Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, 32nd Parl, 1st Sess, No 73 (22 September 1983)
By: Canada (Parliament)
Citation: Canada, Parliament, Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, 32nd Parl, 1st Sess, No 73 (22 September 1983).
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Thirty-second Parliament, 1980-81-82-83
SENATE OF CANADA
Proceedings of the Standing
Senate Committee on
Legal and Constitutional Affairs
The Honourable JOAN NEIMAN
Thursday, September 22, 1983
Issue No. 73
Fifth Proceedings on
The subject-matter of the Constitution
Amendment Proclamations, 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:
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 Paragraph 25(b) of the Constitution Act. 1982 is repealed and the following substituted therefor: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 poroposed 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 CONSTITUTIONNAL CONFERENCES
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 withing 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
WEDNESDAY, SEPTEMBER 22, 1983
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 9:00 a.m., the Chairman, the Honourable Senator Joan B. Neiman, presiding.
Present: The Honourable Senators Bosa, Donahoe, Godfrey, Lapointe, Lewis, Neiman, Rousseau and Stollery. (8)
Present but not of the Committee: The Honourable Senators McElman and Steuart.
In attendance: Mrs. Barbara Plant Reynolds and Mr. Bruce Carson, Research Officers, Research Branch, Library of Parliament.
From the Nishga Tribal Council (New Aiyansh, B.C.):
Mr. James Gosnell, President;
Mr. Frank Calder, Research Director;
Mr. James Aldridge, Legal Counsel.
From the Union of Ontario Indians (Anishinabek):
Mr. Joe Miskokomon, President of the Union; Grand Council Chief of the Anishinabek Nations.
The Committee resumed the examination of the subject-matter of the Constitution Amendment Proclamation, 1983.
On motion by the Honourable Senator Rousseau it was agreed,—That the brief of the Government of the Northwest Territories be printed as an appendix to this day’s proceedings. (See Appendix 73-A).
Mr. Gosnell, Chief Calder and Mr. Miskokomon each made a statement and they and the other witnesses answered questions.
At 10:20 am, the Committee adjourned until 4:00 pm. on Wednesday, September 28, 1983.
Clerk of the Committee
Ottawa, Thursday, September 22, 1983
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred the subject matter of the Constitution Amendment Proclamation, 1983, met this day at 9 p.m. to consider the said subject matter.
Senate Joan Neiman (Chairman) in the chair.
The Chairman: Honourable senators, I would remind members of the committee that the meeting is scheduled from 9 to 11, because there are other meetings to be held in this room, and that we have two sets of witnesses. We shall try to allot each group an hour.
Senator Donahoe: Madam Chairman I apologise to our witnesses, but, before we begin, I beg the use of a moment or two of your time to make a statement on a matter which I consider of importance to this committee. It is a very brief statement.
I request this opportunity at this earliest possible moment to refute the misleading and non-objective treatment accorded to me last night on the national news by Whit Fraser and Knowlton Nash. Both men put words in my mouth which I never said. Both men repeated the untrue allegation previously broadcast. Deliberately, or uncaringly, they created a false and untrue impression. Both men chose to ignore my statements and those of my colleagues made yesterday, thereby creating a false impression of me and of the goodwill of the Senate and this committee.
Told in true perspective, the incorrectly and badly reported private conversation never deserved the undue treatment it received. I merely want to interject that I make no point of what I said being private, because what I said in private I might have said in public. I did not, and that explains why I was badly overheard. They put words in my mouth that I never said. What has happened demonstrates an undue grasp for sensation and a disregard for fairness and accuracy. The objectivity of the national news should be carefully guarded. I have demonstrated a lifetime of good will toward Indians and I protest any attempt by anyone to destroy my reputation through untruthful journalism and I regret any damage that may have been suffered by this committee. Thank you, Madam Chairman.
The Chairman: Thank you, Senator Donahoe.
We have before us members of the Nishga Tribal Council of British Columbia. Chief Calder, would you introduce your colleagues?
Chief Frank Calder, Research Director, Nishga Tribal Council: The President would like to make a short statement before I begin.
Chief James Gosnell, President, Nishga Tribal Council: Madam Chairman, before Chief Calder makes his presentation I shall ask the members of the delegation to introduce themselves.
Mr. Alvin McKay, Executive Member for Greenbille, Nishga Tribal Council: My name is Alvin McKay Chief
Counsellor of Lakalzap Band Council for Greenbille. My Nishga name is Hasequdaks.
Mr. Jacob Nyce, Trustee for Canyon City, Nishga Tribal Council: My name is Jacob Nyce and I am a hereditary Chief for Canyon City and a trustee for the Nishga Tribal Council.
Mr. Hubert Doolan, Chairman, Nishga Tribal Council: My name is Hubert Doolan, Nishga Tribal Council, and I am a hereditary Chief with the Nishga name Graw-Kwah-Hlaan from Lakalzap.
Mr. James Aldridge, Legal Council, Nishga Tribal Council: My name is James Aldridge and I am the Legal Council for the Nishga Tribal Council.
Chief Gosnell: My name is James Gosnell and I am president and hereditary Chief of the Nishga Tribe.
Chief Calder: My name is Frank Calder and I am the research director of the Nishga Tribal Council.
Chief Gosnell: Madam Chairman, I wish to make a short statement, with your permission. This is not the first time that our tribe has appeared before a gathering of this kind over the past one hundred years of the Nishga Tribe’s struggle for justice. We are beginning to wonder how long it will take before these hearings produce any action or any results. There have been no results from the past hearings we have attended. We have confidence in this committee and we know that you have had before you other groups of witnesses on the matter of this resolution and we hope that there will be results from these hearings. What my fellow chieftain, Chief Calder, is about to present to you is no different from what our grandfathers said to your grandfathers over the past one hundred years. We want to make it very clear what we are saying and what we want. With this in mind, Madam Chairman, I now turn you over to Chief Calder and he will make his presentation on our behalf.
Chief Calder: The Nishga Tribal Council represents approximately 5,000 Nishga people living primarily in the Nass Valley of Northwestern British Columbia. Our lands lie adjacent to the southern extremities of the Alaskan Panhandle. We are, for the most part, a coastal people. The entire history of our people since the first white contact has been the history of our struggle for recognition of aboriginal title to our land. Our people are resolved to carry on with this struggle until the Canadian nation, your Parliament, your courts, and your people see fit to settle our claim justly to the ownership of our lands.
This is not the first time in recent history that the Nishga Tribal Council has addressed a committee of senators. On December 15th, 1980, we appeared before the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada in order to explain our position and put forward the reasons why our people demand that aboriginal title be recognized in the Canadian Constitution.
Our people have been putting our case forward for over one hundred years now, and not to this day has any government, colonial or provincial, federal or imperial, signed a treaty with our people to extinguish our ownership of our lands. In 1887
one of our Chiefs, David McKay, speaking to a royal commission appointed to inquire into the conditions of the Indians on the northwest coast, said this:
They (the government) have never bought it from us or our forefathers. They have never fought and conquered our people and taken the land in that way, and yet they say now that they will give us so much land-our own land. These Chiefs do not talk foolishly. They know the land is their own.
This struggle for our aboriginal title has been passed down for generations within our people’s history. We have therefore decided that we must be involved with the constitutional process. We must participate, as our ancestors participated before us, in making our position known to the Canadian people.
Accordingly, when we learned that the Senate had refused to pass the Constitutional Accord that was agreed to at the First Ministers’ Conference last March, we knew that we were once again obliged to come to Ottawa in order to make our viewpoint known.
The Nishga people participated in good faith in last year’s First Ministers’ Conference. As a member of the Assembly of First Nations, we attended the Conference and our Chief, James Gosnell, explained to the Prime Minister and the other First Ministers our view of aboriginal title. We participated in the decision of the Assembly of First Nations to sign the Accord which was reached. We did not know then that we would be called upon to come before another branch of the federal government in order to defend this Accord. We believed that the Prime Minister would undertake the responsibility of obtaining the federal Parliament’s approval for the Accord, as we took responsibility for obtaining our people’s consent to the Accord.
We come to this committee in order to present our reasons for supporting the Accord. However, we would suggest to the Senate that, if it wishes legal interpretations of the specific wording of the Accord, it should turn to government staff lawyers for these legal interpretations.
We were confused to read the letter to us from the chairman of the committee indicating that this committee only wants to hear opinions on “the legal and constitutional implications of the precise wording of the resolution itself”. We have read the Hansard report from the Debates of the Senate on Wednesday, June 29th, 1983, and we understand that the concerns of some of the honourables senators went far beyond mere questions of draftsmanship, but rather to the very heart of various components of the Constitutional Accord. We therefore come before this committee not as a source of legal analysis, but rather as politicians speaking to politicians. We come as the elected representatives or our people to address you, the appointed representatives of yours.
A constant source of concern to our people is the difference between the standards that apply to our rights and those that apply to the rights of other Canadians. We recall that the
Senate passed the last constitutional resolution that included the Charter of Rights and Freedoms for other Canadians without requiring affected groups to come to discuss the precise legal implications of the terminology proposed by the Government of Canada.
We recall that when the First Ministers reached their first Constitutional Accord in November, 1981, wherein they agreed behind closed doors to leave our rights out of the Constitution altogether, the Senate did not demand hearings in order to investigate the legal and constitutional implications of our betrayal.
The simple fact of the matter is that there is considerable uncertainty involved in many parts of the Canadian Constitution. No one’s rights are fully and precisely defined. Only time will tell what the full legal and constitutional implications are, for example, of section 7 of the Charter, which guarantees the right to “life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice”. What are the principles of fundamental justice?
What will the courts decide constitutes “unreasonable search and seizure” as prohibited by section 8 of the Charter? Who knows what the effects of the equality rights section will be when it comes into force in 1985? What does the expression “where ‘numbers warrant” mean in section 23 of the Charter concerning minority language educational rights?
Perhaps most importantly, who knows what the full legal constitutional implications are of section 1 which limits Canadians’ rights in such a way as “can be demonstrably justified in a free and democratic society”?
What we, the Nishga people, know perhaps better than other Canadians is that it is impossible to predict what the courts will do in any given case. Who could have predicted, for example, that, when we took our case on aboriginal title to the Supreme Court of Canada, they would have reached the decision they did? Who could have predicted that three judges would rule that our title still exists; and that three judges would rule that our title had been extinguished, and the seventh judge would rule that he did not have to decide, because we had not sought permission from the province to go to court?
And so we come to this committee in order to discuss not the precise legal implications of the specific wording of the resolution but rather to explain why we, the Nishga people, believe that the Senate should not interfere with those parts of the Constitutional Accord which affect us most.
Before proceeding to answer some of the questions which this committee has posed to us in its letter, we should make it extremely clear that, in insisting that the Senate pass the Accord without further ado, we should in no way be taken to be saying that we approve wholeheartedly of the Accord. Our constitutional position is clearly on the record and remains unchanged. First and foremost, we believe that aboriginal title must be expressly recognized by the Constitution of Canada. Once this is done, then the further detailed identification and
definition of our rights must be done through negotiations with the Nishga people. The detailed definition of our rights must be done by each tribal group, for Indian nations vary historically, culturally, linguistically, and so on. The agreements reached as a result of these negotiations must be protected in the Constitution.
Finally, our rights and our title must be protected in the Constitution with a consent clause. It is essential to the recognition of our rights as a people, and our place within Canadian fabric, that our title, our rights, and our agreement never be abrogated or changed without our consent.
The Accord does not accomplish all of these fundamental aims. It does, however, provide for the constitutional protection of our agreement which we are now negotiating. We take some further comfort from the fact that the agenda for the forthcoming First Ministers’ Conference includes these a well as other matters. We take some comfort from the fact that the xpress entrenchment of aboriginal title will be one of the first matters on next year’s agenda.
The Committee has set forth a number of questions which it wishes us to address. The Nishga Tribal Council will not address all of these questions, but we do wish to set forth our position with respect to some of them. You have asked us what ten we mean by the term “existing rights”.
This is not a difficult question for the Nishga to answer. Our rights have never been extinguished. We have never signed a treaty, nor have we ever surrendered our rights as a result of conquest. Therefore, the Nishga people, like most of the native peiople in British Columbia and in Canada’s north, continue to have, and will continue to assert, our aboriginal rights.
You must remember that we did not ask for the word “existing” to be inserted. The federal government has said it has no meaning That is why we say it should be deleted. We do not understand entrenching a word that has no meaning in the Constitution.
In thinking of our aboriginal rights, it must always be borne in mind that all of our rights flow from our relationship to the land. Our lives, our culture and our continued existence as a people are completely tied to the land in the area which our ancestors have occupied since time immemorial. That is why our people say that aboriginal rights flow from aboriginal title. This is why our people have indicated that we will never agree to an extinguishment of aboriginal title. Our position is, then, that our rights are those rights which flow from our historical and traditional ownership and occupation of the lands of the Nass Valley. We hold these rights both collectively and individually. It would be inappropriate to fully define and describe every one fo these rights at this time as we are presently involved in that very process at the land claims table. However, it is possible to give an indication of some broad categories of rights which flow from our aboriginal title and which we must form the basis any settlement of our claims and, indeed, of our future relationship with the rest of Canada.
Our ownership of the land necessarily includes the right to continue hunting, fishing, trapping and harvesting food as our ancestors have done for centuries without restrictions being imposed upon us by other levels of government. This is not to suggest that we would not take appropriate management and conservation measures in order to ensure appropriate utilization of these resources by our people. However, these decisions must be ours to make. These resources are ours to protect.
Our ownership of the land includes aboriginal rights to other fruits of the land as well, It is our position that our aboriginal rights include rights to minerals, timber and other resources lying within our lands. Our ownership of these resources includes our right to insist that no future resource extraction may proceed within our lands unless and until consent has been obtained from the Nishga people. Furthermore, the Nishga people have the right to insist that any economic or resource development must provide us with the benefits to which we are entitled and which will provide the beginnings of an economic base for our people to develop through the rest of this century and on into the next. We have the right to prevent or control any activity which may damage our environment.
Our ownership of the land further entitles us to compensation for resources which have been extracted by non-native people from our lands in the past. There have been serious losses of logging, fishing and mining resources during the past century. We own these resources, and yet we receive no benefits whatsoever from their extraction by other people. We have not surrendered our rights to these past resources and we have the right to full compensation.
However, we wish to make one thing extremely clear to this committee. The Nishga people have always said that, while we insist. that ownership of our lands and our resources must remain with our people, this does not mean that we are unwilling to share what we have with other Canadians.
Opponents of native people of Canada accuse us falsely of wishing to drive non-native people out of our land. We can easily recognize our opponents because they attempt to raise unfounded fears that it is our intention to drive non-native Canadians away from the land. Nothing could be further from the truth. We have always said that we are willing to share.
Our opponents consistently try to frighten Canadians by saying that the Indian people will take over thousands of square miles of Canada and somehow deprive other Canadians of what is justly theirs. The people who resort to these scare tactics refuse to acknowledge the simple fact that there has never been a case in all of Canadian history of Indian people stealing land from non-Indian people. History shows the opposite has always been the case.
When we say that we are willing to share our land and our resources, we are simply indicating that the relationship between our people and the Government of Canada must be one based upon mutual respect, trust and a sense of fairness. We are not asking for special status when we demand a settlement of our claim. We are asking only for our just entitlement for sharing our land.
As this committee may know, we, the Nishga people, are currently involved in negotiating a land claims agreement. The basis for any such agreement with the Government of Canada must be that we are the true owners of the land, that we have aboriginal title, and that we are negotiating and defining the specific ways in which that title will be recognized in the future. For example, we feel that we are entitled, in return for our sharing, to insist upon certain other benefits from non-native society, including, for example, health care, education and other types of social funding.
We also insist that our aboriginal rights include the right to self-government. We must have the right to determine our collective future as a sovereing people with an appropriate governmental structure and constitutional relationship with the rest of Canada.
This brings us to the second question which was directed towards us, namely, whether changes to our land claims agreements in the future will require further constitutional amendment.
It is essential for this committee to appreciate that we, the Nishga people, believe that no one can define our aboriginal rights or negotiate our relationship with the Government of Canada except ourselves. We appreciate that it is in the interests of everyone that the terms of our relationship with other Canadians be set forth in a comprehensive agreement. We also believe that our agreement, once we have completed negotiating it, should be immune from being unilaterally changed. In other words, in order for our land claims agreement to be meaningful, it must be constitutionally impossible for any government to renege on it. History has taught us to take agreements with governments with a grain of salt. The need for protection for our agreement was illustrated by the honourable Senator Duff Roblin who stated, when discussing the Accord on June 29:
…there is no way of getting at these unknown agreements except by means of another constitutional amendment—
What is the senator afraid of, if not being prevented from changing our agreements against our will?
However, we also appreciate that there may be some parts of our agreement which might require renegotiation in the future. We believe that such mutually desirable changes could be effected by means of an amending formula which will be negotiated as a part of the agreement itself. The details of such an amending formula will be worked out throughout our entire
land claims process, and we are in no position to spell out the details here.
However, the fundamental feature of any meaningful land claims agreement must be that it cannot be changed without our consent. This is what we demand when we say that our land claims agreement must be entrenched. This is what we mean when we say that the Nishga, and the Nishga alone, will define the details of our aboriginal rights in the future.
Quite frankly, we are baffled by the concerns of senators who oppose the entrenchment of future land claims agreements. The fears raised by such senators simply do not recognize the fact that we will not be negotiating our land claims agreements alone; we are negotiating with the Government of Canada and the Government of British Columbia.
1. light of this fact, we ask this committee what the senators are afraid of? Why should they wish to deprive our people of the same constitutional protections for our agreement that have already been given to treaties which were signed in the past? Do these senators believe that each and every land claims agreement should be followed by its own constitutional amendment? We cannot believe that anyone would seriously suggest such an alternative. There will be many dozens of land claims agreements in the future, if the governments of Canada carry out their policy in good faith. It would not only be ridiculously cumbersome to require separate constitutional amendments for each agreement, it would be absurd to ask the governments of Ontario, Prince Edward Island, and so on, to pass a resolution to entrench constitutionally a land claims agreement in British Columbia. Surely, it is far more sensible to agree, as the Prime Minister and nine of the provincial premiers did last March, that all such agreements should be automatically entrenched in the future as soon as they are reached. This is the only way of meaningfully giving our agreements the constitutional protection they deserve, and to treat our agreements with the same degree of respect that has already been granted to the treaties which have been signed in the past.
The Senate asks us further whether we are prepared to work out a legally binding definition of the class of aboriginal people whom we represent. If the Senate were familiar with the land claims process, it would know that an integral part of every comprehensive agreement includes an agreement concerning who the beneficiaries will be.
It is our position that only the Nishga can define who the Nishga are. In other words, of course we are prepared to work out a binding definition of who we are, but we insist that this definition will be ours to make. Furthermore, it will be legally binding on governments as well as on our own people.
This is why we are concerned as certain other parties with the so-called equality rights provisions in the Constitutional Accord. A great deal of mistrust and human tragedy has been caused by the definitions of “Indian people” that your governements have attempted to impose upon our people. We,
the Nishga people, have never regarded women as being inferior. The fact remains that we, and we ourselves, will be able to determine who the Nishga people are. Accordingly, the effect of the Accord on the provisions of the Indian Act simply does not concern us particularly at the present time.
Finally, with respect to your question of how it shall be determine which Indian organization shall have the legitimate authority to agree to a constitutional resolution, we respectfully suggest that that is the business of the Indian people and of the Indian people only. It is up to us to work out our political relationships in such a way as to protect and preserve our own interests. One overriding consideration must be expressed at this time, however, and that is this, any constitutional amendment which affects the rights of aboriginal people must not occur without the consent of all of the aboriginal people whom it affects. In other words, should any constitutional change be contemplated in the future which affect the Nishga people, the consent of the Nishga people is the consent which will be required. None other will do.
We come to this committee in order that you may understand our position better. We come here to tell you that it is our position that the Senate should not interfere with, nor obstruct, the Accord which was reached last March. We have entered the constitutional process in good faith and on the basis that the parties to these discussions were negotiating in good faith. However, we do wish this committee to appreciate the Nishga point of view of our aboriginal title. For tied to our title and tied to our rights is our determination to enjoy and to continue to exercise the right to preserve and strengthen the age-old Nishga culture. We have the right to participate in our people’s customs and the right to pursue programs within our lands that will promote the continuation of our culture. It is vitally important, for example, that the Nishga language remain a vibrant living language within the Nass Valley area.
So through the coming months and years, as the constitutional debate and process continues, and as we proceed in the process of negotiating with the governments on our land claims, we will be insisting that our title, our rights, our relationship to the land, must remain safe and inviolate, so that we can pass on to our children what our forefathers have given to us.
That concludes our submission, Madam Chairman. On behalf of the delegation, I wish to thank, in advance, all honourable senators for their attention and for the consideration that may be extended to our submission.
Madam Chairman, there are six delegates in attendance, including our legal counsel, who are prepared to answer any questions that honourable senators may wish to pose.
The Chairman: Thank you very much Chief Calder. Perhaps Senator Steuart will begin the questioning, bearing in mind our time constraints.
Senator Steuart: I should like to thank the delegation for the clear, concise manner in which they put their case before us. Perhaps I could take a moment or two to try to clear up some misunderstandings which might exist on the part of the
Nishga with respect to the role of the Senate in the process in which we are involved.
To begin with, the Senate is not in any way refusing to pass this Accord. It will come to the Senate, and, although I cannot say whether it will be passed, I certainly hope that it will be. The Senate is not holding it up; there are several provinces which have not yet dealt with it.
I would like to point out that what the Senate is really doing is carrying out its responsibility. Parliament consists of the House of Commons and the Senate. As you have pointed out in your submission to us, you consulted with your people very thoroughly before you agreed to the Accord. I am quite sure that that consultation was carried out in a much more thorough manner than that in which we were consulted. We were presented with the Accord almost three months after it was agreed to at the First Ministers’ Conference in which you took part. We were literally asked to rubber stamp it in one or two days, having held no hearings on it, and, in many cases, having heard no explanations with regard to it.
I should like to point out that the Senate was involved in all of the hearings leading up to the formation of the new Constitution. It was, therefore, involved in the decisions and the recommendations which eventually formed the new Constitution. With respect to an amendment of that Constitution, my understanding has always been that, while a Constitution should not be impossible to amend—as was almost the case with our original Constitution—it should not be easy to amend.
While you people have clearly stated your support of the amendment and your wish that it be passed, you have also stated that you do not agree with everything in the Accord. It is possible that, in the coming years, there may be amendments with which you might not agree, I asked you to consider whether you would want such amendments to be rubber stamped in a day or two? I am sure that you would expect Parliament, including the Senate, to at least give to people who have not been heard a chance to be heard. That is exactly what we are doing at this time.
Over the course of these hearings it has been pointed out to us that, in the opinion of some of the people who have appeared before us, there was a difference between the draft agreement that they had agreed to and the final Accord. You have referred to the word “existing”—that came out of the agreement. We have been told that, while some people did not agree with that particular word and did not think it was contained in the original draft, they were not prepared to hold up the final Accord because of it but would try to have it amended later on. I have mentioned that case by way of example. I-lad there been other serious changes, I am sure that you would have been pleased had the Senate indicated that, although it would not hold up the Accord, it would at least conduct some hearings in order to give to people like you a chance to present your case. This is a procedure that was carried out in the event that the final Accord had not agreed with what you people had agreed to in your meetings.
As to the point of amending the constitution, I think that, again, there is a misunderstanding. I listened to Senator
Roblin and several other senators who have spoken on this subject and have attended the hearings held to date. What we are concerned about, and I am sure the concern has been answered, is exactly the point you made, namely, that you should be able to amend your land claims agreements by mutual consent—that is, as between you and the federal government, if the subject matter affects only you and the government and you mutually agree. This is far better than calling in the other provinces and going through a formal constitutional amending process. I understand that you are happy with that arrangement. I want to point out that we are not demanding that every change that is to be made in a land claims agreement should be made through the formal constitutional process involving the provinces.
I want to mention something with regard to the people involved. Again, I do not quarrel—nor, I believe, do any of the other senators involved—with your definition of who the Nishga people are. However, you are not the only ones involved in the question of aboriginal rights, For example, there are the Métis. The group of Métis that appeared before this committee stated very clearly that they do not consider all people of mixed blood to be Métis but only those who come from the Red River Valley and points west. So, again, I am not concerned about your right to decide who you are, but I think that the definition has to be clearly stated. These are the points I wanted to make at the outset.
Senator Godfrey: I agree with everything that Senator Steuart has said. You say that any constitutional amendment which affects the rights of the aboriginal people must not occur without the consent of all the aboriginal people it affects. There is a practical difficulty. We heard from the Coalition of Indian Nations, representing some 70,000 peoples, and another group which represents 230,000 people. All these groups have differing view. How can we possibly get unanimous consent when people do not agree with each other?
Chief Calder: We are clear in our minds where we stand. We do know that in this country we are provincial people, regional people, reservation people, local people or whatever. Even though one group of people may be miles away from us, we recognize that they have a certain basis from which they present their case. That basis may be a little different from ours. It might even contradict ours, but, nevertheless, we recognize the position of that group and fully support it and, hopefully, it will support us. Canada is a giant country and I am quite sure that there are differences of opinon in the approaches of the various groups, but we stand in support of their claims just as they stand in support of ours.
Senator Godfrey: But how do you support those two groups with their differing views?
Mr. Aldridge: Madam Chairman, with regard to whose consent is required, clearly, the Nishga position is that constitutional amendment that affects the rights of the Nishga people will require Nishga consent. I can also advise you, and I think it is mentioned in our submission, that the Nishga Tribal
Council is a member of the Assembly of First Nations. As far as our presentation and position is concerned on the consent issue, it is very clear, as Mr. Calder has indicated. Mechanisms, of course, will have to be worked out through negotiation.
Senator Bosa: But what should the committee do, when we have the Coalition of Indian Nations representing some 70,000 people saying they do not recognize the constitution and do not want to have anything to do with the constitutional amendment, but wish to go back to the agreement of 1763, and they call the parties to this constitutional amendment renegades?
Chief Gosnell: We do not intend to speak for or against our colleagues at this time. We appreciate the fact that they, like ourselves, are having problems. This country is huge and it is very difficult to expect us Indian people to be speaking with one accord. I am sure that you can understand that. The problem of the coalition is something on which we do not want to put forth a statement at this time.
The Chairman: I gather from your brief that the question of consent is probably one of the most important considerations, if not the most important consideration, as far as you are concerned with regard to any land claims agreements that may be signed?
Chief Calder: Yes.
The Chairman: Do you feel that in your ongoing negotiations with the government this element will be incorporated in the constitution or are you pessimistic on the matter?
Chief Calder: The terms of consent?
The Chairman: Yes.
Chief Calder: We feel that it definitely has to be included.
The Chairman: Do you feel that it will be included?
Mr. Aldridge: Perhaps I can assist on this matter. The whole process of negotiating an agreement, is, by definition, one based on the consent of other parties, We are proceeding with the negotiations, of course, and we are very optimistic that the Nishga will be able to resolve their outstanding claims through the negotiation process, hence involving their consent. I would suggest that perhaps it is a little inappropriate to get into the details of negotiations in this forum.
The Chairman: We are not asking for that, Mr. Aldridge, and I think I made it clear to you before that that is not what we are considering. One area of concern might be after the land claims agreement is constitutionalized, and then, if it requires amendment, the procedure to be followed would be the present amending procedure set out in the Constitution. That Constitution, at the moment, does not require the consent of any other parties except the federal government and the provincial governments, in certain circumstances, Therefore, I would think that the question of consent on possible further amendments to the Constitution, and what that would imply in terms of the present Constitution. if it is unchanged, is a very key element in the submission you are making.
Mr. Aldridge: Our position, Madam Chairman, is that the agreement itself, as distinct from the Constitution, will be capable of being changed through the consent of the parties to the agreement and through a formula, if you like, that will be negociated as a part of the agreement.
A further position which is not contained within the present Accord is that, in the future, the Constitution should contain a provision that would say that any changes to any of the rights that affect the aboriginal people of Canada would only be possible with their consent. Unfortunately, as I say, that is not part of the Accord that is before the Senate at the present time.
I hope that that answers your question, Madam Chairman.
The Chairman: Yes, thank you. Are there any further questions? Senator McElman?
Senator McElman: Thank you, Madam Chairman. First of all, I would like to join with yourself and Senator Steuart and the others who have expressed appreciation for the representatives of the Nishga appearing here today. The clarity of their brief expressing their position is such that it does not leave too many questions. It is an exceptionally good brief.
However, I would like to comment a bit further on what Senator Steuart had to say. Although a First Ministers’ Conference is now recognized in the Constitution, I think for the future all parties must realize that understandings reached by those 11 people who are our first ministers do not constitute the end of the discussion. There is a misconception, which is very broadly held, that, once the first ministers and others who are involved in discussion—such as aboriginal people like yourselves in this instance—have reached an understanding, that will automatically be the result that will show itself in the Constitution. You should understand that both in provincial legislatures and in the House of Commons, there can be a number of minority governments. In the future, there may be times when the first ministers will reach an agreement, which, when it goes back to the provincial legislatures for ratification as it must, will not be accepted. They could very well say, “No, we do not agree with what the first ministers have said and done.”
When you speak of your rights under the Constitution, please understand that the Senate, too, has rights and also obligations on behalf of the Canadian people, I find it difficult to accept your criticism of the Senate in this instance, because not only are we operating under our rights but we have a responsibility to provide a format for you and others who are not participating at the First Ministers’ Conference. We are trying to carry out that very weighty responsibility which we have in the Senate—the same responsibility which rests with the House of Commons and with each of the legislatures and all of the parties represented in those legislatures who represent the people of Canada, in the same way as you represent your people. I hope you will disabuse your minds of the idea that we are doing something here that we should not be doing. We are attempting to carry out our responsibilities in the same way as you are carrying out your responsibilities to the people who elect you as their elders and spokesmen of the Nishga.
Thank you, Madam Chairman.
The Chairman: Thank you, Senator McElman. If there are no further questions, I wish to thank you, Chief Calder, Chief Gosnell, and all of your colleagues present today. As Senator McElman has said, your brief is very succinct and we are very pleased to have it and to have heard your viewpoint here today.
Chief Gosnell: On behalf of our delegation, Madam Chairman and honourable senators, I wish to thank you once again for this opportunity to present our views to you. As I said at the outset, what we have said to you now is what our forefathers were saying one hundred years ago. There has been no change in our general, overall position respecting our lands. Thank you, Madam Chairman.
The Chairman: Thank you. Before the next group of witnesses appears, I should like to have a motion to enter a brief received from the Government of the Northwest Territories, who regret that they will be unable to appear before this committee.
Senator Rousseau: I so move, Madam Chairman.
The Chairman: Thank you, Senator Rousseau.
(For text of the brief of the Government of the Northwest Territories, see Appendix to come)
The Chairman: Honourable senators, we have with us now, as representatives from the Union of Ontario Indians, Mr. Joe Miskokomon, the president, and Mr. Dan Russell, executive assistant. Their brief has been circulated, but I believe Mr. Miskokomon is going to read it.
Mr. Joe Miskokomon, President, Union of Ontario Indians: Thank you, Madam Chairman. I am the Grand Council Chief of the Anishinabek Nations. In your briefing notes you note far as back as the 1800s our organization first existed—at least as far as your research is concerned, but we go back much further than that. We go back to what we have known through the Anishinabeck Nation as the Council of Three Fires. Our people exist all around the Great Lakes. We do not accept the borders provincially or internationally that you accept because our people lie on both sides.
1 think you for allowing me the opportunity to address you today. I have bp. 100en asked to explain what the term “existing aboriginal rights” means to the Anishinabek. This question is not so easily answered since it was not the Anishinabek who sought to include the word “existing” in a description of our aboriginal rights. Moreover, the Anishinabek had little or no voice in the determination of any part of the Constitution Act of 1982. The wording of section 35 was a result of an agreement made between provincial and federal governments such that the world “existing” would be utilized to define our rights. Therefore, it would seem to us that in seeking an explanation for the meaning of this word and an understanding of this phrase, it would best be found in the seats of federal and provincial governments across this country. The Anishinabek have sought out such an explanation from these governments with little or no success.
Since the Constitution Act was proclaimed on April 17, 1982, representatives of the Anishinabek have continuously met with provincial and federal authorities, requesting from them an explanation of what they had intended by the inclusion of the word “existing” in this context. The responses which we received were to the effect that “existing” simply means “that which exists.” However, they have assured us that this word does not necessarily limit in any way those aboriginal rights which it describes.
The Anishinabek are both concerned and relieved to hear such a response. We are concerned that, notwithstanding the reassurances from these governments, it is not they, but the Canadian courts, which will ultimately decide what, if any, interpretation will be accorded this word. Furthermore, we are concerned that your courts will attribute a meaning to this word that was not intended by its drafters. Lastly, we are concerned that a court’s interpretation of “existing” may somehow limit the rights of the Anishinabek and other Indian nations—rights which have always existed.
The Anishinabek are relieved to hear that the Canadian government believes that the word “existing” was not intended to limit the aboriginal rights of Indian nations. Therefore, we can only assume that, if “existing” holds no special meaning for the government, they are prepared to remove this word from the Constitution Act. This is an issue currently on the agenda of the next First Ministers’ Conference, and it is an issue we intend to pursue.
As to what the phrase “existing aboriginal rights” means to the Anishinabek, it is seen by us as recognizing and affirming all of our rights of nationhood, self-government as well as the ownership of the land and its resources.
One of the current amendments to the Constitution Act has been referred to as an “equality clause”. Specifically, this clause will become subsection 35(4) of the act. Let me begin by saying that this amendment was not proposed by the Anishinabek or by any of the other Indian nations. To a large measure this subsection is the product of the concerns of the provincial and federal governments and not those of the Anishinabek.
We believe that the current reading of section 35 of the Constitution Act serves to reaffirm the aboriginal and treaty rights guaranteed to Indian nations. The proposed amendment does nothing to alter this guarantee. Furthermore, we believe that the proposed amendment is simply a further assurance that the recognition and guarantee of our rights will not be interfered with by your governments to the detriment of either male or female persons.
As to whether or not this equality clause will have any effect upon the application of the Indian Act, I believe that this is a question for constitutional lawyers to decide. The debates I have heard seem to generate more heat than light on the subject. As I have already stated, this amendment is a product of your governments’ concerns. Similarly, the Indian Act is an expression of the will of the federal government and not that of the Anishinabek. We believe that an amendment by your
federal and provincial governments to a piece of federal legislation is a concern for them alone.
The first nations within this country are diverse peoples who, although united on many fronts, nevertheless have evolved separately and with distinct histories. This separate historical evolution of Indian nations has resulted in a series of agreements having been negotiated with your governments. These agreements, in some instances referred to as treaties, are currently-entrenched within the Constitution Act. Furthermore, the constitutional amendment currently before the Senate clarifies that future land claims agreements will be similarly protected within the Constitution. Your question to us then has been whether any future renegotiation of these entrenched agreements will require a formal constitutional amendment in order for any changes to take place.
In answering that question, the Anishinabek must state quite clearly that we recognize the inherent sovereignty of each of the first nations across these lands. Therefore, in keeping with this belief, I should like to make the following points: First, that the Anishinabek believe that by having treaties and land claims agreements entrenched within the Consitution—as they currently are—these rights are forever protected from indiscriminate alterations by federal or provincial legislation. Second, that, since any amendments to these agreements would directly affect the rights of Indian people, no alteration may be made without the prior consent of Indian people. Lastly, that no altleration to these agreements may be made without the full consent of those Indian nations who were a party to the initial agreement. I am constrained to point out that these ideas are fundamental for the Anishinabek.
We do not believe that it would be necessary for a First Ministers’ Conference to be convened whenever a party to one of these agreements wished to renegotiate its consent. Moreover, we do not feel it necessary that all of the provinces, or all Indian nations, must be in agreement on any of the proposed changes, However, we do argue that the one party who must be in agreement on any changes must be the Indian nation which was one of the original signatories.
You have asked us whether we are prepared to work out a legally binding definition of the class of aboriginal people that we represent. We know who we are. We are the Anishinabek. You have referred to us as an aboriginal people; so be it. But the term is not ours and the confusion which arises from this phrase is of someone else’s making. However, for the benefit of those who do not know us, we are prepared to share with them a membership code which we have developed and which we believe will give you an appreciation of who we are.
As to the question of how legally binding this membership code would be upon us, let me assure you that, as a sovereign nation, it will be just as binding upon our governments as your standards are upon your governments. You must understand, however, that the extent to which our membership codes may be binding in your courts is of a secondary interest to us. First and foremost, these guidelines must be meaningful for us. Nevertheless, we are confident that our membership code will
offer you a degree of certainty which your governments are seeking.
The question you have raised with us as to which Indian body represents the interests of Indian people is inherently misleading. The question suggests that Indian people are not united in their interests and positions on constitutional revision. Let me assure you that each and every Indian nation across this country shares essentially the same position; that is, we desire the recognition and guarantee of all of our aboriginal and treaty rights by your governments. When these rights are recognized and guaranteed in the Constitution Act, you will have no need to ask which Indian is represented by which association. That question will be patently unnecessary, because all Indian people will be united in our support for such an amendment.
Honourable senators, the Anishinabek sought to be represented here today for two reasons. One of those reasons was for the purpose of clarifying answers to questions with which you were concerned. I trust that I have done that to your satisfaction. The other reason was for the purpose of voicing a more general comment on the constitutional amendment presently before you.
The First Ministers’ Conference of this past spring did not live up to the expectations of the Indian people. Frankly, we did not get done what we thought could have been accomplished at such a conference. However, to the extent that the proposed amendment to the Constitution Act guarantees the opportunity to continue these discussions, and since we have an agenda before us which proposes to deal with the bulk of the issues which we had hoped would be addressed at the last conference, the Anishinabek urge the Senate to pass this amendment. This amendment will guarantee that another step is taken in the direction of the full realization of the rights of Indian people in this country. That is, after all, what this process was intended to do.
The Chairman: Thank you, Chief Miskokomon,
Senator Steuart: I would like to thank the witness for the clear way in which he has outlined the position of the Anishinabek.
Mr. Miskokomon, were you invited to appear before the House of Commons committee when the Accord was considered a month or six weeks ago?
Mr. Miskokomon: No, I was not invited to attend.
Senator Steuart: When the Minister of Justice appeared before us, we asked what the government meant by “rights” and whether it had a definition of rights. Although I do not want to quote the minister exactly, he said that the definition process is ongoing. From what he said, I understood that the government wanted to entrench the rights of aboriginal people and then it would be defining those rights. I believe, that according to him, there is a group made up of various people representing the aboriginal peoples and representatives of the government, being the public service, which is now in the process of defining those rights. The minister indicated that there had been quite a large number of rights placed on the
table—not just land rights and mineral rights and all of the things that flow out of land rights, but others as well.
Are you involved in those negotiations, directly or indirectly?
Chief Miskokomon: We certainly are. We are a member of the Assembly of First Nations and we are active participants there.
Senator. Steuart: You may not have been present when I pointed out that the Senate is not holding up this Accord but is fulfilling its responsibility, just as you are fulfilling your responsibility. The Senate received this amendment in what I think was an offhand manner, considering that it is the first amendment to Canada’s new Constitution. That procedure could have set a precedent. I feel, and I think most honourable senators agree with me, that we should have been informed of it much earlier than we were; that the government should have provided us with much more background material, and that there should have been more public discussion on the subject. I repeat that, while you people agree with this amendment, somewhere down the road there may be an amendment with which you do not agree. In that event I am sure you would like to see the opportunity extended to people like yourselves to be heard in a public discussion, rather than having the amend» merit rubber stamped in a few days.
Having said that, I believe you have made it clear that you would like to see this amendment passed, although you do not agree with everything in it, so that you can get on with the next stages. Is that right?
Chief Miskokomon: That is right, senator. We clearly recognize the position in which the Senate has been placed, in terms of receiving the constitutional amendment and the Accord as presented by this government. I would like to point out that, just as you find yourselves in a rather awkward position, we also are trying desperately, across this country, to hurry up debate in the provincial legislatures in order that those amendments may also be adopted, so that we may meet the amending formula qualifications of 50 per cent and seven legislatures. I think that you can well appreciate the position we find ourselves in, and I am talking of the Anishinabek and of the other legislatures and assemblies which are participating in that discussion. We are faced with a very short time frame in which to work in order to establish the next constitutional conference of first ministers. This will undoubtedly involve an extremely large amount of work for the Indian people across this country in terms of organizing positions and so on.
Without being too repetitive, I will say that we certainly recognize your dilemma, but I hope that you also appreciate the situation we find ourselves in.
Senator Steuart: I think we do. I reiterate that I hope-we have set a precedent and that the federal government will inform the Senate and get us involved earlier, in future, so that this sort of situation does not arise again.
Senator McElman: Madam Chairman, on that very point, it is my understanding that representatives of the Indian and
Inuit peoples who were party to the discussions at the First Ministers Conference will be meeting within the next fortnight with the bureaucrats, if you will, of the federal and provincial governments to proceed with the arrangements for the next First Ministers’ Conference, at which the Anishinabek will be represented by the Assembly of First Nations. I understand further that nothing at this stage is being held up, but that those discussions will be under way within a couple of weeks. There is, therefore, no delay; but the whole arrangement is to come under discussion as part of the process of organizing the next conference and as provided for in this amendment.
Chief Miskokomon: I am not suggesting that this forum is holding up further discussions. Obviously, discussions must take place as preparatory work for the conference. You are quite correct that in the next few weeks we will be having a meeting with the attorneys general to arrive at an agenda and to work out the process for the next First Minister’s Conference. We fully recognize that there are to this point in time only six legislatures in this country which have passed the proposal.
The Chairman: Chief Miskokomon, just as a matter of interest, as a representative of the province of Ontario could you give us an idea of how many different groups there are in Ontario that regard themselves as separate nations or negotiating bodies?
Chief Miskokomon: There are four status, Indian organizations in Ontario. They are: Union of Ontario Indians and Anishinabec Nation, the Anishinabec-Aski or Grand Council Treaty number 9 which is the second largest nation.
The Chairman: They are north of the—
Chief Miskokomom: North of the CN line. The Treaty Number 3 Nation which is in the southwest corner of the Lake of the Woods area, and Association of Iroquois and Allied Indians. The four associations of Ontario have a meeting office in Toronto called the Chiefs of Ontario Office, with an executive council made up of the four grand chiefs and presidents of each organization. We carry out the mandate of the four nations for such things as resolutions of the chiefs with regard to constitutional accords, programming, lobbying, etc.
The Chairman: And it would be your position that each of the four organizations would want to negotiate separately?
Chief Miskokomon: That would not be our position. We stand strongly behind the Assembly of First Nations and the organization it has developed into. We fully realize that for constitutional entrenchment of anything we require the involvement of the federal government and the provincial governments. As a matter of fact, that position was transmitted to Dr. Ahenakew through the Assembly of First Nations in a letter to the Prime Minister in November 1982. That letter said that a bilateral process could go on with federal government-Indian involvement, but it would not lead to constitutional change. What we are seeking in this process is constitutional change, not legislative ability to govern ourselves.
The Chairman: If there are no further questions, I thank you on behalf of our committee for appearing here today and for your comprehensive brief and your views on the proposed amendment.
The Committee adjourned.
SUBMISSION TO THE STANDING SENATE
COMMITTEE ON LEGAL AND
The Government of the
September 6, 1983
The Government of the Northwest Territories is pleased to have the opportunity to present a submission to the Standing Senate Committee on Legal and Constitution Affairs in connection with the 1983 Constitutional Accord on Aboriginal Rights. The Government of the Northwest Territories views the passage of the Accord as a most important step in the continuing process to resolve the long outstanding issue of aboriginal rights in Canada. It is this government’s hope that the Accord will receive speedy approval by the Senate and the provincial legislative assemblies to enable the guarantees set out therein to receive constitutional protection. While it is appreciated that the proposed amendments to the Constitution Act 1982 contained in the Accord do not redress all of the issues raised during the preparatory meetings on aboriginal rights, the Governor Gen’s proclamation respecting these amendments will solidify the commitment made to Canada’s native people at the historic First Ministers Conference in March, 1983.
The Government of the Northwest Territories was pleased that the issue of equality was dealt with during the First Ministers talks. It has been the position of the Government of the Northwest Territories that aboriginal and treaty rights should be guaranteed to both male and female persons. The discrimination provisions contained in the Indian Act are offensive to all Canadians, as is the arbitrary classification of “Status” and “non Status” Indians. It is to be hoped that Canada’s aboriginal people will now be known as Indian, Metis and Inuit, thereby eliminating the derogatory designation of “non Status”.
The equality provisions contained in the proposed new s.35(4) will come into effect on the date of proclamation and are not tied to the equality provisions contained in s.15 which will become law on April 17, 1985. As such, it would be the position of the Government of the Northwest Territories that the equality provisions contained in s.35(4) would be the supreme law of Canada as specified in s.52 of the Constitution Act 1982 and retain paramountcy over all contrary or inconsistent legislation, including the discriminatory provisions of the Indian Act. An aboriginal woman would therefore be entitled to receive the benefits of those aboriginal rights as identified and defined in the Constitution notwithstanding the provision of S.12 (1)(b) of the Indian Act.
The Government of the Northwest Territories supported the aboriginal leaders in their efforts to have land claims agreements included in the definition of treaty rights. At present ther are three seperate land claims negotiations taking place in
the Northwest Territories—the Inuit claim in the Eastern Arctic, the Inuvialuit COPE claim in the Western Arctic Region and the Metis-Dene claim in the McKenzie Valley. It IS anticipated that these land claims, once settled, will include comprehensive rights such as land management, wildlife management and resource sharing. The Government of the Northwest Territories has taken the position that rights which emanate from these land claims agreements should receive constitutional protection and guarantee.
The Government of the Northwest Territories views the constitutional protection given to land claims agreements as an umbrella protection which would encompass all those rights from time expressed in the settlement agreements and the subsequent implementing legislation. Each land claims settlement will enumerate the criteria for eligibility of beneficiaries. If it were felt that a problem was created because there does not presently exist an established legal definition of the terms Indian, Metis and Inuit, a clause could be inserted in the final land claims agreements deeming the beneficiaries of the agreement to be aboriginal peoples for purposes of the guarantees enumerated in s. 35.
It can be reasonably anticipated that amendments may be made from time to time to the terms of land claims settlements. As such changes would be with the mutual consent of the parties involved, the Government of the Northwest Territories does not foresee that a constitutional amendment would be required in the event of amendment to the claims agreement. The law is always speaking and the rights as they exist at any one time would receive constitutional protection without the necessity of a constitutional amendment on the occasion of an alteration to the agreements. It is submitted that it was not the intention of the participants at the First Ministers Conference to burden the parties to a land claims settlement by requiring consent of the Federal Government and at least seven of the ten provinces to an alteration to a land claim settlement which affected only the residents of the Northwest Territories.
It is my hope that this submission will be of assistance to the Committee in its deliberations on this very important issue. I think that I speak for all the participants at the First Ministers Conference in stating that the Conference concluded with a sense of optimism and a feeling that real progress had been made toward dealing with the issue of aboriginal rights. For the first time in our history, leaders of this country’s governments met with the national leaders of the aboriginal people to work together toward a resolution of these complex and long outstanding issues. The Accord which was reached resulted from long and often difficult negotiations. It addressed some of the issues raised by the aboriginal leaders, but perhaps more importantly, provided a vehicle for those negotiations to continue through the ongoing process. The passage of the amendments to the Constitution Act 1982 therefore becomes a vital link in the chain which it is hoped will, in the not too distant future, lead to full identification and recognition of the rights of Canada’s aboriginal people.
A failure on the part of the governments of this country to pass the appropriate resolutions in favour of the proposed amendments will no doubt be seen by the aboriginal people as an erosion of the commitment made to them at the First Ministers Conference. This must not be allowed to happen. Much work remains to be done. The opportunity to pursue the goal of resolution should not be lost and with this in mind, I urge the Committee to recommend approval of the Resolution. The March conference proved that there does exist a spirit of good will and mutual co-operation among government leaders and a desire to continue to meaningfully address these issues which are so critical to our aboriginal people.
Leader of the Elected Executive
Minister of Justice and
From the Nishga Tribal Council (New Aiyansh, B.C.):
Mr. James Gosnell, President;
Mr. Frank Calder, Research Director;
Mr. James Aldridge, Legal Counsel.
From the Union of Ontario Indian (Anishinabek):
Mr. Joe Miskokomon, President of the Union; Grand Council Chief of the Anishinabek Nations.
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