Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, 32nd Parl, 1st Sess, No 72 (21 September 1983)
By: Canada (Parliament)
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Thirty-second Parliament, 1980-81-82-83
SENATE OF CANADA
Proceedings of the Standing
Senate Committee on
The Honourable JOAN NEIMAN
Wednesday, September 21, 1983
Issue No. 72
Fourth 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 Paragraph 25(b) of the Constitution Act, 1982 is repealed and the following substituted therefor: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 futher 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
WEDNESDAY, SEPTEMBER 21, 1983
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 3:45 p.m., the Chairman, the Honourable Senator Neiman, presiding.
Present: The Honourable Senators Bosa, Deschatelets, Donahoe, Haidasz, Lewis, Neiman, Rizzuto, Rousseau, Stollery and Tremblay. (10)
Present but not of the Committee: The Honourable Senators Denis, Giguere, McElman and Steuart.
In attendance: Mrs. Barbara Plant Reynolds and Mr. Bruce Carson, Research Officers, Research Branch, Library of Parliament.
From the Grand Council of the Crees (of Quebec):
Chief Billy Diamond;
Mr. James O’Reilly, Legal Counsel;
Mr. Peter Hutchins, Legal Counsel;
Mr. Phillip Awashish, Vice-Chairman of the Cree Regional Authority, and Executive Chief of the Grand Council of the Crees (of Quebec).
The Committee resumed the examination of the subjectmatter of the Constitution Amendment Proclamation, 1983.
Mr. Diamond made a statement and he and the other witnesses answered questions.
At 5:10 p.m., the Committee adjourned until 9:00 a.m. on Thursday, September 22, 1983.
Clerk of the Committee
Ottawa, Wednesday, September 21, 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 3.30 p.m. to consider the said subject matter.
Senator Joan Neiman (Chairman) in the Chair.
The Chairman: Honourable senators, our witnesses this afternoon are from the Grand Council of the Crees. To my right is Chief Billy Diamond; to my left is Mr. Phillip Awashish, Vice Chairman of the Cree Regional Authority and Executive Chief of the Grand Council of the Crees of Quebec.
Chief Diamond has already sent to honourable senators a brief which it is his wish to read into the record. First, however, I would ask him to introduce his colleagues.
Chief Billy Diamond, Grand council of the trees: Thank you, Madam Chairman. I would like to introduce our legal counsel, James O’Reilly and Peter Hutchins.
Senator Donahoe: Madam Chairman, I should like to beg permission to make a brief statement in an attempt to clear up a misunderstanding about an incident that occurred last evening at the meeting of this committee. I do so largely for the benefit of today’s witnesses so that they may have the feeling that they are speaking not in an unfriendly atmosphere but to an understanding audience. I should greatly appreciate your permission to say just a few words.
The Chairman: Yes, certainly, Senator Donahoe.
Senator Donahoe: Last evening at this meeting an incident took place which has been much distorted and misrepresented. I was sitting in this seat and I was carrying on what I presumed to be a wshispered conversation with a senator from Newfoundland who was seated immediately in front of me. I was overheard—I am quite sure imperfectly overheard—by some of the gentlemen sitting to my right. They took certain understandings and meanings from what I had said and, following the meeting, they raised with me the question of whether I had said certain things.
I thought the matter was of no consequence; I thought the matter was private as between myself and the other senator. I had not said anything which I was afraid to say in public. Therefore I said that I did not wish to be interviewed on the matter and I refused to be heard.
This morning I awakened and heard on the CBC news broadcast a statement attributed to me which, in effect, meant that I had the deepest animosity towards the Indian people. For that reason, I wish to explain what took place and to explain my attitude toward it.
I should like to say, first, that what was said on the radio was a complete distortion and that my words were, in any event, taken out of context. I had made a remark, as I said, to a colleague from Newfoundland. It was said to him in jest. The remark was made after the meeting had continued for two
hours and after I had listened carefully and respectfully to the submissions of the representatives of the Coalition of Indian Nations who were before us last night. I made a joking comment to the senator from Newfoundland. As I have said, I was imperfectly understood. In what I consider to have been a malicious way, my words were taken and misrepresented to the entire nation on this morning’s new broadcast.
I recognized last night the futility of making any attempt to respond to the press. Members of the press have the weapons at their command—they have the opportunity to repeat and to report. As an experienced person in public life, I have long since come to the conclusion that merely to try to answer them in one statement is useless. I have wasted my entire day speaking to press and media people who have been calling me from Toronto, from Halifax, from the Press Gallery—from a variety of places—asking me for an explanation of what I had said.
Fortunately, I am glad to say, my friends in Nova Scotia, who are familiar with me, know that I am not the kind of person who could make the remarks that were attributed to me, and I can point out to my friends here today that, for from having anything against Indian peoples or having a bad attitude towards them, I have the opposite attitude. My eldest daughter has taken an entire year from what would have been a profitable academic teaching life to teach Indians in Prince George, British Columbia. She was teaching in Bishop O’Grady’s school. She was remunerated at the tremendous emolument of $25 a month. She had my full approval and blessing. I felt that she was doing a worthwhile act, trying to help people who have not been helped too much by what has gone on in this country.
I simply wanted to point out that what I said last night was said in a joking manner. It was an allusion to an historical event which took place in another province, and was not in any sense an approbation of such a policy or a suggestion that such a policy be followed anywhere else. It was merely an allusion to an historical event which is familiar to everybody. My statement was taken and misrepresented to the nation.
I want to close this statement by saying that I have no intention of going over the entire conversation which took place, but I want everybody to understand that I am seriously considering taking legal action because of what I consider to have been a defamation of my character.
I want my friends to understand that, while I do not agree with every argument the Indian people make, I am nevertheless prepared to listen to them respectfully. I am prepared to give to their views my earnest consideration. They need have no doubt that, insofar as I am able to do so, I will make every effort, to be objective in considering their proposals.
Thank you very much, Madam Chairman.
Senator Lewis: Before we proceed, Madam Chairman, I should like to make a comment, if I may. I was the senator to whom Senator Donahoe spoke last night. I have not discussed this with him since that time and I would just like to confirm that what he said to me was taken by me in jest and that I understood his statement in that sense.
The Chairman: Thank you, Senator Lewis.
Senator McElman: May I have the opportunity to say a few words, Madam Chairman?
The Chairman: Yes.
Senator McElman: I would think that what has happened on this occasion—and the circumstances under which it happened—could be a lesson to all of us. It does not add to the stature of members of the media that, having overheard what was obviously a private discussion, held in jocular terms, between two honourable senators, they reported that conversation.
It seems to me that, to use a contemporary phrase, it was about as sleazy a thing as I have seen the media do in along, long time.
Senator Donahoe has a long and distinguished record in public service in Canada, both in Nova Scotia and in Ottawa. For him, one of our colleagues, to be portrayed to the public in such a fashion is a most despicable act on the part of the media.
The Chairman: Chief Diamond?
Chief Diamond: Thank you, Madam Chairman.
Honourable senators, the Grand Council of the Crees of Quebec, or the Cree Regional Authority, represents the approximately 9,000 James Bay Crees of northern Quebec who are beneficiaries under the James Bay and Northern Quebec Agreement. The Grand Council of the Crees of Quebec was a signatory to that agreement and the Cree Regional Authority is the legal entity created by the agreement to act for and on behalf of the James Bay Crees in many matters pertaining to its implementation.
In these capacities, we welcome the opportunity to appear before this committee to communicate our position respecting the 1983 Constitutional Accord on Aboriginal Rights signed at Ottawa on March 16, 1983.
We believe that we have a special interest in the matters under consideration by this committee for at least two reasons: first, we represent the largest group of beneficiaries under one of two comprehensive and completed land claims agreements in Canada; second, we come from the one province which did not see fit to execute the Accord. We believe that these particular circumstances justify our appearance before this committee to endorse the Accord, and we thank the committee for allowing us the opportunity to appear.
We wish to state clearly at the outset that we support the 1983 Constitutional Accord on Aboriginal Rights and urge all governments which have not done so to submit to their respective parliaments and legislative assemblies the resolution set out in the schedule to the accord authorizing a proclamation by the Governor Gen of Canada to amend the Constitution Act, 1982.
We intend to confine our specific remarks to points of immediate relevance to our people and will not address all the points raised by your Chairman in her letter to the Assembly
of First Nations dated July 27, 1983 inviting a presentatin to your committee.
Our first comments concern the proposed amendments to sections 25 and 35 of the Constitution Act, 1982 which are intended to make it clear that these two sections include reference to past and future land claims agreements. This clarification was of the utmost importance to us and we believe that that view is shared by a number of governments, including the Government of Canada and the Government of Quebec.
We believe that the James Bay and Northern Quebec Agreement is our charter of rights and that it constitutes a recognition and codification of our aboriginal rights. It has been approved by Canada and Quebec through legislation. In his opening statement to the Constitutional Conference of First Ministers in March, Prime Minister Trudeau made several references to the importance of land claims settlements and agreements. The Prime Minister stated:
“The aboriginal rights recognized and affirmed in section 35 of the Constitution include aboriginal title, and one of our tasks under section 37 is to define their precise meaning. As well, we may wish to protect more clearly in the Constitution the more recent land claims settlements, and any other agreements or arrangements concerning lands we may arrive at.”
While stressing the importance of the issues concerning aboriginal government, the Prime Minister stated:
“We know from discussions of the past decade or so that the aspirations regarding aboriginal government vary among the several peoples, and from region to region within Canada. Their preferences have found ample expressions in claims settlement negotiations and agreements, especially in northern regions of our country, …”
There is little doubt that constitutional protection of land claims settlements made prior to the coming into force of the Constitution Act, 1982 and thereafter represent a most important issue for the James Bay Crees. The James Bay and Northern Quebec Agreement is the first modern, comprehensive land claims agreement or modern treaty in Canada. It was, therefore, only too evident that the rights acquired by way of land claims settlement referred to in seciton 25 and the “treaty rights” referred to in section 35 of the Constitutional Act, 1982 should include rights flowing from our Agreement. We were concerned, nevertheless, that a narrow interpretation of paragraph 25(b) and subsection 35(1) might exclude rights under the Agreement, despite assurances by the Government of Canada that the Agreement was covered by the texts of sections 25 and 35.
In fact, the Native people covered by the James Bay and Northern Quebec Agreement, as well as those native people
currently negotiating land claims but not yet having agreements finalized, had three real causes for concern in regard to the wording of these two sections:
1. That the words “may be acquired” in paragraph 25(b) could be construed as referring only to land claims settlements reached subsequently to the coming into force of the Constitution Act, 1982 thus excluding the James Bay and Northern Quebec Agreement;
2. That a narrow interpretation of the word “treaty” in subsection 35(1) might possibly exclude the James Bay and Northern Quebec Agreement and other similar modern land claims agreements;
3. That the word “existing” in subsection 35(1) might restrict the treaty rights therein mentioned to “treaty rights” existing at the time of the coming into force of the Constitution Act, 1982, thus excluding future land claims agreements, even if they were to be considered as treaties.
For this reason we argued strongly throughout the period leading up to the First Ministers’ Conference that modern land claims agreements in general and the James Bay and Northern Quebec Agreement in particular should be specifically recognized in sections 25 and 35 of the Constitution Act, 1982. Although the James Bay and Northern Quebec Agreement is not specifically referred to in the amendments set out in the resolution attached to the Constitutional Accord, we believe the amendments as drafted eliminate the three concerns just mentioned and we fully support them. We might note in passing that even the Quebec government agrees that the Agreement is a treaty and it so stated at the Constitutional Conference.
Your Chairman in her letter to the Assembly of First Nations expressed some interest in receiving views on the effect of constitutionalizing land claim agreements, in particular, the ability of the parties to such agreements to change their terms in the future without that requiring constitutional amendment. First, assuming that constitutional amendments were required, which we deny, the problem already exists with respect to “treaty rights” referred to in section 35. The proposed amendment does not create this ambiguity. It merely clarifies the meaning of “treaty”. Second, as in the case of the James Bay and Northern Quebec Agreement, a properly drafted agreement would provide for amendments consented to by the parties to the Agreement. Amending procedures are provided in each section of the James Bay and Northern Quebec Agreement, and constitutionalizing the document surely does not deprive the parties to the Agreement of one of the fundamental rights provided—namely, the right to amend the agreement, if necessary or appropriate. In addition, any agreement will provide, surely, that all interested parties must consent to an amendment. To the extent that the effect of such an amendment is to alter the rights or benefits constitutionally recognized and affirmed, there would be no effect except for
those parties immediately interested, and they would have consented. Third, section 35 of the Constitution Act refers to “aboriginal and treaty rights”. It is primarily the rights which are being given constitutional recognition and affirmation.
With respect to the other substantive amendment proposed by virtue of the Accord—the addition of subsection 4 to section 35 of the Constitution Act, 1982 providing that aboriginal and treaty rights are guaranteed equally to male and female persons, we believe that the amendment as proposed, while not adequate to cover the full range of equal treatment issues, does cover the issues insofar as they relate to the subject matter of section 35, treaty and aboriginal rights. It must be remembered that the First Ministers’ Conference in March dealt with only a very limited number of issues identified by the parties for discussion within the ongoing process. Consensus at the conference essentially was limited to an initial clarification of the meaning of “treaty rights”, in particular, the inclusion of land claims agreements, and to ensuring an ongoing process. In this context, it was entirely appropriate to include a clause such as the proposed subsection 35(4).
It is true that more is needed by way of an equality clause but that is true of virtually all items on the agenda set out in the preamble of the Constitutional Accord. In the meantime, sub-section 35(4) represents an important guarantee which we support. Of course, in light of our prior comments respecting the limited number of issues deal with at the First Ministers’ Conference in March and the remaining unfinished business, we fully endorse the provisions in the Accord and the resolution attached establishing a continuing constitutional process.
We must emphasize, however, that should the amendments agreed upon at the First Ministers’ Conference in March not be incorporated into the Constitution Act as a result of failure on the part of governments to proceed in accordance with the amending formula, the credibility of the constitutional process respecting aboriginal rights—indeed the process itself—will be in serious jeopardy. Accordingly, we urge this committee to endorse and to facilitate adoption of the resolution by the Parliament of Canada at the earliest possible time.
Madam Chairman, I would like to add finally that, as far as the Grand Council of the Crees of Quebec is concerned and the Cree Regional Authority, we were very much involved with the Assembly of First Nations with respect to the conferences leading up to the First Ministers’ Conference. Also, we were very much involved in the discussions at the First Ministers’ Conference. I want to add that I was one of the principal players on behalf of the Assembly of First Nations who were involved in the direct negotiations of the text of the Accord as well as of the Indian agenda. Maybe that piece of information
will help the senators. Thank you very much, Madam Chairman.
The Chairman: Thank you, Chief Diamond. Senator Steuart?
Senator Steuart: Madam Chairman, I would first like to congratulate Chief Diamond on the presentation of the brief, and also for the role he and others with him played in the conclusion of the first modern land claims settlement known as the James Bay Agreement. Everyone involved, both those working on behalf of the aboriginal people and those working on behalf of the government, recognize that it was a landmark agreement and a watershed for future land claims settlements and modern treaties. I would like to say that I appreciate their coming here and making this very thoughtful presentation.
I would like to ask a couple of questions. First, are you satisfied that the proposed amendment which you have approved and which you support gives you enough latitude to deal with your own agreement? Are you satisfied that, in dealing with that agreement and those amendments and changes you may desire to have take place, you are not bound, by being forced, to make an amendment to the Constitution? In other words, before the ink was dry on this agreement, as I understand it, there were several amendments that were desired by both your side and the government side. Some of us are understandably nervous about the fact that, having entrenched your agreement in the Constitution, it would be extremely difficult to obtain a simple amendment; even though that amendment might be agreed upon by you and the governments involved, either Quebec or Canada or both, it would have to be taken to the full constitutional amending process. Are you satisfied that you can do what you want to do—make simple amendments that are mutually agreed—without going through the whole, difficult amending process?
Chief Diamond: Madame Chairman, maybe I can asnwer the first part of the senator’s question and then our legal counsel will answer the second part.
First of all, with reference to the James Bay and Northern Quebec Agreement being a landmark agreement, I wish to state very clearly that that agreement should not be used as a model for settling other land claims across the country, because the needs of native groups across the country vary according to their locations and according to their life-styles and their traditional ways of life. However, what is significant about the James Bay and Northern Quebec Agreement is that it illustrates that it is possible for native groups and native people to sit down with governments and crown corporations and reach settlements regarding certain rights which the aboriginal people in this country have. In that sense, the James Bay and Northern Quebec Agreement should become a model. The constitutional Accord as negotiated at the First Ministers’ Conference is also a significant example of what can be achieved when there is dialogue between the aboriginal peoples
of this country and the Government of Canada, including the governments of the various provinces and territories. It has illustrated that it is possible to reach agreements and to make amendments to the Constitution. We are confident that the James Bay and Northern Quebec Agreement is covered in the proposed amendment to the Constitution. Originally, we would have preferred that the James Bay and Northern Quebec Agreement be specifically mentioned in the Constitution and in the Accord so that it would acquire constitutional status. We are also confident that the native people who are signatories to that agreement can amend that agreement without having to amend the Constitution. Right now, we are undertaking a process with the Government of Quebec to do an entire review of the James Bay and Northern Quebec Agreement and, in doing this review, we have outlined certain points where some changes may be necessary because the picture has changed in the eight years since the James Bay and Northern Quebec Agreement was signed. Since that time, the agreement has been amended six times with the consent of the parties, so an amendment procedure exists, as far as we are concerned, with the consent of the signatories to that agreement without having to go through the amendment to the Constitution process.
That is the part of your question, senator, that I wanted to answer, Perhaps my two legal counsel can make some comments regarding the second part.
Mr. James O’Reilly, Legal Counsel, Grand Council of the Crees: In response to Senator Steuart’s question, we think that on two grounds the provisions in the agreement would provide a sufficient protection in the light of clause 35 as it would be amended. First of all, the agreement is very clear in many of its clauses that the agreement can be amended with the consent of the native parties and the federal government or the provincial government, or both. Therefore, in the first instance, we say that it is an agreement right and therefore would fall under the wording “existing treaty right”. Part of that “existing treaty right” would be the right to amend with the consent of the other group.
The second branch of that is that, if clause 35(b) is amended as proposed, rights that now exist by way of land claims agreements, or that may be so acquired, in our view would cover future amendments. At the very least an amendement pursuant to the amending provisions in the James Bay and Northern Quebec Agreement would give rise to a new right under a land claims agreement. Therefore, it would be a right which might be so acquired under a land claims agreement.
Mr. Peter Hutchins, Legal Counsel, Grand Council of the Crees: Just to follow up on Mr. O’Reilly’s point, I think the proper interpretaiton of subclause 35(1) in any event is that it speaks to the aboriginal and treaty rights as they exist from time to time, so that, if the James Bay and Northern Quebec Agreement comes under the resolution, as we now believe it will, and is contemplated by the term “treaty right”, what is meant by 35(1) are the treaty rights which exist from time to time in virtue of an agreement which may be amended in accordance with its terms from time to time. We believe that
the future amendments are caught by the language and that one of the very fundamental rights of contracting parties, as was pointed out by Mr. O’Reilly, is the ability to change the contract when required. That is a benefit or a right under the agreement and, as such, is recognized as a right. We are convinced that there is no problem in terms of flexibility in the future with this amendement.
The other point that should be made while we are looking at the question of the amendment as proposed—and this was pointed out in the brief—is that “treaty rights” as we interpret that phrase now includes the James Bay Agreement. These treaty rights are recognized at the moment. If there was a problem, the problem would relate to an interpretation of subclause 35(1). It is not the proposed amendment which creates the problem. On the contrary, the proposed amendment probably solves the problem and clarifies it to the extent of making it very clear that there is no problem.
Mr. O’Reilly: Madam Chairman, if I could just add one point which is not necessarily purely legal, we have been discussing the effect of a clause like this with the Government of Quebec. Grand Chief Billy Diamond and the Premier of Quebec, Mr. Levesque, have had a number of discussions—both prior to the last constitutional conference and since then. This language would present a very interesting opening insofar as the Government of Quebec and the native people of Quebec are concerned, because it might be much more feasible for the Government of Quebec to enter into direct discussions within a framework which already exists, such as the James Bay and Nothern Quebec Agreement, or in future land claims agreements, without necessarily having to go back on the constitutional process. From a combination of a legal and political point of view, we think that this language opens the door to the possibility of having more direct discussions between the native people of Quebec and the Government of Quebec in respect of agreements. Obviously, I hasten to add, the position of virtually all native people is that they still want to retain basic federal jurisdiction. So that is a continuing problem, but in that respect it is, at least, a very interesting opening, if this resolution goes through.
Senator Steuart: Madam Chairman, Chief Diamond mentioned that the agreement should not be taken as a model except as an indication to the rest of Canada that an agreement is possible—not only possible between aboriginal people, whether Indian, Metis or Inuit, and one government but between all those groups and two governments. Certainly, it shows that an agreement of goodwill can be made and tends to allay one’s fears, if you, the people who signed the first and major agreement, are satisfied that amendments can be made between consenting parties, whether you and the provincial government or you and the federal government.
I have one more question, Madam Chairman. When the Minister of Justice was before this committee, he was closely questioned on the whole matter of the definition of rights. I
think the sense of what he told the committee was that the whole question of rights had not been satisfied or answered but was still open for negotiation. I think he said there were as many as 90 different proposals both from representatives of the aboriginal people and from government officials.
Will your organization be involved in the discussion of these so-called rights, that we hope are to be defined in the Constitution, as that evolves from these meetings lying ahead of us?
Chief Diamond: I want to point out that the definition and identification of aboriginal rights, which was made in the first part of the Constitution, particularly in section 37, was the whole purpose of the First Ministers’ Conference. The matter of the definition of aboriginal rights is a very complex issue. It took the Crees three years to reach a settlement in northern Quebec. The matter is further complicated by the varying proposals being made by different groups, but I had hoped that, through the Assembly of First Nations—the national chief will probably testify before this committee later on—we would have been able to reach at least a beginning of the definition, by defining “aboriginal” and “treaty rights” from the Indian people’s viewpoint.
The native groups, as you know, do not have the most perfect organization in Canada; they are struggling, just as the federal government is struggling, with respect to the aboriginal question. It is going to require very intensive and difficult negotiations, but that is part of the ongoing process. That ongoing process, as stated in the Accord, is to take place within the next few years. There is also an opportunity in the Accord for Indian people to start a bilateral process, which some of the native groups were favouring, in respect of what aboriginal rights should be looked at. Basically, it is going to take a lot of hard work and political will. I understand that that process is ongoing and will continue next month. It is going to take a lot of work on both sides. It will not be settled overnight, just as it could not be settled at the First Ministers’ Conference.
Primarily, the First Ministers’ Conference in March dealt with what the Indian agenda was supposed to be and with the ongoing process. It was very difficult to negotiate during those meetings with the first ministers. There were four national native organizations as well as all the premiers of the provinces and territorial governments. Trying to get 16 different parties to put 16 different thoughts into one document is a very complex thing to do. Therefore, the whole question of the definition of aboriginal rights is open to a lot of hard work and goodwill.
There was a certain trust built during that First Ministers’ Conference. There was an atmosphere of tending to work together. I would hate to see that atmosphere ruined because this resolution did not go through Parliament. Therefore, I strongly urge this committee to recommend to Parliament, and to the legislative process, that it be given proclamation. Perhaps my colleagues have other comments.
Mr. Phillip Awashish, Vice-Chairman of the Cree Regional Authority, and Executive Chief of the Grand Council of the Crees (of Quebec): I should like to add a comment to Chief
Diamond’s statement. With regard to the question relating to the extent of our participation in the discussion and also on the constitutional process regarding the definition of aboriginal treaty rights, we have participated in the past few years in the discussions that have been going on concerning constitutional matters that affect aboriginal people across Canada. As Mr. Grave lle may have mentioned to this committee, there are basically four national native organizations that have represented the interests and the rights of native people across Canada. The Grand Council of the Crees (of Quebec) participates through the Assembly of First Nations, which is the organization which represents the interests of the so-called “status” Indians, and it is through that particular forum that we have participated in the entire process which was described by Chief Diamond.
Thank you, Madam Chairman.
Senator Steuart: To clarify my point, however, when the Minister of Justice appeared before this committee, I understood that he told us that there was an ongoing process. The Government of Canadea is placing in the Constitution a commitment to native or aboriginal rights, so this question was asked, and I think rightfully so: What are native rights? Will we leave it to the courts to decide what constitutes native rights or will we establish a definition through the political process? The response we have had so far from almost all of the groups which have appeared before us is that those rights ought to be defined through the political process, not by the courts—or not necessarily by the courts; matters might eventually go to the courts. The implication I got from the Minister of Justice was that there is an ongoing process, carried out not necessarily by politicians but by bureaucrats or people representing native peoples, which process defines native rights. As a matter of fact, the minister said—and I think in an offhand way—that they had had 90 various rights, which included land rights, mineral rights, educational rights and so on. He did not elaborate on all of them, but it seems to me there are quite a few.
My question, specifically, is: Is your organization, or anybody representing it, involved, right now, with anybody from the federal government in an effort to work out those rights and to place them before the next meeting?
Chief Diamond: Perhaps I could clarify that last point. Yes, we are involved with the Assembly of First Nations, and yes, we are part of the Assembly of First Nations’ constitutional working group, which is involved internally with the preparation of position papers which the Assembly of First Nations will probably deposit at that first meeting of the ministers on October 17 and 18. Therefore, we are a part of that process.
I would like to return to what the Indian people want. If I were to tell you what Indian rights are all about, you and I would be sitting here until Chief Ahenakew arrives next week. I will say, however, that we want them defined through a political process. We have gone through a process of confrontation. We have gone to the courts. Do not forget that when you are an Indian and you go to court, the odds against your winning are 90 per cent. No matter what court case you might take as an example, whether it be a land claims case or a small
suit elsewhere, if you are an Indian, the chances are that things will be 90 per cent against you, immediately.
There is in place right now a process involving confrontation, because the political process and the bureaucracy covering it do not meet the immediate needs of the Indian people. At present in Conn River, Newfoundland, for example, the Micmac Indians must go to court in order to have recognition of their status as full Indians, and to receive the funds due to them because they are Indians. They are entitled to receive benefits of federal programs, yet they must go to court in order to do so. There is a political process in place for that purpose, but the political process is very slow and nobody will take the responsibility to make decisions.
Somebody must make decisions. The reason the process worked at the First Ministers’ Conference in March was because the Prime Minister of this country was there to chair the meeting. He made decisions for the people of Canada and for the Government of Canada. We had access to a person who could make decisions. Elsewhere—in Conn River, for instance, or in Lubicon Lake in northern Alberta—such is not the case. There is a court case pending in Lubicon Lake because nodoby will make a decision as to whether those people have a comprehensive land claim or a specific land claim. Even though those people are not included in any treaty, even though they have never surrendered their tracts of land, they have difficulties in respect of funds that are due to them. They need some assistance, but again nobody will make a decision as to how their problems should be settled.
The Indian people, therefore, would like to see a political process—some kind of dialogue with the Government of Canada and access to people who can make decisions, but they need assistance. They are basically looking to you people to say, “Yes, we must sit down and really work at it in order to settle this question.” That is the sort of process by which it can be done, but because that has not worked in all cases, many Indians have to resort to the courts. That is happening right now in Conn River; that is happening in Lubicon Lake; that is happening in Ontario in the Bear Island court case with respect to certain land claims; and that will happen in the James Bay area as well. We feel, in northern Quebec, that we have surrendered only certain of our rights. We did not surrender our rights in the rest of Canada. We still have rights in the offshore islands and in the intervening waters of the James Bay territory. We also have rights in Ontario which our people have traditionally used. We will be making a claim, but most likely we will have to resort to the courts. Only when there is something in jeopardy will the white man move. That has always been the case.
When the James Bay hydro-electric project was in jeopardy and about to be stopped by the Crees, only then did the whiteman’s government come to us with a proposal and say,
“Let us sit down and negotiate.” History has shown us repeatedly that this sort of thing always happens. It happened in the Prairies when the settlers moved there and farther west when the railroads came. When the whiteman needs the lands for his own use, then he will talk to you, but not before there is a confrontation. That is exactly what the Indian people want to avoid. If there can be a political process—and there can be one because it has been proven through the First Ministers’ Conference, then it will work.
Senator Tremblay: Madam Chairman, as the Senator who represents at least a part of Quebec, I would like to say in passing that because the boundaries of the territory I now represent in the Senate were drawn in 1859, and have been kept unchanged since then, I find myself representing the entire North Shore of the Saint Lawrence starting from the suburbs of Quebec City. This means that I represent all of Nouveau, or Northern, Quebec. I am therefore very pleased to have an opportunity to hear representatives from my diocese,. if I may put it like that.
Senator Deschatelets: They are future voters.
Senator Tremblay: I am very happy that a Senator from the West has pointed out that in terms of the agreements reached regarding James Bay, Quebec could in a sense serve as a model for the rest of the country to adopt. I think that Chief Diamond, has taken the same line. It isn’t that often taht we have a chance to pat ourselves on the back because Quebec is setting an example in areas as sensitive as possible deals and agreements between the descendants of European settlers and the original inhabitants of this country.
If I understand correctly what is being constitutionalized in the resolution, it is not so much the rights of the aboriginal people with regard to the material definition of their holdings but the right to negotiate and to consider the James Bay Agreement, for instance, as a treaty. Moreover, taking into account the fact that in this agreement there is a process of amendment, what is really being constitutionalized for the future is the very possibility of modifying an agreement through an agreement between the two parties involved. I know that two of the parties involved in the James Bay Agreement are the Inuit and the Cree. My first question is this; what, in fact, is the James Bay Agreement? Is it two agreements or one agreement with the rider that, if there is an agreement that the original agreement should be changed, it will be signed by the Inuit, Cree, and Quebec Government?
Chief Diamond: Madam chairman, that is one agreement. There is an agreement called the James Bay Northern Quebec Agreement. This agreement covers the area known as the James Bay Territory and was signed by the Grand Council of the Crees on behalf of the James Bay Crees and each of the eight individual Cree band chiefs, the Northern Quebec Inuit Association representing the Inuit people of Northern Quebec, the Government of Canada, the Government of Quebec and certain crown corporations including Hydro Quebec, the James Bay Development Corporation and the James Bay Energy Corporation. That is one agreement covering both the Cree and the Inuit.
Senator Tremblay: For that particular part?
Chief Diamond: Yes. There is another agreement amending that first agreement signed by the same parties and also by the Naskapi Indians of Schefferville called the Northern Quebec Agreement.
Senator Tremblay: In constitutionalizing through this resolution the rights acquired through those agreements, is it the intention to modify the agreements all of the parties you have mentioned are required to sign?
Mr. Peter O’Reilly, Legal Counsel, Grand Council of the Crees: The short answer is “No”. For a few of the chapters the answer would be “Yes”, but there are several provisions in the agreement which say the Hydro Quebec and the James Bay Development Corporation could amend particular provisions of the agreement without all of the other parties. In other cases the federal government and the Crees could amend by themselves certain provisions. Other provisions could be amended by the Inuit alone with the Government of Quebec. So it depends. There are different systems throughout the agreement, depending on what the subject matter is.
Mr. O’Reilly: May I address the Committee in French?
Senator Tremblay: I think that I will be able to understand you.
Mr. O’Reilly: I think that it is very important to realize that we have tried to establish a system which is not immutable and which is capable of evolving with time. That’s why we made provisions for possible amendments. In fact, six major amendments have been made to the James Bay and Northern Quebec Agreement since 1975 to account for changing circumstances. For example, with regard to the Société d’Energie de la Baie James and the Crees, it was deemed advisable to rewrite certain parts of the project description for the benefit of both parties. This was done by way of an amendment. Of course, another very important amendment concerned the Naskapis. It came about as a result of the first amendment. Both of the amendments have now been included in the James Bay and Northern Quebec Agreement.
I would also like to point out that we do not quite agree with the statement that the right to make amendments must be entrenched in the Constitution. If the amendment resolution passes, as far as the Crees and Inuit are concerned, it is clear, in our opinion, that all existing rights covered by the James Bay Agreement will become treaty rights under the Constitution. Both past and future rights will become constitutional rights. That’s why this matter is extremely important. From a legal standpoint, we also believe, since Peter and I have been working in this area for 11 or 12 years, that these rights are already covered by the words “treaty rights” in section 35. There were some doubts about this because the wording was not very clear. The word “treaty” was used in a variety of ways in section 35 and we feel that some clarifications are in order. Furthermore, we believe, as do many native peoples groups across Canada, that it is vital that other native land claim agreements be included in the category of treaties. Thus, existing major agreements such as the James Bay and North-
ern Quebec Agreement would fall into this category. This could also apply to agreements such as the COPE Agreement in the Northwest Territories. However, we will not comment on this particular matter since other lawyers and native peoples groups are involved in that debate.
Senator Tremblay: I would like to pursue this matter since it is a question which raised some concerns among the Senators, including myself. When the Minister of Justice appeared before the Committee, I asked a specific question about this matter at that time. My question now is the following: If certain rights are entrenched in the Constitution, is a constitutional amendment the only possible way of amending them for very practical reasons, if not in substance then at least in terms of how the rights themselves are exercised? That’s the first part of my question.
The second part in fact provides an answer to the first part. In view of the fact that agreements similar to the James Bay Agreement are included in the new definition of a treaty and that such agreements can be amended with the consent of both parties, it seems rather clear that a constitutional amendment was unnecessary. The text of the agreements stipulates that the agreements themselves can be amended provided the consent of the parties involved is obtained. You have just stated that there are also other rights which come under the general category of rights which are not treaty rights. As far as these general rights are concerned, is there only one -way to intervene to determine at the very least how these rights are to be exercised? Isn’t there another way, aside from proposing a constitutional amendment with all of the procedures such action requires?
Mr. O’Reilly: I will answer one part of your question and Mr. Hutchins will take care of the second part. The fact is that some aboriginal rights guaranteed in treaties, should be entrenched in the Constitution by means of an amendment. For example, supposing there were some aboriginal rights which should be amended by mutual consent, it would be difficult to do so without going the route of a constitutional amendment.
However, we feel that certain rights which are covered in the Agreement, for example, hunting, fishing and trapping rights, should be amended with the consent of the parties involved because they are substantive rights which fall under the category of rights guaranteed under the terms of an agreement. The Agreement stipulates that these rights can be amended with the consent of all parties involved. Therefore, as far as the James Bay and Northern Quebec Agreement is concerned, in our opinion, there are very few rights which would come under your first category and which would be so general as to require a constitutional amendment.
With regard to the aboriginal rights covered by section 35, we must refer to the comments of Chief Diamond, because native peoples are having serious problems and in many instances, the cases are before the courts. It is not easy to define aboriginal rights. However, in our view section 35
already provides for existing aboriginal and treaty rights, and the question of annulling them or retaining them mean some thing , we hope. There are provisions there and I would like Mr. Hutchins to comment on them.
Mr. Hutchins: I think it’s important to make a clear distinc tion between aboriginal rights on the one hand and treaty rights on the other. Let’s start with the first of these: currently what we have is subsection 35(1), which is drafted in very general terms. It speaks of existing aboriginal rights without giving any details. There’s no list. As matters stand, I don’t feel it’s necessary to have an amendment to the Constitution to change that, when the rights are included. Our position is that the general wording of section 35 includes all possible rights. What has to be done now is to clarify what that means. I think there’s a certain confusion about the long-term process. Some people see the situation as one in which native groups will have to negotiate to get their rights. But that isn’t so, because what the parties have to do is clarify what section 35 means. The rights are there, they just aren’t explicit.
If in the future the parties decide, in the course of this whole process, to draw up a list, to start to specify, you might than have a list that would include things like hunting, fishing and trapping rights and self-government. Once the list has been drawn up, it will be incorporated into the Constitution. Subsequently it may perhaps be necessary to resort to an amending procedure to change the list, and that’s a risk or a situation that should perhaps be provided for right away, during negotiations over the list, and a flexible system should be provided to cope with the problem. This is all speculative, it hasn’t happened yet, but we have an opportunity to allow for the problem and provide for a flexible system that gives both parties room to make amendments, to make changes in the rights, especially where the exercise of the rights is concerned, without always having to resort to a complicated and complex amending system. That’s the first point. It’s virtually the same situation for treaty rights—there’s a connection. Taking the James Bay agreement as an example, we for our part say that the interested parties—I think the Crees said in their submission to the Committee that the interested parties would negotiate agreements and provide for an amending procedure. So this would be part of the rights and would settle matters. It might be better to look at the problem as regards the definition and clarification of aboriginal rights. There may perhaps be a possibility of solving the problem, but it isn’t a pressing one because there is no immediate need for an amendment to the Constitution, because the wording is so general.
Senator Tremblay: One last question, Madam Chairman. I am most interested inwhat has been said, and perhaps my question is more a matter for the next conference, as you have just indicated. It’s about the list of rights to be included inthe Constitution.
As I understand your approach, it is this list that will than need a constitutional amendment if it is to be changed.
A double question, once again: what doesn’t appear on the list will consequently be a matter for negotiation, to reach agreements of the James Bay type, and that’s why the entrenched list is so important.
My question is quasi-political. Will your approach to this constitutional list be the gingerly kind, making it as brief as possible, or will it be the inclusive kind, listing as many areas as possible? It’s evident right from the start that anything submitted for constitutional amendment, a very lengthy process that includes the application of the amending formula, which requires a majority from the provinces with at least 50 per cent of the population—that could cause difficulties for certain native groups in certain provinces. If the list is very long, the process will also be very long, and the outcome could be very uncertain. If the list is short, the scope for uncertainty is reduced and you rely on negotiations with the governments involved. Does your experience with the Jame Bay case, when you negotiated with two successive governments that were very different ideologically—because it was in 1975, if I remember rightly, that the terms of the amendment were more or less spelled out and in 1977 that the process was concluded and I think in that respect I can see certain concerns of my neighbour to the right does that experience incline you to lengthen the constitutional list, so as to limit the field of negotiations, or to make it short and trust to negotiation even for the clear definition of terms, with a very federalist government on the one hand and a less federalist government on the other? I realize this is a delicate question, but I think it’s one that people will be asking.
Mr. O’Reilly: It would be better if Chief Diamond replied, because this is a matter of internal negotiating tactics. They have studied the matter carfully, they have considered a great many hypotheses and they would have liked to have a lot of amendments at the last conference. Chief Diamond can perhaps tell you a bit about the outlines of the strategy.
Chief Diamond: Senator Tremblay, earlier you alluded to the fact that northern Quebec and everything north of the St. Lawrence was your backyard; I am glad you are my front yard so I can have an eye on you. Your question is most difficult, senator.
Senator Tremblay: You have to know that in the Senate we never show what we represent exactly.
Senator Steuart: Or for how long.
Chief Diamond: In our experience with the James Bay Agreement, there were two governments involved and, basically, there were two ideologies, but it is sad that the federal government was not really involved until the last minute of negotiations, when they realized that there might be a document called a James Bay Northern Quebec Agreement. That is past history, but our experience has led us to develop our own position internally first, with the native people giving priority to their lists—the constitutional lists as you call them—and perhaps from our own experience that is the advice
that we are giving to the Assembly of First Nations. We can only tell them the experience we have had respecting negotiations leading to the James Bay Northern Quebec Agreement. That is the same advice I give to other native groups who are negotiating land claims agreements in Canada. It is an internal matter and it is part of the ongoing process.
The way in which we approach certain of our own customs—even the way we phrase things—differs from locality to locality, in terms of our customs, the ways in which we might hunt, the resources on the land, and so forth. Basically, however, we have the same land, the same hunting, fishing and trapping, and the same practice in following the seasons throughout the year. In that way, the basic rights are there, but it is how we practise and exercise those rights that might differ from community to community.
The same can apply throughout Canada from tribe to tribe and from band to band. It will be up to the Assembly of First Nations to set priorities in terms of a list of the rights that may be put into the Constitution. I know it may be difficult to follow that answer, but that is the best answer I can give at the moment because we have not really gone into the constitutional process. All we are asking is that this committee endorse the resolution and the accord.
Senator Tremblay: Thank you. I might add that I have been much impressed by your agreement in that, at least in terms of the partners who are involved, you have found a flexible formula. It seems to me that you have provided for amendments which may apply to some of the partners, but not to others. I think that is a good lesson: we must be flexible within the framework of a so-called general agreement, and we must provide for adaptation to different situations. Is my understanding correct? Is that basic to your approach?
Chief Diamond: That is correct, senator.
The Chairman: Perhaps I could ask Chief Diamond to expand a little upon the statement in his brief with respect to subsection 4 of section 35 of the Constitution Act, 1982. His statement reads:
… providing that aboriginal and treaty rights are guaranteed equally to male and female persons, we believe that the amendment as proposed while not adequate to cover the full range of equal treatment issues, does cover the issues insofar as they relate to the subject matter of section 35—treaty and aboriginal rights.
My question is: Are you saying there that you believe that that proposed amendment touches on the present section 12(1)(b) of the Indian Act?
Chief Diamond: Madam Chairman, the Crees of James Bay believe, and like to point out, that they have settled the question of equality between male and female Indian persons. We believe that our native men and women are covered equally in the James Bay and Northern Quebec Agreement.
We also believe that the local governments have been given the mandate and the power to determine their own citizenship and to determine their own eligibility so that they can become beneficiaries and can be enrolled in the James Bay and Northern Quebec Agreement. The local governments have that authority directly from the local people.
With respect to the whole question of equality for native women in Canada, I can say this: during the First Minister’s Conference there was much debate and much confusion on the issue. While this matter was being debated on the main floor of the conference on March 15 and 16 of last year, I was upstairs. When we learned that the matter was on the floor for debate, we thought that it was being dealt with, only to find later that this amendment had come up.
We would like to point out that we have advised most of the Cree bands that there is a procedure by which they can ask for an exemption to the application of section 12(1)(b) of the Indian Act, and as far as the act is concerned, it is basically an administrative procedure. In our opinion, it would be up to each of the Indian groups to determine its own citizenship. That has been one of the positions of the Assembly of First Nations. We believe we ought to be given the power, through Indian self-government, to determine our own citizenship. We know what is best for our own people. That has been the basic position of the Assembly of First Nations and that position was devolved internally through many months of discussions leading up to the First Ministers’ Conference.
I realize that answers only part of the question; perhaps our legal counsel can add to it.
Mr. O’Reilly: I will make one comment, Madam Chairman. The equality provision is going to be very much a part of future conferences. I think the great majority of native people were absolutely clear in the view that there should be equality of native men and native women, but, as Chief Diamond has pointed out, they also felt that it was an integral part of self-determination and that one could not really be—excuse the expression—”divorced” from the other.
There was some confusion about section 35, but there is no question that what is in there now is at least a gain. It clarifies the main provision, which is not in the Charter part of the Constitution, that, at least for existing aboriginal and treaty rights, there would be equality as between male and female native people. However, the discussion is very incomplete and I think that all parties are committed to discussing this issue extremely thoroughly.
So far as the Crees are concerned eligibility is determined on the basis of the principle: Once a Cree, always a Cree; not a Cree, never a Cree.” Status is absolutely equal as between males and females and there is no question of applying the Indian Act. Most of the Indian Act does not apply to the Crees. There are different rules for becoming a benificiary.
The Crees were able to come up with a solution to the problem which they felt took into account the right to self-determination and the equality issue. The hope is that, despite the myriad of tribal customs and traditions across Canada, they will find a solution which will meet the objectives of full equality and self-determination for the Indian people. Personally, I think that such a solution is possible. Most Indian people have stated time and again that, if left to themselves, they will establish a fair standard of equality of treatment because it is part of basic Indian tradition.
Finally, I would point out that the Indian Act was not made by Indians, so the origin of that problem was not created by native people. In a way it amounts to a piece meal solution for dealing with section 12(1)(b) and this started well prior to the Levell case. I hope that the solution will not be a piecemeal one but a global one assuring full equality in terms of rights and the exercise of those rights and meeting the fundamental objectives of people across Canada in terms of self-determination. I think it is possible to reconcile the two issues but it will take a lot of thought and effort to reach a consensus. There must be at least 100 linguistic affiliations and cultural differences amongst the native people across the country, and they all have to be accommodated. So the job will not be done overnight.
The Chairman: Chief Diamond, we are grateful to you and your colleagues for your efforts on behalf of your people and for coming here and presenting your brief. Thank you.
The Committee adjourned.
From the Grand Council of the Crees (of Quebec):
Chief Billy Diamond;
Mr. James O’Reilly, Legal Counsel;
Mr. Peter Hutchins, Legal Counsel;
Mr. Phillip Awashish, Vice-Chairman of the Cree Regional Authority, and Executive Chief of the Grand Council of the Crees (of Quebec).