have not been elevated to president of the Coalition of First Nations yet.
The Chairman: Pardon me.
Mr. Nicholas: Madam Chairman and honourable members of this committee, it is with mixed emotions that I appear before you this evening. In one sense it is an opportune moment which will allow us to present our views on important matters of interest to the Micmac and Maliseet Nations of New Brunswick and Lennox Island, P.E.I. In another sense it is a feeling of frustration and anger in that we have to address another body to convince Canada that our people want to remain as Micmacs and Maliseets and that you should recognize our self-determination.
The Union of New Brunswick Indians is not a member of the Assembly of First Nations and National Indian Brotherhood. We neither attended nor were we represented at the First Ministers’ Conference that resulted in the execution of the Constitutional Accord on March 16, 1983. And we have proclaimed our intentions not to attend future conferences.
Many people have reacted very negatively to our criticisms, analysis and positions with respect to the whole evolution of the patriation process in Canada. We remain adamant in our view to utilize our resources to steadfastly protect our inherent rights, aboriginal rights, treaty rights, and customs and culture.
As stated initially, we are angry and frustrated with what the House of Commons and the Senate did in the enactment of the Constitution Act, 1982; in particular with the enactment of sections 25, 35 and 37. All of this legislative activity proceeded with great haste and speed to boggle the imagination. Why were there no Senate hearings conducted once the House of Commons passed the proposed legislation on the eve of December 6, 1981? Why was there not an in-depth study of the above specific sections at the time when there was public outrage and dissatisfaction among the Indians on the proposed wording and intent of the legislation? Surely at that moment the Senate would have served a very useful, effective and dominant role in the protection of Indian Rights. But that golden opportunity will not come about again and I hasten to add that this hearing will have a limited impact on a «fait accompli»; namely the deliberate federal policy to transfer jurisdiction and responsibility of Indian Nations to provincial enclaves.
The Union of New Brunswick Indians appeared before the Special Joint Committee of the Senate and the House of Commons on the Constitution of Canada on January 6, 1981. We strongly advocated the full recognition and entrenchment of the ratification, confirmation and sanction of our treaty rights, the recognition of the application of the Royal Proclamation of 1763 and the recognition and affirmation of our aboriginal rights. We stated emphatically that the special trust responsibility, the unique Crown-Indian relationship must not be jeopardized and terminated. We had no desires to become citizens of the Province of New Brunswick. We wanted section 91 (24) of the British North America Act (1867) to remain intact. Our recommendations went unnoticed. We tried to be involved in the process and our views and concerns were rejected, taking a secondary position to that of the provinces and secret and confidential policies of the Federal Governement.
However, I also want to address other concerns of the Constitutional Accord. As previously stated we were not represented at those deliberations. We informed the Prime Minister that we wanted to meet with him and address our concerns on aboriginal, treaty and other rights of our Indian Nations. Apparently, he was amused and acknowledged our letters. But he informed the Premier of New Brunswick that there is no way he would meet with us. We will not accept the implications of the Constitutional Accord, because it perpetuates provincial involvement in the identification, definition and protection of our rights. Under present law, there are daily instances of clash and collision on Indian rights versus provincial jurisdiction. These areas are in the enforcement of provin-
cial game laws, taxation laws, motor vehicle laws, child welfare laws and other general provincial legislation. The Minister of Indian Affairs continues to divorce himself from involvement. He, does not protect our rights by application of the Indian Act, Indian treaties and customs. He refuses to fulfil the trust responsibility of the federal crown and challenge the intrusion of provincial jurisdiction on our people, our lands and resources.
Since the proclamation of the Constitution Act, 1982, and in particular sections 25 and 35, our Indian people have been charged in the courts of New Brunswick with hunting and fishing violations. This is at the initiative of the federal and provincial game and fishery officers; yet section 35 states that Indian treaty and aboriginal rights are recognized and affirmed. These words are a “hollow victory” for people such as yourselves who passed that legislation. We have been defending our people and will continue to do so—that is part of our purpose.
Honourable senators, the Union of New Brunswick Indians are of the firm view that our aboriginal and treaty rights have a basis under international law. This is affirmed in the view expressed by a Spanish theologian named Francisco de Vitoria who in 1532 asserted:
Indians were the true owners of the land, both from the public and private point of view. The Indians lack of belief in the Roman Catholic faith could not affect the question; as heretics in Europe were not denied property rights. He suggested that the Indians were no less intelligent than some Spanish peasants and therefore were equally fit to have legal rights. Spain had no claim to the land through discovery, he said, because that notion only applied to unoccupied land.
In 1537, Pope Paul III issued the bull Sublimus Deus, which stated in part:
Indians are truly men … they may and should freely and legitimately enjoy their liberty and possession of their property; nor should they be in any way enslaved; should the contrary happen, it should be null and of no effect.
In the proceedings of the First Ministers Conference of March 15 and 16, 1983, there was no mention of the international aspects and recognition of aboriginal and treaty rights. Why were the Prime Minister and the premiers frightened and scared to acknowledge such a principle? For us, it is crucial that our advocacy and intervention into international areas be strongly pursued. We must tell the family of nations that Canada refuses to abide by international convenants, principles of international law and other compacts which have recognized and confirmed our rights to self-determination.
I am attaching to this presentation a written submission that was given to the Working Group on Indigenous Peoples at a United Nations conference held during the week of August 8-12, 1983, in Geneva, Switzerland. This committee should take an active interest in the evolution of a five-year plan at that level because it does hope to accomplish more than is presently outlined in the Constitutional Accord.
I could go into the specifics of dates and events, but, since time is a factor and these have been outlined in previous presentations at various levels, I will not. However, our positions and viewpoints have gone on record and are available to you.
In conclusion, the Union of New Brunswick Indians does not want the province of New Brunswick to have a say in the identification and definition of our treaty and aboriginal rights. Canada alone has that trust responsibility. Canada has to abide by international law which recognizes our rights. There can be no camouflaging of responsibility. We are descendants of Micmac and Maliseet nations. We are proud of our past-and determined to remain who we are. We will continue to become involved in the international arena to advance our rights.
Madam Chairman, as I stated initially, I have the working paper here and I would appreciate it if it could be attached to the record.
The Chairman: May we have a motion to that effect?
Senator Lapointe: I so move.
(For text of working paper, see Appendix, page 71A: 16)
Senator Steuart: I would like to clarify one or two points with the first speaker. Do I understand you to suggest that you are not really interested in whether this amendment is passed or not? Are you asking us to block its passage?
Chief Norton: In order to answer that question I must say that we have an interest in whatever goes on with respect to the Constitution and amendments that will be made to the Accord. We have a definite interest because we know there will be after-effects. We feel that it is a foregone conclusion that the Accord will be ratified at some point in the future and that the Senate will agree to its ratification after consultation with ourselves and various other groups.
Basically, we are here to provide an insight into our beliefs and to have our positions read into the record. I do not know if that clearly answers your question but that is the best I am able to do at this time.
Senator Steuart: I think I understand your point.
With regard to the question of rights, you mentioned that the Canadian government is defining the scope of first nations’ rights without first recognizing the political right of the first nations to define and establish those rights themselves. I am rather intrigued at how that would work. What exactly are you saying? Are you saying that your organization, the people whom you represent, should establish the rights which you say are your rights and that the federal government should accept
those rights? When you talk about rights, are you talking about land, money, or resources?
Chief Norton: I will speak specifically for the area from which I come which is Caughnawaga, Quebec—Mohawk territory. We are in the process of reinstituting our former government. We have our own constitution and our own laws. The only thing that remains to be done is to bring that constitution back into our community. In doing so both the federal and provincial governments will have to recognize that there is such a thing as an Indian government, which is our particular case is the Iroquois Confederacy.
To be clear and honest with the members of this committee what we are talking about is defining what our membership is and who is a member of our nation. We are defining our economy, what needs to be done within our community and our educational system—just about every aspect of our life which has been interrupted during the last 300 to 400 years. This is what we are talking about—the reinstitution of our traditional government and our traditional ways. We are trying to combine these with modern society which, as I am sure you appreciate, is something very difficult to accomplish. In taking these steps we do not need the interference of any governments or any outside influences.
Senator Steuart: Do you now have a land base? For example, there are so many people here from Treaty 6, Alberta, where they have a land base. When they signed Treaty 6, whether it is good or bad, right or wrong, they were given a land base; some in Saskatchewan and some in Alberta and so on. Do the Iroquois have a land base right now, or are you going to be asking for or demanding a land base?
Chief Norton: There are a number of ways of answering that question, depending on which side of the fence you are on and from which side you are looking at it. You say, “Are we going to be demanding or asking for someone to give us land.” The answer is no, we have a land base. There are larger areas of land that we are still insisting have never been give up, never been relinquished through sale, lease or being conquered. We do not ask for the return of these lands. What we want is recognition that we do have rights to these lands.
A lot of these lands are occupied by other municipalities and are farm areas. We just cannot simply walk in and ask those people to leave. There are other large areas which are unoccupied that can be used for our people, so we have a basic land base right now.
Senator Steuart: Do you have a reserve?
Chief Norton: We have a so-called “reserve” which is a term used by the government and, in relation to the population that we have, it is small; there will be a further need to expand, and some method will have to be worked out whereby we can expand our land base, not to ask for lands, but simply to have the government recognize that we have rights to certain lands.
If you suggest that there is a process or procedure through the office of Indian Claims, we totally reject that because
again, that is extinguishment of rights to lands, if you submit a so-called valid claim to them.
Perhaps some of my brothers in the coalition would like to expand further on your point. I do not know how they view it.
The Chairman: If any of you would like to add to Chief Norton’s comments, please do so.
Mr. Ron Lameman, Co-ordinator, Treaty 6 Chiefs’ Alliance (Alberta): I will just speak briefly on that. As the senator has mentioned, we from the Treaty 6 Alliance in Alberta do have land bases. However, another thing we are seriously addressing at the present time is bringing to the attention of the world community the understanding of our people at the time of treaty-signing; the fact that, for the most part, as was mentioned in our presentation, these treaties were unequal treaties. At the time of treaty-signing, none of our chiefs or headmen could speak the English language. In the case of Treaty 6 at Fort Pitt, Peter Erasmus represented us. Through our system of recording history orally, as these treaties were handed down, our elders made us understand that a lot of what was agreed to at the time of treaty-signing was not what was written down on paper in a language which was totally foreign to our people.
When you talk about a land base, there has been an encroachment of settlers in Alberta and other areas of this country onto lands that were reserved by our forefathers, as we understood from our oral history handed down to us by our elders. At the time of treaty-signing, it was understood by many of our forefathers that an Indian reservation, as such, was just a land base; that one day’s walk in every direction was supposed to be their traditional grounds for subsistence, for hunting, fishing and trapping. That means that, for 25 miles in every direction of the so-called reservations, there should be no settlers. The reservation is the home base for the subsistence of our people.
Our people also have an understanding that, along the Rocky Mountains, especially in our treaty area, there should be no settlement for one day’s walk from the mountains and the foothills. There are the things that we will be addressing and bringing to the attention of the world community: That these were unequal treaties; that none of our people at the time of treaty-signing could comprehend the English language and that there was a great deficiency in the interpreation of the proceedings at that time.
That, however, merely scratches the surface. There were very basic things that were reserved by our forefathers at the time of treaty-signing. They said at that time that they could not give the settlers the wild animals; they could not give the settlers the water; they could not give the settlers the flora and fauna that grew on the lands, and they reserved the rocks. They reserved for our people all of these things that they needed to subsist and that were sacred to them; things that meant life to them.
When you talk about rocks and water, you are talking about minerals and this is one area where the provinces are very apprehensive at this time. They are going to take this opportunity to Use the constitutional process to wipe out all of these grey areas that existed in terms of the Royal Proclamation by George III of 1763. That Royal Proclamation not only recognized and reaffirmed that we did have certain rights if self-determination; rights that we had prior to the coming of the settler society. The Royal Proclamation of 1763 also set forth the treaty-making process; the ways and means whereby people were given charters and the settlers, as they moved west, could treat with the Indian people in order to co-exist peacefully.
I would like to draw your attention to one of the large appendices that comes with this presentation. I think you will be very interested to know that that article was written in 1897. Already at that time this idea of somehow extinguishing Indian rights to certain things—self-determination, lands, minerals, et cetera—was being addressed; so this is not a new issue.
It has been handed down to us in our oral history by our elders right across two provinces—and this is remembered very vividly by some of the elders who are living still in the traditional, spiritual way—that when the elders said that they were reserving all these things for our people, the commissioners for the Crown said, “We do not want your wild animals; we do not want your water. All we need is the depth of a plough.” All we needed was that much so we could grow our own food, keep our own animals and co-exist peacefully with you.
The provinces are very concerned about that. I know that because of the direction the constitutional process has taken. Because of agreements such as the Rupert Land Agreement, which was inconsistent with the Royal Proclamation of 1763, these are grey areas. In the West, where the land is mineral-rich, this is a very touchy subject. We maintain, as we travel to international forums, that it is a shame that a civilized nation such as Canada should let us live on what we refer to as poor little islands surrounded by wealth. The conditions on our lands are deplorable, but they would not be if you were to live up to the spirit and intent of the treaties that were signed.
Because of the stand that was taken, not only by the Coalition of First Nations, but by the Treaty 6 Chiefs’ Alliance (Alberta), we knew there would be political and economic intimidation, not only from the federal government but from the provincial governments. We are starting to feel that today.
As you are all aware, because of the current economic situation and the high price of natural gas that is being sold to the United States by Alberta, the United States has cut down on its volumes. Which wells are shut off first? Those wells owned by people who are not considered to be Albertans. I say that because a few years ago, when there was a municipal debt reduction, something in the neighbourhood of $500 a head was paid to individuals, but they totally ignored our reservations.
Similarly, when the United States cut back on its purchase of natural gas from Alberta, the Indian wells were shut off first.
So from the provincial government level and the federal government level we have felt economic intimidation because of the stand we have taken whereby we have refused to be assimilated into the mainstream of society. We have refused because we are proud of who we are. I am pround to be an Indian. I would not want to be anything but an Indian in this country today, because I know that we were the first people put on this land and that our forefathers entered into a process whereby we could co-exist with you. We live true to that process today, but the ink was barely dry on the treaties when the British legal system started looking for ways and means to break those sacred treaties. As Prime Minister Trudeau said back in 1969 in his white paper, “they didn’t expect those treaties to last forever, did they?”
Well, our elders used things they thought would last forever, such as the sun, the rivers and the grass. Those things last forever. Each one of you who really cares about the future of this country should take a good look at what surrounds you. If you do, you will see Candu reactors, contaminated rivers, land and air. Not only our children will be affected but so will your children and your grandchildren, so I think you should keep that in mind before you rubber stamp everything that comes to this forum.
We care not only about our children; we also care about your children and their future.
Senator Steuart: Madam Chairman, I have one further supplementary. On some or possibly all of the reserves in Alberta and Saskatchewan, the bands own the mineral rights. Is that not right?
Mr. Lameman: Yes.
Senator Steuart: But you are claiming a larger area than just mineral rights on the reservations?
Mr. Lameman: At the time the treaties were signed I suppose what was paramount to our people was the ability to carry on their traditional ways of subsistence—that is, the ability to make a living by hunting, fishing and trapping.
If you were to go to Alberta today—which is probably one of the last wildernesses in Canada aside from B.C. and the Northwest Territories—you would see that it is difficult for our people to exist off the land because of the free hand the multinational oil companies have been given to exploit trap lines and traditional hunting lands. Those multinational oil companies can cut lines and perform seismic operations anywhere.
Senator Steuart: They cannot do that on a reservation without your permission, though.
Mr. Lameman: No, but they do that on our traditional lands. According to the treaties it is understood that crown lands are to be used by us for our traditional way of subsistence, but without any prior or proper consultations seismic operations are conducted by multinational oil companies with the sanction of the provincial governments and the federal government. Trappers and hunters are sent letters in the mail after the fact stating that, if they wish to make a complaint about any damage to their land, they are to contact a certain office. As I say, that is after the fact, after the damage has been done.
There are very serious overtones with regard to that; there are very serious overtones with regard to the water in this country, which is becoming one of our last and very precious natural resources.
A few years it was thought that a certain group of people were crazy because they suggested that strategic dams could be built on rivers in the north of Canada so that, at some future date, they could divert those rivers down into the United States. That is just around the corner. The Slave River Dam is now in the works, as is the Paddle River Dam, the Old Man River Dam and the Garrison River Project. It is almost as though they were following a blueprint across the country. With all the water contamination currently in the United States, that is just around the corner.
The Indian people are starting to realize those things more and more. We are getting to know your economic policies and your trade policies with other countries; we are getting to know your defence policies with the United States; we are getting to know how the system works, and every time a piece of legislation is passed with regard to anything that affects our way of life, we cannot be limited to only aboriginal issues, because, when you pass a piece of legislation with respect to water or animals, that affects us, too, because this is also our land. You cannot limit us any longer, and I think it is up to us to go out there and find out what is happening. We are doing that more and more.
We are attending more and more international conferences and we are telling the world what is happening to us.
Senator Godfrey: I gather from the briefing notes we have been given that you represent approximately 70,000 Indians. Is that correct?
Chief Norton: That is right.
Senator Godfrey: We are also to understand that you broke away from the Assembly of First Nations last March and that one of your basic differences is that you do not want to negotiate on a trilateral basis, but that you want to negotiate just with the federal government.
How many Indians does the Assembly of First Nations represent now?
Chief Norton: That is a difficult question to answer and I would not want to answer it on behalf of the Assembly of First Nations, in any event.
Senator Godfrey: Have you any idea at all?
Chief Norton: There are figures that have gone around. Supposedly, there are 300,000 status Indians in Canada, and the AFn is supposed to represent that many, but since the Accord has been established you have quite a larger number involved and I do not know if the AFN represents all those people or not.
Senator Godfrey: Apart from the fact that you do not want to negotiate with the provinces, what other basic difference of opinion do you have with the Assembly of First Nations?
Chief Norton: I think the whole aspect of how the approach was made to the First Ministers’ Conference is where the conflict arose. The basic arguments are the same on both sides. I do not think there is a deep split. That is just my personal opinion, but the method of how we establish our traditional aboriginal rights is where the problem arises. I still have a lot of contact with many members of the Assembly of First Nations. They still have the same beliefs that I have, but, unfortunately, their alliance seems to lie with that major or national organization at this point in time. I do not want to go into details about specifics, but there was a lot of frustration involved in my personal experience in attempting to persuade the national leaders of Canada on how to proceed with a first ministers’ conference. That is about the best way I can answer that without stepping on toes.
The Chairman: Mr. Nicholas would like to add to that.
Mr. Nicholas: If I may, Madam Chairman, the Union of New Brunswick Indians disagreed very strongly with the conduct of the national leader and the conduct by the Government of Canada. In our opinion, the Government of Canada invested over half a million dollars to pursuade Indian leaders to come to that conference. We did not want to be a party to such financial transactions and we did not learn of these secret agreements until almost the eve of the conference. When we found out about those financial inducements, that is when we said that we wanted to get out. The price that was paid, in fact, was the provincial involvement at the working group level with the provincial representatives of the government and the different aboriginal groups. That is specifically why the Union of New Brunswick Indians pulled out. On November 18, 1981, there was a declaration of first nations that was solemnly entered into. We were a party to that and, in our opinion, it was quite clear that the directive of the chiefs in the spring of 1982 was not to go see the provinces. In our view, the national office was in serious breach of that declaration.
Senator Godfrey: I notice in your brief that you refer to the fact that you have been charged in New Brunswick for violation of hunting and fishing laws. I have seen some references in the paper about salmon and so on. Let us suppose there were no provincial regulations to control and preserve salmon, have you some regulations to take their place or what is the practical result?
Mr. Nicholas: First of all, senator, the Province of New Brunswick has to abide by the law. If the Constitution of Canada says treaty rights and aboriginal rights are recognized, then why does the Province of New Brunswick not respect our treaties, which guarantee us the right to fish? The federal fisheries cases that are going on in New Brunswick now are in direct contradiction to what your Constitution provides. As I said, that seems to be a very empty statement where you recognize rights and at the same time you are trying to take them away. I am not referring to you, but to the enforcement officers of the Province of New Brunswick. There has been absolutely no compensation to the Indian people of New Brunswick for loss of their fishing rights. You will hear in the news how the commercial fishermen of the Atlantic area are crying right now that, if you stop their fishing you had better compensate them. That is the difference.
The Chairman: Mr. Robinson, did you want to add something?
Mr. Eric Robinson, Co-ordinator, Brotherhood of Indian Nations (Manitoba): Yes, I do. I represent the Brotherhood of Indian Nations in Manitoba—the three nations, the Cree, Ojibwa and the Dakota, comprising approximately 9,000 Indian people. The people who are members of the brotherhood are from four different treaty groupings, Treaty 1, Treaty 2 and Treaty 5, as well as the 1868 Fort Laramie Treaty. I should like to table for the committee our analysis and comments about the Accord from the First Ministers’ Conference. In our document we get into more explicit details about our differences of opinion with the AFN and the process that they have decided to undertake. I should like to refer you to a few things that are contained in our analysis of the Accord.
First how can one talk about the first nations being a distinct people and then agree to the equality formula for aboriginal peoples both in law and also in process? That is one of the things that we questioned in the AFN on.
Second, how can one propose to delete the word “existing” in clause 35(1) and then agree to a constitutional amendment which proposes to add the words “now exists” in clause 25?
Third, how can one propose in both instances to discuss, on the one hand, the treaties made between the Indian nations and the Crown, and, on the other, to propose to entrench constitutionally, presumably of the same stature, agreements entered into by the Indian nations, the federal government and the provinces, of which the latter do not have national capacity?
Fourth, how can one propose the notion of Indian consent on the one hand and be a signatory to a proposed constitutional amendment which only provides for a forum for consultation?
Fifth, how can one propose on the one hand the right of self-identity, including the right to determine membership, and, on the other hand, concede the equality principle in the
matter of citizenship when the standards are those of and imposed by another nation and its constituent parts—the provinces?
Sixth, how can one originally object to a constitutional forum which includes the provinces, and then, later, freely attend it and, in fact, propose, and further consent by being a signatory, that the identical forum and participants should be entrenched by constitutional amendment, all under the guise of an ongoing process?
Madam Chairman, as I indicated earlier, we would like to table this as a supporting document to the overall statement made by Chief Norton on behalf of the coalition of first nations.
The Chairman: Thank you; we shall. Senator Stollery, I believe you have a question.
Senator Stollery: It has been very interesting listening to your brief, particularly as we had the opportunity of hearing quite a number of briefs when we sat two weeks ago. We acquired quite a lot more information on the subject than we had before we started these hearings. One thing that stands out in my mind is that there seems to be quite a difference of opinion amongst the aboriginal peoples of Canada. At least, this is certainly the feeling that I have acquired out of these hearings. In listening to you, I am a little confused. Are you or are you not in favour of the resolution? Are you not in favour of the resolution because the resolution involves a document that was agreed upon by both provincial and federal governments?
Mr. Nicholas: On behalf of our Indian people in New Brunswick and Prince Edward Island, we are not in favour of that resolution because it perpetuates provincial involvement. That has been our basic objection from the very beginning.
Senator Stollery: Is that the view of the rest of our witnesses here?
Chief Norton: Yes.
Senator Stollery: Therefore, everyone is opposed to the resolution?
Chief Norton: Yes.
Mr. Nicholas: I would point out that one part of that accord says rights will apply equally to male and female, and that, to me, is just a whole bunch of hogwash. If Indian people have rights, it does not matter whether they are male or female. That is a lot of political rhetoric.
Senator Stollery: According to your knowledge, are you the first group to oppose the resolution?
Mr. Nicholas: Yes.
Chief Norton: To our knowledge, we are. Inside the AFN membership itself, there was opposition to the Accord and the resolution but, for some reason, it was signed in Winnipeg. We do not want to dwell too much on that because that is AFN business.
Senator Stollery: Am I correct that the Assembly of First Nations is in favour of the Accord, and the Coalition of First Nations is opposed to the Accord?
Chief Norton: Yes.
Senator Stollery: And that was presumably the primary reason for the splitting?
Chief Norton: It was not simply the Accord. Before the First Ministers’ Conference back in March, there were those who were dissatisfied with the whole procedure, and that is when the coalition was formed and people came together to discuss their dissatisfaction. The Accord is only an after-effect. We realized what was coming about and we knew what would be in that Accord. I am not suggesting we are geniuses; all it took was common sense to realize what would come about.
In the AFN itself there is dissatisfaction with the Accord.
There is dissatisfaction amongst the provinces, and whether the matter will be amended or not is a whole topic of discussion itself.
Senator Stollery: Presumably, it is the best thing that, so far, has been obtainable and is a base upon which to proceed for future negotiations. Obviously, that is a position that some hold and that you do not.
Chief Norton: The coalition members have taken the extreme measure of saying that they want to establish a true Indian government according to traditional background. The members of the AFN, unfortunately, have said that they will settle for what they can get by way of the Accord and future conferences.
Senator Steuart: I am sure you are aware that the Assembly of First Nations is not happy with the involvement of the provinces and does not recognize them and that it, too, is working towards bilateral negotiations. The Assembly is also pushing for self-government, which, I presume, you are talking about as well. In a practical sense, how do you see what you are attempting to do getting off the ground? How will you accomplish it?
Chief Norton: Through hardship. I can go into details about what is in store for us, if we truly believe this is the road we have to take. It will be pure and simple hardship. There has been mention made about financial restrictions or financial implications, and they have already started to come about.
Senator Steuart: Is the research of your group funded by the federal government, or, for that matter, was your trip to Ottawa funded by the federal government?
Chief Norton: We have totally rejected any type of funding. One of the basic agreements made by the coalition members was that we would not go to government sources for funding
because of the attachments that are usually involved in such agreements.
An example is the agreement made by the AFN that they would not go to the international forum and, as a result, the Indian problem has become a domestic problem in Canada.
Senator Steuart: When you go to an international forum, do you raise your own money and pay your own way? Do you not receive any government grants?
Chief Norton: No.
Senator Lewis: On a point of order, the witnesses shook their heads. For the record, they said, “No.”
The Chairman: Thank you.
Is it the position of each member nation within the coalition essentially that each nation should negotiate individually with the federal government and the federal government only as to its future financial arrangements, rights, or whatever? Can you tell us whether you see these negotiations as something that could have some beginning and ending? In other words, if the negotiations were conducted in good faith, as you see it, with the federal government, would you be prepared to negotiate agreements that would be final so that everyone, Indians and other people alike, would know where they stood now and in the future? Are you prepared to look at that approach?
Chief Norton: I should like to answer part of that, and perhaps somebody else would like to expand on it.
There is no such thing as “final.” As learned people who have been involved in the formation of laws realize, that is unheard of.
Basic principles can be agreed to by whatever nation is negotiating with the federal government, but these agreements have to be based on the original treaties that each nation signed with the French, the Dutch or the British. As my brother here from out west indicated, the interpretation has to be clarified and understood.
Someone else may wish to expand on that.
Mr. Lameman: As stated in our presentation and in the presentation of the people I represent, Canada had the opportune time in which to entrench the rights of Indian people in the Constitution but failed to do so. Prior to the patriation of the Canadian Constitution Canada, along with Britain, had the opportune time to do so. They had the chance to do it in England and they refused.
They used the provinces as a way and a means, perhaps as a scapegoat, for not doing so. They said that, in order to establish the new co-operative federalism, they had to involve the provinces directly.
It was maintained by our elders that, when we signed treaties, we signed as sovereign Indian nations. As one sovereign nation to another, we signed treaties with the Crown of Great Britain. That trust relationship existed until Canada,
along with Great Britain, was able to cut the international relationship we had with Great Britain.
To this day it is not certain that that is the case. We are looking at all kinds of possibilities such as going to the International Court of Justice and various other international bodies like the United Nations. I wanted to touch briefly upon how we would ever expect this to work in the future.
Being a young person and having grown up within your school system, I can see that one of the reasons we are sitting here today is because of the present educational system in Canada. It teaches the history of Europe from the Greeks and Romans to Shakespeare, but it teaches nothing about the Indians of this country and their meaningful role in Canadian society today. I am a treaty Indian, and everything that I receive from any government by way of treaty rights is, in my opinion, a prepaid right. I do not consider myself a welfare case. Everything that any treaty Indian receives today is a prepaid right of that treaty Indian, because these treaties are supposed to last for as long as the sun shines. Until the day when the sun stops shinning, those treaties should be in effect. We have to have your young people, along with ours, understand the meaningful role that the Indians of Canada have played in the shaping of this country and in the wealth of this country. Today I, as a young Indian person, maintain that the Indian people of this country are the biggest contributors to this society, because those of you people who are comfortable would not be enjoying what you have today if it were not for the trust and the willingness of our forefathers to share the land with your forefathers.
At the time of Treaty 6, as the commissioners went west across this country, they made treaties with only the most powerful tribes—only those tribes which posed the greatest threat to them. They knew that, in the case of the Cree Indians, they could not take the land away from us. They may have had superior weapons, but we knew the land. Our forefathers were brave and fierce fighters. The only way the land could be stolen was through treaty—through a process set out in the Royal Proclamation of 1763. That process was instituted and I suppose that, somewhere along the line, it was not used in the way it was meant to be used. Treaties were unequal, and this is something that we must address today.
Today we must ensure that your children, as well as ours, understand the role that our people have played in the shaping of this country. They must understand why this country is so rich.
Consider the recession that we have had over the past couple of years. Why should a government which is forever getting into a deficit position be able to come onto our reservations and tell us the way we should govern ourselves? These are matters we must address seriously.
Senator Steuart: Over the past two weeks, I have heard a lot said about the wealth of this country and about who owns it. I would just like to point out that, with respect to the development of the wealth, it was not only your ancestors, but also
ours, who contributed. Many of our ancestrors did a hell of a lot of hard work to dig those mines, to sink those wells and to build those railroads, which transformed something that was two feet, 10 feet or a thousand feet underneath the ground into the wealth of this country. I hope you recognize that this is a two-way street—that, in many cases, this wealth was not just lying around, waiting to be picked up. Much hard work went into the development of this wealth.
Chief Norton: I can understand your way of thinking. I agree that a lot of money was poured into the development and that a lot of work was done. I do not mean to be critical of the point that you have just made, but I will say that along with that development went the destruction of a hell of a lot of prime hunting, fishing and trapping territory of aboriginal peoples.
Senator Steuart: I am not saying that mistakes were not made.
Chief Norton: With respect to that mining, well drilling and any other industry or exploration that has occurred, I think that the damage that was done far outweighs the wealth or any other justification for going in there and destroying those areas.
Senator Steuart: I am sorry; I do not agree with you.
Senator Bosa: Madam Chairman, before I put my question, I would simply like to make one or two brief comments. I believe that Mr. Lameman said that there is a deliberate attempt on the part of the government to assimilate Indians. I have not researched this problem thoroughly and only go by memory, but I believe that in 1963 the then Minister of Citizenship and Immigration, along with the Superintendent of Indian Affairs, appointed two professors—one from the province of British Columbia who was an anthropologist by the name of Hawthorne, I believe, and the other from the province of Quebec—with the specific purpose of researching the background of native Indians in order to provide the Indian school system with additional information about the history of their peoples. This was done to encourage the aboriginal peoples to be even more proud of their cultural heritage.
I also know of a more recent development in this regard. The Micmac Indians from New Brunswick have applied for a university chair. I understand that they are the first in line to receive the funds necessary to establish a university chair in the University of New Brunswick. This, too, is for the purpose of looking into the history of the Indian peoples of that province. My perception of the matter is that there is no deliberate attempt on the part of the federal government to assimilate Indians. As a matter of fact, by means of the proclaimed policy of multiculturalism and by means of the Indian Act, I think that this government is deliberately embarking on a policy which is aimed at retaining the identity of the Indian people, no matter where they come from.
Having said that, my question is more pertinent to what is before this committee. We are dealing with a constitutional amendment that is made up of several clauses. We are to
report to the Senate on that specific amendment. I have not heard these gentlemen, as articulate as they are, address themselves to the specific mandate of this committee. I find myself in a dilemma now because we have heard articulate testimony on previous occasions, from the Assembly of First Nations, supporting this constitutional amendment and urging us to adopt it as quickly as possible. We now hear equally articulate testimony advising that we should not go ahead with this amendment. In comparing figures, it is my understanding that there are approximately 300,000 status Indians in Canada. The Coalition of First Nations claims to represent 70,000 of those 300,000 status Indians, which leads to the deduction that the Assembly of First Nations represents a much greater number of status Indians than does the Coalition of First Nations. Since the gentlemen before us have been speaking in terms of democracy, I would like to hear from them advice as to the position this committee ought to take. Should we listen to the majority or should we just come to a stalemate and proceed no further?
Chief Norton: I would like to make one short point, senator. You mentioned that the government has made efforts to hire anthropologists. I must say that, over the years, anthropologists have proven to be a detriment to Indian peoples. You have said that efforts have been made not to assimilate Indian peoples. I think, however, that the process chosen by the AFN in the Constitution is a clear indication of assimilation.
Senator Bosa: Indian people have a status in the Constitution which no other group in Canada has. I think that is going a long way towards determining that aboriginal peoples form a special group in Canada.
Chief Norton: I understand what you are saying, senator, but as far as we see it, that is only on the surface—that is just to appease the international community because of the world pressures that have been put upon Canada over the problems that have arisen with respect to the aboriginal peoples.
Senator Bosa: I do not see it that way. I have not seen such an international lobby.
Chief Norton: Unfortunately, I live and breath every day as a Mohawk aboriginal person, and I know of things that have happened in the past in our communities which lead me to that belief.
Senator Bosa: Give us some specifics. Do not talk in abstracts.
Chief Norton: Like what?
Senator Bosa: You mentioned the international community. You are intimating that the Constitution Act of 1982 was passed in order to appease the international community. I think that is fantasy. Correct me if I am wrong, but—
Chief Norton: For example, Canada has been condemned in the world community for its treatment of native women.
Senator Stollery: That is very controversial.
Chief Norton: But that is an example.
Senator Bosa: It is not the Canadian government that wants to treat women in a different way; it is the Indian bands.
Chief Norton: I disagree with that.
Senator Stollery: We have had evidence on that.
Chief Norton: It comes directly from the Indian Act. Who wrote the Indian Act? Was it the Indian people? Were the Indian people consulted when the Indian Act was written?
Senator Bosa: What advantage would the Canadian government have in treating Indian women any differently from the way it treats other women? Is there any psychological or material advantage in that?
Chief Norton: Then answer me this question: Why has it taken the Canadian government this long to recognize that there is a problem with the Indian Act?
Senator Bosa: The Canadian government realized a long time ago that there was a problem with it.
Chief Norton: Why has it taken them so long? Why did it take pressure from the world community for them to do something about it? You can sit here and defend the Canadian government all you want, but we know the truth. That is why we are sitting here.
Senator Bosa: I am trying to clarify what has been said.
Senator Godfrey: I am Joint Chairman of the Regulations and other Statutory Instruments Committee. The federal government brought in a procedure two years ago, which we consider illegal—but it is there, it is in place—whereby it is within the power of the Indian bands to amend the Indian Act. With regard to the treatment of Indian women, they simply have to pass a bylaw and get it confirmed; yet only 40 bands out of 600 have availed themselves of that opportunity.
The Chairman: Honourable senators, I want to maintain some order and decorum here. I am going to ask Mr. Nicholas to reply to that comment.
Senator Bosa: Madam Chairman, I have not yet received an answer to my question.
Mr. Nicholas: I will first try to isolate the senator’s point. If you have read the contemporary survey of Indians—the Hawthorne report of 1967, one of the centennial projects—you will have realized that the professor argued that Indians were citizens of the province, and the province is partly responsible for the wellbeing of the Indians. We violently disagreed with that particular point of view, the same way that we disagreed with Diamond Jenness in 1947 when he tried to liquidate the Indian province by making us non-Indians. That is our view with respect to that matter.
I know that the members of this committee are sensitive here about our criticism of Canada; but you are part of the parliamentary institution and it is incumbent upon you, as
senators, and you have the authority, which none of the witnesses here has, to initiate changes in legislation. I would like to see evidence of your initiative in that regard by seeking to improve the Indian Act. Contrary to what Senator Godfrey said, section 4(1) of the Indian Act, which allows for bands to opt of certain sections of the Indian Act, does not provide for those particular bands to come up with membership codes. There is no way that reserves at the chief and council level can reinstate membership of those who have lost their membership. We are not just focusing on women. In New Brunswick we are focusing on those who lost their status because they wanted a bottle of beer or because they wanted the right to vote before Canada ever recognized that right; or children who have lost their status because somehow their father was non-Indian and the child was born outside of marriage. So this whole question of membership, the question of who is an Indian, is not isolated nor is it one for which we should blame the chiefs and councils. We want the right to determine our own membership. You will not have to worry about who is on the membership roll. We will be the ones who will have to worry about it, because we know who our people are. If you want to wash your hands of that problem, we will take care of it ourselves; but the problem that the minister does not want to touch—and this is a policy of the government—is the costs of millions of dollars to the taxpayers of this country, if they reinstate full membership to Indian people who have lost it. We cannot ask the minister to account for decisions in cabinet. You people have access to those decisions, and if you are prepared to open up a can of worms, then we are prepared to discuss them also.
Senator Stollery: First, I do not think that we are trying to be unnecessarily provocative. It is fair to say that we in this Senate committee ask all kinds of questions because we interested and our questioning are elucidates and clarifies the situation. One thing that has become clarified in my mind over the past few days. I recall when the Constitution Act and the whole question of native rights in the Constitution was the subject of debate in the House of Commons. As I recall, the major problem was—and I am sure you can define it better than I—that the native, aboriginal and Indian people could not agree among themselves on what kind of reference should be in the Constitution. From the testimony that we have heard during the past few days I can certainly understand why that might have been the case. My question is: Do you have any hope that the Indian people in Canada—at least, the status Indians—can get together, given the variety of views, the different types of people and the geographic distances? Do you not think that that should be first on the agenda, namely, to have a single view?
Chief Norton: You may have various opinions from the coalition members, but this is my own personal opinion on this:
It is not a problem. It is a uniqueness, that we are not one. We are different nations. We have different mannerisms and ways of thinking, but we all agree that we have a problem.
Senator Stollery: I would say that a lot of people agree with that. My next question is; how do we resolve the problem? I am not knowledgeable about the Indian Act, but I know that for the whole of my adult life I have read about problems regarding the Indian Act and the discrimination that has occurred against the Indian people for as long as I can remember. That goes back to the late forties and early fifties. I read Spanish, and I have read what has happened to the Indian people in the Spanish-speaking countries. It seems to me that a lot of people would like to resolve this problem, but it is difficult to resolve something if we cannot get a consensus on what should be done to resolve it.
Chief Norton: I would like to comment on that. The greatest disappointment I had with the Constitution, the coming together of various groups, organizations and aboriginal nations across Canada, is that I was under the impression at one time that we had exactly what you are talking about, when the Declaration of First Nations was ratified—prior to the AFN coming into existence. To me that was one of the greatest periods in history. It was perhaps the first time that the Indian nations had ever got together in Canada to sit down and hammer out those principles. But unfortunately that went out the window. Maybe it is a trait and maybe, because of the influence of the non-Indians in our society, these things will never be possible. That is why you find pockets of resistance or groups that believe in traditional Indian government in line with what their nation believes. You can find these pockets right across Canada and there are various agreements. For example, there are pockets of people who do not believe in the James Bay Agreement and who are resisting it by remaining on traditional land where flooding is imminent. There are pockets of resistance in the Cree society and the Inuit society. These people are called dissidents and they simply believe in their own ways and they stick by them.
Senator Stollery: But if there are too many people living under the impoverished conditions that you described, do you not think that the first priority should be to attempt to deal with that impoverishment and to eradicate the feeling of not being part of the development of the country? Don’t you think that such an approach is better than presenting so many different opinions which you cannot bring together?
Chief Norton: That is easy for you to say, but you try dealing with the bureaucracy in the Department of Indian Affairs and Northern Development.
Senator Stollery: I don’t doubt that.
Senator Steuart: I guess we should not be too surprised because we have ten governments and one federal government and they can hardly agree on the time of day.
Mr. Nicholas: I was going to say something to the effect that they could not even agree initially on how to bring the Constitution home. But there were Indian organizations and Indian chiefs who disagreed even with the patriation process. Then there were Indians who believed that there should be a patriation process and there were aboriginal groups with different interests. The Prime Minister’s Office and the Minister of Indian Affairs exploited those differences. The only time we were able to bridge the differences was at the formulation and signing of the Declaration of First Nations on the eve of November 18, 1981. After that the Government became frightened because of the united stand of the Indian nations and it began to pick away at different Indian organizations across the country. Our organization was approached and we did not fall in line. We said that our rights were too important to fall in line. I think you should ask the minister when he appears before you about the statements we are making and ask for an explanation of the basis of such a policy.
Senator Stollery: I received in my office today, as I am sure did other members of the Committee, a letter from the President of the Association of Iroquois and Allied Indians, asking us to speed up the process and requesting that the Senate not act as an impediment in passing this resolution.
Mr. Nicholas: I am sure that what you say is true, but, as I said in my presentation, why did the Senate not do something about this matter after December 6, 1981? How come nobody here, so far as I know, championed those amendments?
Senator Bosa: Do you mean block the constitution amendment?
Mr. Nicholas: Was there not a committee in existence December 1981?
Senator Bosa: A joint committee.
Mr. Nicholas: But once the House of Commons passes a motion it comes to the Senate for approval. Why was it approved within a matter of hours? Again, the Liberals wanted approval in principle. When we see this process we say, “My goodness, we are trying to rectify damages that occurred on December 6, 1981.”
Senator Stollery: I quote:
We urge all Senate members to recognize the importance of upholding the agreement reached by the Prime Minister, the First Ministers of Canada and the Leaders of our Indian Governments by giving swift passage of the proposed resolution through the Senate.
It is signed by Gordon Peters, President Association of Iroquois and Allied Indians.
The Chairman: But they are a member of the Assembly of First Nations.
Senator Bosa: We have before us for consideration a constitutional amendment. Do you propose that we make amendments to the resolution?
Chief Norton: I think Chief Two Rivers should comment on that.
Chief Billy Two Rivers, Caughnawaga Reserve: What have you guys got me into? I was fast asleep, an old Senatorial practice.
Senator Steuart: You have been reading our press notices.
Chief Two Rivers: My name is Chief Billy Two Rivers. I am from the Caughnawaga Mohawk Territory, located on the south shore of Montreal. I have been answering in my own mind many of the questions asked and there were several comments that I wanted to make. We were reminded that this country is a two-way street and that we should remember that fact. Why we are sitting here is because it became a one-way street with a dominant society and we are trying to remind that society that it is a two-way street. As to the length of treaties and the finalization of them, this never goes on in our area. We believe that at certain times we must get together and remind ourselves of the commitments made by both nations to each other. I speak of other nations because Canada has not joined or taken on the responsibility of a nation in the taking up of these former covenants that the British, French, Dutch and so on were involved in. Canada must grow up and learn that it must live up to the responsibilities that it accepted when it joined the community of nations. We talk of the Canadian Government ensuring or continuing to ensure the existance of Indian peoples. I want you to know that I come from a people that has had contact with white society for over 450 years.
We talk of the Indian peoples a sone nation. Our experiences with your people in trying to eliminate, eradicate or practising genocide on the Indian people has been handed to us down through the years by our forefathers. They have told us in many stories what has been done to do away with the Indian people. A long time ago the numbers game was brought up over here—how many people and who represented whom. Along time ago you were few in number. The reason you existed and subsisted and passed through a couple of winters is because you were welcomed here and we shared freely with you because we chose to share. But every time you overstopped the bounds there had to be some restraints made; we had to give you a gentle slap on the hand. Eventually it came to a point where you achieved a certain numerical superiority, which brings us to the present day. In our area, which is the Mohawk nation and the Iroquois confederacy, you talk about women and why they are being discriminated against. You said that was because of the Indian Act, and that we did not amend the Indian Act.
I guess the bottom line comes down to land and land title. If you can get rid of the owner some way then you can become
the owner yourself. As long as we are sitting here on your shoulder and speaking into your ear, giving you some semblance of a conscience, then we will continue to remain here as Indian people.
What I am saying is that when the confederacy posed a threat to the English they had to devise a means to destroy that threat. How do you destroy a nation? You go to the very roots of it—the family unit. What was in the minds of the British colonials at that time was that, “we must get inside of them and destroy them, so we make a law which says that any white person will be made, through a paper creation, into an Indian person; but the strength, the root of any nation, which is motherhood, must be done away with.” The said what they had to do was to get them out of that society. This applies to any nation, any country. It applies to any mother tongue. This aspect is evident in Canada. The French fear that they will lose their language. After all, where does language come from? You learn it at your mother’s knee. If my mother has been a white woman I would not speak my language; I would be unable to because she would not have been able to teach it to me. This was a method utilized by your society in order to eradicate the Indian from the land in order to achieve title. We must always remember that the basis is ownership and title to the land.
All I am saying is that the white man was allowed to take the women out of society. An Indian male marrying a white woman was allowed to bring her into the society in order to dilute it. Many will shake their heads and say that it’s not so, but history has proved otherwise. The Canadian government has taken every step possible to eradicate us. Perhaps it thought we would just die away. In 1809 or so there was a very low period when the Indian population declined because of isolation and the denial of medical services, through the destruction of sources of life, which is hunting and fishing, whatever ways we managed to subsist. And now you are taking the final step by developing a Canadian Constitution which will drown the Indian people in one melting pot. We are referred to now as native peoples—Inuit, Metis, sttus and non-status—the melting pot is there. This melting pot is called “native peoples”. We were baptised by Diefenbaker as Canadian citizens and we were confirmed by Trudeau. To the Indian people it is obvious that we will finally become part of this melting pot. We will no longer be able to have treaties between ourselves because we as Canadians cannot have treaties with our own country.
Everyone will be happy for now, but when the time comes to take the final step, what I term extermination or termination, what will happen is that the government will go through this process of the Accord for four more years. No conclusion will be reached. As one of the senators mentioned this evening we cannot come to a conclusion, He says that since the Indians cannot come together on this subject we might as well legislate it for them, but there is this Constitution in the way, these affirmed rights entrenched in the Constitution. He says that is no problem, “we will get 50 per cent of the population and
seven provinces to amend it.” This is what I see as the direct process to gain full title to Indian lands.
All we want is the recognition of our right to exist as Indian nations and to co-exist with Canada. Let Canada live up to its responsibilities. If we have hunting and fishing rights, then let’s practise them.
Some of us live in what are referred to as urban areas. Our hunting and fishing rights may have been turned into working in a factory for Gen Motors or working on a bridge. We should not be restricted. It should not be said to us that “you are no longer an Indian person, you are now a Canadian citizen, you are part of the mainstream.” No, we do not want that; we want to be distinct, to remain who we are and practise our culture and our language.
I always say that Mr. Levesque is stealing our act. All the things which he is asking for rightfully belong to us. The man is saying that this is his and that is his. We were ahead of him. I believe we have the first right to ask for these things.
I am getting a signal from the corner of my eye so I guess I will use a football term and “take time”.
The Chairman: Do you think you have an answer to your question, Senator Bosa?
Senator Bosa: No, not at all.
The Chairman: Mr. Nicholas, would you try and answer Senator Bosa’s question directly, please?
Mr. Nicholas: I believe what the senator wants us to do is give a clause by clause review of the agreement.
Senator Bosa: Or a global opinion.
Mr. Nicholas: I believe our response to that is we do not care. We are not in favour of that. It may sound very cold when I say that; however, I would suggest to every one of the senators here to study that International Convenant on Civil and Political Rights which Canada signed in 1976. Examine the rights which Canada guaranteed to the people of this country and then compare it to what the Constitution is doing. I am sure you will be enlightened, as we were. That is only one international covenant which recognizes our rights. Examine the other covenants which Canada has signed in the international arena and then ask your conscience whether Canada is doing the right thing in what it is doing now is she trying to sell us short on our rights.
Senator Lapointe: Why is it that 200,000 Indians are in favour of it?
Chief Two Rivers: They are domesticated; they have accepted Canadian citizenship.
The Chairman: Mr. Lameman has a very brief reply, Senator Bosa, to your question.
Mr. Lameman: It was not possible to have part of our presentation from the Treaty 6 Alliance typed. However, I will be submitting it as part of our presentation. It refers to the
participation in the agreement of certain Indian leaders in this country. The last pages of the presentation read as follows:
Indian chiefs have always been realists and anyone who purports to speak on their behalf through a federally funded association to acknowledge a new role for the premiers must eventually answer to his constituents. Any Indian leader who foresees receiving justice and a square deal from the provincial premiers is dreaming.
Some of these Indians appeared before this committee and stated that the Accord had been ratified by the chiefs in the Assembly of First Nations on May 18. The March, 1983, Accord, or “deal”, was between first ministers with aboriginal spokesmen signing as witnesses. In respect of treaty rights it changed nothing, except to entrench the first ministers’ conspiracy.
According to Kainai News, which is one of our newspapers in Alberta not politically associated with anybody, the May 2, 1983 edition on page 5 said that, of the 575 chiefs in Canada, 200 attended the AFN Conference and they, as a group, agreed to accept the deal made by their representatives. A number of the chiefs who did attend pointed out that the AFN leadership did not have a mandate to attend the section 37(2) meeting, while a number of chiefs abstained from voting. This latter subject was dealt with in another article in that same edition of the Kainai News.
We would like to point out that the majority of Indian chiefs in Canada do not support the Assembly of First nations deal at the section 37(2) Conference and that they expressed their displeasure by not gracing the AFN meeting with their presence, which is consistent with Indian custom. These are facts that both the Hon. Mr. MacGuigan and the Hon. Mr. Munro preferred to ignore when they told you that there was “substantial consent” from the “legitimate” representatives of the Indian nations.
Just one further point before I finish: It was brought to our attention earlier this year that a number of these high-roller type of Indian politicians who were used to create a panic situation in this country for the Indian people to attend the 37(2) Conference were, in fact members of the native Liberal caucus. I am sure that Mr. Nicholas knows a lot more about that than I do. These people purported to speak on behalf of the Indian people. They did not speak for my Indian people on my reservation. They have never seen them. These so-called representatives are members of the native Liberal caucus, and the Liberal government happens to be in power today, so how can these so-called representatives be speaking objectively for our people? They may be people who, in the future, will become senators like yourselves and perhaps get a token seat in the House of Commons, but these are the realities that we have to deal with because we live on those reservations.
Senator McElman: What do you refer to as the native Liberal caucus?
Mr. Lameman: I think Mr. Nicholas has some information on that.
Mr. Nicholas: There was a convention of the Liberal party which took place last year here in Ottawa, and Indian leaders were invited to come. The Indian leaders who attended that particular convention were the ones who were designated as the native Liberal caucus. They were lobbied strongly on Liberal policies, one of which was the $345 million that has now been set up.
I did not attend that particular convention, nor did I come to the Conference because I think Indian rights have to be over and above whatever party is governing the country. We cannot subject our rights to either Liberals, Conservatives or NDP or whatever government exists.
Senator McElman: I assume that there would be an equivalent Conservative caucus and NDP caucus, although perhaps not formalized—
Mr. Nicholas: Not to my knowledge.
Senator McElman: It may not be formalized but surely it is not being suggested that the 200 chiefs who are referred to here were only Liberals or representing Liberals. That is not what you are suggesting?
Mr. Lameman: What I wanted to point out was that, out of 575 chiefs, only 200 attended and it was our understanding that a great majority of those chiefs did not agree with the AFN participating any further in the Accord. When we talk about a majority, I think there is far less than a majority represented there. In many cases, provincial territorial organizations are speaking on behalf of Indian chiefs and many of those Indian chiefs, especially in Saskatchewan, do not even know that they are being represented.
Senator Bosa: May I move the adjournment, Madame Chairman?
The Chairman: In a moment, Senator Bosa, thank you.
I think we have had a very complete, interesting and provocative discussion tonight and I wish to thank all of the witnesses who have appeared and spoken. I want you to understand that we have learned a great deal. If some of the comments seemed to be less than supportive of your position, I think it is very often because we are trying to explore what we can do. The answers and solutions are obviously not going to be easy for you or for us, but we thank you for the time you have taken to appear here tonight. I hope that you feel it has been worthwhile.
Honourable senators, for the record I would like to note that I gave a direction that the brief of the Council of the Yukon Indians be printed as an appendix to the proceedings of the day on which that group appeared. I did not make a motion at that time, and I would appreciate if I could have that motion now to confirm that direction.
Senator Bosa: I so move, Madam Chairman.
The Chairman: Thank you. Tomorrow afternoon we are meeting at 3.30 with the Grand Council of the Crees.
Senator Bosa: There are two meetings taking place at 3.30 tomorrow. There is the Standing Senate Committee on Rules and Orders as well.
The Chairman: Yes, I realize that. There are at least four meeting taking place tomorrow.
Senator Lapointe: Yes, the Security Intelligence Service Committee is one of them.
The Chairman: I am afraid it cannot be helped. I hope that some of you will be able to attend our meeting tomorrow afternoon. Thank you all for being here tonight.
The committee adjourned.
A DECLARATION OF THE FIRST NATIONS
“We the Original People of this land know the Creator put us here.
The Creator gave us laws that govern all our relationships to live in harmony with nature and mankind.
The laws of the Creator defined our rights and responsibilities.
The Creator gave us our spiritual beliefs, our languages, our culture, and a place on mother earth which provided us with all our needs.
We have maintained our freedom, our languages, and our traditions from time immemorial.
We continue to exercise the rights and fulfill the responsibilities and obligations given to us by the Creator for the land upon which we were placed.
The Creator has given us the right to govern ourselves and the right to self-determination.
The rights and responsibilities given to us by the Creator cannot be altered or taken away by any other Nations.”
TREATY AND ABORIGINAL RIGHTS PRINCIPLES
1. The aboriginal title, aboriginal rights and treaty rights of the aboriginal people of Canada, including:
(a) all rights recognized by the Royal Proclamation of October 7th, 1963;
(b) all rights recognized in treaties between the Crown and nations or tribes of Indians in Canada ensuring the Spiritual concept of Treaties;
(c) all rights acquired by aboriginal peoples in settlements or agreements with the Crown on aboriginal rights and title;
are hereby recognized, confirmed, ratified and sanctioned.
2. “Aboriginal people” means the First Nations or Tribes of Indians in Canada and each Nation having the right to define its own Citizenship.
3. Those parts of the Royal Proclamation of October 7th, 1763, providing for the rights of the Nations or tribes of Indians are legally and politically binding on the Canadian and Briish Parliaments.
4. No law of Canada or of the Provinces, including the Charter of Rights and Freedoms in the Constitution of Canada, shall hereafter be construed or applied so as to abrogate, abridge or diminish the rights specified in Sections 1 and 3 of this Part.
5. (a) The Parliament and Government of Canada shall be committed to the negotiation of the full realization and implementation of the rights specified in Sections 1 and 3 of this Part.
BRIEF OF TREATY 6 CHIEFS’ ALLIANCE
September 20, 1983
SENATE HEARING ON THE CONSTITUTIONAL ACCORD
We would state at the outset, prior to discussion on the various constitutional accords between Canada’s leaders, that the Indian Nations in what is now called Canada and North America have the inalienable right to self-determination. The Indian Nations in Canada stated this in the Declaration of First Nations. Our rights and responsibilities were given and can only be altered by the Creator. Each Indian Nation which defines itself as a Nation in he law and family of nations has the right, as a group, to self-determination.
Self-representation is an aspect of self-determination. The Indian Chiefs and Councils represent the Indian People. Our Chiefs 100 or so years ago represented the Indian People at treaty signing. Their power of representation was not challenged then and it will not be denied by anyone today. The prime minister acknowledged the existance of a treaty relationship prior to the unveiling of the 1969 white paper, and all the laws passed by parliament have not displaced the treaty process as the only way of conducting relations between Indians and whites. The Indian Nations in the Treaty Six Area in what is now known as Alberta remain true to the treaties as the only valid agreement between the Crown and the Indian Nations and we have not agreed or consented to our treaty process being replaced by meetings of first ministers. Our leaders have the sacred obligation to uphold the honor and dignity of the treaties and to ensure that the Crown respects its many treaty obligations. Canada may change or alter its internal laws and constitutions, it might become more independent or give more authority to the provinces but this will not alter the fact that there are over 80 treaties between the Indian Nations and the Crown. In each of these agreements, the Crown did not dispute the fact that the Indian Nations were autonomous political units who selected and empowered their representatives. No one but our accredited representatives have the authority to bind our present and future generations. We will return to the issue of representativeness.
We must explain our views on our role in the political process that has us meeting tonight. We appreciate your views of your role as individual senators and as a committee with a report to prepare. We did not receive a letter of invitation like the provinces and organizations, but we came anyway. You perhaps see it as your duty to represent regional and provincial interests and use your legal powers of delay to protect provincial rights. Perhaps your mandate needs to be clarified with
respect to regional and special interests. We note that since Canada removed its “class legislation” to permit Indians the unconditional privilege of voting in federal elections in 190 it was desireable to put in place one token Indian senator. These token senators had no mandate from us to represent us to Canada because they were appointed along party lines or to co-opt our leadership. When Indians were permitted the privilege of voting, many did. But, today, as reported in the DIA report on Indian Conditions (1980), there is in fact a declining rate of Indian participation in Canada’s elections (page 93). We are not here to ask for more tokenism. We are not here as a special interest group. We are here to assist you in an examination of federal-provincial accords and state our case for the record.
We consider a discussion of roles important because, like many of the senators who are interested in these issues, we cannot divorce process and procedures from the issues. These are complex political and legal issues, not as exclusively legal issues. Your courts have never been given adequate political guidance by parliament and we have been the losers. The Coalition’s presentation dealt with the conspiracy to limit our self-determination by applying only racist and neo-colonial law. Mr. Gavelle, the pm’s top gun on Indian issues, when he appeared before you on Sept. 7 1983 admitted that aboriginal rights includes self-government, sovereignty, Indian self-determination of citizenship in Indian governments, everything. He then states that from a legal perspective “the concept of aboriginal rights has to be construed and more narrowly defined.” We warn you not to be a party to this conspiracy because to do so would dishonor your highest institutions. You have a duty, on behalf of Canadians, to state the facts, acknowledge this conspiracy and make recommendations to ensure that our two societies continue to live in peace and brotherhood.
In support of the request of the Coalition of First Nations that Canada’s obligations in international law be examined fully, we would remind you that these obligations were raised prior to first reading of the Canada Bill and during debates on amendments. Numerous British mps raised the question of Canada’s obligations under the Civil and Political Rights Covenant regarding self-determination and other basic human rights. The question of international standards was raised in a very limited way in Canada during debates surrounding the Charter of Rights by a Parliamentary Secretary to the Minister of Multiculturalism who only referred to the European Convention by way of comparison to Canada’s charter. At no time has Canada’s obligations in international law regarding the human rights of the Indigenous Peoples been directly raised and perhaps it is high time that it was.
At one of your recent Committee meetings, you were advised by Mark MacGuigan that the federal government has acted honorably in its dealings with Indians during the entire constitutional process. He stated that the Indian leaders accept federal-provincial agreements and accords and that the Natives are not restless. His views and the views of his officials are understandable in light of the fact that he has refused to meet with the Coalition of First Nations. We requested a meeting in early July of this year and as yet have not even the courtesy of an acknowledgement. With due respect, Mac- Guigan is divorced from the reality of Indian Country. If he thinks that we will go away if ignored, he is wrong. If his bureaucrats think all of the Indian Nations will fall in line, they are in for a surprise in the near future.
Both MacGuigan and Munroe received Canada’s record in aboriginal and Indigenous rights before you and both acknowledged that a great number of Indians were unhappy with events as they have unfolded. Both attempted to discredit Indian opposition as limited minimal and without any basis. We will deal with these questions in the short time we have before you.
The British House of Commons debates at second reading of the Canada Bill (Feb. 16, 1982) are recommended reading for anyone interested in this constitutional process. It is significant that the Indians went to the highest courts in the English judicial system to defend their rights. This in itself makes it clear their profound distrust in Canadian justice. The Indian Nations did not consent to the November 1981 accord, or any resolution that Canada wanted the U.K. to rubberstamp. We recall the events of November 5, 1981 when the first ministers, in the words of an honorable member, “met privately to dump treacherously entrenchment of section 34, never having said a word politically (publically) of their opposition or any reasons for their opposition.” A price was paid for the November 1981, accord and we and our rights to exist were that price. The insertion of the word “existing” to section 35 was the final compromise reached the accord. It was here, we assert, that this sordid conspiracy originated. Federal politicians are implicated because they refused to enter into meaningful dialogue with the First Nations in the years prior to the first ministers meetings leading up to the November 1981, accord. The Federal government denied then and denies now that the Indian Nations and their treaties have any political status apart from what their courts have defined. When we stated, for example, that our treaties were being violated, the federal government responded that “interpretation of the treaties has been left to the courts and Canada’s governments have been legally correct in their dealings with Indians.” (1980, federal gov’t briefing document). Trudeau said in 1969 that he did not intend that Indian treaties should or ought to be permitted to continue. There were no changes to his 1969 white paper “termination” policy and in fact it was refined by federal and provincial bureaucrats in the spirit of “cooperative federalis”. The absorption and assimilation of the Indian Nations into Canada was established as the federal-provincial agenda for
the 1980’s. The scenario is as follows: permit the Natives limited privileges of participation, ie; to comment as observers at First Ministers meetings to make it appear that they agree with what the first ministers have already agreed to; maintain the legal status quo; ie; sections 25 and 35 and program the political process to fail; set the Natives up so the courts will accomplish what the 1969 white paper failed to do: namely (A) remove legal distinctions between Indians and Canadians (B) abolish collective property rights, titles and the Indian reserves (C) and transfer federal responsibility to the provinces.
“No amount of public relations will alter”, in the words of a British M.P. “the sordid nature of the Nov. 1981 accord or deal that was struck by the first ministers without the consent of the Indians and in their absence. Indeed, they were the victims of the agreement because their land and rights were distributed by the beneficiaries.”
Any subsequent deal after the Nov. 1981 accord is flawed, and we will not be party to any agreement based on the rules and process established in and by the Nov. 1981 accord. We stated our position as the Coalition of First Nations prior to the first ministers conference called for by s-37 of the Canada Act. We are prepared to deal, without any preconditions but we will remain faithfull to our Elders teaching, our principles and the Declaration of First Nations.
We consider it most unfortunate that a small minority of Indian spokesmen agree with the various constitutional accords. In our view, the vast majority of Indian Chiefs in Canada do not now support the various First Ministers Accords, and that the number will decrease in time. Indian chiefs have always been realists and anyone that purports to speak on their behalf through a federally funded association to acknowledge a new role for the premiers must eventually answer to his constituents. Any Indian leader who foresees getting justice and a square deal from the provincial premiers is dreaming in technicolor.
Some of these Indians appeared before this Committee and stated that the Accord had been ratified by the Chiefs in the Assembly of First Nations on May 18. The March 1983 Accord or “deal” was between First Ministers with aboriginal spokesmen signing as witnesses. As respects treaty rights, it changed nothing, except entrenching the First Ministers conspiracy. According to Kainai News, May #2, page 5, 1983, of the 575 Chiefs in Canada, 200 attended the AFN Conference and they, as a group, agreed to accept the deal made by their representatives. A number of Chiefs who did attend pointed out that the AFN leadership did not have a mandate to attend the S 37(2) meeting to begin with (see Kainai News, May #2,
page 10 and 17) while a number of Chiefs abstained from voting. Mr. Chairman, we point out that the majority of Indian Chiefs in Canada do not support the AFN’s deal at S 37(2) and that they expressed their displeasure, consistent with Indian custom, by not gracing the AFN meeting with their presence. These are facts that both Mister MacGuigan and Mister Munro prefer to ignore when they told you that there was “substantial consent” from the “legitimate” representatives of the Indian Nations.
The Alliance Chiefs of Alberta have come before this committee to discuss the flaws of the accord. We do not accept the accord. We are not the purchased Government Indians like the Assembly of First Nations. We are the descendents of the Indian nations who own this land. We speak today from a position of strength and power. Our spirit has not been tainted by the Federal-Provincial conspiracy to suppress our people. As the First Nations, we have a responsibility to our past grandfathers and our future children to record our dissent against the accord. Your political system is not ours, but we may both believe in Justice. In Plato’s “Republic”, he defined justice as “what is in the interest of the stronger party”. We are a strong people. Thank you.
1983 CONSTITUTIONAL ACCORD
ON ABORIGINAL RIGHTS
COMMENTS AND ANALYSIS
INDIAN NATIONS (MANITOBA)
On March 16, 1983, an Accord known as the 1983 Constitutional Accord on Aboriginal Rights was signed by the Federal Government of Canada, nine provincial governments, four native organizations, plus the territorial governments.
The Accord was the product of a two day conference (March 15-16, 1983) pursuant to section 37 of the Constitution Act of 1982 mandating that a Constitutional Conference be held within one year of the Constitution Act coming into force.
The Constitutional Conference was mandated to discuss those items ‘respecting constitutional matters that directly affect the aboriginal peoples of Canada, including the identification and definition of the rights of those peoples to be included in the Constitution of Canada … ‘
Since the Constitution Act 1982 section 37(2) did not specify what were those constitution matters affecting the aboriginal peoples, an agenda worked out by the various native organizations during ministerial and official meetings with federal and provincial governments was put before the Constitutional Conference. That agenda included the following matters ‘that directly affect the aboriginal people:’
1. Charter of Rights of the Aboriginal Peoples (Expanded Part II) Including:
—Removal of “Existing”, and Expansion of Section 35 to include Recognition of Modern Treaties, Treaties signed Outside Canada and Before Confederation, and Specific Mention of “Aboriginal Title” Including the Rights of Aboriginal Peoples of Canada to a Land and Water Base (Including Land base for the Metis)
—Statement of the Particular Rights of Aboriginal Peoples
—Statement of Principles
2. Amending Formula Revisions, Including:
—Amendments on Aboriginal Matters not to be Subject to Provincial opting out (Section 42).
3. Self Government
4. Repeal of Section 42(1) (e) and (f).
5. Amendments to Part III, Including:
—Cost Sharing Resourcing of Aboriginal
—Service Delivery Governments.
6. Ongoing Process, including further First Ministers Conferences and the entrenchment of necessary mechanisms to implement rights.
According to the Accord, the identified agenda items as noted above were not completed during the Conference, thus giving rise to provisions that:
“future conferences be held at which those agenda items and other Constitutional matters that directly affect the aboriginal peoples of Canada will be discussed.”
II. AGREEMENTS IN THE ACCORD
While there are seven paragraphs noted in the Accord, there are basically only three major aspects upon which the agreement was made. These are:
1. Another Constitutional Conference will be called within one year of the March 15-16, 1983 Conference (para. 1) and the preparations for the Conference (para. 5) and the actual representatives make up of the Conference (para. 2,3) will be identical to those of the March, 1983 Conference;
2. the recognition and provisions for bilateral discussions between the aboriginal peoples, particularly the Indian people (including Inuit) as generally provided for under Section 91(24) of the Constitution Act of 1867 (para. 6);
3. the provision that the Prime Minister will put before the Senate and the House of Commons and the Premiers will place before their respective Legislatures before December 31, 1983 the resolution attached to the Accord to amend the Constitution Act of 1982.
III. COMMENTS AND ANALYSIS
In order to analyze and comment on the Accord, it is necessary to state the fundamental propositions from which the perspective is drawn. Those fundamental assumptions are:
1. We are nations with the full and unencumbered authority and jurisdiction to govern ourselves unhampered by either the federal or provincial governments of Canada;
2. The Royal Proclamation of 1763 recognized (it did not create or grant) nationhood, right to consent, title to land, and it further put in place the process for cession of land with our consent through the treaty process and it further put in place the trust relationship;
3. The Constitution Act of 1867 constitutionally recognized the special status of Treaty Indian people with the federal government-section 91(24);
4. Since the treaties were with the federal crown, and since the trust responsibility is constitutionally entrenched in the Constitution Act of 1867, the provinces have no jurisdic-
tion, political or legal, over the Indian Nations and their people.
Given these fundamental propositions, it is prima facie that the Accord in fact violated most, if not all.
On the face of the document, the title speaks only of “aboriginal rights” and is totally silent on the issue of “treaty rights.” It is of real concern that the Assembly of First Nations would become signatory to a document whose title and contents are totally silent on the treaties and the rights and obligations by international law which flow from them.
Now to the three major agreements.
First, prior to the Constitutional Conference of March, 1983, the process of the Constitutional Conference was attacked because it involved the provinces in the discussion and decision making concerning the Treaty Indian Nations. It seems incomprehensible that the concurrence of participating in such forum by the AFN could so easily take place in view of the proposition that the provinces should not and cannot be involved in decisions concerning Treaty Indian’s rights.
It is even more incomprehensible that not only was there full participation by the AFN in the March, 1983, Conference; but that they signed an accord which entrenched in the political and legal process the same identical process for the future conferences. Such an act must obviously give constitutional & statutory sanctity to provincial involvement in and no doubt evolving control over the Indian Nations and their right to self-government.
The consequences of such a concession are far-reaching and its full implications are yet unknown as such relates to the nature of the treaties being international agreements, the nature and authority of Indian nationhood with the right to self-government and the full and unqualified trustee responsibilities of the federal government.
One could certainly argue that what has really happened in a not so indirect way is that of sanctioning with a signed accord and thus to constitutional eventuality Section 88 of the Indian Act. In a policy manner, even though the mechanics may be different, the ultimate, if not more immediate results, will be similar to or the same as Public Law 280 in the United States whereby Indian Nations came under the jurisdiction of the state in which they were located. The only difference appears to be that in the United States such a submission of Indian Nations to state jurisdiction by Congress was without Indian consent; wherein in the Accord, the AFN freely gave their consent by becoming a signatory to the Accord of which they full and of their own choice freely participated in.
It is surely one thing to have a more dominant and powerful government exercise its greater authority to impress its will on smaller and more dependent nations as happended in the United States in Public Law 280—but, it must be quite another to willingly submit to a process the result of which is voluntary consent to an Accord that not only accepts the dominance of the larger and more powerful nation but readily agrees that the more powerful nation’s subdivisions, namely the provinces, can also have a decision making authority over Indian Nations.
A second aspect of the forum entrenched by the Accord of which more will be said later, is that of the equality of the “aboriginal peoples”—to use the term in the Constitution. It is
a well known fact of the political theory of the present government that “equality” is central to its political philosophy. The idea of having a class or persons based purely on ethnic lines recognized either in the constitutional or statutory laws of Canada is an anathma which is not easily reconciled with the fundamental principle of equality. Without commenting on the arguments and forces that finally culminated to in fact constitutionally recognize an ethnic group known as the aboriginal peoples, it would be even more difficult for the Government to recognize an inequality amongst the “aboriginal peoples” within the Constitution itself. Put another way, the Government of Canada, with its philosophical position of equality for all persons in Canada, can hardly recognize a particular special class of persons such as the aboriginal peoples and also recognize that within that class of persons or peoples another special class, namely Indians.
The so called win of the Indian people at the Constitutional Conference for a bilateral process with the federal government is an illusion. It is an illusion because it was not the Indian people who won, it was the other aboriginal people—namely, the Metis. What in fact happened was that the Indian people simply maintained what they have always had; ie. a bilateral relationship with the federal government—but, it was in particular a gain for the Metis who have not had such a relationship.
The implication of such is that the equality principle has won out as far as the aboriginal peoples are concerned and the ultimate reality of that is that the Treaty Indian people as the first people whose treaties were with the imperial and federal crown have been reduced to the level of all aboriginal people. A further implication of this is that while Metis people have constitutionally been under the jurisdiction of the province, so now will the argument hold that Treaty Indian people will come under greater jurisdiction of the provinces. The Metis people have gained a bilateral process while remaining under the provinces and the Indian people, who have always had a special relationship with the federal government, will be more generally reduced to provincial jurisdiction. Thus, as far as the federal government is concerned, their objective of equality at least as far as a class of persons are concerned, the aboriginal person, has been accomplished.
In summary, to argue that Indians have made a gigantic win on a bilateral process at the Constitutional Conference is illusory because they have been reduced to a level of all other aboriginal peoples thus losing their historical and constitutional special status because of the treaties by the lifting of a segment of the aboriginal peoples to the same level. Conversely, since the Metis, whose constitutional position has always been provincial, such in fact well reduced the once special class of Indian people to greater jurisdiction by the provinces.
The Indian representation signatory to the Accord fell into the identical process of an aboriginal accord which many, including the leadership of AFN, resisted so prior to the Constitutional Conference. Because it was at the Toronto meeting in December, 1982, that the Confederacy of Nations passed a resolution mandating the AFN leadership to seek
cooperative relationships with other aboriginal groups, namely the Metis and Inuit.
The leadership of AFN refused to implement that mandate, on the grounds of the special relationship of Indian people to the federal government. Yet, the Accord signed in Ottawa on March 16, 1983 accomplished precisely the same objective and the proof of that is in paragraph 5, whereby all aboriginal peoples now have bilateral access to and process with the federal government. The inequality of aboriginal people based on the argument that Treaty Indian people have a special status can no longer be maintained with any integrity and credibility particularly as such applies to the Treaty Indian. Thus, what was originally proclaimed by the leadership of the AFN should and could not happen has in fact happened with the full participation and signatory consent of the AFN.
The third agreement was that of a proposed schedule to the Accord (para. 4) to amend the Constitution Act 1982. Within the schedule there are proposed a number of constitutional changes.
First, there is the proposed changes to paragraph (section) 25(b) of the Constitution Act, 1982. At present the paragraph reads:
(b) any rights or freedoms that may be acquired by the aboriginal peoples of Canada by way of land claims settlement.
The proposed change is that the above paragraph be repealed and the following be substituted:
(b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired.
A second proposed change is the so-called “equality” clause which reads:
“notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed to equally male and female persons.
A third proposal is to amend section 35, which says:
“The government of Canada and the provincial governments are committed to the principle that, before any amendment is made to Class 24 of section 91 of the Constitution Act 1867, to section 25 of this Act or to this Part,
(a) a constitutional confernece 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.
The fourth change is that of providing for in addition to the Constitutional Conference of March, 1983, at least two more additional conferences; one to be called within three years after April 17, 1982, and a second conference to be called within five years after April 17, 1982. The formal agenda and participants remain the same as provided for in Section 37(2) and as agreed upon in the Accord.
Comments on the four basic proposals as they affect Treaty Indians is in order.
First, the proposed changes in paragraph (b) of section 25. It is to be remembered that section 25 is part of the Charter of Rights of the Constitution Act 1982. The proposed change has a number of implications. One, it further reaffirms and entrenches the term exist (existing) as provided for in section 35. But, it would appear that efforts have been made to make the term existing in section 35 more specific by adding the word “now” to make it specifically “now exist”. This clearly, it would appear, precludes any expansion of or the recognition of rights, particularly as such relate to land rights, in the future or many of the past that have not been fully affirmed and recognized.
One only has to recall the sacking by the premiers of the originally proposed section 34 in the back room of the Chateau Laurier Hotel only to be reinstated by section 35 with the word “existing”. It becomes even more apparent that the term is even more restricted by adding the term “now.”
While it is unfathomable that AFN agreed to the inclusion of such a term, the agreement seems to be that of recognizing in the Constitution newer land agreement arrangements such as the James Bay Agreement and others, and also, it is argued, to lift them to a level of Constitutional status as the originally signed treaties concerning land cession under the general rubric of the Royal Proclamation of 1763.
If such be the argument, it is spurious because the original treaties were negotiated and signed between the Indian nations or tribes and the Imperial Crown. The modern day land cession agreements as the James Bay is a tripartite arrangement which involves the Provinces—who are not nations and cannot enter into treaties of an international nature or standing.
By implication, as was pointed out earlier, the original treaties signed by the Indian Nations and the British Crown have been diminished by the so-called raising (if in fact that is what it is) of current land settlements to the constitutional level of treaties between nations possessing an inherent power to so enter, with land settlement agreements of which one party, the provinces, have no such international capacity. It probably further implies that if the earlier international agreements between the Indian Nations and the British or Canadian Crown are put to the test of interpretation or re-interpretation or even re-negotiation, the provinces because of the Constitutional provisions will no doubt be involved.
In summary then, two consequences appear to flow from the proposed change to section 25. One is that of defining more narrowly the term ‘existing’ in Section 35; and two, the diminishing of the original inter-nation treaties by the entrenchment of current land settlements and or agreements which by the very involvement of the provinces in such agreements who have no international legal personality. The leveling process has once again been accomplished.
Second, the so-called ‘equality’ clause. This clause does a number of things. One, it implants within the Indian Nation’s own jurisdiction the equality principles of the federal and most provincial standards of equality of the sexes. By so doing, two, it is a direct invasion into the inherent jurisdictional domain of the Indian Nations. If Indian Nations have inherent jurisdiction over their members or citizens, it is the inherent right of a given Indian Nation to determine the inter-relationships of those citizens or members. To concede to the standards and imposed equality principles of one nation into the affairs of the relationship of the citizens or members of another nation is to concede or delegate inherent jurisdictional authority to that other nation. To the degree that the delegation is complete, especially by the entrenchment of that jurisdictional delegation in another nation’s constitution, the loss of the inherent power to determine one’s own membership or citizenship is completely forfeited. To concede to such a proposed constitutional amendment in the Canadian Constitution Act 1982 makes a mockery out of the argument of the inherent right to self-government. For who can take the right to self-government argument seriously.
The third proposal in the schedule speaks to the issue of consultation by the Prime Minister and the Premiers with the aboriginal peoples before there are any amendments to change paragraph 24 of Section 91 of the Constitution Act 1867 and Section 25 of the Constitution Act 1982. It would appear that this would (or should) present some very difficult problems for Treaty Indians.
It will be recalled that earlier in this paper comments were made on the so-called bi-lateral process as provided in paragraph 6 of the Accord (see pp.5-6). While the bi-lateral process was opened to all aboriginal peoples in paragraph 6, it did specifically mention the class of people (Indian and Inuit) under the non-explicit paragraphe 24 of Section 91 of the Constitution Act 1867.
In the proposed consultation clause, it specifically provides that both the provinces and all of the aboriginal peoples’ representatives will be consulted on any proposed amendment to Section 91(24). Again, at the risk of sounding repetitious, the uniqueness of Treaty Indian people to the federal government via 91(24) and the resulting trust relationship of the federal government with Treaty Indian people has been dissipated and reduced to a principle of equality the Treaty Indian people and the involvement of the provinces in that Constitutional special relationship.
As to the involvement of all aboriginal peoples as defined by the Constitution with reference to Section 25 of the Charter of Rights, one can only say that such is a moot point. It is a moot point because it is not certain what role or place the Charter of Rights will play in the development of Constitutional law as to the relationship of the Charter with other and, some would argue, the more substantive sections of the Constitution Act 1982.
The clue to Section 25 as far as the aboriginal class or people and the Treaty Indian in particular is concerned, may well be in the application of Section 15—the Section that deals with equality before the law and the equal protection and
benefit of the law. In fact, it can be put forward in this paper, that Section 15 has been fully implemented, or is on its way to being implemented, by the Accord itself and by the proposed schedule to amend the Constitution Act 1982.
The proposition has previously been repeatly made on the pervasiveness of the equality principle. The irony of the whole Accord and the proposed schedule is that on the one hand Indian people in general and Treaty Indian people in particular have always maintained that because of the Royal Proclamation, Section 91(24) of the old B.N.A. Act and the Treaties that a special class (citizens plus some usage) has existed with the federal government while, on the other hand, their representatives to the 37(2) Conference became signatory to an accord to which was attached a proposed amendment schedule both of which destroy that very special class.
By implication, therefore, all of the aboriginal peoples (Indian, Inuit, and Metis) as well as the provinces will have consented to and will be involved in any changes to Section 91(24)-a domain of Constitutional relationship once thought only to involve Indians and by Supreme Court ruling, Inuit.
A second aspect of the consultation provision is that aboriginal people including Treaty Indians, in fact all First peoples, will only be consulted concerning changes. They will have no veto or consent provision. This obviously violates the basic tenants of the Royal Proclamation of 1763 and the treaties whereby Indian nations not only possessed the inherent authority of consent but that consent could only be given at their discretion. It would appear that the power to consent has willingly and knowingly been traded for the authority to be consulted. Nothing more and certainly a whole lot less.
The fourth proposed change needs no comment in that it provides for additional constitutional conferences—or, as it is argued, an on-going process. It can only be apparent that while there may be additional conferences, the parameters are set, the fundamental political philosophy and the jurisprudence have been accepted.
One last observation. When one compares the various agreements in the Accord and the proposed amending schedule with the proposals put forward by the Assembly of First Nations (see attached), one is immediately struck by not only the contrast but with the out-right and blatant contradictions. Without any detailed comment, which would only repeat many of the earlier comments concerning the Accord and the schedule, it would appear that the AFN’s proposals had no impact upon their representation because the Accord and the schedule in fact violate the fundamental aspects of the proposals themselves. For example:
1. How can one talk about the First Nations being a distinct (reference: pg. 5.1, para. 1) people and then agree to the equality formula for aboriginal peoples both in law and in process? (general reference: Page 5.2 para 2.)
2. How can one propose to delete the word “existing” in Section 35(1) and then agree to a constitutional amendment
which proposes to add the words “now exist” in Section 25? (general reference: Page 5.2, para. 1)
3. How can one propose in both instances (Accord-schedule and the proposals) to discuss on the one hand the treaties made between the Indian Nations and the Crown and also to propose to constitutionally entrench presumably of the same stature agreements entered in by the Indian Nations, the federal government and the provinces, the latter of which do not have national capacity? (general reference: Page 5.3 para. A)
4. How can one propose the notion of Indian consent (assent) on the one hand and be a signatory to a proposed constitutional amendment which only provides for a forum for consultation? (general reference: Page 5.9. First Nation’s Consent.)
5. How can one propose on the one hand the right of self-identity including the right to determine membership and on the other hand concede to the equality principle of one’s citizenship whose standards are those of and imposed by another nation and its part, the provinces? (general reference: Schedule to Amend the Constitution.)
6. How can one originally object to a constitutional forum which includes the provinces and then on the other hand, freely attend and in fact propose and further consent by signatory that the identical same forum and participants should be entrenched by constitutional amendment—all under the guise of an on-going process? (general reference: Page 5.9 Constitutional Conference.)
NOTE: OVERALL REFERENCE: PAGE 5.14. ALL
INCLUSIVE AMENDMENTS TO PART FOUR.
The foregoing comments and analysis concerning the 1983 Constitutional Accord on Aboriginal Rights as to how and why the Accord violates the fundamental proposition, assumptions and declarations of Treaty Indian Nations needs no further observations.
That the pervasive and consistent objectives of the federal government and the provinces to equalize and thus to assimilate Treaty Indian people into the “Canadian mosaic” have been accomplished is without question. The principles have been agreed upon, the forums have been established and the process has been consented to.
For those Treaty Indian nations who refused to participate, who did not consent either to the principles, forum or process, their own nationhood will be severely tested. But nationhood of the first people of this land is not easily subdued nor is the spirit of their people easily crushed—unless they consent.
PRESENTATION TO WORKING GROUP
ON INDIGENOUS PEOPLES
AUGUST 12, 1983
Mister Chairman, Members of the Working Group on Indigenous Peoples, fellow Nations of the Indigenous peoples and the State Representative, I am glad that I have the opportunity to be present at this gathering of minds.
I am the President of the Union of New Brunswick Indians. The two Indian Nations that form the Union of New Brunswick Indians are the Micmas and Maliseet Nations in New Brunswick and Lennox Island, Prince Edward Island. Our Organization was formed in 1967. All of the Indian Reserves in New Brunswick are part of our Organization. There are 15 Indian Reserves in New Brunswick, nine of which are Micmac and six are Maliseet. Lennon Island, P.E.I., is a Micmac Reserve.
It is my first experience to be attending an International Conference under the auspices of the United Nations. Our Micmac and Maliseet Nations within our Organization have not been represented in the past before this U.N. body. In total, our Union represents 6,000 registered Indians. Our Union was formed to expressly protect and enhance our aboriginal, treaty, and constitutional rights. Since 1970, we have actively done research to locate necessary documentation and evidence to support our claim to aboriginal rights.
I welcome this opportunity to participate at this gathering and I want to inform all delegations, indigenous and nonindigenous alike, of our views, concerns and aspirations. I realize that time is an undue pressure. I will relate to you the essential background and necessary facts so our position can be fully understood.
We have occupied our aboriginal lands since time immemorial, when initial contact was made with the various European powers, e.g., French, English, Dutch and Norwegian, the basis of our relationship with them was purely economic. In other words, the European Nations coveted our furs, game and other resources. Our Indian Nations traded, bartered and entered into commercial activity. These European Nations later engaged in military activity with each other to determine which Nation would have the trade monopoly.
Initially the French people were successful in conducting trade relations and intermarried. They decided to convert our ancestors to adopt christianity. Later when the British coveted both our land and full control of the trade monopoly, specific wars were waged by the French and the English with each other. The French was victorious, the English were victorious and it see-sawed back and forth. Ultimately in 1763, based on the Treaty of Paris, the British obtained from the French, alleged full title. The Indian Nations entered in Treaties of neutrality with the British. There were many such treaties
between the British and our Indian Nations. Our treaties are dated as follows: 1693, 1713, 1725, 1752, 1778 and 1779.
Presently the Government of Canada has advocated that since the French obtained title by discovery, and the British obtained title from the French, by conquest, they succeeded in having absolute title over the lands in the Maritimes. Subsequent to 1763, major land grants were given by the British to their loyal followers, to major corporations and the creation of colonies.
In the year 1763, the reigning monarch of Great Britain, King George III, issued a document, known today as the Royal Proclamation of October 7, 1763. It created four Governments entitled as Quebec, East Florida, West Florida and Granada. In the same Royal Instrument was an extensive statement touching on Indian Nations and I quote:
“And whereas it is just and reasonable, and essential to our Interest, and the Security of our Colonies, that the several Nations or Tribes of Indians with whom we connected, and who live under our Protection, should not be molested or disturbed in the Possession of such parts of our Dominion and Territories as, not having been ceded to or purchased by us, are reserved to them, or any of them, as their Hunting Grounds … As also that no Governor or Commander in Chief in any of our other Colonies or Planatations in America do presume for the present, and until our further pleasure be known, to grant warrants of survey, or pass Patents for any lands beyond the heads or sources of any of the rivers which fall into the Atlantic Ocean from the West and Northwest, or upon any land whatever, which, not having been ceded to or purchased by us as aforesaid, are reserved to the said Indians, or any of them.”
It also required the Colonies to obtain consent from the Indian Nations, if our land was surrendered. This is very important information, Mr. Chairman, because of the present issues faced by our Indian Nations on the Constitutional onslaught of the Canadian and Provincial Governments, Our interpretation of the Royal Proclamation of 1763 is that it recognizes us as Nations and that the Crown assumed a legal and political trusteeship.
In 1867, the Provinces of Nova Scotia, New Brunswick, Quebec and Ontario formed a Federation and were successful in having the U.K. Parliament enact the British North America Act. In the division of powers that were devised, Federal Government received the legislative control and jurisdiction under sub-section twenty-four (24):
s. 91(24) “Indians, and lands reserved for the Indians.”
This was the legal basis for the first Indian Act of 1868 and subsequent Federal legislation effecting our Indian Nations. The Federal Government held our lands in trust and the Provinces relinguished their legal responsibility of Indian Nations and our lands.
Mr. Chairman, our Indians Nations have never trusted Provincial Government of New Brunswick. Prior to 1867, the
Provincial Legislation of New Brunswick enacted legislation in 1844 entitled “Act to regulate the Management and disposal of Indian Reserves in this Province.*
Indian Nations had complained to Provincial Land Commissioners that non-Indian squatters were occupying, using and seling our lands and resources, notably timber without permission. The preamble of the above Act answered these valid complaints in this way:
“Whereas the extensive tracts of valuable land reserved for the Indians in various parts of this province tend greatly to retard the settlement of the Country, while large portion of them are not, in their present, neglected stale, productive of any benefit to the people, for whose use they were reserved.
And whereas it is desirable that these lands should be put upon such a footing as to render them not only beneficial to the Indians but conducive to the settlement of the country;”
Needless to state, our Indian Nations were not consulted on that piece of legislation. The Province of New Brunswick completely ignored and deliberately avoided the application of the Royal Proclamation of October 7, 1763, as quoted above. Under that legislation, our land was sold for pennies an acre and in the majority of transactions, the money was never collected.
All services that our Indian Nations enjoy and use are the obligation of the Federal Government. This includes the area of education, housing, social services, economic development. Whatever services are provided by the Province of New Brunswick are paid for one hundred percent in full by the Federal Government. We have no trust and confidence in the Provincial Government of New Brunswick.
This is very relevant, Mr. Chairman, because today our Indian Nations are faced with a jurisdictional battle with the Province of New Brunswick, resulting from the Canada Act 1982, the present Constitution of Canada.
I would like to highlight the significant dates and times of the road leading to Partiation of the Canadian Constitution and the subsequent Constitutional Accord of March 16, 1983, as it affects our Micmac and Maliseet Nations.
The Union of New Brunswick Indians were part of the National Indian Brotherhood and the Assembly of First Nations up to February 24, 1983. The significant events are as follows:
1. 1969—Canada issued a White Paper Policy-its intent was to terminate the special constitutional position of the Indians of Canada, namely s. 91(24). The Prime Minister, Hon. Pierre E. Trudeau, espoused equality and full Provincial citizenship of Indians.
—This was rejected by Indian Leaders throughout Canada. We wanted full recognition, guarantee and protection of our treaty and aboriginal rights.
(A) October 1979—G.A. of U.N.B.I. that our rights be protected.
2. 1978-81—Canada began a process of preparing proposals to partriate the Constitution. It did not receive the consent of the Province of B.C., Alta, Sask., Manitoba, Quebec, Nova Scotia, Prince Edward Island and Newfoundland. It did not have support of N.I.B. and A.F.N.
3. September 1981—Supreme Court of Canada ruled that Canada could patriate Constitution provided it has the substantial support of the provinces.
4. November 6, 1981—Political Accord was reached by the Federal Government and nine Provinces (minus Quebec) for Patriation. They deleted the treaty and aboriginal clauses in Constitution. The clause read as follows:
“s. 34(1). The aboriginal and treaty rights of the aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
(2) In this Act, “aboriginal peoples of Canada includes the Indian, Inuit and Metis peoples of Canada.
5. November 18, 1981—Indian Nations comprising the AFN/NIB issued a Declaration of First Nations and Treaty and Aboriginal Rights Principles-this was delivered to the Governor Gen of Canada, Honourable Ed Schreyer on November 19, 1983.
6. November 24, 1981—Canada and Provinces reinstate provision in Constitution on aboriginal rights after tremendous public and political pressure. The following clause (section 35 of present Constitution Act, 1982) states as follows:
“s. 35(1) The existing treaty and aboriginal rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”
(2) In this Act, aboriginal peoples of Canada, “includes the Indian, Inuit and Metis peoples of Canada.”
There was the qualifying and limiting word “existing” that was inserted.
7. December 6, 1981—Parliament approved of the Canada Act, 1981, and Constitution Act, 1981.
8. april 17, 1981—Her Majesty, Queen Elizabeth II, proclaimed the Constitution Act in Ottawa, Ontario.
9. April 24, 1982—Chiefs of Canada endorsed in full at that Gen Assembly of First Nations, the Declaration of First Nations and Aboriginal and Treaty Rights Principles of November 18, 1981, in Penticton, B.C. A reaffirmation also by Chiefs that they would not accept the new Constitution. They agreed to adopt a bi-lateral process with the Federal Government and exclude the Provinces.
10. June 21, 1982—AFN Representatives met with Prime Minister and informed him of our National position on bi-lateral process, our Declaration and intention not to participate in First Ministers Conference, provided by Section 37 of the Constitution Act.
11. November 17, 1982—Confederacy of Chiefs, an policy body of AFN voted to attend s. 37(2) F.M.C. scheduled for March 15, 16, 1982, U.N.B.I. was one of three delegates who voted against this decision.
12. November 23, 1982—Chiefs of N. B./Lennox Island, P.E.I., in an emergency session voted not to attend the F.M.C. and inform AFN that we would meet with Prime Minister in a separate meeting.
13. December 2, 1982—Bishop Gilbert of Saint John Diocese wrote letter to Prime Minister supporting our position.
14. December 3, 1982—Letter sent to Premier of New Brunswick on the position of Chiefs of N. B./Lennox Island, P.E.I.
15. December 6, 1982—Chiefs of Maritime Provinces (N.S./N.B./P.E.I.) passed a resolution not to participate in F.M.C. and that no one would represent us, e.g., Primier, A.F.N.
16. January 25/83—a letter was sent to Prime Minister Trudeau that we would not attend F.M.C. in March 15, 16, 1983, and of our position adopted on November 23, 1982.
17. February 21, 1983—U.N.B.I. learned for the first time of the signing of three secret financial agreements between AFN and Government of Canada-first agreement was dated June 8, 1982; second, September 24, 1982, and last February 8, 1983; in total Government of Canada invested $522,000 for that AFN would
“… consult with its membership and to develop strategies which will lead to meaningful participation at the Constitutional Conference … as per section 37(1) & (2) of the Constitution Act, 1982.”
18. February 24, 1983—The Chiefs of New Brunswick and Lennox Island, P.E.I. passed a resolution to officially withdraw our membership in the A.F.N.
19. February 25, 1983—U.N.B.I. wrote an open letter to all Chiefs of Canada on our position.
20. February 28, 1983—The Micmac Chiefs of Nova Scotia agreed to support our position.
21. March 3, 1983—a letter was received from the National Chief of AFN accusing me of being a “betrayer to the Indian cause”, but he did admit to being financially coerced by the Government of Canada to sign “secret agreement.”
22. March 10, 1983—a letter was written to Prime Minister from U.N.B.I. re: more participation in F.M.C. and that no one will represent us, e.g. AFN, Premiers.
23. March 15, 1983—F.M.C., under section 37(2) of Constitution Act, met in Ottawa. About 25p. 100 of Indians in Canada refused to participate. In total we composed 75,000 Indians across the country.
24. March 16, 1983—Constitutional Accord was signed and accepted by P.M., Premiers, Aboriginal Peoples Representative.
25. March 19, 1983—The Minister of Justice, Honourable Mark MacGuigan, stated publicly that the Federal Government would only meet with Representatives of National Aboriginal Peoples.
26. March 25, 1983—letter sent to Prime Minister informing him that we would not be bound by the Constitutional Accord of March 16, 1983.
27. June 22-28, 1983—Debates took place in New Brunswick Legislature on the adoption of the Constitutional Accord.
28. June 28, 1983—A presentation was made to the Standing Committee of Department of Indian Affairs and Northern Development, of the House of Commons, re: Constitutional Accord.
29. June 30, 1983—House of Commons of Parliament of Canada voted in favour to adopt Constitutional Accord.
30. July 6, 1983—The Senate of Canada refused to adopt the Constitutional Accord. The Senate requested that on September 7, 8, & 9, 1983, the Senate Committee on Justice and Legal Affairs will hear representations from interested groups on the Constitutional Accord.
In our opinion, Mr. Chairman, in the process of Patriation of the Canada Act, both Federal and Provincial Governments and the U.K. Parliament have breached the provisions of the International Covenant on Civil and Political because there has been a denial of our self-determination.
Those Mr. Chairman, are the essential and significant facts and dates. I will be submitting supporting documentation to substantiate the points I have made.
In general terms, Canada must abide by International law which recognized the concept of Aboriginal Rights since 1532 when a Spanish Theologian, by the name of Francisco de Vitoria asserted that:
“Indians were the true owners of the land, both from the public and private point of view. The Indians lack of belief in the Roman Catholic faith could not affect the question, as heretics in Europe were not denied property rights. He suggested that the Indians were no less intelligent than some Spanish peasants and therefore were equally fit to have legal rights. Spain had no claim to the land through discovery, he said, because that notion only applied to unoccupied land.”
And in 1537, Pope Paul III, issued the Bull Sublimus Deus, which stated in part:
“Indians are truly men … they may and should freely and legitimately enjoy their liberty and possession of their property; nor should they be in any way enslaved, should the contrary happen, it should be null and of no effect.”
So Canada and the Provinces must abide by the rules of International law. The Micmac and Maliseet Nations were not conquered, we have neither relinguished nor surrendered our aboriginal rights to the land in New Brunswick. And since we occupied our lands and used the resources, we could not have been discovered by France or other European powers.
I would like to recommend to this Working Group on Indigenous Peoples that you be receptive of all concerns and information of the Aboriginal Peoples of Canada on these developments of the Constitution.
Section 37 for the first time allows the Provinces to have a direct say on the identification and definition of treaty and aboriginal rights. Our Micmac and Maliseet Nations will not accept the fact that the Provinces of New Brunswick and Prince Edward Island have jurisdiction over us. We will not succumb to financial investments and overtures of the Federal Government. At the moment, the Government of Canada has made it known to us that we should not participate and search for assistance in the U.N. and its Committees and other International Agencies.
Since the proclamation of the Constitution Act, 1982, I have been actively defending our people in Canadian and Provincial Courts who are being charged for exercising their traditional, aboriginal and treaty rights, to hunt, fish and trap.
Yesterday, the Observer of the Government of Canada informed this gathering that the P.M. had rejected sovereignty and assimilation. The Prime Minister on August 8, 1969, also stated in Vancouver, B.C. that:
“We can’t recognize aboriginal rights because no society can be built on historical ‘might have been’.”
Mr. Chairman, even though, we have judicial decisions in Canada which have ruled that treaty rights overrule the application of Provincial Game Laws, both the Federal and Provincial Departments of Justice presently have policies which reject our treaties in courts as evidence. They have also denied that present descendants of Micmac and Maliseet Nations are not beneficiaries of before mentioned treaties, unless they can produce evidence of geneological lines. Yet, who were the ones who were in charge of maintaining birth records. It was not us.
I want to thank you, Mr. Chairman and Members of the W.G.I.P. for your patience. I hope and trust that our message and information will plant seeds of concern so that an equitable and just conclusion will be realized. I also look forward to the evolutionary development of the five year plan. We will have more of our Indian leaders participate next year. Our Micmac and Maliseet Nations must be given the right to
self-determination. We are Indians, not citizens of Canada or the Provinces.
I hope that the W.G.I.P. will in its 5 yr. Plan include aboriginal rights, treaty rights and self-determination, and International Year for Indigeneous People prior to expiration or 5 Yr. Plan.
* Does include testimony of our evidence on June 28, 1983. Standing Committee and remarks of Mr. Justice Berger and of the Mohawk Council of Kahnawake. Conclusion mention concern for Indigeneous People in Central and Sourth America who are being subjected to genocide.
From the Coalition of First Nations:
Chief Joe Norton, Caughnawaga Reserve (Quebec);
Mr. Graydon Nicholas, President of the Union of New Brunswick Indians;
Mr. Ron Lameman, Co-ordinator, Treaty 6 Chiefs’ Alliance (Alberta);
Mr. Eric Robinson, Co-ordinator, Brotherhood of Indian Nations (Manitoba);
Chief Billy Two Rivers, Caughnawaga Reserve (Quebec).
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