Document Information

Date: 1981-11-12
By: Alberta (Legislative Assembly)
Citation: Alberta, Legislative Assembly, Alberta Hansard, 19th Leg, 3rd Sess, 1981 at 1586-1588.
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1586

Constitution — Aboriginal Rights

MR. NOTLEY: Mr. Speaker, I’d like to address this question to the hon. Premier. It flows from a proposal by the Native Council of Canada, as well as the ITC, with respect to Section 34 of the Charter of Rights concerning aboriginal rights. The aspect of it that applies to federal jurisdiction would be proclaimed immediately, but there would be a three-year moratorium with respect to application of that provision to provincial jurisdiction.

Mr. Speaker, my question with respect to Section 34 is: is the government of Alberta prepared to consider the proposal that is now being presented, or I believe was presented a few moments ago, to the Prime Minister of Canada?

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MR. LOUGHEED: Mr. Speaker, obviously we would have no objection to a decision taken by the federal government with regard to provisions that are exclusively within federal jurisdiction, but we would not be prepared to include provisions that are indeterminate and undefined, as far as we’re concerned, in a new constitution of Canada, as I mentioned both in the question period on November 10 and during the course of debate.

MR. NOTLEY: Mr. Speaker, a supplementary question. Is the Premier in a position to advise the Assembly what impact the position paper “Aboriginal Rights Amendment Discussion Paper” had particularly with respect to concerns expressed in this paper dealing with Section 34 that in fact there might be some impact on provincial rights, as well as another section dealing with, and I quote: “However explicit constitutional recognition of their rights may provide a psychological boost to Metis groups and encourage them to litigate their land claims”. What assessment of this paper was made either by the hon. Premier or by the minister in charge of the Native Secretariat?

MR. LOUGHEED: Mr. Speaker, the hon. member will have to help me with what he’s waving and identify the document, because I have a fairly full file. From his description, it’s not a document with which I’m familiar.

MR. NOTLEY: Mr. Speaker, I’d certainly be glad to do that. It’s the Aboriginal Rights Amendment Discussion Paper prepared by the Native Secretariat.

MR. LOUGHEED: Mr. Speaker, that’s still an inadequate description of the document, at least in terms of anything that I perused. Could he give me the date, who is alleged to have received it, who it’s to, and who received copies of it, because it’s not a document I’m familiar with.

MR. NOTLEY: Mr. Speaker, I believe the information was given to the Indian Association of Alberta. However, getting back to the details within it, I ask the Premier . . . [interjections] I think I’ve given you the information that is relevant to it. Whatever additional information, we can go into it later on.

MR. SPEAKER: With great respect to the hon. member, possibly the document might be produced and then questions could fairly be based on it in a future question period.

MR. NOTLEY: Mr. Speaker, I was just going to say I’d be quite prepared to table the document, but the point I want to raise is a matter of policy. One doesn’t need the document to raise it. It is the question . . . [interjections]

MR. SPEAKER: Of course, this is a significant change in the hon. member’s position, since he was using the document as part of his question in the first place.

MR. NOTLEY: Mr. Speaker, on a point of order, I thought the Premier would have had this document. If he claims he has not had an opportunity to [review] it, that’s fine. I’ll table the document.

However, the question I want to put to the Premier is with respect to one of the major concerns — it’s a public concern in any event — and that is whether or not the government’s position on Section 34 is related to the possibility that were Section 34 incorporated into the Charter of Rights it would prejudice the government’s position in this province vis-a-vis Metis claims, both in terms of financial remuneration for royalties which the federation of settlements believe are due them and whether or not that is any factor at all in the government’s position on the exclusion of Section 34 from the Charter of Rights.

MR. LOUGHEED: Mr. Speaker, on the point of order first, I’m quite prepared to answer the direct policy question the hon. member directed to me. I do really think it’s somewhat both inappropriate and unfair for the member to wave a document at me and then, when I’m asking him to describe it, to change the question around. I welcome the tabling of the document. I will then ascertain whether or not I’ve had any opportunity to peruse it. I doubt it.

Leaving that aside, perhaps I’d answer the question. I thought I answered it as clearly as I could with regard to questions raised by the Leader of the Opposition on November 10. Perhaps the hon. member wasn’t here. The reason for the position of the government of Alberta last week in not agreeing to the inclusion of Section 34 had nothing to do with anything involving psychological advantages or disadvantages, or with the question of what claims might or might not be put forward. It entirely had to do with the fact that a section in the proposed constitution referred to rights and, as we were not party to the inclusion of that section, we could not define what it was we were being asked to agree to.

There was a section in the former Canada Act which suggested that there be a constitutional conference. I think the only fair way for any provincial government is to have an opportunity to understand what it’s being asked to agree to, and to have the native groups, or aboriginal groups as they’re defined, identify with some degree of clarity what rights are being claimed. I want to make it clear, abundantly clear again, that sections 25 and 26 of the constitution preserve existing rights. What the hon. member says both inside and outside the House is up to him, but I don’t think it’s fair to the native people of this province to communicate to them that their existing rights are being taken away from them. They are not. The question, and it’s a fair question, of whether or not there should be a provision within the constitution, such as Section 34, in my judgment is something that’s going to require identification by the native groups both to the provinces and to the federal government within the short period of a year. By that answer I don’t imply one way or another whether we would find at the conclusion of the year that we would be satisfied that such a section should or should not be included.

MR. NOTLEY: Mr. Speaker, a supplementary question to the hon. Premier. On page 1579 of Hansard, the Premier is quoted on Tuesday as saying: “Section 34 purports to add additional aboriginal and treaty rights, undefined and undetermined.” So there is no misunderstanding, I will read Section 34:

(1) The aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed
(2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Metis peoples of Canada.

My question very directly to the Premier is: in what way does Section 34 “add additional aboriginal and treaty rights”?

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MR. LOUGHEED: Mr. Speaker, very clearly, if Section 25 protects existing rights, if Section 26 does not deny any rights that may be existing, the only purpose for having Section 34 would be to add rights.

MR. NOTLEY: Mr. Speaker, Section 34 does not say that. In fact, it says “The aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed”.

Mr. Speaker, my question to the hon. Premier deals with Section 25. The Premier is quoted again as saying:

Section 25 therefore maintains all existing rights of the aboriginal people of Canada, who are defined in the Act as including the Indian, Inuit, and Metis people of Canada.

My question to the Premier, Mr. Speaker: in fact is it not Section 34 which defines “the aboriginal people of Canada” as including Indian, lnuit, and Metis?

MR. SPEAKER: With great respect to the hon. member, I question the competence of the question period to deal with matters of disputed interpretation of documents which are public knowledge. The hon. member may have his own interpretation; he may not agree with somebody else’s interpretation. But I just can’t see how we are following the purpose for which the question period was established, which is, namely, to elicit information uniquely in the possession of government. Here we are dealing with a very public document, which has had widespread attention, and we’re simply arguing interpretations.

MR. NOTLEY: Mr. Speaker, on a point of order. Might I suggest that the issue is sufficiently important that the question is to ask for clarification. Now on Tuesday, sir, you allowed a question to be put and an answer to be made in the House which gave an interpretation. I want clarification of that interpretation. It seems to me that that is totally within the purview of the question period. Otherwise, sir, you should in fact have ruled the Premier out of order on November 10.

MR. SPEAKER: Or have ruled the question out of order.

MR. NOTLEY: That’s right. I didn’t ask the question.

MR. SPEAKER: We’ve gone around and around once a year concerning the degree of latitude in the question period. It has been stated and implied very plainly that there is insufficient latitude. Now, if on occasion there is additional latitude, and that is going to be used as a weapon against the Chair on a future occasion, that is a considerable discouragement to further latitude. I say again, notwithstanding any past irregularities, that the question period is not intended to deal with the interpretation of documents. I agree with the hon. member that the matter is of very considerable importance. I’m sure all hon. members of whatsoever persuasion in the House will agree with that as well. But there are ways of dealing with it outside the question period, ways which may be much more suited to the topic than this irregular use of the question period.

MR. R. SPEAKER: Mr. Speaker, on the point of order. There was an indication about the quality of the question I asked on November 10. I want to point out to you, Mr. Speaker, that my question was not in the form of an interpretation. I asked whether the government supports — my one word — reinstatement of the matter, whether there was consensus. It wasn’t a question of interpretation. Mr. Speaker, with due respect, I think my question was in order.

MR. SPEAKER: Well, I must concede. I have no clear recollection of the text of the question. I had assumed that a question which elicited an interpretation was a question that was directed to get an interpretation. I certainly imply no fault on the part of the hon. Leader of the Opposition with regard to that question.

But we are now aware that we are clearly in the area of discussing and debating interpretations of documents. Therefore, I must continue to say that that kind of exercise is out of order in the question period, and even beyond the reach of considerable latitude.

MR. NOTLEY: Mr. Speaker, I wonder if I could put a supplementary question to the Premier. It flows from the first response the Premier gave with respect to Section 34 and the question related to provincial jurisdiction. The proposal is a three-year moratorium. In view of the question of interpretation of Section 34 and the publicly announced hopes of all included in this discussion that over a period of months a conference would be successful, what obstacle does the Premier see in the proposal of the NCC and the ITC that there be a three-year moratorium? Is it not the view of the government that the interpretation of Section 34 and the definition of the rights thereunder could in fact be achieved within three years?

MR. LOUGHEED: Mr. Speaker, there are two weaknesses to that position, obviously. The first one is that over the course of discussion and consideration it may be simply impossible to appropriately define what is intended by the rights provision stated in the earlier Canada Act, and there’s the other one that the provinces upon reflection are not prepared to consider that rights may be added within provincial jurisdiction. Whenever rights are added, rights are often taken away. An assessment has to be made by the government as to whether something is being added and given to one group of people within the province or taken away from the others. And what are the equities involved? We’re not prejudging the situation. We’re merely saying, let’s have discussions over the course of the next year; let’s see what is proposed. Also, let’s reach a conclusion that some of the aspirations that may be held by the Metis people of this province might be realized in a different way.