Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, 32nd Parl, 1st Sess, No 75 (29 September 1983)
By: Canada (Parliament)
Citation: Canada, Parliament, Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, 32nd Parl, 1st Sess, No 75 (29 September 1983).
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First Session of the
Thirty-second Parliament, 1980-81-82-83
SENATE OF CANADA
Proceedings of the Standing
Senate Committee on
The Honourable JOAN NEIMAN
Thursday, September 29, 1983
Issue No. 75
Seventh Proceedings on
The subject-matter of the Constitution Amendment Proclamation, 1983
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 Paragraph 25(b) of the Constitution Act, 1982 is repealed and the following substituted therefor: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 CONSTITUTIONNAL
37.1 (1) In addition to the conference convened in March 1983, at least two constitutional conferences composed of the Prime Minister of Canada and the first ministers of the provinces shall be convened by the Prime Minister of Canada, the first within three years after April 17, 1982 and the second within five years after that date.
(2) Each conference convened under subsection (1) shall have included in its agenda constitutional matters that directly affect the aboriginal peoples of Canada, and the Prime Minister of Canada shall invite representatives of those peoples to participate in the discussions on those matters.
(3) The Prime Minister of Canada shall invite elected representatives of the governments of the Yukon Territory and the Northwest Territories to participate in the discussions on any item on the agenda of a conference convened under subsection (1) that, in the opinion of the Prime Minister, directly affects the Yukon Territory and the Northwest Territories.
(4) Nothing in this section shall be construed so as to derogate from subsection 35(1).”
5. The said Act is further amended by adding thereto, immediately after section 54 thereof, the following section:
“54.1 Part IV.1 and this section are repealed on April 18,1987.
6. The said Act is further amended by adding thereto the following section:
“61. A reference to the Constitutional Acts, 1867 to 1982 shall be deemed to include a reference to the Constitution Amendment Proclamation, 1983.”
7. This Proclamation may be cited as the Constitution Amendment Proclamation, 1983.
With leave of the Senate,
In amendment, the Honourable Senator Steuart moved, seconded by the Honourable Senator McElman, that the motion be not now adopted but that the subject-matter thereof be referred to the Standing Senate Committee on Legal and Constitutional Affairs for consideration and report.
After debate, and—
The question being put on the motion in amendment, it was—
Resolved in the affirmative.”
Charles A. Lussier
Clerk of the Senate
MINUTES OF PROCEEDINGS
THURSDAY, SEPTEMBER 29, 1983
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 9:05 a.m.. the Chairman, the Honourable Senator Joan B. Neiman, presiding,
Present: The Honourable Senators Donahoe, Frith, Haidasz, Lapointe, Lewis, Neiman, Rousseau, Stollery and Tremblay. (9)
Present but not of the Committee: The Honourable Senators McElman and Steuart.
In attendance: Mr. Bruce Carson and Mrs. Barbara Plant Reynolds, Research Officers, Research Branch, Library of Parliament.
The Committee resumed the examination of the subject-matter of the Constitution Amendment Proclamation, 1983.
The Chairman advised the Committee that Dr. David Ahenakew, National Chief of the Assembly of First Nations, had informed her that he would not appear before the Committee. The brief of the Assembly for First Nations was distributed to the Committee.
On motion by the Honourable Senator Donahoe, it was agreed,—That the brief of the Assembly of First Nations be printed as an appendix to this day’s proceedings. (See Appendix “75-A”.)
At 9:15 a.m., the Committee continued in camera.
Clerk of the Committee
Thursday, September 29, 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 9:00 a.m. to consider the said subject matter.
Senator Joan Neiman (Chairman) in the Chair.
The Chairman: Senators, just a few moments ago, I received a telephone call from a member of the staff of David Ahenakew, who is the National Chief of the Assembly of First Nations, advising me that he would not attend the meeting this morning. There was no particular reason given. However, he has sent for the information of the committee a brief, and I believe you have all received copies of that brief. Perhaps you wish to take a few minutes to look through the brief and then I will ask for some indication from honourable senators as to whether they wish this to be appended to the minutes of this meeting.
Since the Assembly of First Nations was to have been our last witness from the various native groups, this will terminate the formal part of our hearings as soon as we have dealt with the brief. Unless honourable senators wish to add anything further, I would suggest that the formal part of the meeting be adjourned and that senators remain for a few minutes to discuss the draft report that we will be presenting to the Senate perhaps early next week.
Senator Donahoe: Madame Chairman, I received a telephone call this morning from the Canadian Press which informed me of a different reason given by the Indian Nations’ decision not to appear before this committee this morning.
I wish to say very briefly that I regret that I was misrepresented; I regret even more that anyone believes that I spoke in a manner inimical to the Indian population, and I regret the false impression of me that has been created.
The Chairman: Is it your feeling, honourable senators, that the brief should be made an appendix to the hearing today?
Senator Steuart: I would like to say that it is too bad that Chief Ahenakew did not choose to come before the committee to present this brief in person. It certainly would have given us a chance to clear up some of the obvious misunderstandings, and the lack of knowledge that he has about the operation of the Senate, in regard to both the Constitution as it was first developed and to this Accord or any future amendments that might be proposed. In his brief, he accuses us of lack of understanding of their position, and that may well be, but one of the purposes of these meetings was to clear up any misunderstandings that we might have had and thus leave us with a clear knowledge of what the situation was in regard to the aboriginal people and this Accord in particular.
However, I agree that the brief should be appended and become part of the minutes of this meeting. I am not a member of the committee, so therefore I cannot move its adoption.
The Chairman: Perhaps, then, a member of the committee would move that this brief of the Assembly of First Nations be made an appendix to the minutes of this meeting.
Senator Donahoe: I so move, Madam Chairman.
(For brief seeAppendix p. 75 A:1.)
The Chairman: Thank you. I should say that I, too, agree that it is unfortunate that Chief Ahenakew did not come, because I think we would have been able to have some discussions that would have been useful both to the Senate and to the Assembly of First Nations and their understanding of what has been and is transpiring.
In concluding, I would simply like to say that I feel that our series of hearings has been extremely useful to us. I feel, too, that most of the native groups who appeared before us felt that their appearances were equally useful and, as Senator Steuart has pointed out, we have simply tried to do what we are supposed to do as a Senate committee. I thank you all for your attendance here and, at this point, unless there is anything further anybody wishes to say, we shall adjourn our formal meeting and perhaps honourable senators would remain so that we can discuss our draft report.
The committee continued in camera.
STANDING COMMITTEE OF THE
SENATE ON LEGAL AND CONSTITUTIONAL AFFAIRS
RE: THE CONSTITUTION AMENDMENT
Written Submission: DAVID AHENAKEW
ASSEMBLY OF FIRST NATIONS
29 September 1983
The interest of the Senate in this constitutional accord came as a complete surprise to us.
We had difficulty some years ago in finding the support we needed in the Senate as to how the first nations’ relationship with Canada was to be dealt with in the constitution.
After the Constitution was patriated and the first minister’s conference was to take place, again, we had difficulty in finding interest in the Senate which would help to ensure that our rights and interests were protected in the process.
When the Indian Act was dominating every aspect of our lives as if we were a subject and inferior people, where was the Senate?
When a land claims process was set out in pretence that justice was being served but which in fact was a process to extinguish, rather than enhance, our rights, where was the Senate?
As senator McElman noted in the Senate on June 29, he and Senator Flynn “stood almost alone in the Senate speaking out on behalf of the aboriginal peoples when the James Bay legislation was rushed through.”
The sober second thought in which the Senate takes pride, and the concern for careful deliberation of an important matter has not been the hallmark of this body.
As far as the first nations are concerned.
Nonetheless, it is good to see your interest in this matter now before you.
Your letter of invitation to me states that you have been fully briefed on the views I expressed before various committees of the House of Commons and elsewhere. However, your letter indicates that some misunderstanding remain.
The first thing I want to clear up is that we of the first nations of Canada are not a “group” which participated in the first ministers’ conference.
We were there because we had a right to be there.
We were there to discuss our rights, our place in Canada, our future.
Neither are we an “Ethnic Group” in Canada.
Without detracting from all those immigrant ethnic groups which enrich Canada with their cultural, linguistic and religious diversities, we are not to be included among them.
We did not come to Canada.
Canada is our native land.
And always has been, and always will be.
We have no intention of assimilating into canadian culture.
We are not in need of lessons in citizenship nor in need of adjustment programs.
We are the original peoples of Canada, it is all the others—including the english and the french—who form the immigrant ethnic groups with whom we have agreed to share our land.
Neither are we a minority, in the accepted sense of that term although we are few in numbers.
Remember a few centuries ago, it was we who had more numbers.
When your ancestors asked our ancestors to share with them our land and resources.
We did not say, “you will be a minority group.”
We agreed to set aside certain areas where you would be able to live according to your culture, your system of government.
To practice your religions.
That agreement was affirmed for your people by the royal Proclamation of 1763. That Proclamation is now a part of your Constitution.
We are in the midst of an exciting political process through which the first nations are determining our basic relationship with Canada. I hope that you will be willing to examine the ways in which your own attitudes cause colonialism and racism to continue. I hope you assist in changing the old thought patterns and ways of thinking about the first nations which have developed over the years.
We are all aware that last week our sensitivities were shocked by a remark regarding genocide. I take my survival very seriously, and I take the survival of my people even more seriously. Within my own lifetime we were known as the vanishing redman. Our numbers had dropped from some millions in the 15th century to a mere 100,000 by 1920 in all of Canada. Your own history books tell the story—often with pride—about the destruction of our villages. About the smallpox blankets. About the starvation. About the removal of our children from their mothers and fathers.
Perhaps you remember the little ditty, “Seven little, six little, five little Indians; four little, three little, two little, one little Indian boy.” Innocently sung today, it had its origin in the decline and genocide of the Indians, and reflects the wish that the Indians would simply disappear. “Go back where they came from.”
These thoughts lie in the sub-conscious of many non-Indian Canadians reinforced daily by movies, advertising, and school books. These thoughts emerge in embarrassing ways. My point is that you as respected senators can and should take some leadership in eradicating every last vestige of colonialism and racism from Canada. Your nation will be the healthier for it.
In your letter you said you are not interested in the specific aspects of constitutional negotiations.
But we are not able to divorce these matters from the legal and constitutional implications of the precise wording.
It is impossible for us to tell you what our understanding is of the accord,
and what we believe the proposed amendments mean and encompass,
without taking a holistic view of the question of our relationship to Canada.
In your letter to me, you asked six specific questions. I will address each one.
First you asked about the term “existing aboriginal rights” which appears in section 35(1).
The word is ambiguous and confusing.
Does it mean rights which are recognized as existing?
Or rights which exist even though they are not recognized?
Our people have been told in the settlement of claims that they are exchanging one set of rights for another. Are those new rights “existing rights”?
The word “existing” was put there at the insistence of the provinces in November, 1981. An effort was made to soothe our immediate objections by saying that it did not really mean anything.
If it does not mean anything, it should not be there.
We want it out.
We consider the word “existing” to be visible demonstration of bad faith on the part of Canada, and if Canada wishes to demonstrate good faith, it should be removed.
Where else in the Constitution does it appear?
Are Canadians told that the charter is subject only to protection to their “existing rights”?
As the Department of Indian Affairs told the Canadian public in its booklet on land claims, Canada has a lot of “unfinished business” with us. As Canada proceeds to work out these matters with the First Nations, and as rights are defined and identified in the process, should not these rights also be given constitutional protection, beyond the reach of a change of government or public opinion?
If so, the word “existing” must go lest it be misinterpreted.
Secondly, you asked our opinion as to whether land claims settlements will be “constitutionalized”, so that future changes would have to be affected by way of further constitutional amendment.
We think you will agree with us that this would be a cumbersome process.
It would require the involvement of the provinces, to which we raise the strongest objections.
Our understanding of the clause is that land claims settlements which spell out any First Nation’s rights, which are part and parcel of a total package which involves us agreeing to
share some of our land and resources with Canada, would not be subject to unilateral legislative amendment.
The settlement could say simply that the rights involved are to be considered to be constitutionally protected.
No amendment would be necessary.
What is basically involved here is our right of consent. A land claims settlement is a consensual agreement.
It cannot be changed unilaterally by Canada.
Our right of consent is specifically recognized in the Royal Proclamation of 1763 when it requires consent to change the terms of an agreement. By the Charter of Rights, this Parliament has basically agreed to limit its powers in some very important respects. The recognition and affirmation of treaty rights in section 35 gives constitutional protection to those treaties now in force. This additional provision simply allows that treaties made since the end of the treaty-making era as historians might like to define it will, nonetheless, receive the same protection.
I have some difficulty with the nature of your third question about whether we are prepared to work out a legally-binding definition of the class of aboriginal people whom we represent, so that the class. both for present and future generations, can be ascertained, and the basis for the authority of any signatory to land claims agreements on behalf of the class is clearly established.
Would you be willing to do this for Canadians?
Could you give me today a legally binding definition good for today and for all future generations of the class of people the Parliament represents?
Or how, for all time hence, the authority ofa signatory to a treaty on behalf of Canada is to be clearly established?
I think the exercise would not be fruitful, nor seriously entertained.
The peoples of the First Nations are self-determining peoples.
Each has its own government.
Each has the right to determine its own citizenship. You are not dealing with a “Class of claimants.”
Each people will define who they are, and who will represent them.
What we have to discuss is not a definition of who we are, but the fact that you need to give official recognition or our First Nation governments.
If we do use different language, then our answer, for the assembly of First Nations, is that each First Nation has its own citizenship criterion. Those criteria, in their present form, or as each First Nation may, from time to time, choose to revise them should govern citizenship in that nation.
So, the short answer to question (3) is no. The Assembly of First Nations accepts the definition of citizenship laid down by each First Nation.
In your fourth and fifth questions I can understand your desire to know more about the meaning of the proposed addition of sub-section 4 to section 35.
Guaranteeing aboriginal and treaty rights equally to male and female persons.
Canadians have a long record of discrimination against women. . . and of dicrimination against Indian women in the Indian Act.
It is therefore good that you are telling your officials and people that you will not discriminate on the basis of sex against persons who are entitled to aboriginal and treaty rights.
That is my understanding of this section.
But it does not give the federal government any right whatsoever to enter into our nations and our affairs to try to impose your standards upon us.
No first nation will tolerate anyone telling it how it will determine its citizenship.
We understand what kinds of balances are necessary for our sumval as culturally distinct first nations, and we will maintain those balances.
Our right to do so has already been affirmed by the united nations human rights committee.
This amendment was not put in at the insistence of the first nations, and I think I have made our feelings about it clear.
However, you specifically ask if that amendment would have the effect of abrogating sections of the Indian Act.
Let us be frank. The Indian Act is on its last legs. It is a document of colonial domination which never should have been enacted. It is a constant embarrassment to Canada. The operation of the charter of rights itself would mean that large parts of the Indian Act are unconstitutional—maybe the whole lndian Act.
You may know that in the other house of parliament,
A parlimentary task force on Indian self-government was given broad terms of reference.
The Minister of Indian affairs, the honourable John Munro, fought very hard to get this task force a broad mandate to explore the question thoroughly.
I expect that, within the next month, that task force will report.
If it heard the witnesses accurately, if it seriously considered the opinions of experts it engaged, it will recommend a whole new relationship of the first nations with Canada that will make the Indian act obsolete and with it, section 12(1)(b).
Sixth, you have asked which organization speaks for the native people? Which has the legitimate authority to agree to a constitutional resolution? To answer that, I need to rephrase the question considerably.
You must understand that there is no such thing as an “aboriginal person”. This is a descriptive category, perhaps, but it has no political meaning. It is usually applied in a racist manner. We do not pretend to have any authority to answer
that question for the metis. They will answer that question for themselves. We do not have authority to speak for the Inuit. They can speak for themselves.
I am the national chief of the assembly of first nations. We are no more an organization than is the Senate. We are an assembly. lt is composed of many first nations, each of which is trying to shovel its way out from a century of a destructively, suffocating indian act to re-define its own form of government. The first nations meet in assembly prior to the next first ministers”conference to determine their position. We will meet after the conference so that each first nation can consider ratification of any agreements.
That is where our legitimate authority comes from. It is neither a blank cheque, nor a de facto agreement. We believe in a democratic process, and we follow it. No first nation is asked to give up its right as a distinct people, even among other first nations. Your own process, although less democratic, is similar. The premiers can sign the accord, but the amendment cannot proceed unless their legislatures ratify it. That is the basic purpose behind this very hearing today. Anything I might sign at that first ministers’ conference is subject to the same kind of ratification.
You have expressed some interest in a list of, and I quote, “the various indian groups which (my) assembly represents.”
The assembly is made up of first nation governments.
We do not represent, in the normal sense of that word, anyone.
Whom does the United Nations represent?
We are an assembly, at which any first nation government may attend and particpate.
I can no more answer your question than you can provide me a list of groups which the Senate represents. You aLe the Senate.
And we are the assembly.
We are unhappy with the fact that the process which was forced upon us by the federal government caused a number of first nations to decide they could not participate in the first ministers’ conference.
Those who thought their hands would be strengthened by forcing such a divide-and-conquer strategy on the first nations are now responsibile for the situation which they have created, and are reaping their own harvest. There are now complaints and concerns about who represents what as implied in your question.
lf the federal government will set aside its need to maintain supremacy, and to dominate our actions, and instead work with us in a spirit of co-operation among equals, you will see the first nations unite to the benefit of all of Canada.
There are many routes to doing that. It is unfortunate that the really correct route was lost forever to history when the first nations were refused participation in this definition or relationship before the constitution was patriated. We will do
our best under the current situation, but there must be a change of attitude on the part of the federal and provincial governments if justice is to be done.
Concern was expressed in the debate leading up to this hearing on June 28 and 29, that somehow, the inuit and the first nations were seizing land and resources which belonged to the Canadian people, and as a result, we were going to interfere in the economic development of Canada.
I am sure such statements were made hastily, without a sober second thought. Actually, the facts have been reversed.
Whose resources are these?
They are ours.
On whose land do they lie? Ours.
By what right does Canada take them from us?
Without including the terriroties, the people of the First Nations only have about 6 million acres of land left to them in all of Canada.
That is about one-half the size of Nova Scotia.
ls this a statement of which you can be proud‘?
It is true. If you divide the provinces by their population to determine the per capita share of land under provincial jurisdiction, and then find the same per capita for lands under first nation jurisdiction, you will find we are almost 51 million acres short.
This might be expected if we had just recently arrived on the shores of this land.
But that is not the case. We are the owners of that land.
It has been taken from us. Until is justice is done, Canada will go about in the community of nations with a dishonest face.
And that is what the settlement of our claims is all about.
As to the settlement of claims interfering with the economic development of Canada, how has the economic prosperity of Canada—prosperity created by the resources of the First Nations—benefitted the peoples of the First Nations? Canada has declared 12 per cent unemployment as a national crisis.
We have had unemployment of 84 per cent for generations.
Our people live in poverty that makes the countries of the third world look developed.
Your own statistics will tell you about the scandal of our infant mortality, our poor housing, the lack of infrastructure in our communities.
This has not come about by accident.
The prosperity of Canada is directly linked to our poverty.
The fact is that we do not have a sufficient economic base for our survival.
A means through which the first nations can be participants in economic growth and development, a means through which
we can be contributors to a better Canada and a better world. Surely when this is done it should be given the greatest security possible so that the injustice of the past is never repeated.
Surely no senator would want anything less to be done.
I am surprised that you did not raise questions in regard to the important bilateral process which is guaranteed under paragraph 6 of the accord.
That paragraph six reads, “Nothing in this Accord is intended to preclude, or substitute for, any bilateral or other discussions or agreements between governments and the various aboriginal peoples and, in particular, having regard to the authority of Parliament under class 24 of section 91 of the Constitution Act 1867, and to the special relationship that has existed and continues to exist between the Parliament and Government of Canada, and the peoples referred to in that class.
This Accord is made without prejudice to any bilateral process that has been or may be established between the Government of Canada and those peoples.”
If I explain what is meant by that bilateral process, then perhaps you will understand why we take exception to being labelled as a mere interest group.
The bilateral process is a way to elaborate, reaffirm, define, and expand upon the special relationship which we have with Canada.
This process is going to take place at the same time as, and complementary to the process involving the first ministers.
It is equally as important.
The basis of the bilateral process is that there is already a First Nations order of government in Canada.
The Canadian government is legally bound to honour it as a pre-condition to its own Constitution,
Through these bilateral discussions, the relationship which exists can be formalized and brought up to date.
The federal government already has the authority to recognize First Nations as self-governing entities without further constitutional change.
If it would recognize them as it should and must, we can get on with the business of reaching jurisdictional and other agreements.
The foundation of the bilateral process is our aboriginal title which is reaffirmed now in the Constitution.
To understand the argument advancing the bilateral process, one must review the history of Canada.
The Royal Proclamation of 1763 is the first Canadian constitutional instrument to set the pattern for Canada‘s settlement, and to formalize the constitutional position of the local government (now the provinces), the First Nations, and the British Parliament (now the Canadian Parliament).
With the proclamation, legislative assemblies were convened to govern areas which First Nations had ceded to the crown for settlement.
The British Parliament maintained a supervisory role, preventing First Nations lands from being settled prior to consent being obtained. And the First Nations continued to govern themselves on the lands which they continued to reserve for their own use.
In every pre-Confederation constitutional act, the operation of the Royal Proclamation is spelled out.
These clauses are in the Quebec Act (1771) s. 3; the Constitution Act (1701) s. 33, and the Union Act (1840), section 46.
In 1867, the maritime colonies of Nova Scotia and New Brunswick, and “Canada” (comprising what is now Ontario and Quebec), became a federation under terms of the British North America Act 1867.
Section 91 (24) continues the principle of the Royal Proclamation.
At the time of Confederation, the First Nations were not invited to join.
From a political point of view, they remained separate from the Dominion of Canada.
The provinces would have power over provincial lands, mines, minerals and royalties, but under section 109 of the BNA Act, the power was “subject to any trusts existing in respect thereof and to any interest other than that of the province in same.”
The British Parliament retained the power to amend this arrangement.
With this act, a mix of four powers were in evidence in British North America—the lmperial Parliament, the Federal Canadian Government, the Provinces, and the First Nations.
Whatever status the first nations had at confederation of the provinces they continued to have afterward.
The main difference for First Nations was that they were now dealing with a delegated trustee, instead of directly with the original trustee.
Under this arrangement, the precise ambit of section 91(24) was not specifically defined, but it was within the legal limits circumscribed by the Royal Proclamation, and later by the treaties.
Not only was Canada bound by the proclamation, but its overriding force could nullify any existing or future local laws which conflicted with it.
Jurisdiction could not be exercised in derogation of either the treaties or the Royal Proclamation.
Furthermore, by virtue of the royal Proclamation and treaties, the federal government had certain obligations which it must uphold.
Thus its power under section 91(24) is not a plenary power over lndians and lands reserved for Indians, but is a vehicle for the Administration of Crown obligations.
Historically, Canadian governments have gradually undercut the fact of first nations governments by minimizing the
significance of both the royal Proclamation and its own authority under section 91(24).
Following a policy of assimilation, it attempted to reduce first nations governments to less-than-municipal status.
It has failed to protect first nations peoples and lands against provincial interests.
It now, in fact, insists that the only way for the first nations to have constitutional protection is through a process which involves provincial governments as amenders of the Constitution.
Furthermore, it has passed a series of Indian Acts which is a misinterpretation of its authority under section 91(24).
That section means the federal government has powers to enter into agreements with first nation governments acting in their own right, it does not mean to legislate over them.
These questions were discussed by Lord Denning when the right of Britain to unilaterally turn over its trust responsibility to Canada without maintaining control over amendments of that relationship was challenged in english courts.
He said the royal Proclamation was binding on the legislatures of the Dominion and provincial governments as if there had been a sentence, “the aboriginal peoples of Canada shall continue to have all their rights and freedoms as recognized by the royal Proclamation of 1763.”
Remember that one right mentioned by the Proclamation is the right “to live undisturbed in our lands.”
Mr. Justice Laskin in the Calder case involving the nishgas said, “the Proclamation must be regarded as a fundamental document upon which any just determination of original rights rests.”
This process of agreement-making under the rules of the royal Proclamation is essentially the treaty-making process which begins with the recognition of aboriginal title. This process allows the crown to establish its title so that the parts of Canada could be settled.
However, since aboriginal rights flow from aboriginal title, there is the need to regulate the balance between these two titles. This is the essence of the bilateral process, which must be revitalized so the current relationship of Canada with the first nations can be properly maintained.
For the earlier treaties, it was not necessary for the federal government to pass any laws to enter into them.
Nor did it require amendments to the British North America Act.
Whatever power made it possible for the federal government to enter into those treaties and to honour them, the federal government still has.
It is through the treaties and the bilateral process leading to new agreements that first nation governments are related to the federal government.
The provinces are related to the federal government through the constitution.
It is in these different ways that the various governments and jurisdictions which exist in Canada relate and interrelate.
There are at least three possibilities of how this bilateral relationship can become further established with greater guarantee for the first nations.
The first alternative is that terms could be agreed upon through which the first nations could enter confederation, exchanging a new constitutionally-protected agreement for the current arrangement supported by the royal proclamation.
The agreement would eventually have to be ratified by the provinces in the usual way.
The second alternative is to maintain the current basic relationship, but to eliminate the problems which have existed over the years by expanding section 91(24) so that it will be clear to all governments—federal and provincial—what obligations underlie the canadian constitution and title.
It will make it clear how these obligations are to be realized, and what fiscal arrangements must be concluded. This expansion of 91(24) would replace the current Indian Act, and lead to legislation which would enable the federal government to fulfill properly its responsibilities. Constitutional amendment is required.
The third alternative which could result from the bilateral process is a covenant, or basic political agreement, or social contract, which, under section 91(24), the federal government has the power to enter into. For those groups which already have treaties, the new agreements could take the form of re-negotiated treaties.
For the many first nations which are not yet in a treaty relationship with Canada, new treaties or covenants would result. No constitutional amendment is required.
The three alternatives are not mutually exclusive. For some matters, one might be more suitable than others.
The fact that you have 5,000 civil servants and $1.5 billion dollars a year to maintain our dependency is a direct consequence of the fact that Canada has taken our resources and land in far greater quantities than was necessary or beneficial for either of us.
The land claims settlement process must be a means through which these obvious inequities are eliminated. We can understand the concern of the Senate that it was given only 2 1/2 day last June to approve the accord. We too have had difficulty in getting the governments to act promptly, to let their position be clearly known, not to treat such an important matter in a cavalier or indifferent fashion.
It was not the fault of the first nations that you were given so little opportunity to deal with this matter.
We caused you no delays.
This process you are now engaged in is your process of ratification of the accord signed by your Prime Minister. This submission is to assist you. The constitutional accord is important to keep the multilateral process alive so that the entrenchment of our aboriginal title and rights and treaty rights may be pursued. if the accord resolution is not approved by the required Bodies section 37 goes out of existence.
And the multilateral process dies with it.
I can assure you that if this happens the first nations will not simply disappear.
It will force us to seek other avenues to secure our rights.
Senator we will look to you for your support.
You can be of great assistance in working with us in the difficult task of helping Canada emerge from an era of colonialism which is no longer acceptable in the international community.
In August, in a presentation at Geneva to the United Nations working group on indegenous peoples, we said, “We also can take hope that the government of Canada has been showing signs that it realizes that it has a magnificent opportunity to take exemplary international leadership in indigenous populations.”
It is too early for us to report that the political will is present to bring about the change.
We do not know if Canada is serious about eradicating a racist and colonialst foundation so that it can be in the forefront ofthis evolution of human political consciousness.
We ask that you recommend prompt passage of the accord so that we can get on with this opportunity to define a relationship of the first nations with confederation which will be to our mutual benefit.
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