Document Information

Date: 1981-11-23
By: Alberta (Legislative Assembly)
Citation: Alberta, Legislative Assembly, Alberta Hansard, 19th Leg, 3rd Sess, 1981 at 1781-1782.
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Constitution — Aboriginal Rights

MR. R. SPEAKER: Mr. Speaker, both my questions today were to the Premier, but I could ask the House leader or Acting Premier at this point in time. The first question is with regard to the new proposal of the government with regard to aboriginal rights in the constitutional package. Over the weekend, specifically on Friday, I felt the government made a rather radical change in their stance. I wonder if the hon. Attorney General could clarify why the government made that change on Friday and over the weekend.

MR. CRAWFORD: Mr. Speaker, except in a matter of emphasis and a slight change in the language used, there was no change in the position the government had long maintained. The Premier has made it clear on a number of occasions, in both the constitutional conference and meetings with native delegations, that the government of Alberta was interested at all times in the preservation of existing rights. I think the key words may well be “existing rights”. The government took some objection to the possibility that one form of the constitutional declaration, which was inserted without any consultation with the provinces, could create new rights that had not previously existed. But there was no question of our support for treaty rights and existing aboriginal rights in all respects. We were always fully supportive of those.

What occurred on Friday — and I can provide the hon. leader with a copy of the statement, although it was made public on Friday and perhaps the leader already has a copy — was that as a result of several meetings involving the Metis Association of Alberta, an alternative wording to what was previously Section 34 was proposed and brought forward. I think careful examination will show that the only aspect of it that’s different from earlier proposals is the stipulation that it deal only with existing rights and therefore take away some of the uncertainties there might have been about the possibility of creating new and unknown rights.

MR. R. SPEAKER: Mr. Speaker, a supplementary question to the Attorney General with regard to the acceptance by other governments in Canada. As is indicated in the press release, the 10 governments would have to agree to this change in the accord. Could the minister indicate at this time what agreement has been reached? From a statement of the Prime Minister and, as well, the hon. Mr. Chretien, I understand there seems to be agreement at this point in time. Could the minister comment on the sequence of events following the suggestion of Alberta?

MR. CRAWFORD: Mr. Speaker, about all I could cover on that is that discussions or at least exchanges of positions by the various governments are continuing to take place today. The federal government has suggested that they hope by tomorrow a consensus might occur as a result of these exchanges. I don’t know whether that will occur, but my strong belief at this point is that it’s most likely.

MR. R. SPEAKER: Mr. Speaker, a supplementary question to the Attorney General — it’s more for clarification; I think I understood the answer — on the differentiation between endorsation by the Alberta government of existing rights versus endorsation of any new rights that may be requested through the amendment in the constitution. One of the greatest concerns in terms of new rights is in reference to property rights. Could the minister indicate if that’s the concern of the government of Alberta at this time?

MR. CRAWFORD: Mr. Speaker, I don’t think it would be possible to go through a sort of catalogue of what the concerns would be. That is one of the real overall difficulties in this matter. If I can put it this way, our concern always was that no one knew what rights were being referred to if it was stated in a sufficiently vague and uncertain way. It was the vagueness and uncertainty that caused concern. Therefore, we could see the possibility that any number of rights might at some point be claimed to have been created by the particular wording suggested. Our view was and is that so long as it’s clear that existing rights are the ones all parties speak of, that would be adequate and satisfactory, and certainly supported by Alberta. But to go beyond that and say of those uncertainties that there is a list or catalogue of what our specific concerns were, that’s not the case. The real concern was the absence of any clarity about what might be involved.

MR. R. SPEAKER: Mr. Speaker, a supplementary question to the Attorney General with regard to Metis people being aboriginal, using the definition that “aboriginal” means the first people, or that a person was in a land at the dawn of history. I wonder if the Attorney General could comment on that definition as it applies to the Metis people of Alberta or Canada. What special rights will be awarded to Metis people by their inclusion in the constitutional amendment?

MR. CRAWFORD: Mr. Speaker, I’ll do my best to interpret what I believe is really involved in the sense of Metis people. Over a period of years, certain well-known representations or public positions have been taken by the Metis people, in which they have said that certain rights were an entitlement for various reasons that predate the present time. In giving careful attention to those representations and expressions on the part of Metis people, we have always taken the position — and I think any other government in a similar position has done the same — that certain types of rights do exist. We have

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often said that those matters may well be interpreted one day by a court. In other words, if there’s a right, there must be evidence of it, and it must be something that can be presented and convincingly argued. So the rights that are, in effect, being fully recognized in regard to Metis people are any rights that from this point on they would succeed in establishing. And there’s always the alternative to the court procedure; that is, by way of agreement. There may be other ways, but it seems to me there are two ways of establishing the basis for the representations. One would be a decision in a court and the other would be by way of agreement, no doubt following discussion and consultation.

Whatever the rights would be at that point, our position, as described on Friday, is that those would be treated as rights that were in existence at this time. So the passing of a new constitution and the coming of future events and new laws as a result of the constitution would leave the Metis people in the position that if, after all those events, the right were established, we would still come back to the present time and say, because it is clear that a right had been established and was in existence in 1981, that is the right we would recognize.

MR. R. SPEAKER: Mr. Speaker, a further question to the Attorney General with regard to the constitutional conference that will be held later in 1982. If the other governments of Canada as well as the government of Alberta endorse the concept that existing rights will be protected, could the minister indicate the purpose of this new conference? Would it be to add rights to the various aboriginal groups such as the Metis, Inuit, and Indians of Canada? Would that be the function of the conference? If Section 34 is put into the constitution at this time, or this suggestion of Alberta is inserted into the constitution, is that assurance enough to the aboriginal groups that their rights will be protected? Will the conference then be seen as a conference to look at new rights for these specific groups in Canada?

MR. CRAWFORD: Mr. Speaker, I’m sure it is not in the mind of any one of the parties — by that, I mean the native people in their capacity as potential participants, as is intended in such a conference — nor is it in the minds of any of the governments of the provinces or Canada that new rights be created that have not previously existed. I think that is entirely clear. What is involved is that because of uncertainties, there should be some benefit from sitting down and discussing what is really involved in a further definition of aboriginal rights. Everyone hopes that such an attempt to give that further definition would succeed, although my understanding of the position of the government of Canada has long been that what really is involved is a conference with an agenda, of which this would be one of the important items, and that the native people would at that point be directly involved — which they aren’t always at such conferences — and bona fide efforts would be made to carry the question of uncertainty a little further toward agreement and greater certainty.