Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, 32nd Parl, 1st Sess, No 76 (27 October 1983)
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Thirty-second Parliament, 1980-81-82-83
SENATE OF CANADA
Proceedings of the Standing
Senate Committee on
The Honourable JOAN NEIMAN
Thursday, October 27, 1983
Issue No. 76
Eighth and final proceedings on:
The subject-matter of the Constitution
Amendment Proclamation, 1983.
REPORT OF THE COMMITTEE
(Tabled October 13, 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
MINUTES OF PROCEEDINGS
THURSDAY, OCTOBER 27, 1983
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 10:15 a.m., the Chairman, the Honourable Senator Joan Neiman, presiding.
Present: The Honourable Senators Bosa, Deschatelets, Donahoe, Godfrey, Haidasz, Neiman and Tremblay. (7)
The Committee considered various matters.
On motion by the Honourable Senator Godfrey, it was agreed,—That a letter dated August 30, 1983 relating to the Committee’s examination of the subject-matter of the Constitution Amendment Proclamation, 1983 be printed as an appendix to this day’s proceedings. (See Appendix “76-A”).
On motion by the Honourable Senator Tremblay, it was agreed,—That the brief of the Alberta Association of Enfranchised Natives, also relating to the above mentioned order of reference, be printed as an appendix to this day’s proceedings. (See Appendix “76-B”).
On motion duly put, it was agreed,—That a letter from the Premier of Ontario dated October 14, 1983, be distributed to all Honourable Senators.
The Committee also discussed various matters it may be called upon to examine in this and the next Session of Parliament. The Honourable Senator Godfrey in particular, raised the question of a motion now before the Senate which would authorize a Parliamentary Committee to examine “the subject-matter of clauses of Bills introduced in the Senate or the House of Commons, where such clauses may, by express words or otherwise, infringe upon the rights and freedoms guaranteed by the Canadian Charter of Rights and Freedoms.”
At 11:00 a.m., the Committee adjourned to the call of the Chair.
Clerk of the Committee
ORDER OF REFERENCE
Extract from the Minutes of the Proceedings of the Senate, June 29, 1983:
Pursuant to the Order of the Day, the Senate resumed the debate on the motion of the Honourable Senator Frith, seconded by the Honourable Senator Petten:
Whereas the Constitution Act, 1982 provides that an amendment to the Constitution of Canada may be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by resolutions of the Senate and House of Commons and resolutions of the legislative assemblies as provided for in section 38 thereof:
And Whereas the Constitution of Canada, reflecting the country and Canadian society, continues to develop and strengthen the rights and freedoms that it guarantees;
And Whereas, after a gradual transition of Canada from colonial status to the status of an independent and sovereign state, Canadians have, as of April 17, 1982, full authority to amend their Constitution in Canada;
And Whereas historically and equitably it is fitting that the early exercise of that full authority should relate to the rights and freedoms of the first inhabitants of Canada, the aboriginal peoples;
Now Therefore the Senate of Canada resolves that His Excellency the Governor General be authorized to issue a proclamation under the Great Seal of Canada amending the Constitution of Canada as follows:
PROCLAMATION AMENDING THE
CONSTITUTION OF CANADA
1. Paragraph 25(b) of the Constitution Act, 1982 is repealed and the following substituted therefor:
“(b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired.”
2. Section 35 of the Constitution Act, 1982 is amended by adding thereto the following subsections:
“(3) For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired.
(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons”.
3. The said Act is further amended by adding thereto, immediately after section 35 thereof, the following section:
“35.1 The government of Canada and the provincial governments are committed to the principle that, before any amendment is made to Class 24 of section 91 of the Constitution Act, 1867, to section 25 of this Act or to this Part,
(a) a constitutional conference that includes in its agenda an item relating to the proposed amendment, composed of the Prime Minister of Canada and the first ministers of the provinces, will be convened by the Prime Minister of Canada; and
(b) the Prime Minister of Canada will invite representatives of the aboriginal peoples of Canada to participate in the discussions on that item.”
4. The said Act is further amended by adding thereto, immediately after section 37 thereof, the following Part:
“PART IV.1 CONSTITUTIONAL
37.1 (1) In addition to the conference convened in March 1983, at least two constitutional conferences composed of the Prime Minister of Canada and the first minsters 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 (I) 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. The 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
REPORT OF THE COMMITTEE
THURSDAY, October 13, 1983
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred the subject-matter of the Constitution Amendment Proclamation, 1983, has, in obedience to the Order of Reference of June 29, 1983, examined the said subject-matter and now submits its report.
Your Committee invited comments from the national groups representing the native people, from the provincial premiers and from the government leaders in the two territories. Both the Minister of Justice and the Minister of Indian Affairs and Northern Development appeared before your Committee and gave evidence. A number of native groups requested to appear and subsequently testified while some forwarded written submissions. A list of witnesses and others who submitted briefs and letters commenting on the substance of the proposed Amendment is attached as an appendix to this report.
The Assembly of First Nations did not take the opportunity afforded it to appear, although it did submit a written brief. Some of the native groups who are members of the Assembly did appear before your Committee and the Committee believes that these groups expressed generally the views of their colleagues.
Honourable Senators are aware that the proposed Amendment is a result of an Accord signed at a First Ministers conference held on March 15-16, 1983, in Ottawa. It was executed by the Prime Minister of Canada and all the provincial premiers with the exception of the Premier of the Province of Quebec. The government leaders of the two territories and certain native groups signified their participation in the discussions leading up to the Accord by also signing it. The native groups which did so were The Assembly of First Nations, Inuit Committee on National Issues, Métis National Council and the Native Council of Canada.
The proposed Amendment to the Constitution which the Senate is now considering flows from that Constitutional Accord.
It should be noted that, contrary to the impression which was left with your Committee by some witnesses that the proposed Amendment must be passed by the government signatories prior to December 31, 1983, the Accord only requires that the proposed Amendment be laid before the applicable legislative bodies prior to December 31, 1983, since the First Ministers cannot bind Parliament or their legislatures to any Accord or agreement which requires legislative sanction.
Your Committee has ascertained that, to date, the following legislatures have passed the proposed Amendment: Nova Scotia on May 31, 1983; Alberta on June 3, 1983, Prince Edward Island on June 16, 1983; New Brunswick on June 28, 1983; and Manitoba on August 18, 1983.
Your Committee reports that, with the exception of the Coalition of First Nations, all witnesses and all correspondence directed to your Committee urged speedy approval, even though most native groups expressed concern as to the meaning of the two substantive sections of the proposed Amend-
ment. Their insistence on its passage stems from the inclusion within the proposed Amendment of the requirement to hold two further Constitutional Conferences which the native people regard as being vital since they commit governments to negotiate aboriginal issues within a definite time frame. The Coalition of First Nations representing approximately 70,000 people from bands in British Columbia, Alberta, Manitoba, Quebec, and the Maritime Provinces object to it on the principle that discussions relating to aboriginal and treaty rights should occur only between the Government of Canada and the First Nations.
The Constitution Amendment Proclamation, 1983
The proposed Amendment deals with two specific matters of substance in addition to the procedural requirements to hold future constitutional conferences. In the first place, there is the broadening of the meaning of the phrase “existing treaty rights” to include existing or future land claims agreements. The second substantive amendment guarantees those existing aboriginal and treaty rights equally to male and female persons.
Definition of Existing Rights
The definition of “treaty rights” highlights a problem resulting from the use of the word “existing” to modify both aboriginal and treaty rights in section 35(1) of the Constitution Act, 1982. Neither the representatives of the native groups nor the two Ministers appearing before your Committee could agree on the meaning of “existing”. Because they were unable or unwilling to attach a specific meaning to the word and were concerned that governments might attach a restrictive interpretation to it, all the native groups who addressed this issue would simply prefer to see the word removed. On the other hand, the federal government took the position that what this word encompasses should be defined at future constitutional conferences.
Land Claims Agreements
Your Committee heard evidence which indicated differences of opinion or at least confusion as to the effect of the clause through which the meaning of treaty rights is enlarged to include “rights that now exist by way of land claims agreements or may be so acquired”.
The Minister of Justice, in evidence before your Committee has confirmed that it was “impossible to be precise” about the effect of this section. In addition a letter received by your Committee from the Government Leader of the Yukon suggested there might eventually be a conflict between entrenched aboriginal rights and entrenched rights under a land claims agreement.
The other major clause in the proposed Amendment is the so-called “equality section” which states:
“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.”
Your Committee heard some evidence to the effect that this clause was not in fact the one to which the various native signatories to the Accord had agreed and that it apparently was changed to its present wording just prior to the signing of the Accord. This view appeared to support a statement made by Premier Richard Hatfield of the Province of New Brunswick legislature. However, your Committee did not receive any material which would confirm this statement. On the contrary, the Office of Aboriginal Constitutional Affairs provided copies of each of the four drafts which were considered by the parties at the conference. The drafts indicate that there was change in the “equality clause” after the first draft but that all three succeeding drafts contain the precise wording of the subsection as in the proposed Amendment.
As your Committee discussed the substance of this section with various witnesses it became clear that there was no unanimity regarding its possible effect.
The view of the Minister of Justice, as stated to your Committee and concurred in by the Minister of Indian Affairs and Northern Development, was that the equality clause “will not reach” section 12(1)(b) of the Indian Act which provides that an Indian woman who marries a non-Indian automatically loses her Indian status. On the other hand, the official response from the Government of Alberta which has already approved the resolution, was to the effect that this section of the proposed Amendment “will override subsection 12(1)(b) of the Indian Act“.
Your Committee heard a variety of opinion from native groups on the effect of this section. It was obvious that some Indian witnesses did not wish to deal with the “equality clause” only as it relates to section 12(1)(b) but rather in the broader context of band membership. Most argued that the individual groups be allowed to determine their membership which would address both the issue of female equality and the readmission of others to the band who had lost their status due to the applicaon or interpretation of other sections of the Indian Act.
Another matter of substance raised by the native witnesses was that both the Constitution as it is presently worded and the proposed Amendment require only that the representatives of the aboriginal groups be invited to participate in discussions concerning possible amendments to the Constitution relating to aboriginal rights. Almost all native witnesses were adamant that constitutional amendements affecting their rights should be accomplisyed only with the consent of the aboriginal people
affected. They stated that a consent clause should be entrenched in the Constitution, but were unable to specify how and by whom consent would be exercised.
Many native groups claimed a right to self-government or self-administration, but the range of powers which they felt they should exercise varied widely. Your Committee is aware that this subject is presently being dealth with by a Special Committee of the House of Commons and will be debated fully after its report is tabled.
Conclusions and Recommendations
The series of hearings conducted by your Committee provided a forum for all parties to express views and to expose areas of misunderstanding, lack of consensus and possible conflict in the interpretation of the proposed Amendment. Nevertheless, all witnesses except one urged its speedy passage as it would provide the parties with a vehicle for the continuation of negotiations.
Your Committee therefore recommends that the Senate approve the Resolution proposing the Constitution Amendment Proclamation, 1983.
On the basis of the evidence presented at the hearings, your Committee makes the following recommendations to the parties involved in the constitutional negotiations:
—that as a first priority, they reach agreement on the definition of certain terms which are the foundation stones upon which any future agreements must be built; that is, they should agree on the meaning and scope of such fundamental terms as “existing treaty rights”, “aboriginal rights” and “land claims agreements”.
—that they should also reach a clear understanding of what portions of treaties, land claims agreements and aboriginal rights would be entrenched in the Constitution and which parts would be simply ancillary and capable of change by bilateral agreement.
—that, since the impact of the “equality clause” is unclear and the question of equality of the sexes is closely connected with the determination of membership within each aboriginal group, they, as another early priority, resolve the issues of equality and membership.
Finally, your Committee is of the opinion that when amendments to the Constitution are being proposed it is extremely important that the authorized representatives of the people in both the federal and provincial spheres have the time to consider and debate fully the implications of any change. Your Committee therefore recommends to the governments involved that such proposed amendments be tabled before the appropriate legislative bodies at the earliest possible moment in order to give them the consideration they require.
JOAN B. NEIMAN
APPENDIX “A” TO THE REPORT
WITNESSES WHO APPEARED BEFORE THE COMMITTEE
The Honourable Mark MacGuigan, P.C., M.P., Minister of Justice;
The Honourable John C. Munro, P.C., M.P., Minister of Indian Affairs and Northern Development.
Prime Minister’s Office:
Mr. Pierre Gravelle, Deputy Secretary to the Cabinet (Federal-Provincial Relations).
Federation of Saskatchewan Indian Nations:
Chief Sol Sanderson, President;
Ms. Delia Opekakew, Solicitor of the Federation;
Mr. Peter Manywounds, Sarcee Band, Council Member.
Native Women’s Association of Canada:
Ms. Donna Phillips, Member of the Constitutional Committee of the association.
Council for the Yukon Indians:
Mr. Dave Joe, Chief Negotiator;
Mr. Harry Allen, President.
Native Council of Canada:
Mr. Smokey Bruyere, President;
Mr. Gary P. Gould, Chairman of the Constitutional Committee of the Council.
Métis National Council:
Mr. Fred House, President, Louis Riel Métis Association of British Columbia;
Mr. Clem Chartier, National Representative of the Métis National Council;
Mr. Don Melvor, President, Manitoba Métis Federation.
Inuit Committee on National Issues:
Mr. John Amagoalik, Co-Chairman;
Mr. Charlie Watt, Co-Chairman;
Ms. Mary Simons, President, Makivik Corporation, Kuujjuaq, Que.;
Mr. Mark Gordon, Representative.
Coalition of First Nations:
Chief Joe Norton, Caughnawaga Reserve, (Que.);
Mr. Graydon Nicholas, President of the Union of New Brunswick Indians;
Mr. Ron Lameman, Co-ordinator, Treaty 6 Chiefs’ Alliance (Alberta);
Mr. Eric Robinson, Co-ordinator, Brotherhood of Indian Nations (Manitoba);
Chief Billy Two Rivers, Caughnawaga Reserve (Quebec).
Grand Council of the Crees (of Quebec):
Chief Billy Diamond;
Mr. James O’Reilly, Legal Counsel;
Mr. Peter Hutchins, Legal Counsel;
Mr. Philip Awashish, Vice-Chairman of the Cree Regional Authority, and Executive Chief of the Grand Council of the Crees (of Quebec).
Nishga Tribal Council (New Aiyansh, B.C.):
Mr. James Gosnell, President;
Mr. Frank Calder, Research Director;
Mr. James Aldridge, Legal Counsel.
Union of Ontario Indians (Anishinabek):
Mr. Joe Miskokomon, President of the Union; and Grand Council Chief of the Anishinabek Nations.
Hobbema Tribal Council:
Mr. Wilton Littlechild, Legal Counsel;
Mr. Rodney Soonias, Legal Counsel.
Assembly of Manitoba Chiefs:
Mr. Joe Guy Wood, Chairman of the Constitutional Committee of Chiefs.
APPENDIX “B” TO THE REPORT
WRITTEN SUBMISSIONS OR LETTERS:
Government of the Northwest Territories:
The Honourable George Braden Leader of the Elected Executive, Minister of Justice and Publics Services.
Government of Yukon:
The Honourable Chris Pearson Government Leader
Government of the Province of Saskatchewan:
The Honourable J. Garry Lane Minister of Justice and Attorney General
Government of the Province of Alberta:
The Honourable James D. Horsman, Q.C., Minister of Federal and Intergovernmental Affairs.
APPENDIX “C” TO THE REPORT
ORGANIZATIONS WHICH HAVE SUBMITTED
Assembly of First Nations;
Alberta Associations of Enfranchised Natives.
Ottawa, Thursday, October 27, 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 10 a.m., to give consideration to the said subject matter.
Senator Joan Neiman (Chairman) in the Chair.
The Chairman: Honourable senators, today’s meeting has been called to tidy up a couple of administrative matters concerning our examination of the proposed amendment to the Constitution with respect to aboriginal rights. During the course of our hearings we received a reply to questions put to various witnesses, including the Dene Nation. A letter from the Dene Nation dated August 30, 1983, was circulated to all honourable senators. Therefore, when we were considering our report, members of the committee were aware of the views of the Dene Nation. I am of the view that the letter should be made part of our proceedings, as we have done with other replies and briefs received in connection with this matter. Therefore I would appreciate a motion that the letter from the Dene Nation dated August 30, 1983, be printed as an appendix to the minutes of today’s meeting.
Senator Godfrey: I so move.
(For text of letter, see Appendix “76-A” p. 76A:1.)
The Chairman: A similar consideration applies also to a rather long brief received from the Alberta Association of Enfranchised Natives, a group that had wished to attend our hearings personally to express their views, but unfortunately were unable to do so. The clerk of the committee has advised me that the brief was circulated and has already been translated. Therefore I would appreciate a motion to have the brief printed as an appendix.
Senator Tremblay: I so move.
(For text of brief, see Appendix “76-B” p. 76A:3.)
The Chairman: We have received also a letter from the Premier of Ontario dated October 14, 1983, which is one day after our report was tabled in the Senate. The letter is a reply in general terms to my letter of some months previously. Since the committee has now reported to the Senate, is it the view of the committee that the letter should simply be circulated to all honourable senators?
Hon. Senators: Agreed.
The Chairman: It seems likely that next week will be free of meetings for this committee. However, following the forthcoming short recess the Senate anticipates receiving a substantial amount of legislation, including a number of private bills. I believe the expression used is that petitions will be presented to the Senate. Those private bills concern what are known as marriage bills. We have not received such bills for a number of years. However, Mr. du Plessis, the Law Clerk and Parliamentary Counsel, has assembled a number of them, and at this point there are two types, those dealing with consanguinity and those dealing with problems of affinity. There are several in
each group, and we shall be dealing with them as two separate groups. Therefore we must look forward to a busy season until the Christmas recess.
Senator Deschatelets: Of the bills that received first reading in the Senate a few days ago, do we not expect any of them to be referred to this committee?
The Chairman: I am not sure. One of the bills deals with electoral boundaries, but I cannot recall any such bill having been referred to this committee.
Senator Tremblay: But that bill covers more ground than just boundaries.
The Chairman: If that bill was likely to be referred to this committee, I think I would have been warned. Also I believe it has to be dealt with before the end of next week.
Senator Godfrey: If we are discussing future plans of the committee, I have a matter that I would like to discuss.
The Chairman: Please do so.
Senator Godfrey: In April, 1982, I proposed that the Joint Committee on Regulations and Other Statutory Instruments should look at bills to alert other committees that there might be an infringement of the Canadian Charter of Rights and Freedoms. I spoke to that, and was then informed that there would be a better chance of the motion being adopted by the Senate, if the Legal and Constitutional Affairs Committee of the Senate dealt with the matter instead of the joint committee. I spoke to Senator Neiman, who was enthusiastic about the idea, and a notice of motion was presented last April. I wanted to withdraw my motion, but because of a technical objection it remains on the order paper. Senator Haidasz spoke to it on Tuesday, and I referred to it last Thursday. I pointed out that in Australia, when dealing with the scrutiny of bills, the Legal and Constitutional Affairs Committee of that Parliament was given the responsibility of dealing with that matter on a trial basis for one year. It worked so well that a new and separate committee for the scrutiny of bills was formed.
On Tuesday I gave evidence before the joint committee dealing with Senate reform, in which I stated that the Canadian Senate should decide on what particular functions it should perform and what areas it should concentrate on, areas in which we would have political support from the public even though we were not elected. As an example of where we could get political support and be effective, I would mention our consideration of Bill S-32, the gating bill. We took the view that one should not be gated without involving the courts, that it was a matter of civil rights. Because we advised the minister that we were not going to back down in our views, he produced an amendment to the measure. If we are on solid ground on a question of human or civil rights the Senate can assert itself. That is why I feel that there should be some expression from the members of this committee as to whether we approve of the committee taking on this job of alerting the committee dealing with the bill that there might be an infringement of the Canadian Charter of Rights and Freedoms. If the members are not enthusiastic about it, then I shall go back to my
original motion with regard to the Standing Joint Committee on Regulations and Other Statutory Instruments taking on this duty.
I have with me copies of a letter I received from the Hon. Mark MacGuigan to which I would like to refer members of the committee. First I shall give each of you one.
When I originally proposed this motion I was told by Senator Perrault, the then Leader of the Government, that the Minister of Justice was opposed because the Justice Department was reviewing the bills to determine whether or not there were infringements, and therefore it was not necessary for the Senate committee to do so. I then went with Senator Perrault to see the Hon. Mr. Chretien, then Minister of Energy, Mines and Resources, and he had never heard of the matter. Some bureaucrat in the Department of Justice had decided that he did not like the idea. I then spoke to the Hon. Mr. MacGuigan after he became Minister of Justice. Perhaps I should give members of the committee a moment to read the letter.
Senator Haidasz: Is this first paragraph dealing with the motion of our chairman?
Senator Godfrey: That is right. There are two motions. The first one is mine and Senator Neiman moved the same motion but asked that it be referred to the Standing Senate Committee on Legal and Constitutional Affairs.
The Chairman: May I make some comments that are not with respect to this letter? We have heard Senator Godfrey speak on this matter on several occasions, both in the chamber and again today. He is right with respect to the point he is making. However, after Senator Godfrey’s speech in the chamber the other day I had the committee clerk, Mr. Bouffard, seek out the terms of reference of Australian committees because he had made reference to the Legal and Constitutional Affairs Committee of Australia and the fact that a special committee was set up to scrutinize bills. This morning Mr. Bouffard gave me a photocopy of the Parliamentary Handbook of the Commonwealth of Australia, dated 1982. It is simply a copy of the section dealing with the standing committees of the 32nd Parliament. I refer the committee to page 221.
Senator Godfrey: I wonder, has everybody finished reading the letter?
The Chairman: It seems so.
Under the heading “Legislative and General Purpose Standing Committees of the Senate” paragraph (1) sets out the various committees which are to be constituted, the first one being the Constitutional and Legal Affairs Committee. I notice that the committee you mention, Senator Godfrey, is not here, but, as I said, this is dated 1982.
Senator Godfrey: I have all that information in my office.
The Chairman: The point I am trying to make is that the terms of reference are extremely general. There is just one term of reference which is found in paragraph (2) which reads:
The Standing Committees appointed pursuant to paragraph (I) shall be empowered to inquire into and report upon such matters are are referred to them by the Senate, including any Bills, Estimates or Statements of Expenditure, messages, petitions,—
and it goes on. There appear to be no specific terms of reference.
Senator Godfrey: I have those terms of reference in my office. If you had taken the trouble to phone me I could have given you the exact terms.
The Chairman: As I mensioned a few moments ago I have just received this from Mr. Bouffard. He told me that he felt there was other material but I merely wanted to bring this matter to the attention of the committee.
Senator Godfrey: Senator Michael Tate, who succeeded Senator Missen, has published a paper setting out the exact details that you are looking for, which appears in the report of the Delegated Legislation Conference. I shall send you a copy.
Before we get into that matter, I want to talk about this letter from Mr. MacGuigan. When I read the second paragraph on the last page, I wondered where whoever wrote it had been for the last 12 months, because I have reiterated in every speech I have given on the matter that we are only there to alert committees, not to make any decisions. But the writer goes on to say in paragraph 2:
To elaborate on that point in the context of the recent motions by you and Senator Neiman, members of any given subject matter committee knowledgeable about the constitutional implications of policy proposals in bills falling under their committee’s scrutiny, could continue to do a more effective job in scrutinizing those bills with an eye to raising questions touching on basic rights—
Of course, the committees can do so as long as they are alerted. Continuing with the letter:
—than could a single technically specialized committee such as the Constitutional and Legal Affairs Committee.
At no time have I suggested that we are making decisions, but merely alerting. The letter goes on:
Moreover, even if such a function were assigned to the latter committee, members of the subject matter committee generally scrutinizing the bill would probably continue to raise similar questions:
Of course, they will because we will be drawing their attention to such matters. Then Mr. MacGuigan wrote in the lower right-hand corner:
“This letter was prepared for me by the department. Feel free to discuss the matter further with me, if you wish.”
This letter was written by some bureaucrat from the Department of Justice who obviously had not bothered to read any of my speeches, because, if he had he could not have possibly written that paragraph.
Senator Bosa: Are you talking about the author of the letter?
Senator Godfrey: Yes. I do not think that a committee of the Senate should be governed by a letter written by some bureaucrat even if it is signed by the Minister of Justice. It is ridiculous.
Perhaps I should send around copies of the paper delivered by Senator Tate, but the question is: Are we interested or not in carrying this matter further?
The Chairman: Senator Godfrey, you mentioned something to me the other day with respect to an offer or suggestion made by the minister, that if we are to actively pursue this matter in our committee we should use the same clerks or law counsel. Is that right?
Senator Godfrey: Yes.
The Chairman: Would you like to elaborate?
Senator Godfrey: I brought this subject up one day while driving in from the airport with Mr. MacGuigan.
One of the reasons I suggested that the regulations committee do this is that we have two full-time counsel supplied by the research department. These are very technical areas we are considering. These two people could go through the regulations to see whether or not there is contained in the proposed legislations breaches of the Charter of Rights or the Bill of Rights. In an unofficial way they have already been going through draft bills in order to consider the enabling clauses. There is another resolution which I have with respect to that matter.
I thought that with the staff we have our committee could do this. No senator has the time to go through every bill to try to see if there is a possible infringement. However, if something is drawn to his attention, then he can deal with it in the committee. Mr. MacGuigan said that, because there is no permanent staff on the Legal and Constitutional Affairs Committee, it could use the same people that we use on the regulations committee and have them look at these matters. I replied that they probably would have time to do it and, in fact, would be delighted, if the Legal and Constitutional Affairs Committee was going to look at these matters. If the joint regulations committee is not going to consider these matters, then at least our staff could co-operate.
From a practical point of view there is no point in us taking on this job unless we have the staff we need. In Australia what they do is send off all bills introduced in either house to Professor Pierce, who is a professor at a local university and a leading authority on delegated legislation, and after three or four days’ consideration he reports to the committee. In this way the committee is alerted to certain matters contained in the bills. Last year alone, 14 amendments were made to bills
even before the other committees had had time to consider them because the contentious matters had been drawn to the attention of the government as well as the committee members. The government responded by actually bringing in 14 amendments of its own volition.
The Chairman: Senator Godfrey, I was looking in the Rules of the Senate of Canada to see whether or not the terms of reference of joint committees are contained therein and they are not. Do I understand that at the moment you are allowed law counsel automatically to look at these matters with respect to regulations and possible violations?
Senator Godfrey: Are you saying how do we get our authority in the regulations?
The Chairman: Yes. Is it in your terms of reference?
Senator Godfrey: No, it is not in there. I believe it is section 27 of the Statutory Instruments Act which provides a permanent reference to a committee to be appointed. So it is a statute.
Then we produced as a list of 15 items which we would look at as criteria. These are very technical and half of them deal with human rights and civil rights. We do not go into the merits of regulations. We only consider these criteria, half of which involve civil rights. So we went to Parliament and had these criteria approved by both the Senate and the House of Commons. Thus, they do not appear in the rules. I think for every new Parliament we may have to have new criteria approved.
The Chairman: Do you mean that these are tabled in the Senate and in the House of Commons?
Senator Godfrey: No, there must be a formal motion. As far as regulations are concerned with respect to the Charter of Rights and Freedoms we always had the right to look at regulations to see if they contravened the Bill of Rights. I moved a motion in the Senate that added an additional criterion, namely whether the regulations infringed the Charter of Rights and Freedoms. After about a six-week delay approval of the Senate was given. However, Senator Frith must consult with the people on the other side and they still have not approved this course of action in the House of Commons. Apparently, the government leader in the House of Commons is rather annoyed with our committee because every report we make is critical of the government, even though our recommendations have been completely non-partisan and helpful. In most cases we have managed to work out compromises with the departments involved. I believe in the majority of cases the departments have acknowledged that we have been right and that they have fixed these matters up. Of course, there have been a few occasions when they have stood firm and then we have had to make our report. From a practical point of view, how this procedure would work is that our committee would alert the other committees, which in turn would alert the department; and if the same were to happen here as it does in Australia, then the department on its own volition could agree that the recommendations were right.
The Chairman: Are you saying that because you do not have the authority from the House of Commons as yet you cannot do this?
Senator Godfrey: We only need authority from the Senate, so we are doing it.
The Chairman: Why do you only need authority from the Senate when this involves a joint committee?
Senator Godfrey: Long practice has established it. We even had a debate with respect to it. On a few occasions the House of Commons has sent matters to joint committees without the concurrence of the Senate. So the House of Commons has established this practice. When I made this proposal originally there was some question as to whether or not the concurrence of the Commons was needed. However, there are all sorts of precedents. For example, certain enabling clauses of the new Canada Post Office Act were referred to our committee by the House of Commons without the concurrence of the Senate. The fact that the House of Commons has not gone along on the regulations does not make any practical difference.
Senator Deschatelets: I have a general impression of your proposal but I would like to make it very clear. Are you proposing that the Joint Committee on Regulations and other Statutory Instruments be disbanded?
Senator Godfrey: No. The joint committee would remain intact doing exactly what it does now. The only difference would be that instead of taking on this additional job, because it did not meet with any great enthusiasm from the powers that be in the Senate, the Senate could not jump in right away and serve a useful purpose. Here we are a year and a half later and we still do not have approval. In order to get it moved along I said that I would withdraw my motion in favour of one by Senator Neiman.
Senator Deschatelets: Senator Godfrey, what are your comments with respect to the second last paragraph on page 2 where it states that this would result in unnecessary and redundant scrutinizing of bills by parliamentary committees?
Senator Godfrey: My comment, which I believe I mentioned before, is that oridnarily committees do not look at it at all from that point of view.
Senator Deschatelets: We do not do it now because we rely on a joint committee which is doing a very good job.
Senator Godfrey: I could give you illustrations with respect to when this was adopted in Australia. Senator Missen was trying to do the same thing I am trying to do. However, he was more successful in Australia than I have been here. He had someone look through all the bills of the previous year and it was found that in 79 instances matters should have been drawn to the attention of the committees on the question as to whether or not approval should be given, and in fact they were not. All I am suggesting is that this committee use either some special person from the research department or people on the regulations committee to do this work and then draw matters of this kind to the attention of the committee in order that they
will not be overlooked. When a vote is conducted on these bills everyone will know what they are voting on. They will know that they have not overlooked some question of human rights. This committee would not make any decisions with respect to whether or not the Charter of Rights had been infringed; that decision would be left to the committee considering the bill.
Senator Tremblay: Thank you very much, Madam Chairman. I am finally allowed to speak in this committee. I do not know if it would have been better for me to not speak. In any event—
The Chairman: Please go ahead, Senator Tremblay.
Senator Tremblay: I will try to contribute as much as I can. If I understand the situation correctly, taking account of the fact that the Canadian Charter of Rights and Freedoms is now in the Constitution, everyone in government, the legislators, are in a sort of learning process. The courts and the citizens of Canada are also in a learning process. Therefore, we have to be very careful not to make mistakes in passing legislation and Senator Godfrey’s point is that someone should look at the situation on a continuing basis.
Senator Godfrey: Yes.
Senator Tremblay: First of all, you considered that it might be a joint committee and then you considered that it might be the Constitutional Affairs Committee.
Senator Godfrey: Both on a trial basis, however.
Senator Tremblay: Then you had this letter saying that, as a matter of principle, it should be what is known as the substantive committees.
Senator Godfrey: And I agree with that.
Senator Tremblay: Yes, but if it is on a limited basis, I do not agree with that, exactly, because if that kind of scrutiny and continuing review is made by the substantive committee, it will be done piecemeal and, in the light of all the other things which are the substance of a bill which might be affected by such an approach, I think that I agree with you that one committee should look at it on a continuing basis so that eventually, its members will become specialists, perhaps, in looking at legislation from that angle. Which committee, of course, has to be decided but, if the Senate is doing that, it will become sort of an ombudsman; not making decisions in the way an ombudsman does, but watching the situation and drawing the attention of others to problem areas.
Senator Godfrey: A watchdog.
Senator Tremblay: Yes, that is right, a watchdog, and on that principle I think it is very important. I agree with Senator Godfrey that the Senate has a very good opportunity there to try to define its role in matters which are of great importance to all our citizens.
At first sight, then, I think we should make the decision as a Senate. We do not need anyone else to make that decision for us.
Senator Godfrey: Yes. However, I think it will help, if we indicate to the Senate that this committee is prepared to act in that way.
Senator Tremblay: As the Senate, we can make that decision to do that as a service to the Canadian people. The question is, should it be done through the Legal and Constitutional Affairs Committee? At first sight, I would be inclined to think this would be the proper committee.
Senator Deschatelets: In principle, the joint committee is doing just that.
Senator Godfrey: Yes, but only for regulations.
Senator Deschatelets: Yes, for regulations, but the joint committee represents both houses.
Senator Tremblay: Yes.
Senator Deschatelets: I think it is important that a committee of this kind should represent both houses, because, if this Senate committee should venture into this new territory and make a decision that a certain bill is infringing, then another committee of the Commons would have to examine our findings.
Senator Haidasz: What is wrong with that?
Senator Godfrey: We would not decide that it is infringing; we would decide that it might infringe. Do not forget that.
The Chairman: The problem that I see here is, in a sense, procedural, and possibly is what you are referring to, Senator Deschatelets. At the moment, about 90 per cent of all legislation starts in the other house and is passed there before it comes to the Senate.
Senator Deschatelets: Agreed.
The Chairman: Therefore, when it gets to the Senate—and I am not saying that this is right or that we would not like to change it—but when it gets to us, there is often a great deal of pressure on us to pass it fairly expeditiously. My point is, and perhaps I should put it this way: Do we deal only with legislation that is introduced in our house or with legislation that has already passed the other house, and do we have time to do something effective with that legislation? I am not quite sure how the Australian system works—
Senator Godfrey: Well I can tell you exactly what happens in Australia.
Senator Deschatelets: Let us examine your point for the moment, Madam Chairman. Things would be different, if we had the authority to examine a bill before it was introduced even in the Commons.
Senator Haidasz: There is a cabinet committee that performs that function. I served on it.
Senator Godfrey: Here is what happens in Australia, and this answers the very point that Senator Deschatelets brought up. In Australia, they decided, for the self same reasons, that they would have a joint committee because bills would be
introduced into the Commons, just as you have pointed out. However, the government, as governments are wont to do, was very much opposed to it.
Then the Australian Senate learned something from the Canadian Senate, for a change. They heard about our practice of doing a pre-study on the subject matter of bills and they said, “That solves our problem.” They then abandoned the joint committee idea and established a purely Senate committee. What happens now is that, as soon as a bill is introduced into the House of Representatives, the Australian Senate looks at the subject matter on a pre-study basis, and there have been 14 instances now where there have been amendments proposed to bills by the government before the committee of the House of Representatives even got around to considering those bills.
That reminds me of another matter which I want to bring up later and that is that we should be more active in considering the subject matter of bills. It annoys me when people talk about Christmas closure when bills are being passed at the last minute when we could have been doing a pre-study of the bill six weeks before. However, we are doing much more in that sphere now and that is also happening in Australia.
Senator Deschatelets: Senator Godfrey, for my information, can you tell me at what stage your joint committee would examine a bill? Would it be after it is introduced or—
Senator Godfrey: Right now we do not examine any bills, officially. We just examine the regulations and we only examine the regulations after they are actually passed. But because we look at regulations on the Charter of Rights and Freedoms, we see them after they are passed. If that could be changed to an ex post factom situation, that would be a help. The Australian Senate can, of course, disallow regulations but they have not had to do that since 1971 for the simple reason that, if the Australian committee decides that it is faulty, then the House of Representatives always amends it.
Senator Deschatelets: A few moments ago, when you introduced this idea, you were looking for political support for it?
Senator Godfrey: From this committee, that is correct, but more than that, I am looking to see if there is any enthusiasm—
Senator Deschatelets: … and from other sources, too. Do you think that the government would accept the fact that a standing committee of this Senate had the authority to examine the bill itself, clause by clause, before it was introduced?
Senator Godfrey: No, not before. They would not do that, but all bills could be automatically to our committee as soon as they are introduced. In many cases, there is a good deal of time between first reading and consideration of the subject matter of the bill in committee and then second reading.
Senator Tremblay: That is right, Senator Godfrey. Often, weeks and months pass between so-called first reading and second reading.
Senator Godfrey: And we would not be looking at it; the lawyers would be looking at it.
The Chairman: I think we might have a practical problem in that respect, when you look at the number of bills that have been tabled in the other place that have never been reached in this session.
Senator Godfrey, because there is another committee meeting scheduled to be held in this room, I suggest that we bring this discussion to a close as quickly as possible.
Senator Godfrey: The practical problem is that the counsel to be retained would only draw our attention to areas where he thinks there are problems. The committee would not be swamped with—
The Chairman: I meant that the counsel would be swamped.
Senator Godfrey: Then we can retain another counsel. Senators are generalists; nobody here has the time to go through a bill to pick out instances of error. We do not have the technical ability or the time to do that, but we do have a staff for the Standing Senate Committee on Regulations and Other Statutory Instruments which would be more than pleased to help out this committee. We could also go to the Library of Parliament and ask them to assign someone to that job.
The Chairman: I am grateful that this subject has been raised again this morning, because we certainly should consider this subject. It is appropriate that we discuss this now because this session is going to be prorogued shortly and a new session commenced. I think we should all consider carefully what we should like to do and how this measure can be implemented, because it is not without its difficulties.
Senator Godfrey: Are you going to speak on your motion soon? Five months have passed since you gave notice, yet you have not moved your motion. If you are not enthusiastic about it, then I will speak to my own motion.
Senator Haidasz: Madam Chairman, I tried to raise the same topic Senator Godfrey did when I made my speech on the Fifth Report of the Standing Senate Committee on Standing Rules and Orders. I think there is great merit in having the Standing Senate Committee on Legal and Constitutional Affairs study matters that relate to the Charter of Rights and Freedoms.
We have seen a great deal of support also from our colleagues who studied this matter and made a report on those same lines in November of 1980. I am referring to the report of this committee presented to the Senate by Senator Goldenberg. I hope that this matter can be discussed again, since we have no further time this morning.
The Chairman: Thank you, Senator Haidasz.
Senator Haidasz: Madam Chairman, I came in late this morning and I am wondering whether the committee has dealt completely with the amendment to the Constitution.
The Chairman: Yes, there were just a couple of technical matters, Senator Haidasz.
Senator Bosa: I move that the committee now adjourn.
The Chairman: Thank you, Senator Bosa.
The committee adjourned.
August 30, 1983
Joan B. Neiman
The Senate of Canada Standing Committee on Legal and
Constitutional Affairs Committee
House of Senate
Dear Senator Neiman:
Thank you for your letter of July in which you invite the Dene Nation to present a brief with respect to the resolution to amend the Constitution Act 1982 which has been referred to your Standing Committee on Legal and Constitutional Affairs.
We regret that the dates set for your hearings conflict with the Dene National Assembly to be held in Fort Resolution, N.W.T. from September 6-12, 1983.
This conflict will make it virtually impossible for Dene representatives to appear before your committee on September 7, 8, or 9. Would a later appearance be possible? In the event that such is not possible we would like to contribute to the hearings by way of this letter in which we comment on the questions that you suggested that we address in our brief.
Question 1: The term “existing aboriginal rights”. We believe that our aboriginal rights include and flow from our basic right to be a self determining and self governing nation. We wish to practice these rights within the canadian federation. We anticipate that a more explicit expression of our rights will emerge in the ongoing consitutional conferences and in our claims negotiations with the Government of Canada.
Question 2: The effect of “constitutionalized” claims agreements. We understand that our claims agreement will have constitutional protection. Our claims agreement will contain a clause which stipulates that changes in the agreement require the consent of both parties. When the agreement is changed the amended agreement will enjoy constitutional protection without the necessity of a constitutional amendment.
Question 3: The legal definition of membership in the Dene Nation. The question of eligibility for membership in the Dene Nation will be determined in our claims negotiations.
Question 4: The meaning of S35(4). The agreed upon wording for S35(4) was the following:
“Notwithstanding anything in this part the rights of the aboriginal peoples of Canada are guaranteed equally to male and female persons”.
The present wording is incorrect and we doubt that it achieves the intention of the signatories. Accordingly the present clause should be replaced by the agreed upon clause.
Question 5: The relationship of S35(4) to S(12)(1)(B) of the Indian Act. Our understanding of S52(1) of the Constitution Act is such that when the agreed upon version of 35(4) becomes an amendment of the constitution, S12(1)(B) of the
Indian Act will have no force or effect because it will be inconsistent with S35(4) of the constitution.
Question 6: The matter of consensus among Indian Nations. Indian Nations will continue to take responsibility for achieving the necessary consensus among themselves. This is an internal responsibility and the Dene Nation trusts that process.
President of the Dene Nation.
c.c. Members of Assembly of First Nations
Inuit Committee on National Issues
Native Council of Canada
A SUBMISSION on the Constitutional Accord
on Aboriginal Rights
TO the Senate Committee on Legal and
FROM the Alberta Association
of Enfranchised Natives
B. THE SUBMISSION
C. THE ALBERTA ASSOCIATION OF ENFRANCHISED NATIVES
D. HISTORICAL PERSPECTIVE OF ALBERTA NATIVES
E. FORCES ASSIMILATION
G. HISTORY OF ENFRANCHISED NATIVE WOMEN
H. SUPPORT FOR THE ALBERTA ASSOCIATION OF ENFRANCHISED NATIVES
I. THE ACCORD
J. THE ACCORD—REPRESENTATION
K. THE ACCORD—EQUALITY PROVISION
L. CASE STUDY
a. Correspondence December 18, 1981, Statutory Requirements, Reserves & Trusts, Alberta Region, Department of Indian & Northern Affairs re: Red Ticket Holder
b. Correspondence January 9, 1962, Reserves & Trusts
c. Correspondence December 10, 1956, Reserves & Trusts
d. Correspondence March 6, 1952, Indian Agency
e. Agreement to Commutate, Ruby Starlight
f. Section 14, Indian Act 1927
g. Section 15(5), Indian Act 1951
The Alberta Association of Enfranchised Natives is pleased to acknowledge that Senate Committee hearings have commenced into the Constitutional Accord on Aboriginal Rights.
We would like to thank and acknowledge the efforts of Government and Native groups involved.
The Alberta Association of Enfranchised Natives is pleased to have this opportunity to present a submission to the Senate Committee members and express our concerns with respect to the Constitutional Accord on Aboriginal Rights.
B. THE SUBMISSION
Our submission will include an introduction to the Alberta Association of Enfranchised Natives and a historical perspective of Enfranchised Natives in Alberta. The main context of the submission will focus, with references to attachments, on two aspects of the Constitutional Accord on Aboriginal Rights.
The first area of concern is that the Enfranchised Natives (non-status Indians) in Alberta do not have formal legal representation with any of the National Native organizations that signed the Accord.
The second area of concern is that a provision for the equality of Native men and women was not entrenched in the Accord.
Throughout the submission the term ‘Native’ is to be defined as one of the Aboriginal inhabitants of America, or their descendants.
Throughout the submission the term ‘Enfranchised Native’ is used and may be interchanged with the term ‘non-status Indian’.
Throughout the submission the term ‘the Association’ refers to the Alberta Association of Enfranchised Natives.
The submission is based upon the position of Enfranchised Natives in Alberta. Information contained herein is based upon research conducted by voluntary members of the Association; and may be verified upon request.
C. THE ALBERTA ASSOCIATION OF ENFRANCHISED NATIVES
The Alberta Association of Enfranchised Natives is a registered non-profit society in Alberta. Our members are the Enfranchised Native women, their descendants and their spouses.
The Enfranchised Natives have emerged as a result of the discriminatory clause in the Indian Act, Section 12(1)(b), whereby the Native woman loses her Treaty Indian Status if she marries a person who is other than Indian Status.
Upon losing Indian Status, these Native women and their children were designated as ‘non-status Indians’ by the Government.
Members of the Association have chosen the term ‘Enfranchised Native’, being the term that is used in the Indian Act to describe the process by which Indian Status is lost.
The Alberta Association of Enfranchised Natives originated a year ago in the Calgary area where there is a large population of Enfranchised Natives resulting from several large Reserves in Southern Alberta.
The Association is the legitimate and sole representative of Enfranchised Natives in Alberta, and was formed to represent the distinct needs of both non-status Native men and women.
After the loss of status, the names of the women were removed from the Gen (Government) and Band registers, and their records were no longer kept.
The Association has established a permanent register to record Enfranchised Native women and their descendants. The register is to be kept and maintained to provide a genealogical record for future generations. The register will also provide
information on the number of Enfranchised Natives, who they are and where they are in Alberta.
The Alberta Association of Enfranchised Natives promotes Native-culture and family ties and encourages active participation in both Tribal customs and Métis events.
Attending cultural events has enriched the lives of our children with a self-awareness of their Aboriginal Ancestory; to hear the drums and learn traditional dance; to listen to their unique language as it is spoken or sung in chants; to listen to legends and learn the meaning of traditional ceremonies; and to live and be a part of their very own culture and heritage.
Participation has also revealed an awareness that it is our Native culture which brings our people together; our children play together and share in our mutual heritage and are not aware of the political and economic differences among our people.
The Alberta Association of Enfranchised Natives provides information with respect to the historical and current perspectives of the Aboriginal Rights of Enfranchised Natives. An education project is currently being established to distribute research and information.
The Association hopes to continue to communicate information and act as a liason for the Enfranchised Natives in Alberta and the Government, status Indians, other non-status Indians and the Métis; and to assist in resolving the problems with respect to Aboriginal Rights, accommodating and maintaining a respect for the legal and humanitarian rights of all parties concerned.
It is also hoped that through the efforts of the Association to create an identity for Enfranchised Natives, to preserve their past, to secure their future and in doing so maintain their dignity and respect for mankind.
D. HISTORICAL PERSPECTIVE OF ALBERTA NATIVES
A historical preview of the Native population of Alberta will assist the reader to have a better perspective of the current distribution of Alberta’s Native population.
Natives residing in Eastern Canada encountered European explorers and traders several hundred years before the Natives that roamed the Western Prairies; who were last to encounter the coming of the white man due to the vast prairie to the east and the rugged Rocky Mountains to the west.
By the late 19th Century, the railroad reached the West bringing with it European settlers. The Riel Rebellion of 1885 had been suppressed and many Métis headed to also settle in the West.
The land was no longer free to roam. Treaties were signed and Reserves were established, several of the largest in Canada are located in Southern Alberta. Central Alberta was mostly homestead land farmed by European settlers. Northern Alberta was where the Métis received clear title to individual lots of land, that is ‘scrip land’.
Today in Alberta, the general distribution of the Native population reflects this allocation of land. The majority of
Treaty Status Indians are located in Southern Alberta, and the majority of Métis are located in Northern Alberta, where there is now also large collective Métis settlements.
E. FORCED ASSIMILATION
Very little Government administration was required for the Métis with individual rights and land. The Indian Act was established to administer Natives with collective rights and living on Reserves, which has followed a rigid policy of forced assimilation.
Forced assimilation was rationalized in 1920 by Duncan Campbell Scott, the Assistant Deputy Superintendent of Indian Affairs;
“Our object is to continue until there is not a single Indian in Canada that has not been absorbed into the body politic, and there is no Indian question and no Indian Department.”
Forced assimilation was conveniently accommodated through the provisions in the Indian Act which discriminate against Native women.
However, one must recognize that when the Indian Act was originally passed, discrimination on the basis of sex was consistent with the general practices and customs and with the laws of the time that governed the rest of the population; women had few property and civil rights.
In September 1982, the House of Commons Sub-Committee on Indian women and the Indian Act received moving testimony about the hardships and misery caused by the negative affects of legislated discrimination against Native women.
Therefore our submission will not dwell on this topic. However, at the conclusion of the submission we have included a case study of a Native woman from Alberta who lost Treaty Indian Status as a result of discrimination.
Forced assimilation and discrimination resulted in loss of Treaty Indian Status for many Native women through the process of Enfranchisement.
Enfranchisement is a two part process. One part is the loss of the right to be registered under the Indian Act, administered by the Federal Government. A second part is loss of the birthright to be a member of their Band, administered by the Band Council.
Times have changed. Government proposals for reform appear to be forthcoming, and many Bands throughout Canada have restored band membership to Enfranchised Natives.
G. HISTORY OF ENFRANCHISED NATIVE WOMEN
The Indian Act of 1927, under Section 14, a Native woman who married a non-Indian status man lost her Treaty Indian rights, except she was still entitled to share in the annual distribution of Band funds. As a reminder of the change in her status, a red tag was placed beside her name on the Band
Register and these women were referred to as “Red Ticket status” women.
The Indian Act of 1951, Section 15(5) attempted to reclassify Red Ticket status women through Commutations. A Commutation is an agreement to sell for a specified price. Many of the Red Ticket status women were persuaded to sell-off, Commutate, their final right under the Indian Act. Subsequently these Red Ticket status women were Enfranchised and classified as ‘non-status Indians’.
The discrimination against Native women continued under Section 12(1)(b) of the 1951 Indian Act, whereby Native women who married a non-Indian status man lost her Treaty Indian status and was Enfranchised.
Currently there are very few women who choose to become Enfranchised and lose their Treaty Indian status. The enlightened status Native women are choosing to have common law marriages with non-Indian status men and retain Treaty Indian status for their children.
Upon losing status Enfranchised Natives, classified as ‘non-status Indians’ were regrouped with the Métis for both representation and access to Government funding.
H. SUPPORT FOR THE ALBERTA ASSOCIATION OF ENFRANCHISED NATIVES
One of the first indications of moral support in Alberta was the resolution passed by the Alberta Federal Liberal Party Convention in March 1983, which stated:
“Be It Resolved that the Federal Government recognize (that) these people, the Enfranchised Natives, represent a distinct group of people directly affected by the restoration of Aboriginal Rights; and further recognize that this group represents aspirations and needs which may be distinct from those of status Indian or Métis organizations.”
Support from other Native organizations has been slow in coming.
Positive moral support for the Alberta Association of Enfranchised Natives has verbally come from the Métis Association of Alberta.
However, Government core funding programs which are open to, one status Indian group, and together one non-status Indian and Métis group per province, has to date been used by the Métis Association of Alberta toward only Métis objectives.
Regional recognition of our distinct concerns is required before funds will be allocated to pursue our goal.
Lack of funding has not hindered the Association from attempting to perform research and communicate information. Members of the Association have voluntarily contributed immeasurable time and resources with sincere belief in our objectives.
I. THE ACCORD
The Constitutional Conference on Aboriginal Rights was held on March 15, 16, 1983 in Ottawa.
The Constitutional Accord on Aboriginal Rights established an ongoing process to define Aboriginal Rights, consisting of three First Ministers Conferences with Aboriginal representation during the next five years.
The Accord requires Government to fully consult Aboriginal people before any Constitutional amendments affecting Aboriginal Rights are made.
The political Accord was signed by the Government of Canada, all the Provinces except Quebec, Yukon Territory, Northwest Territories and four National Aboriginal organizations.
1. Innuit Committee on National Issues
2. The Assembly of First Nations
3. The Native Council of Canada
4. Métis National Council
J. THE ACCORD—REPRESENTATION
The Enfranchised Natives of Alberta do not have formal legal representation with any of the National Native organizations that signed the Accord.
The Inuit Committee on National Issues represent the Northern Innuit respectively.
The Assembly of First Nations are representatives of status Indians.
The Native Council of Canada had an original mandate to represent both the Métis and non-status Indians in Canada.
However, on March 8, 1983, three Prairie Métis organizations, the Métis Association of Alberta, the Association of Métis and Non-Status Indians of Saskatchewan and the Manitoba Métis Federation Inc., decided to withdraw from the Native Council of Canada and formed the Métis National Council which would represent the distinct concerns of the majority of Métis in Canada.
The Native Council of Canada now consists primarily of representatives from Eastern Canada in addition to British Columbia, but does not have any representation from any of the Prairie Provinces since the withdrawal of Prairie Métis organizations.
Government recognition of the Métis National Council as National representatives of the Métis has now established the Native Council of Canada as the National representative of non-status Indians.
The Association believes that it is neither fair nor just that the Government issue the Native Council of Canada effectively a ‘carte blanche’ to represent the interests of all non-status Indians across Canada.
Distinction between Métis and non-status Indian National representatives have established the precedent to recognize the distinction between Métis and non-status Indian organizations Provincially so that they may pursue their distinct objectives.
The objectives of the Métis National Council and the Métis Association of Alberta are to establish a land base and develop a Métis Nation.
In Alberta, Enfranchised Natives are a minority group within the large and influential Métis Association of Alberta. Many Enfranchised Natives have maintained family ties and have relatives living on Reserves, can trace their lineage to these Tribes, and would like to find their Native roots and see hope for this through the Alberta Association of Enfranchised Natives.
The result is that non-status Indians who find their roots will probably choose to work toward regaining their status within the Alberta Association of Enfranchised Natives and those who don’t will form a part of the Métis Nation.
Therefore there is a need in Alberta for regional recognition that the Métis Association of Alberta and the Alberta Association of Enfranchised Natives are separate legal entities with distinct concerns and objectives.
Since the withdrawal of Prairie Métis organizations from the Native Council of Canada, the remaining Métis organizations within the Native Council of Canada may choose to pursue representation with the Métis National Council.
The non-status Indian organizations within the from the Native Council of Canada, may have similar objectives as the Alberta Association of Enfranchised Natives; that is pursuit of Aboriginal Rights. However are their concerns are different with respect to restoration of status and band membership.
National recognition of the Alberta Association of Enfranchised Natives is required to ratify amendments that affect the Aboriginal Rights of Enfranchised Natives in Alberta.
K. THE ACCORD—EQUALITY PROVISION
The second area for concern with the Constitutional Accord on Aboriginal Rights is the wording of the Accord does not provide for the equality of Native men and women.
Although many Native groups left the Constitutional Conference with the impression that an equality clause had been entrenched in the Accord. The Accord, however, did not contain any provision for equality.
This was confirmed in the March 23, 1983 House of Commons Debates by Mark MacGuigan, Minister of Justice, when he stated:
“there seems to be a genuine mistake of fact on the part of some of the Native groups that the proposals they put forward were accepted when they were not. There was no debate of them and they were never accepted. The mistake of fact is unfortunate, but it remains. What we plan to do is to encourage the early discussion of this issue in
the ongoing process. I understand that the Native Council of Canada is prepared to accept that solution.”
The House of Commons Sub-Committee report on Indian Women and the Indian Act stated:
“every witness who appeared before the Sub-Committee agreed that legislated discrimination against women should be removed.”
However, verbal commitments to equality of men and women by the witnesses that attended these Sub-Committee hearings did not materialize in the Accord by way of an equality clause.
An analysis follows on the various positions taken by the Native organizations which signed the Accord on the question of equality.
a. The Assembly of First Nations, which is the National representative for most status Indian organizations in Canada have expressed the need for equality.
The Assembly of First Nations qualified their support for equality of men and women by indicating that they wanted all discriminatory provisions of the Indian Act removed.
They indicated that definition of band membership does not lie within the Indian Act as under the present system, but that band membership and the right to determine the citizenship of their Nation was an inherited right, which cannot be legislated by Parliament.
The Assembly of First Nations have indicated that they would oppose any legislation that would perpetuate the present system of Parliament legislating their band membership, which would include opposition to further legislation by Parliament to amend the discrimination against women in the Indian Act.
The position and beliefs of the Assembly of First Nations support only one part of the two part political process that is required to restore lost status; that is the need for the Band to restore membership, and disregards the second part of the process the need for Government to amend discriminatory legislation.
It is therefore apparent that the Assembly of First Nations support a position that overlooks the need to resolve the issue of equality, and moves ahead with the issues of self-determination and self-government.
In November 1982, six tribes from the Alberta and Saskatchewan who disagreed with equal rights for Native women withdrew from the Assembly of First Nations and formed the Coalition of First Nations.
It may be of interest at this point to note that the oil resources found on Southern Alberta Native lands have enabled these tribes to prosper beyond others.
The views of the Coalition of First Nations is reflected in the policy of the Indian Association of Alberta, which is the
one status Indian organization in Alberta which receives Government core funding.
The Indian Association of Alberta has allocated funds to support within, the Advisory Council of Treaty Women. Through this council, the Indian Association of Alberta has voiced strong opposition against the elimination of discrimination from the Indian Act, against the future restoration of status and Treaty rights to Enfranchised Natives, and against the equality of Native men and women. They have also launched a strong campaign in Alberta for Band Councils to not restore Band membership to Enfranchised women and their children.
b. The Native Council of Canada fully supports the need to remove the discrimination in the Indian Act, and also added that they advocated further study of the entire Indian Act, with full consultation of non-status Indians.
Non-status Indians within the Native Council of Canada have not had to face strong opposition from Band Councils toward the equality of women and therefore have not expressed great concern over the question of equality.
It is clear from qualified committments toward the issue of equality that Native organizations are advancing ahead with issues of self-determination and self-government.
c. The Alberta Association of Enfranchised Natives is also concerned with Government and its role in the issue of equality and the Accord.
The Provincial Government of Alberta has given full support to the Métis Association of Alberta, who are not affected by either discrimination against their women or the Indian Act. Recognition of the position of Enfranchised Natives in Alberta would enable them to communicate their existence and needs to their Provincial Ministers.
The Federal Government of Canada has apparently taken a weak position on the question of equality despite strong recommendations at the House of Commons Sub-Committee hearings on Indian Women and the Indian Act, from the Canadian Human Rights Commission and John Munro, Minister of Indian and Northern Affairs.
The Canadian Human Rights Commission stated that status should be considered an acquired right which cannot be removed, and that any criteria for membership or status, should be free of discrimination on the basis of sex.
The Honourable John Munro, stated that the Government is committed to bring in amendments to the Indian Act that will end discrimination based on sex.
However, verbal commitment to end discrimination is not reflected in Government policy toward Red Ticket Status Native women in Alberta, who are now Senior Citizens within the membership of the Association. Red Ticket Status women
lost Treaty Status prior to 1951, and retained the right to share in the annual Per Capita distribution of Band funds, under Section 14 of the Indian Act.
For the past year and half, Red Ticket Status women in Alberta have been denied the right to share in the distribution of Band funds by the Department of Reserves and Trusts, Alberta Region, Department of Indian and Northern Affairs.
Section 15(5) of the Indian Act provides that the Minister may terminate these payments for the consideration of a ten years purchase price.
Historically, the termination or ‘Commutation’ of payments process was one of offer and acceptance between the Department of Indian Affairs and the Red Ticket status woman. Attached are examples of such a procedure.
The Red Ticket status women of Alberta have not received to date an offer from the Department nor have they received any purchase price for terminating their Per Capita share of cash distribution payments.
Upon inquiring for the reasons for the termination of this right and why no consideration was given, the Department responded with correspondence that states; (see attached copy)
“Red Ticket Holders are not entitled to Per Capita distribution payments from a Band Capital Account.”
The Alberta Association of Enfranchised Natives feels that this policy is highly discriminatory and unjust toward our Senior Citizen members; who in their youth lived between 1913 and 1930 when administration of Indian Affairs followed rigid policies of forced assimilation and prohibition of traditional practices and languages, a harsh time which many of us are unaware or have forgotten.
This policy also is not consistent with reference to verbal commitments by Government to support equality.
As a result it has added to the concerns of Enfranchised Natives in Alberta, who are questioning ‘the mistake of fact’, misinformation and misrepresentation surrounding the issue of sexual equality, the Constitutional Accord on Aboriginal Rights and the lack of affirmative action taken by Government and Native leaders to see that an equality provision be entrenched in the Accord.
It is clear that discrimination practices are not suited to the preservation of Native society or culture, and causes immeasurable human suffering and legal problems.
Through communication and consultation we will know and understand each other better, and there will be less of the unknown to fear; only then will we be able to work together to define Aboriginal Rights in a joint venture in which we will all mutually benefit.
L. CASE STUDY
Ruby Starlight was born on the Sarcee Reserve in 1910. Her father was Minor Chief James Starlight I, born to a native woman and British Sargeant.
During this period Métis came down from the North to find work and supplied most of the labor on Indian Reservations. Ruby met and fell in love with a Métis, from Pigeon Lake who had been a trapper and had come to work on the Sarcee Reserve near Calgary.
Prior to her marriage, Ruby had gone to school and had virtually grown-up in the convent school on the Reserve. She grew up living one life (white-man) but believing in another (Indian).
Ruby married Sam in 1932 and together they lived in a log cabin that Sam had built on the Reserve. Sam could not read or write so trapping continued as his way of life and means of providing for his family. During the ensuing years they had ten children, nine of whom lived. They lived in the log cabin for less than five years during which time Ruby still received Band funds.
In 1935 Ruby’s father, Minor Chief James Starlight I, died and things became harder for Ruby and her family. Although always evident that Sam, the Métis, was not entirely welcome on the Reserve, any problems were circumvented by Ruby’s father and his position. Now that he was no longer there to act as a buffer, the other Natives made life so difficult for Ruby and her family that they eventually decided to move.
But where does one move with a Métis husband, no money and by this time five children? Sam could not buy land so he moved to the cutline surrounding the Reserve and built a house. The rest of the family was born during the fifteen years on which they lived on the cutline.
As the population of this area was growing they could no longer stay on the cutline and moved into a small village nearby.
One day in 1952 (Ruby’s brother James Starlight II was now Sarcee Chief) Ruby had a visit from R. F. Battle, Superintendent of the Indian Agency. He told Ruby that the Government was willing to let her sign off the reserve for ten years and for commutating would give her $400. In return she would give up her right to share in the Band funds, but after ten years she would be able to return to the Reserve. Did Mr. Battle honestly believe this was what would happen or did Ruby misunderstand him? In any case she signed a document relinguishing all rights to Band funds.
Sam gave up trapping and he and Ruby with their nine children moved into Calgary. The only place they could afford at the time was a room in a run down hotel in the east end of the city, where the eleven people lived for several years. After the move to the city Sam had to give up trapping, which he so
loved. Being unskilled, the best job he could find was in the slaughterhouse at Love Hides Co.
In 1962, ten years after she commutated, Ruby went to a Calgary lawyer, himself a Native, to seek assistance in getting back her rights to the Band funds. He informed her that he would need a lot of money to help her in this matter. As Ruby had very little money which to pay for legal services, she dropped the action and for the next several years believed that the only obstacle in regaining her rights back was her lack of money.
EDMONTON, Alberta T5K 2J5
1981 December 18
Lesser Slave Lake Regional Co-ordinator
“Red Ticket Holders”
Share of “Per Capita” Distribution
Payments from Band Capital Monies
Headquarters has informed us that “Red Ticket Holders” are not entitled to “Per Capita” distribution payments from a Band’s Capital Account.
Legal Services have advised the Department that the right of “Red Ticket Holders” survives, in respect to “annuities, interest monies, and rents”, although this is not free from doubt, given the later sections of The Indian Act, dealing with the disposition of revenue monies.
This information is being sent to you in order that you might be able to answer any enquiries on this subject.
Reserves & Trusts
cc: Head, Stat. Requirements
District Membership Clerks
Superintendent, Stony/Sarcee Agency
Acting Chief, Reserves and Trusts
Mrs. Joyce Runge
No. 23 Sarcee Band
January 9, 1962
In reply to your letter of December 27th we wish to inform you that if Mrs. Runge applies for commutation and her application is approved before March 31, 1962, she will receive a payment of $870.00 being $850.00 from Band funds and $50.00 annuity money in accordance with the provisions of Section 15(5).
“J. N. Sullivan”
for Acting Chief,
Reserves and Trusts.
DEPARTMENT OF CITIZENSHIP & IMMIGRATION
Indian Affairs Branch
Ottawa, December 10th, 1956
M. P. B. Pugh,
405, Customs Building,
In acknowledging your letter of December 3rd, 1956, we wish to advise that if Mrs. Joyce Runch, No. 231 Sarcee Band, applies for commutation at this time, she would be entitled to a payment of approximately $365.00.
W. C. Bethune,
Reserves & Trusts.
Copy to Mrs. Joyce Runge.
405 Customs Building
March 6, 1952
Mrs. Joyce Runge
Dear Mrs. Runge:
Under the new Indian Act, an Indian lady who marries a person of non-Indian status automatically ceases to be a member of the Band for all purposes, including sharing in cash distribution.
In the case of a woman who married before the new Act came into force, she is being given the opportunity to commute at ten years purchase. In other words, she can claim a payment equal to ten times the amount of annuity (Treaty) and interest
she received in the previous fiscal year. In your case, this payment would amount to $200.00 according to our records.
R. B. Battle,
Stony/Sarcee Indian Agency.
1, Ruby Fraser, formerly a member of Sarcee Band and included on the paylist of the said Band with family number 217 having on the 8th February, 1932 married Sam Fraser a person other than an Indian, hereby apply to have my share of the income of the said Band commuted to me at ten years purchase pursuant to the provisions of section 14 of Chapter 98, R. 8, 1927, and I hereby agree to accept such commutation as full satisfaction of my claim against the funds or monies of the said Band present or prospective, and upon payment to me of such commutation I hereby release Her Majesty from all actions, claims and demands whatsoever for or in respect or on account of anything done relating to the said commutation.
Signed Ruby Fraser
Date July 28, 1952
Witness Florence Harder
I certify that Sam Fraser is the lawful husband of Mrs. Ruby Fraser and is a person other than an Indian, and I recommend that her application for commutation be granted.
Membership of Band.
Exclusion of natural children from band.
12. Any illegitimate child may, unless he has, with the consent of the band whereof the father or mother of such child is a member, shared in the distribution moneys of such band for a period exceeding two years, be, at any time, excluded from the membership thereof by the Superintendent Gen. R.S., c. 81, s. 12.
Loss of membership, through residence in a foreign country without leave.
13. Any Indian who has for five years continuously resided in a foreign country without the consent, in writing, of the Superintendent Gen or his agent, shall cease to be a member of the band of which he was formerly a member and he shall not again become a member of that band, or of any other band, unless the consent of such band, with the approval of the Superintendent Gen or his agent, is first obtained. R.S., c. 81, s. 13.
Effect of marriage of Indian woman.
Superintendent may commute income.
14. Any Indian woman who marries any person other than an Indian, or a non-treaty Indian, shall cease to be an Indian in every respect within the meaning of this Act, except that she shall be entitled to share equally with the members of the band to which she formerly belonged, in the annual or semi-annual distribution of their annuities, interest moneys and rents; but such income may be commuted to her at any time at ten years’ purchase, with the approval of the Superintendent Gen. 1920, c. 50, s. 2.
Marriage of Indian woman with Indian of another band or non-treaty Indian.
15. Any Indian woman who marries an Indian of any other band, or a non-treaty Indian, shall cease to be a member of the band to which she formerly belonged, and shall become a member of the band or irregular band of which her husband is a member.
If she marries non-treaty Indian.
2. If she marries a non-treaty Indian, while becoming a member of the irregular band of which her husband is a member, she shall be entitled to share equally with the members of the band of which she was formerly a member, in the distribution of their moneys; but such income may be commuted to her at any time at ten years’ purchase, with the consent of the band. R.S., c. 81, s. 15.
As to half-breeds in Manitoba.
16. No half-breed in Manitoba who has shared in the distribution of half-breed lands shall be accounted an Indian.
Half-breed heads of families.
2. No half-breed head of a family, except the widow of an Indian or a half-breed who has already been admitted into a treaty, shall, unless under very special circumstances, which shall be determined by the Superintendent Gen or his agent, be accounted an Indian or entitled to be admitted into any Indian treaty.
Withdrawal from treaty.
3. Any half-breed who has been admitted into a treaty shall, on obtaining the consent in writing of the Superintendent Gen, be allowed to withdraw therefrom on signifying his desire so to do in writing, signed by him in the presence of two witnesses, who shall attest his signature on oath before some person authorized by law to administer such oath.
Wife and minor children.
4. Such withdrawal shall include the wife and minor unmarried children of such half-breed. R.S., c. 81, s. 16; 1914, c. 35, ss. 3 and 4.
are payable to a person who is under the age of twenty-one, the Minister may
(a) pay the moneys to the parent, guardian or other person having the custody of that person or to the public trustee, public administrator or other like official for the province in which that person resides, or
(b) cause payment of the moneys to be withheld until that person reaches the age of twenty-one.
Compensations for permanent improvements
(4) Where the name of a person is removed from the Indian Register and he is not entitled to any payment under subsection (1), the Minister shall, if he considers it equitable to do so, authorize payment, out of moneys appropriated by Parliament, of such compensation as the Minister may determine for any permanent improvements made by that person on lands in a reserve.
Commutation of payments under former Act
(5) Where, prior to the 4th day of September 1951, any woman became entitled, under section 14 of the Indian Act, chapter 98 of the Revised Statutes of Canada, 1927, or any prior provisions to the like effect, to share in the distribution of annuities, interest moneys or rents, the Minister may, in lieu thereof, pay to such woman out of the moneys of the band an amount equal to ten times the average annual amounts of such payments made to her during the ten years last preceding or, if they were paid for less than then years, during the years they were paid. R.S., c. 149, s. 15; 1956, c. 40, s. 6.
Transfer of funds
16. (1) Section 15 does not apply to a person who ceases to be a member of one band by reason of his becoming a member of another band, but, subject to subsection (3), there shall be transferred to the credit of the latter band the amount to which that person would, but for this section, have been entitled under section 15.
Transferred member’s interest
(2) A person who ceases to be a member of one band by reason of his becoming a member of another band is not entitled to any interest in the lands or moneys held by Her Majesty on behalf of the former band, but he is entitled to the same interest in common in lands and moneys held by Her Majesty on behalf of the latter band as other members of that band.