UK, HL, “Canada Bill”, vol 428 (1982), cols 756-826

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Date: 1982-03-18
By: UK (House of Lords)
Citation: UK, HL, “Canada Bill“, vol 428 (1982), cols 756-826.
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3.28 p.m.

The Secretary of State for Foreign and Commonwealth Affairs (Lord Carrington) My Lords, I beg to move that this Bill be now read a second time. In December last year the Senate and the House of Commons of Canada formally requested the enactment by the British Parliament of a Bill to bring about an historic change in the constitution of Canada. It is this Bill we are debating this afternoon.

As one of its central purposes the Canada Bill now before us provides for the transfer to Canada of the power to amend the Canadian constitution and the repeal of the power of this Parliament to legislate for Canada. The Bill will thus remove the one remaining formal qualification to the independence of that great country, which has in practice been independent for many decades.

It is instructive to reflect on just how long the Canadians have managed their own affairs. Next week we shall be marking the fact that the office of Foreign Secretary has been in existence for 200 years—a period which spans the greater part of what most of us think of as modern history. And for well over half that time—since the British North America Act of 1867, in fact—Canada has been either self-governing or in practice independent; and growing to become what she now is—one of the leading economic powers and a major actor in the councils of the world.

It is manifestly incongruous that such a state should have to request legislation in the British Parliament in order to change its constitution. But there were good historical reasons for the incongruity.

In 1931, the Statute of Westminster annulled the power of the British Parliament to legislate for the dominions. But there was one important exception to the provision. The Canadians had been unable to agree among themselves on a formula for amending their constitution. It was, therefore, at Canadian request that the power of the British Parliament was retained in relation to the repeal, alteration or amendment of the British North America Acts. As so often in these cases, it was then thought that a satisfactory solution would soon be found to Canada’s particular problem. But as we now know, it has taken 50 years to find one.

The result of this arrangement was the continuation of the procedure whereby, when the Canadians wished to amend their constitution, a request was made in the form of a solemn address to the Monarch from both Houses of the Canadian Parliament for the 757 enactment of the required legislation at Westminster. We have enacted 14 amendments to the British North America Acts since 1867. Not just since 1931, but in all cases since 1886, this has been done at the request and with the consent of the Canadian Parliament. The convention that this Parliament only acts as so requested is enshrined in the third preambular paragraph of the Statute of Westminster; which reads as follows: “no law hereafter made by the Parliament of the United Kingdom shall extend to any of the said Dominions as part of the law of that Dominion otherwise than at the request and with the consent of that Dominion”.” I turn now to the Bill which is before the House. Its Long Title is: “An Act to give effect to a request by the Senate and House of Commons of Canada”.” The request in question took the form of an Address from the Canadian Parliament to Her Majesty The Queen, which was approved on 2nd December, 1981 in the Canadian House of Commons by a vote of 246 to 24, on 8th December in the Senate by a vote of 59 to 23 and was delivered to Her Majesty on 9th December.

The first preamble to the Bill reflects the terms of the Address and makes it clear that everything that follows the first preamble forms part of the Canadian request. That request itself has three elements: first, the amendment of the Canadian constitution by the provision of a Charter of Rights, and, secondly, the conferral of full power on the Canadian Parliament to amend the constitution under an agreed formula. Both of these elements are contained in Schedule B to the Bill. The third part of the request is for the termination of the power of the United Kingdom Parliament to legislate for Canada. This is effected by Clause 2. Schedule A, of course, is a translation into French of the measure itself.

The present legislation has come to us in both languages, because the Canadian Parliament wished thereby to give full recognition to the official place of the two languages in a request which is so fundamental, because the Constitution Act, which forms Schedule B to the Bill, together with the statutes and orders listed in the schedule to the Constitution Act, will form the new Canadian constitution. Since at least 1867, all Acts of the Canadian Federal Parliament have been in both English and French, both languages having been designated, under Section 133 of the British North America Act, as having equal authority and prescribed for use in the Federal Parliament.

I should like to comment briefly on the controversial consultations in Canada in the 18 months or so which preceded the approval by the Federal Parliament in December of the Resolution seeking legislation here at Westminster. Proposals for constitutional change were first introduced into the Canadian Parliament in October 1980. They were extensively considered in Parliament and representations from many individuals and organisations were heard. The proposals were at that stage opposed by eight out of 10 provincial governments.

Certain of those provinces referred the matter to the Canadian courts and an appeal was eventually heard by the Supreme Court of Canada. On 28th September last year, the Supreme Court ruled that although there 758 was no legal bar to the Federal Government proceeding to seek amendment of the constitution, despite the opposition of the provinces, convention required at least “a substantial measure of provincial consent” for amendments which would affect provincial rights and the federal-provincial relationships. Further negotiations were held between the federal and provincial governments leading to the agreement following the First Minister’s Conference on 5th November last year. That agreement was accepted by all the provinces except Quebec and resulted in the present Bill.

The Charter of Rights contained in Schedule B to the Canada Bill is the most significant addition to the existing constitutional arrangements enshrined in the British North America Acts. It has been controversial in Canada—it is still contested by Quebec and by some of the indigenous peoples of Canada. I should like to say a word about each of these things. It is, of course, a matter of regret that the present proposals do not have the unanimous support of the Canadian provinces. But, as I have said, the Supreme Court of Canada considered that the consent of all the provinces was not required, either by law or by constitutional convention, to the making of a request to us.

I do not think anyone can reasonably deny that the support of nine out of 10 provinces constitutes a “substantial measure of provincial consent”, to which the Supreme Court referred. We would all wish that outstanding disagreements could be resolved, but the Government believe that this is a matter for the people, the provinces and the Parliament of Canada to decide. We do not believe that the existence of disagreement provides grounds for declining to act, as we have always acted, upon the request of the Canadian Parliament. Nor do we believe that we would be justified in declining to act on a request of the Federal Parliament, because of the further litigation at present in train in Quebec.

Somewhat similar considerations apply to the indigenous populations of Canada. Their existing rights are specifically recognised in the Constitution Act, which forms Schedule B to the Bill; but a number of Indian groups have made it known in Canada and in this country that they are dissatisfied with it. They are opposed to the passage of the Canadian proposals through this Parliament without additional safeguards.

It has been consistently the view of Her Majesty’s Government in the United Kingdom that any treaty or other obligations concerning Indian interests which still subsist became the responsibility of the Government of Canada with the attainment of independence, at the latest with the Statute of Westminster in 1931, and that it is to the Government of Canada that the Indians must look for solutions to their problems.

Nevertheless, as your Lordships know, three Indian groups have instituted proceedings in the courts in this country in which they have sought to rely on their ancient treaties with the Crown, claiming that there are obligations of the United Kingdom arising from those treaties which persist to the present day.

In the case brought by the Indian Association of Alberta the Appeal Committee of this House a few days ago rejected a petition for leave to appeal against the earlier decision of the Court of Appeal dismissing their case.

759 The Appeal Committee shared the opinion of the Court of Appeal that any obligations of the Crown to the Indians of Canada were now owed by the Crown in right of Canada and not by the Crown in right of the United Kingdom.

In the light of that decision and of the fact that the other two cases are still in the preliminary stages and have yet to be heard by the courts, the Government believe we should not delay consideration of this Bill. The Government consider that the fact that proceedings are pending is no impediment to Parliment’s proceeding, if it thinks fit, to discuss and enact legislation, despite the fact that the legislation, if enacted, may determine the outcome of the litigation or render its continuation pointless, There can furthermore be no certainty about when the various legal proceedings will be concluded, and any delay, especially if other actions were then to be initiated, as might be the case, would be indefinite.

I do not think I need say more about the Bill or its history. In short, the Canadian Parliament have asked us to enact legislation on their behalf, as we have done on many previous occasions. The Government believe that we should respond to this request by passing the Bill in the form in which it has been received.

Your Lordships will, of course, express your views freely on the Bill. It would, however, be inappropriate for the Government to do so to the same extent, more especially as the British Parliament is asked to enact—in Schedule B—legislation which has no application in this country and for which we shall have no responsibility when it has been enacted.

In these circumstances, we believe it would not be right for the British Government to comment on the substance of Schedule B to the Bill because to do so would rapidly involve us in offering opinions on Canada’s internal affairs.

Similarly, it would not be right for us to seek to interpret the language of Schedule B because to do so would inevitably involve, at least to some degree, a commentary on the text. The Government therefore commends the passage of the Bill but will refrain from either criticising it or defending its detailed contents.

I will make one remark, however, in this connection. I would urge your Lordships to be realistic and not to be over-concerned at the residual controversy surrounding this Bill. Canada is a large and diverse federal country in which political authority is not concentrated as it is in the United Kingdom.

As I have already indicated, the draft in its present form is the result of a long period of internal consultation in Canada. The resulting package is a compromise. It is not to be expected that such a package would ever be thought ideal by all concerned. But let us not fail to recognise the achievement of the present settlement in reconciling the diverse interests involved to the extent which has proved possible.

I should like to take this opportunity to pay a tribute to those who have done this, especially to Mr. Trudeau and the premiers of the Canadian provinces who have succeeded where others have failed in arriving at a large measure of consensus. The result of their labours is the draft of a constitution made in Canada for Canadians. This is as it should be. The passage 760 of the legislation will remove a major preoccupation and a source of difficulty from time to time in Anglo-Canadian relations. This also is as it should be.

I need hardly rehearse to your Lordships the scope and depth of the relationship between Britain and Canada. Many of your Lordships, some of whom are to speak in this debate, have made a distinguished contribution to Anglo-Canadian activities and Anglo-Canadian friendship. Everyone will be conscious, as I am, of the common cultural and political heritage of our two countries and of our sistership under the Crown and within the Commonwealth. All will admire, as I do, Canada’s dedication to the cause of a more just world and her determination to preserve free societies, a determination manifested twice within living memory by her contribution to two world wars.

I am confident that the new era marked by the formal dissolution of a lingering constitutional link will also be a new era marked by a further extension and strengthening of the less formal co-operation between Canada and Britain—co-operation in industrial and commercial enterprises, in professional and cultural exchange and in the numerous other activities which go to make up the fabric of modern life.

I would add only one more point. I would express the hope that the noble Lord, Lord Stewart of Fulham, would not move his resolution. It seems to me that if he really is confident, as he says in his Motion, about what the Government of Canada will do, there is no need for him to move that resolution. If the noble Lord is not confident, I do not believe that the Motion will be either useful or helpful. My Lords, I beg to move.

Moved, That the Bill be now read a second time.—(Lord Carrington.)

3.47 p.m.

Lord Stewart of Fulham My Lords, we are all indebted to the noble Lord the Foreign Secretary for the clarity, and many noble Lords will thank him also for the brevity, considering the nature of the subject, with which he has handled a most complex and at times an almost anomalous matter. It is especially difficult to talk about a constitution where one of the rules of the game, if one may so put it, is that one ought not to express any opinion about that constitution. The noble Lord did all this with great skill. For it is the case that the British North America Act 1867 and the constitution of the realm of Canada are at present one and the same document. If you want to alter the constitution you must alter the Act. And it has been long understood and established in law and convention that this Parliament would always be prepared to alter if it were requested to do so, and would only alter according to requests—and following them.

This arrangement seemed good to the parties at the time. I believe that it was, and it has served them well. But, as is quite clear by its nature, it could not be permanent. The time now has come to do what has been called patriating the Canadian constitution; but of course it is a more complex exercise than many people had at first thought. A simple declaratory Act, that this Parliament would never again touch the British North America Act 1867 would have left 761 Canada in the position where she had a written constitution and no legal means of altering it at all. Nor could we simply have handed over to the Canadian Parliament the powers over the British North America Act now possessed by this Parliament. That would have made the Canadian Parliament a body which could alter the constitution of the country. In no federal country is it the case that the central legislature is a sovereign body which can alter the constitution as it pleases. That solution therefore would have been thoroughly unwelcome in Canada.

It was inevitable, if the constitution was to be patriated, if the device of altering the constitution by means of a British Act of Parliament was to be abandoned, that other means of altering the constitution should be found and agreed upon by the Canadians. Therefore, the Act cannot be simple. It has to set out how this can be done. Then we find that whenever a nation sets to work on drafting its constitution, particularly when drafting that part which concerns the amendment of the constitution, it has to look down right into its own roots to see what are the principles on which the nation is founded. That is why one finds in this Act major statements of constitutional principle on which the whole Canadian approach to government is based.

We have never before been asked in this Parliament to make so big an alteration in the Canadian constitution. All the changes made so far have been tiny in comparison. We are therefore obliged to look particularly this time at the question, what exactly does the word “Canada” mean when one says that we do this at the request of Canada? It cannot in fact mean simply the central Government and the central legislature. As the Supreme Court of Canada decided, by convention, at any rate, there must be some degree of participation by the constituent provinces of Canada.

At one time it looked as though we would be asked to pass an Act from which eight of the 10 provinces dissented. If that request had come to us, it is quite clear that we could not have given it our assent, because, although there is no precise definition of how much participation by the provinces there ought to be to make a request from Canada valid, a proposition from which eight of the 10 provinces dissented could not possibly be regarded, as a matter of common sense, as an expression of the will of Canada. Conversely, I agree with what has been said by the noble Lord, Lord Carrington, that a proposition supported by nine of the 10 provinces cannot be regarded as failing to be an expression of the wishes of Canada in this respect, even if the dissenting province be one of the exceptional distinction of Quebec.

I would conclude that, so far as the Second Reading of the Bill is concerned, we should give it a Second Reading in your Lordships’ House, partly for the compelling reason that the Bill has gone through all the necessary stages in the other place and it is not the practice of this House to reject on Second Reading a Bill that fulfils that condition, but more because the passage of time and the logic of the development of the Commonwealth now make it necessary to pass an Act of this kind.

762 I turn now to the Motion standing in my name, which I understand it would be proper for me to move formally at a later stage, but which I and subsequent speakers may properly discuss now. The Motion states: “That this House, aware of the anxieties which have been expressed about the Canada Bill now before the House by representatives of the aboriginal peoples of Canada, is confident that the Government of Canada, in consultation with representatives of the aboriginal peoples, will use the provisions of the Bill to promote their welfare”.” The reference in the Motion to consultation with representatives of the aboriginal peoples is there because one of the provisions of the constitution is that there shall be a conference in which representatives of those peoples will take part.

The noble Lord has asked me to consider not pressing this Motion and has suggested that it is either harmful or unnecessary. I believe that we must look a little more closely at what is involved. The Motion is concerned with the special problem of the position and rights of the aboriginal peoples of Canada; the Red Indian, Inuit and Métis peoples of Canada or, as they are commonly referred to in this country, the Red Indians, Eskimo and people of mixed descent. We all know that we have heard a great deal in recent months about treaties made with many of those other Indian nations with successive British sovereigns from George III onwards. We are now told on the highest legal authority that responsibility for carrying out any duties we accepted under those treaties now belongs not to the Parliament and Government of the United Kingdom but to the Parliament and Government of Canada.

We cannot dispute that legal decision, but I am bound to say that a number of laymen will still have this uneasy thought at the back of their minds: “A” makes an agreement with “B” and promises that he will do certain things for “B”. Then “A” makes a further agreement with “C” and says, “My duties towards ‘B’ are now handed over to C’ and he will fulfil them, and I do this without any consultation with B’.” The Indians were not a party to the emergence of Canada into full independence. At the very least, we must accept that it must be difficult for the Indians themselves, whose forebears made these treaties, to accept the proposition that our obligations to them under those treaties have now been handed over to Canada despite the fact that the Red Indians were never asked whether they wanted that transfer to be made.

There is a larger issue than that one; the question of the treatment by a great and powerful nation of people mainly of European stock of peoples of an entirely different race who are a minority and who in almost every way—economically and socially—the weakest section of the population. In the world in which we live today, this is not merely a national question but an international question. We have seen great evil spring from the oppression of minority races. We have seen them treated to the denial of justice and, what can sometimes be far worse, to be the subject of a lack of imagination and sympathy. We are bound therefore to feel concern for these people. We have said that we are confident that the Government of Canada will handle this correctly. It might be argued that this is merely an otiose expression, but in a matter where the principle 763 involved is so great and has such a worldwide application in a matter where, whatever the law may be, we must unquestionably feel some moral obligation towards the Indians, we ought at least to make some expression of opinion.

We cannot, under our constitution, deny this Bill a Second Reading. We cannot even amend it. But we can by the procedure of this House make an expression of view, which I believe is exactly what we should do—so that when we hand the Bill over to the Canadian Government, when their constitution is patriated, there goes with it simply the recognition that here is a great problem that affects all mankind; that it is a problem in which we in the past and the Canadians at present have been concerned; and that we earnestly wish them well in the solution of it. I do not believe that we can do harm by saying that and I doubt if we ought to say less.

Let me say a little more about the treaties conferred. It is easy enough to smile at what seems to us now to be the naïve language of some of the treaties. That is not how the Indians regarded the treaties. The purpose of these treaties was to safeguard them, their way of life, and the necessary amount of land that was the essential base in keeping their way of life. For many of them, although they varied, their way of life was totally different to anything to which we are accustomed. It was a way of life made up of hunting, fishing, trapping, and handicrafts often requiring great skill in producing objects of great beauty. In addition, there was ceremonial, dancing and worship—for the Red Indians do not appear to draw so sharp a distinction between the secular and spiritual sides of life as we do. That way of life required a land base if it was to be supported. I wonder how many noble Lords noticed a passage in the Observer recently; although it was lighthearted, that did not prevent it being shrewdly relevant to the matter now before us, and moving as well. It described a kind of dialogue of the deaf between white men and red men in a particular part of Canada, where the white men argued that the proper use of a particular piece of land was to put a gas pipeline across it and this would be of great benefit to everybody in the long run. The Red Indian view was that this piece of land was by nature obviously designed for the hunting of bears. That was what they and their forefathers had used it for for a long time. And anyhow it was their land.

This is just one example of problems that crop up all the time. They are problems that can be solved, not easily, but if you call in the aid of politician, administrator, scientist, anthropologist, and, above all, if it is treated on the part of the more powerful partner with a desire to do justice, and on the part of the other with a confidence that justice will be done, these complex problems can be solved.

We British cannot claim that in the time when we had power to deal with these things ourselves we gave them as much attention as they deserved. It would be wrong, therefore, to make anything we say here a criticism of those who at present hold power in Canada, for they could easily reply by saying, “What did you do about this problem?” But we are now concerned with the immediate present and with the future; what is going to be done in the future? So far the Indians have tended to lose out both ways. The special and 764 spiritual quality of their way of life has often been injured. If you measure by material standards, degrees of education, employment, health, they compare very unhappily with the white population. I believe that more recently the pendulum has begun to move in the other direction, that improvements have been apparent. But there has been real anxiety among the Indian communities at this Bill and the fear that its passage might mean that they will be driven backwards again.

What causes this anxiety? First, with regard to increasing technology, I think the value of a piece of land can be enormously increased if modern technology is applied to it. The temptation, whoever’s land it may be by treaty right, to get hold of it in order to apply modern technology to it is the greater. Secondly, a number of the provinces have been particularly concerned, in the discussions in Canada that led to this Bill, about provision for the use of material resources, and that has led to a fear that one result of the Bill would be a rapid gobbling up of resources now available to the Red Indian people.

Next, there is the history of Clause 35 of the Bill. Originally this clause, guaranteeing Indian rights, was in the draft. Then there were consultations between the central Government and the provinces, as a result of which the clause was struck out. It looked as if the striking out of that clause had been the instrument with which the central Government had bought the adhesion of the provinces. Later on it was put in again, though with an interesting alteration that we shall want to discuss when we come to Committee.

I suggest that that handling of that clause can reasonably make Indians feel that they have ground for anxiety. It should be noticed, too, that it is not a clause entrenched, as some clauses are. The constitution contains the remarkable provision that if any of the provinces of Canada consider that any future alteration in the constitution does not suit them, they can opt out of it. But if the constitution were altered so as to remove these clauses which protect Indian rights there is no way in which the Indian peoples can say, “This does not apply to us; we use the power to opt out”. They have been given no such power.

We must notice also that Canadian Governments have from time to time spoken of policies of integration, of fitting the Indian completely into the rest of the population and the disappearance of their own way of life. One could argue, possibly, that there were solid advantages in doing so, but we have to recognise that this is not what a large number of the Indian population want, and it could not he in any way a fulfilment of the treaties or a fulfilment of Clause 35 of the Bill to integrate them in that fashion.

All these anxieties may well be ill-founded. I merely make the case at present that to entertain them has not been an act of stupidity or foolishness; there is good reason why Indians should be greatly concerned. We want to put forward, therefore, at any rate a word of reassurance. I know, and I think the noble Lord the Foreign Secretary suggested it, that some people take the view that anything you say about this will cause great offence in Canada. Well, the people of Canada are not all of one mind, any more than the people in this country are all of one mind on any topic. I dare say you will find some people in Canada who would consider that any word of comment 765 or criticism on the constitution from anyone in this House or another place was an offence to them, but that is certainly not a unanimous view.

An important article in the Toronto Globe and Mail, from which I take only one brief sentence, commenting on the debate in another place, said: “Some of those who spoke to Canada’s Bill quite rightly urged fairness on the Canadian Government”.” That is to say, they take a quite sensible view; they do not regard their Government or any Government as infallible, and comments on a matter like this in the Parliament of a friendly country are perfectly reasonable. Indeed, it is well known that members of both Houses of the Canadian Parliament often speak very plainly on subjects of human rights the world over, and they are fully entitled to do so.

Moreover, apart from other international obligations, both we and Canada are signatories of the International Covenant on Civil and Political Rights. We may reasonably speak to them, therefore, as co-signatories of an international obligation dealing with this kind of problem. I believe there is a justification for what we say in this Motion that goes beyond any precise legal justification. I have mentioned that this whole matter of the treatment which the more powerful race offers to the less powerful has now become a world question, that great evils and dangers follow from the tyrannical use of power.

Canada is now going to start a new chapter in her impressive history. We are suggesting in my Motion on the Order Paper—that it would be a very great thing if one of the steps she took at the opening of that new chapter was to present to the whole world the example of a great nation which resolved to do justice and to show imagination towards the poorer, the weaker, the people of the other race, and to do that not because she was subject to any constraint but as a matter of justice and her own honour. I believe Canada will want to do that.

I do not think they will take offence at our expressing the view set out in this Motion. That is all we can do. As I have said, we cannot defeat the Bill—we do not want to—by any means. We cannot amend it; indeed, though everyone might try his hand at that, it would be foolish for us to try. In legality and constitutionality, then, we cannot do any more than pass a Motion of this kind; but it seems to me that, in justice and humanity, we ought not to do less.

4.10 p.m.

Lord Byers My Lords, I should like to begin by thanking the Foreign Secretary for his very clear exposition of the Bill and what we wish to achieve. It enables me to be briefer than I should normally have been—although I am usually brief—because I agree entirely with the case which he has made out. Last summer, in the absence overseas of Mr. David Steel, I was approached by the Canadian Foreign Minister, Mr. McQuigan, on this matter, and he asked me where the Liberal Party stood. I had no hesitation in telling him that the Canadian Government would have the full support of Liberals in the United Kingdom if they asked for the patriation of the Canadian constitution.

I felt able to give that assurance with some confidence for a number of reasons. First, because I consider that it is inconceivable that a proud and independent member 766 of the Commonwealth should continue to be subject to the legislation of the Parliament of another proud and independent nation of the Commonwealth. I think that the description that this is manifestly incongruous, as the Foreign Secretary said, is absolutely right. Canada has been regarded by all of us, surely, for many generations, as to all intents and purposes an independent dominion. Indeed, it has been the view for as long as I can remember that, if and when a Canadian Government requested the British Parliament to amend the statutes affecting Canada’s rights to amend its own constitution, the Parliament of the United Kingdom would comply without demur or hesitation.

Mr. St. Laurent, the Canadian Prime Minister, said in the Canadian Parliament in 1949—and this was quoted by, as he then was, Mr. Philip Noel-Baker, and I remember the occasion well—”It is our responsibility to see that the fundamentals of the Canadian Constitution are protected and preserved. It is a matter to be settled in Canada by Canadians and for Canadians. It should not be left as a burden on the Parliament of another nation”.” I agree entirely with those views of Mr. St. Laurent. That is why, in my view, we cannot possibly involve ourselves constitutionally in matters which must be settled by the provinces and the Canadian Government and Parliament working together.

My second reason is that I have always believed that, when the time arrived to get rid of this anachronism, it would be our duty to accede to a valid request from the Canadian Parliament without negotiation and without amendment. Indeed, I am advised, that that is the case and that amendments to the Bill are inadmissible. We can delay it, if we are so minded I—hope we shall not—but we cannot insert any amendment if not so requested by the Senate and the House of Commons of Canada.

Having said that, I know that a number of noble Lords are concerned that the rights of Canadian aboriginal peoples may not be respected or protected. I can only say that Canada is a very responsible country. It has a government who have a fine record in human rights. I have every confidence that the future of these important minorities will be in safe hands. I do not think that it is for us to involve our-selves in these matters which are the responsibility of Canadians. That is the point which I think was missed by the noble Lord, Lord Stewart of Fulham. Of course the Canadians differ on all these matters: there is no unanimity. But the responsibility for settling them lies in Canada and does not lie in this House.

It is 50 years next year since I first set foot on Canadian soil. I had the good fortune to serve with those excellent soldiers of the Canadian Army. I even got a battledress out of them, and that was a prize in those days. I have travelled the dominion extensively, from coast to coast, and I have many friends there. I am delighted to support this measure which I believe is long overdue.

I should like to plead with the noble Lord, Lord Stewart, as the Foreign Secretary has done. I am very puzzled at the reason why the Labour Opposition has tabled the Motion which appears on the Order Paper. I hope that the noble Lord will not press his motion. This matter is a matter for Canadians. I have expressed in clear terms the confidence which 767 I and my colleagues have that the Government of Canada will promote the welfare of the aboriginal peoples. Why do we have to have a Motion repeating that? It seems to me that it is wrong to draw particular attention to this aspect of Canadian affairs above all others affected by the act of patriation. I should have thought that it was sufficient to pass the Bill and express confidence in the Government of Canada.

If the matter is pressed to a Division we shall be in a difficulty. We simply cannot object to the wording of the Motion, but my worry—and I think that it is the worry of a lot of people—is that this Motion, if we divide on it, will be misconstrued in Canada as a criticism of the Canadian Government and Canadian Parliament, and that is one thing which I hope we shall avoid.

4.17 p.m.

Lord Diplock My Lords, it is not my intention to make any comment on the merits of any of the provisions in the Constitution Act 1982 which is Schedule B to the Canada Bill. That is a matter exclusively for the Canadian people expressed through their governmental institutions, federal and provincial. I propose to restrict myself to matters of constitutional law, and I have three points to make.

The first point is as to the constitutional position of the aboriginal peoples of Canada: the Indians, the Inuits and the Métis. I sympathise with and understand the motive which has prompted the Motion of the noble Lord, Lord Stewart. There have been, as your Lordships are aware, proceedings brought in the English courts on behalf of groups of Indian peoples in Canada seeking a declaration that the treaty obligations of the Crown towards the aboriginal inhabitants of Canada are the responsibility of Her Majesty’s Government of the United Kingdom. Let me say at once that, although the declaration sought referred to “treaty obligations”, that is a misuse of the word “treaty” because they are not treaties in international law; but they have been regarded and treated by the courts in Canada as a source of legal rights and obligations. If your Lordships turn to Clause 35 of the Constitution Act 1982, you will find that what has been judge-made law regarding these documents as a source of legal rights is, by Clause 35, enshrined as part of the constitution.

When the application was made to the courts for the declaration that I have mentioned, the judge to whom it was made in the first instance rejected it both on its merits and upon procedural grounds. When it came to the Court of Appeal, that court dealt with it on its merits and, in three carefully reasoned judgments, held that the obligations were the responsibility of Her Majesty’s Government of Canada—not of Her Majesty’s Government of the United Kingdom. While this was pending in another place, an application for leave to appeal to the Appellate Committee of this House was pending, and it was there suggested that the passing of the Bill should be delayed until the matter had been decided by this House in its judicial capacity as the Supreme Court of the United Kingdom. The application was heard last Thursday. It does not appear that its result has been reported anywhere in the press, and I think that it might be helpful to this House to know exactly what happened.

768 It is normal that applications for leave to appeal should go to what, paradoxically, is called an Appeals Committee, which normally consists of three Law Lords. If leave is given, the appeal is heard by what is called the Appellate Committee, which consists of five Law Lords. Because of the constitutional importance of this appeal brought on behalf of the Indian groups, five Law Lords, including the three senior Law Lords, sat on the Appeals Committee to hear the application. Normally speaking, when we refuse leave to appeal, we give no reasons; we simply say that their Lordships do not grant leave in this case. Exceptionally, on this application for leave to appeal, we did give our reasons, and I should like to read them verbatim to this House, because they were very short. They were as follows: “Their Lordships do not grant leave to appeal in this case. They wish to make it clear that their refusal of leave is not based on any technical or procedural grounds, although it is not to be taken as their view that there is jurisdiction to entertain an application for judical review in such a case as this. Their refusal of leave is because in their opinion for the cumulative reasons given in the Judgment of the Court of Appeal, it simply is not arguable that any obligations of the Crown in respect of the Indian peoples of Canada are still the responsibility of Her Majesty’s Government of the United Kingdom. They are the responsibility of Her Majesty’s Government of Canada, and it is the Canadian courts and not the English courts that alone have jurisdiction to determine what those obligations are”.” For the same reason as this House, in its judicial capacity, has no jurisdiction to determine what those obligations are, I should regard it as constitutionally improper for this House, in its legislative capacity, to proffer advice, however tactfully and courteously expressed, to Her Majesty’s Government of Canada as to how it should conduct its internal affairs, which have been its responsibility ever since 1867, and which will remain its responsibility under this new constitution.

That brings me to the second point. There has been an inter-Commonwealth constitutional convention over the last 50 years that the United Kingdom Parliament legislates for Canada only at its request and with its consent; and the noble Lord the Foreign Secretary has read the Preamble in the Statute of Westminster 1931, which recognises that. It is not open to us to make any amendment. All we can do is to accept or to reject what it is that Canada has asked us to pass in the form and in the very words that it has asked us to do so.

In my opinion, it would be permissible to reject, if the request from the Canadian Senate and House of Commons was made in circumstances where it was clearly contrary to a constitutional convention of Canada itself. Whether or not it is contrary to such a constitutional convention, is a question for the Supreme Court of Canada, on which judgment was delivered on 28th September last year. It held that there was a constitutional convention: that a request requires a substantial measure of provincial consent. The previous draft constitution was opposed by eight provinces, including Quebec, and supported by two. After the Supreme Court judgment last September, it may well be that the United Kingdom Parliament would have been justified in refusing the request of the Federal Parliament to enact a constitution in a form opposed by the great majority of provinces.

The result of that judgment of the Supreme Court of Canada was that there was a fresh conference between the Federal Government and all 10 provincial governments, 769 which took place in November. Compromises, involving important concessions to the provinces, were reached, and the Constitution Act now presented has the approval of nine out of 10 of the provinces as well as of the Federal Parliament, Quebec being the sole exception. It clearly meets the requirements of the constitutional convention on the point which was decided by the Supreme Court of Canada.

That brings me to the third point. It has been suggested in some quarters that it would have been proper to delay the passing of this Bill until some new proceedings, which have been initiated by Quebec in the Court of Appeal of Quebec, had been determined by that court and on further appeal by the Supreme Court of Canada—a matter which would involve months of delay at least. I have read with great care the 57-page document which has been lodged in these new proceedings by the Government of Quebec, and have analysed it. In it, Quebec repeats the claim, which was specifically rejected by the Supreme Court in the previous proceedings, that unanimous consent of the provinces is required, or, at any rate, the consent of Quebec is required even if it is only a minority of one.

The Supreme Court, in a case in which it delivered judgment last September, had before it claims supported by seven provinces, including Quebec, that there was a constitutional convention that required unanimous support. There was an alternative claim put forward by Saskatchewan that unanimity was not required, but that a substantial measure of provincial support was necessary. What is important is that the court rejected the claim that unanimity of the provinces was required. It accepted the proposition put forward by Saskatchewan that a substantial measure of provincial consent was necessary and said that it was not for the court to determine how large a preponderance of provincial support was required. That was a matter for the political institutions, federal and provincial, to decide by consensus. In the result, 10 out of 11 of the governments of Canada—the Federal Government and nine of the ten provincial governments—have agreed.

If the Bill is passed, there is no possibility that the Supreme Court, as has been suggested in another place, would hold, or could hold, the Constitution Act 1982 ultra vires and void. That, too, was a question which was specifically decided against Quebec and the provinces by the Supreme Court in its judgment of last September. Quebec’s new court proceedings in Canada provide no plausible ground, in my opinion, for any delay in passing this Bill.

4.32 p.m.

Lord Shaughnessy My Lords, as a Canadian, I am grateful for this opportunity to take part in the debate on the Second Reading of the Canada Bill. Although I have been a Member of your Lordships’ House since 1944, I have lived in Canada for all my life until about a year ago, and regrettably there has been no previous occasion on my visits to this country when I could have taken part appropriately in one of the debates in your Lordships’ House. Perhaps, in the circumstances, rather than a maiden speech this might be termed a “spinster” speech. At any rate, I apologise for the long delay in addressing your Lordships for the first 770 time, and I beg your indulgence for this initial effort.

For me, as one of the few Canadians who have the honour and privilege of sitting in this House, this is indeed a significant occasion for, as I hope your Lordships will agree, this Bill, if and when enacted by this Parliament, will I think mark the beginning of a new and, I hope, mutually rewarding relationship between Canada and Britain. As the noble Lord the Foreign Secretary, in his admirable description of the background to this legislation, has pointed out, the process by which Canada has sought to acquire complete control of its constitution has been evolving for more than 50 years. In the recent past some unfortunate statements have been made, often in the heat of emotion, which would have been better left unsaid. But I submit, my Lords, that these unfortunate remarks should not be allowed to affect your Lordships’ judgment on the substance of this Bill.

The fact is that the great majority of Canadians want our constituion lodged in Canada. Nevertheless, there are some specific provisions of the instrument which are strongly opposed in different parts of Canada, for different reasons, and I share some of these legitimate misgivings. These objections concern the rights of the native peoples of Canada; the political and cultural position of the province of Quebec; linguistic and educational rights of minorities, and the eventual application of certain sections of the Charter of Rights, all embodied in the schedules to the Bill.

Attention has been focused by several noble Lords, and generally speaking, on the rights of the native peoples—the Indians, the Inuit and the Metis—and on whether these rights will be adequately protected under the terms of the Bill. Historically, Canada’s record in its dealings with the native peoples has not been without blemish. Errors have been made in the past. But in comparison to other countries which have been faced with the complex responsibility of safeguarding the rights of minorities, I must assert that Canada’s record has been better than most.

I should like to cite one or two instances to support this contention. The native peoples, numbering about 1.3 million in Canada, all have the franchise and thus have access to the normal expedients to make their case. Additionally, contrary to some assertions that have been made, the native peoples, through their associations, have engaged in continuing consultations with the Federal Government at the ministerial and Cabinet committee level. In regard to native land claims of the northern people, a Royal Commission has examined carefully these claims and not long ago made strong recommendations in support of the native cause. I would just make one other observation in respect of the recognition of the status of the Indian population, and it is that the former Lieutenant Governor of my home province of Alberta, the honourable Ralph Steinhauer, is an Indian.

Although, my Lords, I recognise that all the desires of the native peoples have not yet been satisfied, I believe that the moral imperative of this issue has been suitably impressed upon both the Federal and Provincial Governments in Canada, and that the machinery will exist under this Bill to ensure that consultation will continue, leading to a gradual solution of these problems. The objections relating to language and educational rights, so far as Quebec is concerned, Quebec’s 771 difficulty with joint federal-provincial programmes and the preservation of the right of veto on constitutional amendments, as has been said by the noble and learned Lord, Lord Diplock, are before the courts of Quebec, and it may be quite a long time before any decision is handed down. In fact, I assume that continued references to the courts could conceivably be made for a number of years.

Realistically, since the incumbent Government of Quebec are dedicated to the political separation of the province from the confederation, they are unlikely to agree to any proposal which would perpetuate the continuation of that confederation in its present form.

I appreciate that the Standing Orders of your Lordships’ House provide for all speeches in debates to be made in English. However, Canada is a bilingual country with two official languages, French and English, and the Bill is in both. I therefore beg your Lordships’ indulgence if I say a few words in French: Malgré l’attitude declarée par le Gouvernement du Québec, il faut que nous nous souvenions que le peuple du Québec, dans un plébiscite l’année derniére, a rejeté la proposition de séparation politique. J’ espère, comme je pense espère aussi la grande majorité des Canadians, que les Québecois retiennent la même resolution aujourd’hui et qu’ils sont preparés à continuer comme une des nations fondatrices, avec la grande entreprise canadienne.

It is a matter of regret to me, as a native of that great province, that a solution has not been found to those objections and to the apprehension of the English-speaking minority in Quebec that their language and educational rights are threatened by certain provisions of the Bill. There are other dangers embodied in the Charter of Rights, such as in Section 33, which could be interpreted as circumscribing some of the fundamental rights of all Canadian citizens.

But the door will not be slammed by the enactment of the Bill. The process of constitutional development will continue; but it will continue, as I submit it rightfully should, not here at Westminster but in Canada. In short, the Bill is the result of a compromise—some might say, a characteristically Canadian compromise—but I submit that no compromise solution to any prolem can ever be entirely satisfactory to all sides.

Casting a shadow over the whole future of the Canadian confederation is the concept that has come to be called separatism. It is, as I said, a declared policy of the present Government of Quebec, but it is also manifest in Western Canada, where a feeling of alienation has been growing in recent years. It would be presumptuous of me to ascribe any blame for that development. However, we in Canada will have to find a solution if our country is to develop and prosper as it rightly should. I reiterate that the Bill does not satisfy all the aspirations of all Canadians, but, my Lords, in political terms we are the masters of our fate and the captains of our souls, and the resolution of our differences must be made in Canada. I therefore commend this Bill for your Lordships’ approval.

4.46 p.m.

Lord Aylestone My Lords, it is for me a great pleasure and privilege to speak following the noble Lord, Lord Shaughnessy, in his maiden speech. It was a delight to hear a Canadian voice dealing with a Canadian Bill. The content of his speech was of considerable 772 interest to us all. I especially liked the way in which he was absolutely impartial in its introduction, and I am sure noble Lords in all parts of the House look forward with great interest to hearing him on many occasions in the future.

Whatever the reason, it seems somewhat of an anachronism that after many years of the formal independence of Canada we should be concerning ourselves with a Bill to patriate the Canadian constitution, and there is not much more we can do with it but send it back home. The Statute of Westminster made it absolutely clear that the Canadian constitution could be patriated, or any amendment made to it, only at the request and with the consent of both Houses of the Canadian Parliament. As has been said, under the 1931 Act we cannot amend or alter it in any way, ever if we wished to do so. I suppose we could, if we so wished, reject the Bill, but I am sure that no one in this House, and I hope no one in the other place, has any intention of doing that.

We are entitled to ask why this step has taken so long. It certainly was not the fault or desire of successive British Governments to withhold patriation over the years. The truth would appear to lie in the fact that the Federal Government of Canada and the Provincial Governments have found it difficult to agree among themselves. We now know at long last that only one of the Provincial Governments stand outside. We know, too, that under the ruling of the Supreme Court of Canada an absolutely unanimous decision was not necessary, so we can proceed.

It would have been very pleasing if the Bill had been presented to us with the unanimous approval of the Federal Government and all the Provincial Governments, but it has not. We must take the position as it is. It would have been equally pleasing if there were no outstanding constitutional cases before the courts either of this country or of Canada, but again that is not so. I understand, however, that a Bill of this sort is not subject to the normal sub judice rules, and one can understand why that is so—because anyone who wished to delay the Bill could go on perpetuating court cases, either here or in Canada, ad infinitum. I am indeed sorry that Quebec is standing outside because, we are told, about 40 per cent. of the legislature in Quebec felt that something could be done in favour of patriation, if not completely in line with the Bill.

Those of us who have read the debates in another place and have received the not inconsiderable amount of literature which has been available to us have been profoundly interested in the case presented to us by the aboriginal peoples. Myself I cannot help but feel that what worries them in the main is the fear of what is likely to happen not now, but after the Canadian constitution has been patriated. They do feel, they do worry that their treaties and their rights may be eroded. Let us be perfectly fair, as the noble Lord, Lord Shaughnessy, was: certain things have been said in high places in the Federal Parliament which could have given grounds to some of those fears.

In my view, in Sections 25 and 35 of Schedule B to the Bill before us there seems to be adequate protection for the rights of the Indian peoples. Under Part IV of the schedule, a new constitutional conference 773 is to be called in 12 months’ time after the passage of the Bill, consisting of the Prime Minister of Canada and the First Ministers of the provincial goverments. This should in itself be reassuring to the Indians, but I am afraid it may add to their worries. Therefore I hope that at that stage, in 12 months’ time, the Indians will be fully consulted and will not become mere observers.

Personally I should like to see more responsibility for the indigenous people, the Indians, resting with the provincial governments as well as of course with the Federal Government. I say that because I understand that more than 60 per cent. of Canadians feel that the lot of the Indians could be materially improved.

I recall from my own experience of working with Canadians—albeit a very short experience—that the 1966 Prime Ministers’ Conference had to deal with the problem of Rhodesia and Mr. Smith. At the confrence the late Mr. Lester Pearson proved himself to be very concerned about the indigenous peoples with whom we were dealing during those debates. Our African Commonwealth colleagues at that time were highly critical of the United Kingdom Government’s handling of the Rhodesian affair, but the Canadians were particularly helpful, and it was my impression that they had an understanding of what was required in that part of Africa in order to secure what we now have—a solution to the problem. While the Canadians stood absolutely firm, I regret to have to say that our Australian and New Zealand colleagues more or less stood on the touchline. I cannot believe that any Canadian Government today would behave any less well in matters of human rights than they did in those days.

While in consultation with the representatives of the Indians who were over here, in reply to a direct question, I was told, “We ask for nothing more than that our existing treaty rights on land, hunting, fishing, trapping should be entrenched in a future Canadian constitution”. I do not regard that as a great deal for which to ask, and I am quite sure that the Canadian Government will have that in mind in 12 months’ time when they are discussing Part IV of the Bill.

One very endearing characteristic of the Indians is their profound respect for, and belief in, the Crown. Some hundred or more years ago—almost 200 years in fact—they referred to our Queen of those days as, “The Great Mother across the water,” and at that stage they felt that all their applications were addressed to the Crown, not to the Government. I am sure that it helps them in their problems and worries to realise that Her Majesty of today is also Queen of Canada.

I suppose that we could have preferred not to have been involved in the constitution of an independent Commonwealth country, but we are involved, and on this Bench we feel that the best service that we can give to all of our Canadian cousins is to get on with the Bill and get it on to the statute book.

I was interested in, and liked, the Motion on the Order Paper in the name of the noble Lord, Lord Steward of Fulham. The fact that it has been tabled does not do any harm at all, and I should like to remind the House that it simply states, “…is confident that the Government of Canada, in consultation with representatives of the aboriginal peoples, will use the provisions of the Bill to promote their welfare”.” I am sure that that is the wish of all of us. But equally, I hope that the official Opposition will not take the Motion to a Division, but will leave it where it is on the Order Paper, and withdraw it at the end of the day. I am afraid that if a Division does take place, we cannot support them from this Bench.

4.55 p.m.

The Lord Bishop of Chelmsford My Lords, I should like to add my congratulations to those already extended to the noble Lord, Lord Shaughnessy, on his outstanding speech and on his manifest fairness in presenting his evidence to us. I was additionally grateful to him for his passage of French, which almost persuaded me that I had ability in the language. I should also like to make my apology to the House and to the noble Lord the Foreign Secretary, since I shall have to withdraw before the end of the debate. We have a long list of speakers, and it seems that so far most of them have adopted a system of brevity, which I hope I shall be able to emulate. But any brevity should not reflect a lack of concern on my part and on the part of those others who occupy these Benches, when we consider the evidence which has been put to us in various ways concerning the situation of the aboriginal peoples in Canada. We are deeply concerned for them; I realise that the whole House is concerned for them. I have no skill with which to present constitutional or intricate legal matters. We have a desire that anything possible should be done in order that the Bill may pass quickly and that sonic of our doubts may be satisfied.

I should like to explain one or two of the doubts. There is some evidence—and it has already been mentioned in the House—that the Canadian Federal Government and provincial governments might wish to diminish, rather than to continue, native titles to lands in Canada. That is a serious accusation, and I can bring no evidence to support it. But it is an accusation that has been made, and it is also an accusation that one wishes could be disposed of immediately by those who are able to do so. We are all naturally concerned to see that everything is done constitutionally to preserve the rights of all the peoples of Canada, and the Indians in particular, who, judging from what we have heard already, seem to have been at some risk. My attention has been drawn to the opinion of Professor James Fawcett, three times president of the European Commission of Human Rights, who says that we have an obligation to give them protection under the International Convention on Civil and Political Rights. I wonder what the Government will say to that.

We have already heard from several people about the case concerning the appeal before the Quebec court. I must say that I am overawed by the contribution of the noble and learned Lord, Lord Diplock, on this point, and I think that I had better pass over this point. There are also three cases in the courts of this country, which the noble Lord the Foreign Secretary tells us do not really stand in the way.

I also gather that the Canadian Parliament’s debate on the constitution was guillotined before some of the Bill’s most crucial sections could he discussed. These include Section 48, which eliminates the discretionary 775 powers of the Queen’s Governor General in Canada. That, I am sure, I shall be told is a matter for the Canadian Government, and not for ours.

Lord Denning, in his judgment in the Court of Appeal, stated that in 1930, by the British North America Act, the United Kingdom Parliament gave the force of law to agreements which had been made between 1876 and 1929 with Indian people. That Act, he said, “seems to me to recognise that the Crown had subsisting obligations to the Indians under the treaties. That is why it was necessary to have the agreement confirmed by the Parliament of the United Kingdom with the assent of the Queen”.” This certainly does not appear to accord with the line taken by the Government that in practice, in fact, all residual fiduciary rights have been passed over to the Canadian Government over many years, and that is to be the position now.

Lord Denning goes on to say that, now that the Crown is separate and divisible, he thinks the obligations under the Proclamation over Treaties are obligations of the Crown in respect of Canada. He therefore sees the present Bill as enabling these obligations to be embodied in the new constitution, which therefore includes Clause 25, which he judges to guarantee the aboriginal people its rights and freedoms which he discussed earlier—and this, of course, we all of us welcome very much indeed.

There are, however, two further points. First, in Clause 35(1) the word “existing” is used when referring to existing rights and freedoms. The history of the way in which this word came to be inserted when Clause 25 was restored as a condition of gaining federal support for the Bill leads me to have grave doubts as to the way in which it might be used to exclude future rights. Are we to stand by the existing rights of that time, which of course, in changed circumstances, could be a diminution? Secondly, there is no requirement that the Indians themselves should be a party to the constitutional conference, and the failure to consult them so far gives no warrant for assuming that they would be consulted in the future. Nevertheless, as regards the judgment of Lord Denning, I am aware that the Master of the Rolls and his colleagues dismissed the appeal.

I ask, then, three short questions. The first concerns the Quebec Court of Appeal, which I have already mentioned. The second asks: What is the position if the cases at present before the courts in this country rule in favour of the Indians? Why can we not wait just a little time in order to see how this litigation emerges? Lastly, even if the legal position be such as the Government assert, why does not Parliament have an overriding concern under the International Covenant on Civil and Political Rights to assure itself that the legislation will not put us in breach of our obligations under this covenant? I am aware, of course, that when this has been passed and patriation has taken place the aboriginal peoples of Canada, as in other places, will have rights with the United Nations and the International Court.

None of us—certainly none of us on these Benches—wishes to oppose the return of full legislative powers to Canada. We just wish to be assured that our international obligations have been met, and that we have done all that is within our powers to ensure that 776 the protection given by the Crown to the Indians by the courts is safeguarded for them.

5.4 p.m.

Lord Home of the Hirsel My Lords, I should like to add my congratulations to those which have been expressed to the noble Lord, Lord Shaughnessy, on the admirable speech that he made to us today. I do not know whether he realises how refreshing it is to hear one of Her Majesty’s subjects from Canada coming and speaking to us in this House. Incidentally, the only French I remember hearing in either House of Parliament here is, “La Reine le Veult”, and this is the only precedent which he has set which I hope will not be too infectious.

My Lords, perhaps I ought to declare a personal interest in this matter that we are debating. It was my great-great-grandfather, Lord Durham, who wrote the Durham Report, which in fact set up the first constitution for Canada. So this is to some extent, for me, unfinished business. It is perhaps of interest also to recall that he used to speak of Britain’s protected territories as in a process of graduation from dependence to independence to interdependence—not a bad forecast for 1836. He was also concerned primarily with the unity of Canada as a country; and that, too, today, is our concern, that Canada, with all its authority, should be able to speak as one nation in the councils of the modern world.

In the late 1950s, when I was at the Commonwealth Office as Commonwealth Secretary, patriation was occasionally mooted and I had to study the matter as best I could. I remember that I took the very definite view that, following the North America Act and the Statute of Westminister, the Canadian Parliament and the Parliament at Westminster were equal in status, and that therefore, should a request for patriation be made with the authority of the Canadian Parliament, with a measurable support from the provinces, the correct response for the British Parliament was to grant that request. I remember that point of view being supported on a number of occasions by the late Lord Jowitt, for whose judgment on constitutional matters I had a great respect. Again, we have heard the noble and learned Lord, Lord Diplock, today on the constitutional and legal issues, so I need not add to that; I am more concerned with the politics of the matter.

My Lords, the fact of the matter, as it seems to me, is that after so many years of absence—a point made by my noble friend the Foreign Secretary—from participation in Canada’s internal affairs, the British Parliament is in no position to judge the appropriate or even the desirable relationship between the provinces of Canada and the Federal Government of Canada. Plainly, the future constitutional development of Canada must be settled from now on in Canada by Canadians for Canadians. That is the only possible future that we can foresee. The same kind of considerations, I would think, govern the relationship between the British Parliament and the Canadian Indians. The tribes and the communities are scattered all over Canada, and we could not conceivably, from Westminster, judge their interests in relationship to the province in which they may live or in relationship to the Federal Government. We could no longer protect the 777 interests of the Indians, and it is really kinder, in this day, to say so.

I happened to be in the Canadian Parliament at the time of the great debate on the gas pipeline; and, incidentally, in that debate I witnessed one of the most successful filibusters I have ever heard. A Canadian Member of Parliament read through three-quarters of a newspaper before the Speaker pulled him up and said that he thought that perhaps he ought to get a little nearer the subject, upon which the honourable Member said, “Mr. Speaker, if you would help me to identify which passages in this newspaper are really nearer the subject, I would be grateful”, and he read through the paper again, his speech taking five and a half hours. But, my Lords, in these days, of course, we could have no influence on any such questions in Canada, and it would be better that the Canadians should take over these matters entirely for themselves.

On the Motion put down on the Order Paper by the noble Lord, Lord Stewart of Fulham, I can see no reason to suppose that the elected representatives of the people of Canada will not honour the trusteeship towards the Indians of Canada just as well as we have in the past. I quite understand the thinking behind the words that he has put on the Order Paper; but we must really not try to tell the Canadians what they should do about their internal affairs. It is a temptation to which we must not yield. Therefore I hope that he will take the sense of the House, which I think is something pretty near that, and while leaving his Motion on the Order Paper, he will not press the matter to a Division, which I think would be a blemish on what otherwise I hope will be a very constructive and helpful debate.

Happily, this Bill comes here in much more favourable circumstances than was the case 18 months ago. As has been said, all the provinces, with the exception of Quebec, are now agreed on the constitutional shape of things to come. Therefore I hope that all stages of the Bill will swiftly follow its Second Reading so that Canada can set out in high hopes on a new era of prosperity.

5.12 p.m.

Lord Rodney My Lords, when I decided, some months ago, to take part in this debate, there were storm clouds gathering, and a deep depression was developing on the other side of the Atlantic, and I have to admit that some of that depression rubbed off on me. It seemed that whatever route we took, we were bound to arouse considerable animosity among an important element of the Canadian people. If we followed the wishes of Mr. Trudeau and his friends, we would alienate eight of the provincial premiers and a large proportion of the population of those provinces; on the other hand, if we heeded them and rejected the Federal Government’s request, we would be accused of interfering in Canadian domestic affairs.
In fact, I am sure it was evident to your Lordships, as it was to myself, that the only sure result was that our friendship and goodwill with Canada were going to be severely strained, if not damaged irrecovably—a friendship which until now, had stood the test of two world wars and many other lesser strains, and one which many of us remember led to instant support in our time of need in 1940.

778 I had the privilege to come over with one of the Canadian Army divisions, and I well remember the enthusiasm and eagerness with which those young men set sail to come to the aid of the mother country—and Britain was still the mother country in those days. Admittedly, when we arrived, some people did find it advisable to take in their daughters out of harm’s way—or perhaps it was out of temptation’s way. But anyone who has the Canadians alongside them when the chips are down and the battle is joined, will, I am sure, agree, that it is most reassuring to have them on your side.

But that is the past, and today Canada is more than ever a steadying influence in the world, and one which we should never underestimate or take for granted. Sometimes I have an uneasy feeling that we, in Britain, have a tendency to assume that special relationship with Canada. Certainly, there is still an understanding, but today it is based very much more on a mutual respect between equals, and it is therefore more than ever necessary to work hard to maintain and foster friendship and goodwill.

Much has been written and spoken on the legal and constitutional issues of this Bill, and I freely admit that I am in no way qualified to express an opinion on those aspects. However, there is one ruling of the Canadian Supreme Court which I find particularly significant, and that is where they state that conventionally a substantial degree of provincial support is required for any constitutional change put forward by the Federal Government. In my opinion, this was and is vitally important, particularly in a federal state such as Canada. But there is no doubt that initially this support from the majority of the provinces did not exist; in fact, in Alberta anxiety and concern ran so high, that there was even talk of separation from the rest of Canada, or at least the forming of a western provincial alliance. When one considers that Alberta has 80 per cent. of Canada’s oil, enormous reserves of natural gas and some 500 years’ reserves of coal, perhaps this is not altogether surprising because under the terms of the original Bill, she certainly stood to lose more than any other province.

At that time, like many of your Lordships, I received a large number of letters, literally begging me to do anything I could to stop the proposed legislation. It was a very emotional issue with the Albertans, and many of them, knowing that I was born out there—I am also an Albertan—turned to me hoping for reassurance. Happily, the storm clouds have now dispersed and reason has prevailed. Some of the credit must be attributed to the levelheadedness and tenacity of the provincial premiers; but as much, if not more, must surely go to the Select Committee here at Westminister, which produced such well reasoned and balanced findings, and their conclusions were, I know, warmly received by the people of Canada.

I believe that this went a long way to convincing the Canadian Federal Government of the strong feelings held in Britain, thus contributing materially to the eventual satisfactory outcome. I would dare to hope therefore that your Lordships will feel able to indicate your support, thus ensuring an equally satisfactory outcome in here Britain.

It is regrettable that Quebec found it impossible to add its signature to those of the other provinces, 779 but it should not be overlooked that the Liberals in that province, who command 46 per cent. of the votes, did in fact signify their agreement. Then again, there are some minority groups—in particular the Indians, about whom we have heard a lot recently—who still have some objections, but it is my understanding that they are as fully safeguarded under the proposed new constitution as previously, and additionally there is I believe an undertaking to hold a conference within one year of the passing of this Bill to consider all matters concerning those minorities.

My chief concern has been the threat to our good relations with one of our oldest and most faithful allies. I believe we have a clear mandate from the people of Canada. They have indicated their wishes. May I therefore in all humility urge your Lordships to give this Bill your total support, thereby confirming your confidence in the good sense of the Canadian people and of their Parliament.

5.20 p.m.

Lord Soper My Lords, it is my privilege to be the first to congratulate the noble Lord who has just resumed his seat on his maiden voyage and especially, if I may say so, to congratulate him on referring to two elements which were contained in that most felicitous speech of his—first, the enduring amity between the people of this country and the people of Canada and, secondly, the very large measure of agreement that seemed a few years ago to be beyond the ability of the provinces to achieve but which has now almost, but not quite, produced unanimity. I hope we shall hear the noble Lord again and we shall, I am sure, profit as much next time as we have on this occasion.

I will assume that the speech made by the noble Lord the Foreign Secretary and the speech by my noble friend Lord Stewart have presented an unanswerable case that this Bill should go forward. I would also assume that it is within the province, and certainly part of the duty, of this House to make such comments as we believe may be instrumental in making this Bill not only legally effective but morally applicable and a Bill which may be the bellwether of future legislation which will improve upon it, as legislation quite often has a habit of doing.

I should like, in a very brief speech, to say something about the Indian problem and to confess that initially I knew very little about it. My knowledge of the Indians was largely confined to tomahawks and feathers until I went to the museum in Ottawa and found that the tomahawk was originally a domestic mallet and that the feathers had been very largely provided by Buffalo Bill and the motion picture industry.

What I have discovered I find nothing short of appalling and I will venture to categorise some of those things which belong to the real facts about this aboriginal minority in Canada. They have a life expectancy of 10 years less than the life expectancy of other Canadians. Canadian Indians experience violent death at a rate more than three times the national average; suicide has increased among Indians by over 60 per cent. and by 85 per cent. in young male Indians between the ages of 17 and 30. Infant mortality is four times that for other Canadian citizens: 60 per cent. 780 of Canadian Indians receive social assistance and only 32 per cent. of them are employed. Sixty per cent. of Indian homes are not properly serviced—and so one might go on.

I ask myself what explains this deplorable catalogue of comparative and, in some cases, absolute misery. I venture to ask your Lordships to entertain the belief that the primary reason is perhaps the so-called actual spiritual conditions of this group. They have been the victims of spiritual or (shall we say?) religious imperialism. They have been regarded as suitable for assimilation into cultures which were foreign to them and consequent upon the destruction of the cultures to which they were habituated. Many of those cultures can come under moral criticism, but nevertheless they instituted a kind of discipline which, when they were destroyed, did not give place to comparable discipline from the Christian churches, so-called. I stand as one who must accept a very considerable amount of blame for the persistence in the 19th century of missionary enthusiasm which in so many respects denied the virtues of primitive cultures and which led to the belief that outside our Christian faith, as some of our hymns said, “There is nothing better than total darkness”. That is a monstrous piece of impudence and it has resulted in all kinds of calamities not only in America and Canada but in Australia, to some extent in New Zealand and certainly among the de-tribalised black groups in southern Africa. This is the background against which I believe the various perturbations and fears of the Indians have to be set.

First, on the question of assimilation, when Mr. Trudeau categorically asserts that assimilation and integration is the purpose of this particular programme of the present Government in Canada, I do not believe in assimilation or integration as being necessarily the way in which you improve the conditions of those who in some cases have cultural levels which are not so much lower than ours. In any case I believe that we should proceed with great caution to try to make people of such different cultures into, in many respects it seems to me, nothing more than caricatures of the prevailing civilisation, if we are pleased so to call it, which is the dominant one in the northern hemisphere of Christian procedure and life.

Secondly, on the question of land, it is for an Indian, so I am given to understand, not merely a matter of property but of deep religious conviction. We ought not to be surprised at that when we reflect that the Fifth Commandment promises those who honour their father and mother—”to live long in the land which the Lord their God has given to them”.” The Indian believes most faithfully that the land is the gift of God, and in his case I think it is perhaps rather less dubious than the behaviour of the Israelites when they grabbed somebody else’s land in Canaan and said that God meant them to have it.

However, I will not go into that in any detail except to make what seems to me a very pertinent comment, that you do not destroy the beliefs people hold by merely rearranging the economic conditions in which they live. Unless the Canadians can take the question of what land means to an Indian much more seriously than they have in the past, I do not believe that this quite dreadful catalogue of misery will be very much 781 improved. The same is true, of course, of existing rights. The noble and learned Lord, Lord Diplock, did not mention that Clause 34 became Clause 35 when the word “existing” was interpolated and the “existing rights” closed the door to the improvement of what seemed to me in many respects to be very imperfect so-called rights which have hitherto existed.

My time is almost up; but I believe it is true to say that very largely the attitude of frequent administrations in Canada has, not with a malevolent intention but in principle, perpetuated the evil of the missionary enthusiasm not so much for the propagation of the Christian faith as for the institutions which have persuaded some people that the Kingdom of God and the British Empire were more or less synonymous.

May I therefore finish with one comment which seems to me equally pertinent? These Indians, so far as I have had repeated acquaintance with them over the past few months, when they are not very taciturn, take the view that this House is a spiritually-energised House. They regard the House of Lords in very much the same way as they regard their own Conference of Elders. Therefore, I would submit to your Lordships that they will take a great deal of care and pay a great deal of attention—almost reverent attention—to what this House happens to say. I would plead with your Lordships to offer to the Canadian Government not only criticism—which, after all, is cheap and easy—but a constructive contemplation of some of the underlying problems with which they are confronted, and in particular those relating to this minority whom we call the Indians. I believe they have their own right to their own life within a multiracial society, and that should be the aim and intention of the Government to which we patriate the constitution.

5.30 p.m.

Lord Garner My Lords, as one of only three Members of your Lordships’ House who have had the honour of serving as British High Commissioner in Canada, the others being the late Lord Amory and the present High Commissioner, the noble Lord, Lord Moran, I am happy to be associated in this debate and, particularly, to pay my tribute to the two Canadian maiden speakers, the noble Lords, Lord Shaughnessy and Lord Rodney.

The remarkable thing about the Anglo-Canadian relationship is that it has been characterised by such friendliness and warmth, as the noble Lord, Lord Rodney, was saying, despite the extraordinary arrangement which the two countries made together 115 years ago, when they devised a constitution under which Canada was made self-governing, and later sovereign and independent, but that was limited because her constitution could be amended only by the Parliament of another country. Surely that is almost a unique arrangement in the world, and it says much for the tolerance and understanding between the two countries that there has been so little friction as a result. We are now asked to bring it to an end.

There is no problem at all about what is called patriating the Canadian constitution. There never has been any difficulty. Some years ago, I was involved in making informal representations to the Canadian Government and it may be pertinent to recall very 782 briefly what was said then. We pointed out that it seemed unreasonable that the sole means of amending the Canadian constitution should be by way of the United Kingdom Parliament, since it was clear that it could not effectively discuss the merits of the case. We went on to urge that the present practice had become increasingly anomalous and likely to lead to friction, and we felt that Canada would want to consider what methods of amending the Canadian constitution in Canada could be made in future. That memorandum was submitted in the year 1943—nearly 39 years ago—and I feel that some of it is still relevant today. So there is no problem about patriation.

The complications come because the resolution before us not only patriates the constitution, and also provides, as is necessary, a procedure for amendment, but it puts forwards a Canadian Charter of Rights and freedoms, provisions for the rights of aboriginal peoples, the equalisation of regional disparities and arrangements for a constitutional conference. One understands the need for all this, because of the federal dimension in Canada, but the provisions cover an alarmingly wide front in a most all-embracing way. But they are all matters for Canadians. They are not matters with which we can properly be involved, because we have neither knowledge, as the noble Lord, Lord Home of the Hirsel, pointed out, nor authority.

In my view, in an ideal world, it would have been tar better if these very complicated provisions could have been left to be worked out by Canadians in Canada. But, as it is, the British Parliament could not be expected to enact such important provisions without due deliberation, and on this, as we were reminded earlier, doubts were expressed about the role of Parliament here by Canadian Ministers, 18 months or two years ago, with the suggestion that Westminster was under an obligation to accept automatically any request coming from the Parliament in Ottawa and to act upon it.

I am bound to say that if this view had been pressed at the time, in the circumstances of 18 months or two years ago, when eight of the 10 provinces were objecting, many of us would have been placed in a position of very considerable difficulty. But, fortunately, there is no need to go any further into that past history, because we are all clearer about the matter now, thanks partly to the admirable series of reports from the Select Committee on Foreign Affairs in another place and, of course, to the authoritative judgment of the Supreme Court in Canada. In any case, thereafter the scenario was changed by further negotiations between the federal and provincial governments, with the result that, as we know, nine out of the 10 provinces are now supporting the proposed changes.

It is profoundly unfortunate that the one province outstanding should be Quebec—a founder member of the Canadian nation and the symbol of French-speaking Canada—and we here cannot tell what the consequences of this apparent division may be. But, again, this is a political problem for Canada. It is one for Canada and not for Britain. We can only express the hope that Canadians will, indeed, find their own solution to their own national problems. But I have no doubt that Quebec cannot impose a veto, and there is no cause on that account to decline to act on the request that is before us.

783 There are just two other matters that have been touched on as reasons for not agreeing to accept the Bill at this stage. The first is that, as litigation is pending both in Canada and in this country, we should suspend action until matters have been finalised. I am sure that we were all impressed by the very authoritative view of the noble and learned Lord, Lord Diplock, on those points. One is bound to accept that once litigation begins there may be no end to it, and unless we act now we might defer matters for a very long time.

The second matter, to which a great deal of attention has been paid both here and in another place, is the question of the Indians. Because Indian rights are specifically included in the constitution Act which is before us, it is inevitable that the matter should be raised in Parliament here, and I am bound to say that my own view is quite clear. This is solely a matter for Canada, has been for at least 50 years and probably longer, and I am afraid that it was often a cruel deception of the Indian people to suggest that matters were otherwise, because I do not think there was ever any possibility that the British Government or Parliament could, should or would act in these matters.

I have to remind your Lordships that Britain has given independence to a very large number of colonies and other dependent territories. I have been racking my brains to think of any single one of them that attained independence without having a minority problem, and I do not think there is one. There are minorities in all countries and it is out of perspective to suggest that the British Parliament can do in Canada what, so far as I can recall, it was never suggested we should be asked to do for the Maoris in New Zealand, for the aborigines in Australia or, for that matter, for any of the African peoples in what is now the Republic of South Africa, all of whom were at one time under our jurisdiction.

Therefore, although I was impressed by what the noble Lord, Lord Stewart said, and by the very moderate and persuasive way in which he put his case, I am, at the same time, unhappy about it, because there is a danger of two implications being read into the Motion, certainly if it were to be voted on and passed. The first is that there is a responsibility still resting on the British Parliament in this matter. I know that the noble Lord, Lord Stewart, referred to moral responsibility, but if the Motion were adopted wider inferences might be drawn. The second point is that I seriously think there is a danger of its being regarded as an interference in the domestic matters of Canada—something about which we have always been so scrupulously careful in the past. I would therefore join with others in hoping that the Motion will not be pressed when the time comes.

Whatever concerns we may have—several noble Lords have voiced them and I have mentioned some that trouble me—I am quite satisfied that the resolution of the Canadian Parliament is entirely proper, in conformity with convention and constitutional proprieties, and that we should pass the Bill. Let us complete this business with dignity and despatch and, in ending this remaining formal link, let us send to Canada an expression of our admiration for their achievements in the past, of our continuing friendship for them today and our hopes for their greatness as a nation in the future.


5.40 p.m.

Lord Alport My Lords, I should like, if I may, to join the other noble Lords who have spoken in congratulating our two Canadian maiden speakers in this debate and recognising the very particular contribution which they have made to it. I should also like to say how glad I am to be able to follow my noble friend Lord Garner, for he and I served in the Commonwealth Relations Office together some 20 years ago.

There is, I suppose, something symbolic in the fact that last week your Lordships considered the problems of the smallest, remotest, least important dependency of the Crown—Pitcairn Island—and that today we are dealing with those of the greatest, oldest and most important Commonwealth country—the Dominion or, more accurately, the Kingdom of Canada.

When the Canadian constitutional issue arose I was greatly alarmed—as, I know, were many others in this country—because one foresaw the possibility that the United Kingdom Parliament might find itself having to arbitrate between the rival constitutional claims of the Parliament in Ottawa and those of the several Canadian provinces. I therefore advanced the argument that under the Statute of Westminster we had the right to divest ourselves of our residual responsibilities for the Canadian constitution without first having to receive the request or obtain the consent of the Ottawa Parliament so do to.

The repeal of a United Kingdom Act, or part of it, does not involve the passing of fresh or new legislation which “extends or is deemed to extend”, in the words of Section 4 of the Statute of Westminister, “to a Dominion as part of the law of that Dominion”. Our claim was that it merely involved the divestment by Great Britain of certain responsibilities—which, as a foreign Parliament, we are entitled so to do. We would not be legislating afresh for Canada. We would not be imposing any new law on the Canadian people. If our action left a constitutional hiatus, the simple and proper remedy was open to the Canadian Parliament to fill the gap by enacting their own constitutional instrument. Indeed, my noble friend Lord Stewart of Fulham referred to the problems that would have followed regarding how the Canadian constitution—or the British North American Act, in Canadian terms—should be amended. But this was not our responsibility to decide. It was the Canadian Parliament’s responsibility. And that is the responsibility which has now been undertaken through the Bill which is now before us.

I argued that the constitution which would result if we repealed unilaterally, so to speak, the sections concerned of the Statute of Westminister would have established a constitution for Canada which, in Kiplingesque language, would have been “native born” and not, as in the present circumstances, one which has to be blessed and legitimised by enactment here at Westminister and which therefore may quite possibly become the subject of controversy at some later date. I still think that my view was in accordance with the letter if not the spirit of the Statute of Westminster which was, after all, passed in very different circumstances more than half a century ago. I felt at the time that I was being more Canadian than the Canadians. No doubt we have a responsibility 785 to negotiate and evolve a constitution for a dependent territory—for Zimbabwe, or perhaps Pitcairn Island in the present era. But for independent Canada, which has been such a powerful influence in the whole process of giving constitutional and political independence to a host of erstwhile components of the British Empire, to have to come to Westminister in 1982 to have their proposed constitution enacted by the Queen, Lords and Commons of Great Britain seemed to me, and still seems to me, to be, as I think my noble friend the Foreign Secretary said, a grotesque anachronism and contrary to the whole spirit of the sovereign status of all Commonwealth countries since 1931. My view did not, however, commend itself either to the Government here or to political and legal circles in Canada—and I can, of course, understand why. But I thought it might help to concentrate the provinces and the Canadian Government upon finding a solution to what was, after all, their problem. Since then, for the last 18 months, we have been inundated with letters, handouts, Hansards, and addresses from the First, Second and subsequent nations of Canada. We have, as a result, learned more about Canada—at least I have—and its politics than I think we should ever have learned in any other way.

Most people in this country thought that the Eskimos lived in Greenland and the Red Indians in the United States. We now know that Canada has a native problem of its own. During my service in the Commonwealth Office I was always aware that the Canadian Government and public opinion were looking over our shoulders, with alert and critical eyes, to ensure that Great Britain and its servants dealt in a humane and enlightened manner with native peoples, with whose welfare history had entrusted our country. There is today an almost irresistible temptation to take advantage of the fact that the boot is now on the other foot: to lecture the Canadians as they have so often lectured us, sometimes in tones of an almost Scandinavian degree of moral superiority, as to how we should handle the problem of minorities and of native peoples in various parts of the world. Indeed, I am afraid that I take the Motion of the noble Lord, Lord Stewart of Fulham, as having failed to resist that temptation. And I can understand very clearly that any Canadian listening to the speech of the noble Lord, Lord Soper, would feel the same indignation as I have often felt when the Canadians have criticised and lectured this country on how it should conduct itself. There is no need for this process. Successive Canadian Governments have sincerely tried to practise what they preached.

The Canadian Governments, either provincial or central, have largely, if not entirely, financed the campaign of the First People of Canada in relation to this Bill so that their case could properly be presented at Westminster and in the British courts. Nobody here or in Canada has the slightest grounds for alleging that in this respect they have not been fairly treated. Canada was the first Commonwealth country to set up a special department of Government to extend and administer aid to developing countries. Certainly it was from this that we got, I think in 1959, the idea of setting up our own Department of Overseas Aid, the 786 abolition of which I, and many of your Lordships, now greatly regret. Canadian troops have taken part in many United Nations peace-keeping forces to parallel their generosity in providing money for development.

Quite apart from the fact that constitutionally any commitments by the Imperial Parliament or the Crown to the Indian or Eskimo peoples of Canada were transferred irrevocably in 1931 to the Queen and Parliament of Canada by the Statute of Westminster, we can, I believe very sincerely, be as confident that those commitments will be observed as if, under British law, we still retained these responsibilities here in the United Kingdom.

I personally hope that once this Bill has been debated on Second Reading, the remaining stages will be passed by your Lordships as a mere formality. I accept that one province, Quebec, whose interests have been very ably represented over the last 18 months by their Agent-General, M. Loisalle, maintains its opposition to this constitutional instrument. But it is not for us to try to arbitrate, or to amend and, least of all, to reject a measure which comes before this House as a result of a political anachronism but which represents the decision of the elected Parliament of Canada as to the rights of its peoples and the structure of its Government and which achieves a constitutional solution to a problem which should have been solved half a century ago.

Perhaps your Lordships will allow me to add this. Whereas when the “patriation” issue was first raised there seemed to be every likelihood that it would end in an unseemly and potentially disastrous confrontation between Canada and Great Britain, the outcome, by contrast, has been to enable us here in Westminster to better understand and sympathise with the problems of maintaining unity and good government in a great federal state. For this we have to thank the willingness to compromise on the part of the Canadian Prime Minister and his colleagues in the vast majority of the provinces. We have to thank the judicial role played by the Supreme Court of Canada, and we have to thank the effective diplomacy of the Canadian High Commissioner and her staff here in London.

I am quite certain that with the passing of this Bill through Westminster and the enactment of Canada’s constitutional instrument by the Queen and the Parliament of Canada in Ottawa, relations between our two countries will be closer, on a basis of mutual respect and understanding, than at any time since 1867. I can only add, speaking personally, that if by any unhappy chance some future Government of the party or parties opposite were to drive me into political exile, I would be very happy to live under this constitution, preferably in that most beautiful and God-endowed of countries outside Britain, at any rate as far as I know—the Province of British Columbia.

5.51 p.m.

Lord Gifford My Lords, I intervene with the greatest hesitation because I am an expert neither in Canadian affairs or in constitutional law. I intervene only because of the conviction in my heart that the passage of this Bill is likely to be calamitous to the future welfare of the indigenous people of Canada; that we have an obligation to say and do what we can during the 787 passage of this Bill to influence and to try to avert calamity. Normally one would not dream of intervening in a matter which has been settled by the democratic institutions of a sovereign state, but the question of the future if indigenous minorities is not a normal question. It is a human rights question, a moral question, a question that transcends the normal considerations of respect of one people for the sovereignty of another.

From all that I have read of the proceedings in another place, I was heartened by the cross-party alliance of Members on every side of the House; led by Sir Bernard Braine on the Conservative Benches and Mr. Bruce George on the Labour Benches. It was an alliance which I am sorry has not yet been reflected in the debate in this House.

One of the crimes of modern history has been the treatment of indigenous peoples. One throws no stones this afternoon at any particular country in this regard. Many countries have been responsible, and few countries have a record without blemish. In some cases, such treatment has amounted to the physical obliteration of a people, and in other cases to the virtual obliteration of their cultural dignity. Invariably it is for reasons of greed for the land and resources which exist where those people live. This has happened in Australia, in south and central America and in the United States, so that the process in some cases is irreversible. Honourable Governments and dishonourable Governments alike have played their part, even if unwittingly and unthinkingly sometimes, in the attack on indigenous cultures.

Against this background, international public opinion generated by the voices of the indigenous peoples themselves has begun to assert itself. It is reflected in the international covenant on civil and political rights to which the right reverend Prelate the Bishop of Chelmsford has referred; the clauses that give to all peoples the right to self-determination, and to ethnic minorities the right to enjoy their own culture, to practice their own religion, and to use their own language. These are difficult concepts in international law, but they have helped to encroach upon the absolute right of the majority to dispose of territory belonging to the peoples in their countries as they wish.

The history of Canada has been somewhat different. Despite exploitation and repression, and despite until recently grossly discriminatory laws (on the history of which my noble friend Lord Soper so eloquently spoke), the indigenous peoples of Canada have maintained their identity and culture. These peoples have demonstrated to many of us over the past few months and years with what eloquence, dignity and moderation they can plead their case. One of the reasons why that is so, I would suggest, is the Royal Proclamation made by the British Crown; the solemn treaties which were entered into and thought of so seriously by both sides in years gone by; and the persistence of the British North America Act as part of Canadian law—that law which made it more difficult to encroach upon and ride roughshod over Indian claims.

These rights, which were guaranteed by the British Crown and which have received the protection of the international covenant, are not convenient, so frequently, to the authorities of a national state. That 788 has been the case with the Canadian federal and, still more, provincial authorities. From many things I have read, I believe that many Canadians recognise that the part they have played in the history of the indigenous peoples has been not one of pride. But what worries me is that there does not seem to be any film resolution to change that past into a different future.

It was only 13 years ago that a White Paper was published by the Canadian Government which advocated a policy of assimilation of the indigenous peoples into Canadian society. I share every word of what was said by my noble friend Lord Soper on that topic. That proposal could not be immediately put into practice because of the British North America Act. It cannot, I believe, be coincidental that it is fairly soon after that this request for patriation is being made. It cannot be coincidental that the consent of the provinces was obtained by the watering down of the one clause which gives protection to the indigenous peoples; a compromise, as the noble Lord, Lord Carrington, said, but a compromise in which the indigenous peoples had no say. What has been missing—and it is not only in Canada that this has been happening—is any spirit of partnership or consultation, or any treatment of the Indian nations and other indigenous peoples as equals deserving dignity and respect.

Like other noble Lords, I congratulate the noble Lord, Lord Shaughnessy, and the noble Lord, Lord Rodney, on the clarity with which (in two languages in one case) they delivered their maiden speeches today. But I must say to the noble Lord, Lord Shaughnessy, that I cannot accept there has been consultation with the indigenous peoples about this constitution. Indeed, only a few days ago the Prime Minister wrote that there would be no consultation until after patriation had taken place.

Much of what has been said by the authorities in Canada is not shared by very many Canadian people. We should pay tribute to the Canadian people for the outcry with which they greeted the attempt to exclude Clause 35 altogether from the constitution. The failure to discuss and consult is all the more regrettable in the light of the moderation of the Indian point of view. These people are not separatists. They are not blindly against development. To give one example, they would accept the passage of an oil pipeline through their territory on the condition that the pipeline and its constructors would take account of the migratory path of the caribou across its track.

What then, if this is what we feel, must we do? The courts have authoritatively declared what the legal position is, although the Indian nations, of course, had no part of, and had no knowledge of, the transfer of responsibility for the maintaining of their treaties from Britain to Canada. The courts may not exercise jurisdiction, but Parliament has responsibility—for this is why we are here. The right reverend Prelate also mentioned the opinion that was given of this Bill by Professor Fawcett, a most distinguished expert in human rights, who said that it was our right and responsibility both under the international covenant and under the constitution to examine this Bill and make any changes in it that are called for by the international obligation or by a fair regard for the rights of the Indian nations.

We are entitled, I think, to say, Yes, of course, 789 there must be patriation of the Canadian constitution, but not yet, not before the litigation before the British Courts has been concluded; not before the indigenous peoples have at least been brought into the discussion about this constitution and not, as it were, put off with an invitation to a constitutional conference not before but after the constitution itself has been passed; not before this vague phrase “existing” has been in some way explained and defined. How we bring that about is very difficult. I certainly would not wish to vote against the Second Reading of this Bill, because I do not think it is our business, either in this House or perhaps in this country, to vote down a Bill of this kind. The Committee stage must be the place for considering how we can bring in this element of delay, or request to Canada to take these views into account.

We come perhaps finally to the Motion which has been tabled by my noble friend Lord Stewart. I find myself confused by this Motion. It has concentrated our minds on the issue of the indigenous peoples and I welcome it for that, but when I read the terms of the Motion I am bound to say to the House that I am not confident at present that “the Government of Canada, in consultation with representatives of the aboriginal peoples, will use the provisions of the Bill to promote their welfare”.” I am the reverse of confident; I am apprehensive and sceptical. So, to judge from what he said, was my noble friend Lord Stewart. The Indian nations have pleaded that the Canadian Government should do something to give them grounds for confidence; they have received the watering down of the constitution provisions which mentions them. I cannot in conscience vote for a Motion which says that I am confident of something of which I am not confident. Nor by abstaining can I let it be said that I am not sure whether I am confident or not. If this Motion is proposed and pressed to a Division, I must, with reluctance, vote against it.

6.4 p.m.

Lord Renton My Lords, although we should not vote against this Bill and I accept that we cannot amend it, in my opinion we owe it to the people of Canada to consider carefully what we are being asked to do. Like the noble Lord, Lord Gifford, I, too, have studied the effect of the Bill on the Indian peoples of Canada, the aboriginal peoples, who have expressed to me, as to him and to other noble Lords, genuine fears about its effects. I have considered whether their fears were well founded or not.

I invite your Lordships to consider first what the Bill does for them, because on these matters its terms are perfectly plain. Whether there has so far been consultation or not, I think one must accept that there has certainly been no formal consultation and we have to accept at its face value the statement of Mr. Trudeau that he did not intend to have any formal consultation until the Bill was on the statute book of both countries. But it is surely something worth recording that when a constitutional conference is to be held under Part IV of the Bill the aboriginal people are to be represented at that conference, and Section 37(2) of the schedule makes that quite clear.

790 I wonder if I may just ask you to consider section 25 in detail because it is very important. It says: “The guarantee…of certain rights and freedoms shall not be construed…” That means construed by the Canadian courts—”…so as to abrogate or derogate from any aboriginal treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada” including those “recognised by the…Proclamation of…1763 and…”—and this is important in relation to Clause 35—”…any…that may be acquired by the aboriginal peoples…by way of land claims settlement”.” I take that to include, acquired in future.

That brings me to Section 35 about which the doubts have been expressed by the right reverend Prelate the Bishop of Chemsford, the noble Lord, Lord Soper, and the noble Lord, Lord Gifford: “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognised and affirmed”.” I would have thought those words are perfectly clear, but anxieties and doubts arose because of the insertion at a very late stage in the Federal Parliament of the word “existing”. I must confess that I wonder why that word was thought to be necessary. It does not worry me, however, about what its effect would be, because I do not think it has very much effect either way. However, the Indians are worried lest it has an adverse implication.

My view is that, although the word “existing” is unnecessary, the provisions of Section 25 would prevent a construction of Section 35 contrary to aboriginal interests. So that on that point I would like to feel that Indian fears were set at rest.

In view of these considerations, noble Lords may wonder what the Indians are worried about, and I must say that I do feel that some of the things of which the noble Lord, Lord Gifford, reminded us do give rise to concern. Having met several of their tribal chiefs and their representatives here, I find that those tribal chiefs were dignified, articulate, intelligent, and above all, they were filled with a touching faith in the influence and benevolence of your Lordships’ House. They were genuinely worried. They pointed out that the safeguards in Section 25 and 35 could be swept away by the power to amend the constitution under Part V of Schedule B, the proposed provisional constitition.

Although the procedure for amendment is fairly elaborate in Part V, the Indians fear, rightly or wrongly, that it might one day be used to deny them their rights by altering Sections 25 and 35 to their disadvantage. When we asked them why they feared that happening, we found, as the noble Lord, Lords Gifford, has said, that they have long memories. They know about the policy of de-Indianisation and assimilation, first attempted in 1840 and then put forward in a White Paper of the Canadian Government in 1959 and not abandoned until four years later after much protest in Canada. They knew that although the Act of this Parliament—of our Parliament—of 1867 gave them the right to vote, it was taken away from them, or rather their grandfathers or great-grandfathers, by the Canadian Parliament in 1880 and not restored by the Canadian Parliament until 1960. They knew that they 791 were for many years denied the right of access to the Canadian courts for the assertion of their rights until 1950.

As the noble Lord, Lord Shaughnessy, pointed out in his most attractive and very telling maiden speech, there have been blemishes in the treatment of the Indians. They have sometimes been deprived of their land without lawful justification, and today many of them feel deprived, frustrated and depressed, and land claim settlements often cause disappointment to them. Therefore, I think that we must consider what we can do to help them and to encourage them, without in any way interfering with the internal affairs of Canada, because that would be the worst way in which we could attempt to help.

Clearly we should not vote against Second Reading or try to amend the Bill. But surely we can express the hope that the governments of Canada and of her provinces will wish to prove to the Indians, and to the people of Canada and the United Kingdom, that they mean what they say in Sections 25 and 35 of the schedule, and they will also wish to prove to the aboriginal peoples of Canada that those peoples will be allowed to live their own lives, on their lands, in the way in which they prefer and know best. It is sometimes said that they are trying to get the best of both worlds. I do not find anything wrong in that. I happen to have some Scottish blood in me. There are people in the Highlands of Scotland, crofters, who were very depressed for a long time. They stayed there and they followed their local ways of life. Then came the great oil terminals and many of them—not all of them—benefited from them and we do not resent that happening. So why should we say that the aboriginal peoples of Canada should not have their fair share of modern development, of modern technology, when it comes their way?

I turn to the Motion of the noble Lord, Lord Stewart of Fulham, who is a very old parliamentary friend of mine in the non-political sense—if I may put it that way—because we have known each other for very many years and I deeply respect him. But I implore him and his colleagues on this occasion, not to place us all in a rather embarrassing position by moving his Motion. The message has got across. It is on the Order Paper, but I do not think that it would help to move it.

There is one other point that I should like to make. There is further protection for the aboriginal peoples of Canada and other aboriginal peoples, if their rights can be asserted, in the universal Declaration of Human Rights—in particular Article 2 of what is called the Proclamation; and in Article 2 of the Genocide Convention. It is not offensive to mention it because it is in very broad terms and Article 2(c) reads:”Deliberately inflicting on the group”— that is an aboriginal group—”conditions of life calculated to bring about its physical destruction in whole or in part”.” I am sure that no Canadian Government would wish to do anything of that kind. So having very carefully considered the position of the aboriginal peoples, I hope that one can do something to set their fears at rest. But, at any rate, what perhaps is most in their favour is that in all this the honour of Canada is at stake.


6.16 p.m.

Lord Mais My Lords, let me first add my congratulations to those that have already been given to the noble Lord, Lord Shaughnessy, and the noble Lord, Lord Rodney. I doubt whether we could have had two more expert Members of your Lordships’ House in attendance on this occasion.

It is with some diffidence that I rise to speak on this most important Bill. I do so because I have had close relations with Canada for many years, both family connections and the fact that I had the privilege of being with the Canadian Army from the beaches to the Reichswald. Most of that time I must confess was with the French Canadian Brigade and I am not sure, to be quite honest, of whom I was most frightened. Since those years long ago, I have paid many visits to that superb country both on business and pleasure, and the friendships which I made long ago I still keep.

I admit that this country’s involvement is, to some extent, out of harmony with the present. Therefore, it is my view that no one could possibly object or raise any reasons of opposition to the Canada Bill inasmuch as it causes the constitution to be patriated to where it rightly belongs. Indeed, the Canada Bill goes far beyond the objectives of patriation. For what will, in fact, be our last intervention in the internal affairs of Canada, we have before us a 60-clause Bill. It is not for me to judge the merits of these changes—they are for Canada to decide. It is her future and hers alone.

The Canada Bill itself provides a satisfactory method of amending the Canadian constitution, by Canadians, in Canada, for the benefit and the future of Canada itself. Yet on the one hand we are told that the British involvement is undesirable—and with that I agree—that our intervention is but a residual power, and with that I do not disagree. Your Lordships will know that the province of Quebec opposed some of the changes that are contemplated. Far be it from me to comment upon the objections or to pass judgment upon the reasons for those objections. But what we must not overlook is that never in 115 years of Canada’s constitution have changes been made in the legislative powers of any province without the consent of that province.

What we are about to do will, in fact, result in major changes in that constitution—the constitution of Canada. But this is not really a matter for your Lordships’ House or, I imagine, it will not be very shortly; it is a matter which must rest in the hands of Canada, and I cannot for a moment imagine a pair of hands which are more capable of dealing with their own future. However, we must all hope that the fears and apprehensions of the province of Quebec can be solved. I am sure that we all know that Quebec is the homeland of one of the founding peoples of Canada. Yet once, and for the first time in the history of Quebec and for the whole of Canada, can the legislative power of one province be changed without the formal consent of that province?

I am concerned as to whether sufficient consideration has been given to the minority interests in Canada, a point which other noble Lords have mentioned this evening. I shall not go further than that because it has already been amply covered and doubtless will be referred to later, and I realise that there are many speakers yet to follow. From my knowledge of 793 Canada, I am satisfied that the problems will be solved; that in the end they will be solved justly and in the interests of all the peoples of Canada. The noble Lord, Lord Alport, referred to the Agent General for Quebec. I should also like to express my appreciation to M. Loisalt for the advice and information that he has so readily provided and, in fairness, in most cases completely unbiased.

I should like to conclude by saying that my admiration and respect for Canada is such that I have every confidence that whatever the problems and whatever our fears may be—and they have been expressed in your Lordships’ House this evening—an acceptable and generous solution will be found which will satisfy all those who are concerned. I do not propose to speak further tonight. There was much that I would have liked to say, but there is a long list of speakers and time passes.

6.23 p.m.

Lord Blake My Lords, I should also like to add my congratulations on the notable speeches made by the two maiden speakers. I hope that they will speak many times again. Some 36 years ago I began to teach a subject in Oxford called PPE—philosophy, politics and economics. In fact, I taught it as the successor to the noble Earl, Lord Longford, in Christchurch, and I am sure that I was nothing like as good a tutor as he was. However, one of the subjects which used to come up under politics was the question of federalism. I can remember discussing the problem of Canada even in those days, and observing to my pupils from time to time that sooner or later that problem would blow up and would be a very difficult one indeed to solve. I said that it would cause much trouble. I am only relieved that, when, in fact, the whole affair has blow up—if I can use the expression—it has gone very much better and much more smoothly than I feared and, indeed, expected in those days.

I have very little to add to the wise and learned constitutional points which have been made by the noble and learned Lord, Lord Diplock, and others. I think that the House can be in no doubt about the constitutional propriety of the present request from Canada. There can be no question that, in accordance with the ruling of the Canadian Supreme Court, we have a substantial degree of consent from the provinces. If nine to one is not substantial, what is?

There is also the other question which has caused worry to many in another place and in your Lordships’ House; that is, the question of the position of the Indians or the aboriginal members of the population. The question of Indian rights is no reason for refusing assent to this Bill. Whatever we think—and opinions have been expressed very strongly—about the treatment of the indigenous peoples of Canada, we do not have any responsibility for them here. On this point the opinion of the legal and constitutional experts is clear and decisive, and I should have thought could hardly be disputed. This is not an affair for the Crown in right of Great Britain, but an affair for the Crown in right of Canada.

In fact, we must trust the Canadian Government. I, for one, find it tactless to say the least—indeed, 794 probably counter-productive—to suggest, even by implication, that we do not trust them. For that reason I share the hope expressed by my noble friend the Foreign Secretary, that the noble Lord, Lord Stewart of Fulham, will not in the end press his Motion. It is innocuous in its language and one could indeed hardly vote against it. But it gives an impression of paternalistic admonition by implication, which I should have thought is precisely what we ought not to give in our dealings with Canada at this moment. Canada is a sovereign, equal and independent state; an old partner and a loyal ally. She should be treated as such. We should leave her to deal with her own problems as she thinks fit and not seem to be hanging on to some faint shadow of the power of the Westminster Parliament.

6.27 p.m.

Lord Scarman My Lords, I can be brief. The heavy guns of the law have already spoken through the mouth of my noble and learned friend Lord Diplock. I come along—and perhaps I may put it in French, as French is part of the order of our proceedings—as a mere mitrailleur, firing my light ammunition in roughly the same direction and hoping to strike some of the same targets. I, therefore, can be very short upon the law.
I rise because of one anxiety, and that anxiety relates to the rights of the aboriginal peoples, which, if I may say so, have already been the subject of very eloquent speeches by a number of your Lordships. But here I have also been overtaken by preceding eloquence. My noble friend Lord Renton has really said everything that I wish to say about the rights of the aboriginal peoples, and in particular he has adopted the approach which I hope the people and the Government of Canada will think appropriate in this House. I hope also that the aboriginal peoples of Canada, who respect this House, will see the wisdom and sincerity of his approach.

I hope it is already clear that I welcome this Bill and, if I may say so with respect, I add my humble wish to that of the great majority in your Lordships’ House that this Bill will pass quickly and not only in a way which does honour to our relationship with Canada but in a way which does honour to the sense and sensibilities of the British people.

The Bill I welcome for a number of reasons. First, it gives us, as so many speakers have already emphasised, the opportunity of ending an anachronism and an anomaly. Speakers have indicated already how absurd it must be that the Parliament of the United Kingdom should retain, as still up to this moment it does retain, ultimate responsibility in a legislative sense for the constitution of Canada

I also welcome the Bill, if I may respectfully say so as an English lawyer, for its own intrinsic quality. I hope some of your Lordships have had time to consider in detail Part I of the Bill entitled, “Canadian Charter of Rights and Freedoms”. This is a magnificent modern statement of the human rights and freedoms which the common law countries of the world seek to maintain in various ways. Of course, it could be criticised here and there but it is a magnificent contribution to the jurisprudence of human rights, if I may respectfully say so to my Canadian colleagues.

795 Secondly, I very much welcome Part V of the Constitution Act, Schedule B. That is the part in which the draftsman has sought to reconcile the age-old dilemma in constitutional matters; that is to say, ensuring that the rights granted by the constitution are safeguarded or, as the trendy phrase is, entrenched, while at the same time preventing them from developing the rigidity of the Medes and Persians. That is to say, there must be the capacity for amendment, but that capacity must be such that it does not interfere in any hasty way with the constitutional rights. That, it seems to me, has been achieved.

Therefore, since we are discussing the Bill—and I am sure that a word or two of praise from this country will not go amiss or be regarded as patronising in Canada—let us praise. This is fine constitutional legislation by and large. And yet, my Lords, I have one anxiety. Does this new constitution sufficiently safeguard the rights of the aboriginal peoples of Canada?

First of all, one must address oneself to this question: have we, in the Parliament of the United Kingdom, any right to discuss that matter at all? It is certainly true, as my noble and learned friend Lord Diplock emphasised, that our courts have no right to consider this matter at all. But, of course, our courts act judicially. Our Parliament, until this Bill becomes law, retains a legislative responsibility. That legislative responsibility rests with us as one of the two Houses of Parliament, and it is not a responsibility that can be shelved by participating in a mere rubber-stamping activity. We have to look at what we are being asked to legislate for. And yet that legislative responsibility is itself limited. It is limited by the preamble to the Statute of Westminster, to which the Foreign Secretary referred, and it is limited by the conventional practice of our Parliament in legislating for Canada only at the request of, and with the consent of, the Parliament of Canada.

It follows inexorably that in a legislative capacity we can examine the Bill, we can criticise it, but at the end of the day we can only pass it, or reject it. What we cannot do, because it would be wholly inconsistent with the preamble of the Statute of Westminster and our constitutional convention—and it is our constitutional convention—is to amend, because to amend would be immediately to legislate other than at the request of the Parliament of Canada. Therefore, we have only the one choice, and I am sure that your Lordships will exercise that choice in the way which it is quite obvious I, for one, favour; and that is to pass this Bill.

Nevertheless, I welcome the Motion put down by the noble Lord, Lord Stewart of Fulham, not because I want, or would ask, the House to divide on it, or that it should be pressed. But it has—and one can see this in the course of the debate—concentrated our minds wondrously on the rights of the Indian peoples. That is very valuable. I do not think for one moment that Canada will resent constructive and friendly criticisms or expressions of anxiety about the future of the Indian peoples, or will resent an expression of sympathy with them in their anxieties whether, at the end of the day, we share them or not. Noble Lords have 796 already indicated, with what understandable justification, that the Indian peoples are doubtful and apprehensive about their future.

Let me look now for just a moment or so at the provisions of the Bill. I entirely agree with the analysis of the noble Lord, Lord Renton, of Section 25, which of course is part and parcel of the Charter of Human Rights, and Section 35 which is the constitutional affirmation of their existing rights, which comes in another part of the Bill. It is therefore wider in scope than Section 25, which is limited only to the impact of the Charter on the Indian peoples. But, as the noble Lord, Lord Renton, said, these two sections will of course be in the hands of the courts, and when the Canadian courts come to consider, as no doubt sooner or later they will come to consider, the meaning of the word “existing” in Section 35, which affirms the existing rights of the aboriginal peoples of Canada, the courts will immediately—all judges are the same—look back for guidance to Section 25.

What do we find in Section 25? We find a most useful indication as to where those existing rights are to be found. In the Proclamation of 1763, and in the land rights of the rights of the Indians to land settlement. If one just takes this constitution as it now stands and assumes it to be under discussion in a court of law, there cannot be any doubt that that is being protected in Section 35. If there were any doubt, Section 25 throws the most valuable light upon it. And I have little doubt that the Canadian courts would pay heed to the eloquent speech of my noble and learned friend Lord Denning, Master of the Rolls, in giving the leading judgment in the English Court of Appeal, where he described the Royal Proclamation, which is expressly mentioned in Section 25, as “a Bill of Rights”; not as a treaty. Courts of law municipally are rarely concerned directly with treaties, but as an Indian Bill of Rights, not to be altered without the consent of the Indian peoples, there is much in those two sections which, I would suggest to the Indian peoples, contains much to give them confidence for the future.

There is a further matter upon which the noble Lord, Lord Renton, touched, which is also important. Although the constitutional conference, which is to take place within a year of the constitution coming into force, is strictly a constitution between the Prime Minister of the Federation and the premiers of the provinces, it does provide—and I use the words of the constitution advisedly—for participation in those items under discussion which deal with the identification and definition of the rights of the aboriginal peoples. My Lords, I am sure that the Indian people would have preferred it if it were a conference of which they were full members, like the premiers of the provinces; but it is a conference in which their participation is required by law when it is dealing with the identification and definition of their rights to be included in the constitution. So there is some safeguard there.

Where, therefore, is my residual anxiety? It is Part V, which I have already praised in general terms, that creates my anxiety. The Indian peoples’ leaders fear that they do not have the safeguard that, for instance, the provinces have, against amendment of the constitution without their consent. I say no more than that I hope that those in Canada, who as one can 797 see from Canada’s record are just as alive to the importance of human rights as we are in the United Kingdom, will look at that particular point. If something could he done there, I would suggest to our Canadian friends that much would be achieved in gaining the confidence of the Indian peoples.

There is another, less important matter which also, I think, causes some anxiety. There is provision in the constitution for recurrent constitutional conferences every 15 years or so. And indeed Part IV, which deals with the first constitutional conference, is repealed a year after the constitution has been enacted. There is no similar provision with those subsequent conferences for the participation of the aboriginal peoples. That may be inadvertence—I cannot believe that it is policy; but I would express the hope that Canada would take a look at that so as to ensure that at least the participation envisaged in the first constitutional conference would continue in the following two.

My Lords, I have done. I sincerely hope that the aboriginal peoples of Canada, having read some of the very eloquent speeches delivered by your Lordships, will appreciate that the one desire of this House is to help; not to advise; not to patronise; not to dominate; but to make helpful and constructive suggestions as we bid bon voyage to Canada on her voyage into the future. And in wishing them bon voyage, I should like to add that we have had the true ring of Canada in the course of this debate in two admirable and eloquent maiden speeches by Canadian Members of your Lordships’ House.

6.46 p.m.

Baroness Gaitskell My Lords, it is always a pleasure as well as an honour to follow the noble and learned Lord, Lord Scarman. I am not going to make a speech or refer to the Bill, but I intend to make only a very short intervention. I visited Canada for the first time in 1967 when Expo 67 was on. And there, at the entrance to the pavilion, was a plaque, and I should like to read the words from that plaque—it is only very short. The plaque had these words: “You have stolen our native land, our culture, our souls…and yet our traditions deserved to be appreciated, and these derived from an age old harmony with nature even merited being adopted by you”.” I found those words very moving. It seems to me that, however good this Bill is—and, as I said, I am not going to refer to it—I do not believe that here in this country we are aware of the implications of the words on that plaque. I have little to add to my views on this subject. Many people are worried about the Canadian Indians, about the way they have been treated and the way that the Canadians treat them. It seems to me that that is their business, not ours, and we can only watch carefully what is going to happen in that country.
6.48 p.m.

The Earl of Selkirk My Lords, the last time I heard a Canadian amendment in this House, Members of the House stood absolutely quiet and the only speech was from the late Lord Bennett who had been Prime Minister of Canada. It is true today that we have had two excellent Canadian speeches for which we are extremely grateful, and it shows the extreme versatility of the Members of your Lordships’ House.

I have certain traditional relations with Canada, particularly with the residential settlement in the 798 prairies. I have been there often over a period of some 50 years, but perhaps my most vivid memory is in being responsible for taking a young aircrew from Canada to their operational training before going to operational squadron. They represented a magnificent body of men and I was greatly enriched for having had the opportunity of meeting them. They represent a country in which we can have every confidence. We should not underestimate the extraordinary difficulty of governing a country like Canada. To give a simple example, if today we were sitting in Victoria, in Vancouver Island, the eastern seaboard would be the other side of the Republic of Mongolia; it is just about as diverse as if we were taking a line across Scandinavia and Asia. It is a tremendous problem.

I wonder whether noble Lords are right in saying that the proposals now before us are anachronisms. I believe that Canada has been wise enough to wait until the sense of unity in the country had reached a stage when a constitution could be written. We know that this constitution has not been without considerable controversy in Canada. There are certain definite reasons, but I believe those controversies would have been even more difficult to resolve had they taken place at earlier periods.

One must, however, say frankly, that the proposals had never been before the electorate of Canada; there was nothing in the Liberal manifesto at the last elections dealing with the subject at all and a great deal of the subject matter has never been discussed in public. The noble and learned Lord, Lord Scarman, is extremely keen on human rights, but a great many lawyers are very doubtful indeed, and it has never been properly examined. To give a simple example, when somebody is arrested, the first thing he will do will he to appeal to the constitution, and under that he will have an appeal. He may lose the appeal, but it will mean that the delay in criminal prosecutions may be considerable. That is only one element, and I do not think many people will, with great confidence, interpret all the terms in the Schedule of Human Rights.

It was a great pity that there was no consultation with the Indian people before this took place. It is all very well to refer to conferences—we all have conferences and they can mean a lot or a little—and perhaps at this point I should admit to being an honorary chief of the Salteaux Indians of Manitoba. The problem to which the noble Lord, Lord Garner, referred, that of the conflict of two cultures, has no easy resolution. I would say that my noble friend Lord Renton showed that as much has been done in the Bill as could be done. However, that does not answer basically their problem. They do not believe in democracy; they do not vote—they have no Member in the Federal Parliament—and they do not think this is the way to conduct their affairs. They have their own way of living and they do not want to become Canadians; they want to remain Indians. Those are fundamental questions which, frankly, we cannot resolve by law. It is a very difficult matter for the Canadian Government who, I know, approach it with the utmost sympathy.

Whether or not we accept the Motion in the name of the noble Lord, Lord Stewart, bearing in mind the phraseology—that we are confident that the Government of Canada will deal with the problem sympathetically—we must remember that we have had a massive 799 volume of appeals to this country from the Indians. They are concerned about their future. The situation is not altogether dissimilar, if I may draw a comparison, from the clearances in the Highlands of Scotland. Here are a London Government with a language they do not understand, customs they do not understand and a form of land tenure they do not understand, all up against the irresistible forces of economic development. It is, as I say, a very similar position and it represents to a great extent a task of administration. I do not think we can do much about it. We cannot do more than say we are concerned, and after all, we are using the excuse of the Bill to discuss what are, in fact, internal matters for Canada, and they will no doubt take it that way.

I rejoice in the fact that the Canadians have this ability to amend their constitution. I cannot say that at any time I have been in Canada I have heard Canadians complain that we still held the power of constitutional amendment. I do not think they feel very strongly about it. It is a pity that the Canadian Government did not appreciate the correct constitutional position until it was pointed out to them by the Supreme Court. I believe the controversy there has been will have a tremendous unifying effect in Canada. I also believe that it will have the effect of politics being regarded as a more honourable and important profession than it has sometimes been regarded up to now. I conclude by commending to the Canadians the words of Pericles: “The price of freedom is eternal vigilance”.”

6.55 p.m.

Lord Strathcona and Mount Royal My Lords, I am in no doubt that we must accede to this request from the Canadian Government in the form in which it is presented to us, and I hope the House will do so with positive enthusiasm. It is small wonder that an Act passed in 1864, which was the first attempt by the British Parliament at colonial enfranchisement, should have had the defect that there was no mechanism for the appropriate provision procedure of the constitution, something which was rectified in subsequent Acts for Australia and New Zealand.

We find criticism of the present proposals now focused on the issue of the protection of aboriginal rights. I cannot add a great deal to what has been said and my justification for inflicting myself on the House after so many eloquent speeches is that I am a somewhat rare species in that, as a Member of this House, I also am proud of the fact that I have a Red Indian great-grandmother who came from Alberta, the area which gave us two notable maiden speeches today. Both maiden speakers are old Canadian friends of mine and with one at least my family has had a very long connection. I knew the noble Lord, Lord Shaughnessy, in Montreal, where I suspect he learnt the French of which he gave us the benefit in his speech because a French-speaking westerner is a rare species too. I congratulate them both and I hope that now they have used this excuse for breaking their duck, we shall hear more from them in future.

In addressing the problem of the rights of the aboriginal people, let us remember a point which has not been made too often; namely, that our Queen is 800 their Queen too. When the noble Lord, Lord Stewart, talks about A, B and C, it seems to me, though I say so with great temerity in the presence of various constitutional lawyers, that what we are being asked to do arises from the fact that the Queen is placing the handling of the native rights vested in her no longer in her British agents but in her Canadian agents in the shape of the Canadian Parliament, which must be the appropriate place for those rights to be exercised.

It seems to me that Canadians could be forgiven if they looked askance at our moral right of the United Kingdom Parliament to preach to them on the subject of the protection of minority rights. We do not want to flagellate ourselves, but we have had Brixton, we have Northern Ireland and, further to what my noble friend Lord Selkirk said, I am not wholly sure as a Scot that we can be altogether proud of some of the ways in which we have treated the minority peoples of Scotland, and, I have no doubt the noble and learned Lord, Lord Elwyn-Jones, would wish to say, the people of his native Wales. So let us express our sympathy with them in their problem, as Lord Selkirk did and let us say we have a long experience in these matters and that we have some pride in the tolerance we have exercised. But then let us say that we are woefully short of solutions to these very difficult problems.

It is all very well to talk of long memories, but to me it does not seem to be very productive, in looking at history, to hark back to deploring the record of the past, which is beyond recall, and to judge the action of those times by standards which are now very different. I do not blame any group for seeking to extract political or financial advantage from a situation when they see it. As the noble Lord, Lord Renton, said, that is a perfectly legitimate gambit. But I believe that to work up a great head of steam of moral indignation is misplaced, and the noble Lord, Lord Shaughnessy, pointed out that the record is not all black.

I would say that even if some Canadians admit, as they do, that they are perhaps now making up for a century of neglect, let us recognise and let us see what the record of recent years shows as an earnest of their good intent. I understand that they now have a budget of over a billion dollars for special Indian projects; and perhaps one statistic tells us quite a lot. Ten years ago there were 200 Canadian Indians in universities; now there are 4,000. What is slightly less assuring is that I understand that most of the 4,000 are lawyers, and whether or not that bodes well for the future of Canada. I am not quite so sure.

It is also worth pointing out—I do not think that it has previously been pointed out—that the Inuit, who represent some 10 per cent. of the aboriginal population, have expressed their content with the constitution. Further, it is worth congratulating Members of this House on the fact that they have referred to the Inuit by the name that they prefer to be referred to by, rather than the somewhat derogatory name of Eskimo, which I understand was bestowed upon them by the Indians.

It is late and I forbear with some difficulty attempting to answer some of the points made by the noble Lords, Lord Gifford and Lord Soper, but I want to say one thing. It is very easy to sentimentalise about the validity of the life of the noble savage—and I do not 801 want for a moment to be misunderstood in suggesting that the life of the Indian is the life of a noble savage. But I have heard people in this country get all sentimental about the life of the West Coast crofter, and it is not all that marvellous. I suspect that we can misplace some of our sentimentality towards the Indian way of life. I further suspect that this might have something to do with the statistic that the noble Lord, Lord Soper, produced about the shortness of the expectation of life of the Indians. I should have thought that one answer to his concern about this was not to complain about a policy of trying to apply the standards of life enjoyed by the rest of the community. But I accept that he was trying to say that the Indians might have been mistreated in the past. If they have, I hope that we have demonstrated that the Canadian Government have recognised this and have done something to put it right.

I know that many people in this country share with me a feeling of special affinity for Canada, and this manifests itself in common cause in areas such as foreign policy, defence, and trade. I happen to believe that we have a long way to go before we reap the full benefits and all the possibilities of the long tradition of trade between these two nations, with which my family has been proud to be associated for well over a hundred years.

I do not believe that the changes in this Bill will in practice be very profound, but in so far as there are changes, they will be beneficial to both nations by removing a potential source of embarrassment. So I say let us pass the Bill with a good grace, with no backward glances, and—I say to the noble Lord, Lord Stewart of Fulham—please, with no equivocation.

7.5 p.m.

Lord Brockway My Lords, I should like to begin by telling a story; at least it will make my speech shorter. In 1930 I was called from the Chamber of the House of Commons to meet visitors in the Central Lobby. To my surprise they were three Indian chiefs from Canada, with their squaws. They were marvellously dressed—the men with great head-dresses, spreading wide, and brilliant red robes; the squaws with bells on their wrists and ankles. I had to take part in a debate, but I got them seats in the Public Gallery. Since the men were members of their regional Parliament, they were allowed in the distinguished visitors gallery. I remember the sensation when they entered, the bells of the women tingling, so that all the Members of the House of Commons looked up to them. Mr. Neville Chamberlain was speaking, and he was very bewildered. I had tea with them on the terrace, and I asked them their business. They said, “When we first meet people we don’t tell them our business. We make friends”, and they passed round the pipe of peace.
Afterwards I learnt that they had come here because their ancestors had supported the British in the war of independence in America. They showed me, written on parchment, the treaty which was signed by the King of this country, guaranteeing to them independence. And they came to claim those rights. They had such sympathy among Members of Parliament that we formed an all-party committee, which saw Mr. J. H. 802 Thomas, who was then the Colonial Secretary. Mr. Thomas replied that the treaty no longer had force, that we had handed over to the Canadian Government all responsibility for the Indian people.

Since then I have tried to watch the scene in Canada closely. Like many Members of this House, I have relatives there, and my general impression has been as follows. During the period in question both the provincial governments and the central Government have sought in legislation and administration to assimilate the Indian population with the whites. They have done that by eradicating the Indian community life, by seeking to remove them from their reserved lands, and by destroying their spiritual and cultural character and institutions: in a word, by making them more like white people. In saying this, I am not specially condemning the Canadian Government. It has been happening all over the world—the strong absorbing the weak.

But today there is a great change. Today there is a reversal of that tendency. Everywhere there is the championship of minority rights. I am amazed how, in London, there are groups of people from all over the world urging the rights of minorities. I am one of those who believe that that is a healthy change; that the best future for mankind is not uniformity but is diversity, and the contribution to us all of many cultures.

I want to congratulate, if I may, Lord Stewart of Fulham on the speech that he made. I am sorry to say that I do not feel that his Motion is justified in expressing confidence in the Canadian Government. I have great appreciation of much that Prime Minister Trudeau has done, including the declaration of that country as a nuclear-free territory, though I am a little disturbed by the negotiations now taking place with America to have cruise missile tests there. But, quite frankly, if you look at the policy of Prime Minister Trudeau on this subject it will be seen that it is not so progressive and reassuring as it is in other ways.

I want to make only two points. The first is that whatever the legal niceties of our having handed over responsibility for the Indian community in Canada to the Canadian Government, a very great moral responsibility still rests with us. Ironically, the Indians in Canada, when they signed those treaties, deliberately asked that the King should sign them rather than the Government, because they believed the King had more constitutional authority. Those treaties were with us; we handed them over to the Canadian Government without any consultation with the other parties to the treaty, the Indian community. I urge that the moral responsibility for the condition of the Indians in Canada still rests with us.

Secondly, I want to say how disturbed many of us are at the speed with which this Bill has been introduced and is being passed through Parliament. At the present time there are legal proceedings in the courts which deal fundamentally with the legal right of the Canadian Government to pass this Bill for our decision without consultation with the Indian community, who were participants in the treaty. These are not frivolous proceedings. Mr. Justice Vinelott, who is presiding over one of the courts, says that the case raises issues of constitutional importance which must be clarified. They are not only not frivolous: the Indians themselves are seeking for early decisions. I want to urge that it would have been very much better if the Government 803 had delayed the introduction of this Bill and its passage through the House until decisions were reached by the court.

I would urge two things: first, that the Bill should be delayed until the court cases have concluded; and, secondly, because of our moral responsibility, the Government should meanwhile seek assurances from the Canadian Government that Indian rights will be observed. Prime Minister Trudeau has said that he will negotiate with the Indian community after the Bill has been passed. I suggest that our responsibility for the Indians in Canada is so great that we should urge him to enter into those negotiations before the Bill is passed. If we did those two things, we would justify the confidence placed in Britain by the Indian community in Canada.

7.18 p.m.

Lord Beloff My Lords, the number of speakers who have inscribed themselves for this debate shows the interest and concern which we feel. It also (and I must apologise to the House) deprives me, probably, of the possibility of hearing the Minister’s reply. Most (or many, at any rate) of your Lordships who have spoken have had a direct connection with Canada, including the two noble Lords upon whose maiden speeches others have dwelt and whom I, too, should like to congratulate. I cannot claim equal intimacy, though the tie I am wearing illustrates the complexities of Canada. It is the tic of an English-speaking university in the French-speaking province of Quebec.

I think that noble Lords, in dwelling for the most part upon the particular problem of the aboriginal peoples of Canada, have omitted to consider how very peculiar this Bill is in general, because it is not a Bill exclusively for the patriation of the Canadian constitution. When the British North America Act was excepted in 1931 from the operation of the Statute of Westminster because of a Canadian request, that request was made because no formula of amendment had been found agreeable to all Canadian interests; and it was confidently assumed then, and has been assumed since then, that as soon as such a formula was found a simple Bill would be introduced by which the British Parliament’s power to legislate for Canada would be removed and a formula for amendment would be affixed to the original Canadian constitution. Instead of that, we have a Bill which is long and complex and includes provisions which have nothing whatever to do with abrogating our own powers or with conferring powers of amendment upon Canada itself.

It is because we have a Bill which is so complicated that we are in the quite extraordinary situation, of which this discussion about the rights of the aboriginal peoples merely gives us an instance, that at the very moment when we are hoping to part on friendly terms with this power of legislating for Canada, we are being asked to legislate for Canada in a host of areas—all the points covered in the Bill of Rights—powers which, if an ordinary measure had been carried, would immediately have devolved upon Canada itself.

Never since Canada attained its legislative independence has the British Parliament been asked to assume the power for internal legislation to this extent. Therefore 804 it is not surprising that, confronted with this request, noble Lords feel, as Members in the other place felt, that they are entitled to hold views about the content of the Bill which they would not have felt entitled to had it been merely what was always expected, a request for the patriation of the constitution.

The noble Lord, Lord Brockway, rightly referred to the greater sensitivity felt in all parts of the world today for the rights of minority communities. It is certainly true that when the Statute of Westminister was amended to except the British North America Act no one had any thought of the rights of the aboriginal peoples. It was the problem of reconciling Quebec to the rest of Canada in an agreed amending formula which at that time prevented progress. Had there been a federal-provincial agreement in 1931, had Canada accepted the operation of the Statute of Westminster and its operation on the British North America Act in the way in which other dominions were treated, we would not have any more right to discuss the fate of the aboriginal peoples in Canada than the fate of the aboriginal peoples in Siberia, or anywhere else in the world. We might have a moral right. We might conceivably under United Nations conventions have a right in international law, but we certainly would not have had a constitutional right.

It is one of the paradoxes of this Bill that, for reasons which have nothing whatever to do with the origins of it, we are now dealing with these matters of Canada’s internal policy. I must confess to some regret that it has not been found possible to produce an amending formula or indeed an entire Bill which carried with it the assent of Quebec. I quite appreciate, of course, the points made by the noble and learned Lord, Lord Diplock, and others, that constitutionally speaking, the Supreme Court of Canada has made it pretty clear that even the conventional demand for assent is met when there are involved nine provinces out of 10.

However, one must remember that Quebec is not the tenth province. Quebec is, and has always been recognised as, one of the two founding partners of Canadian confederation. It was the hope of the ancestor of the noble Lord, Lord Home, to whom he referred in his speech, that this would not need to be the case, that the French Canadians would be assimilated by the British as now white Canadians, we are told, hope to assimilate Indians. But a quarter of a century of experience of running Canada as a unitary Government broke down. The confederation that we had represented a partnership between the two main founding peoples, and it must surely be a matter of regret that when this Bill passes Canada will have a constitution which certainly not all the residents of Quebec—even all the French-speaking residents—resent, but still one which has not found favour with their own elected Government.

For these reasons, though I do not believe for a moment that we have any option but to pass this Bill, it is not a Bill which one immediately confronts with lightness of heart. One must hope that in all the respects in which doubt has arisen, Canada’s good sense, its sense of now great opportunities at home and abroad, will bring about a satisfactory resolution of difficulties, whether they are difficulties between Anglophones and Francophones or between the 805 white majority and the minority communities.

I do not think that having explored this we can do more than express our hopes; and my own feeling therefore is that the Motion proposed by the noble Lord, Lord Stewart, does not assist what we have in mind. Even to propose a Motion of confidence in a friendly Government creates a pre-supposition that there is some reason why some people may not have confidence in it. I do not think that any Member of your Lordships’ House would welcome an unsolicited testimonial to the uprightness of his life.

Therefore, I hope that we will pass the Bill. I hope that the Motion will be withdrawn because to vote against it would be equally—indeed, more—invidious. As has been said by other noble Lords, I hope that this last occasion on which Parliament as a quasi-sovereign authority in Canada discusses Canada’s affairs will be the prelude for all of us who have enjoyed long contacts with Canada to a new and fruitful relationship.

7.29 p.m.

Lord Underhill My Lords, it is my regret that, because of other pressing engagements, I was unable to hear the opening five speeches in this important debate. I speak as one who is proud that my party in Government in 1945 set the pace in panting independence and self-determination to so many parts of the Commonwealth. Therefore, my immediate reaction is to support patriation. My immediate reaction is that Britain’s authority over Canada’s constitution must be ended. My noble friend Lord Brockway referred to outstanding legal cases. I believe that we must have information from the Government on what will be the position should any of those legal cases be upheld. What will be the constitutional and legal position of the Bill which is now before us? I believe that is a very important point.

When the Select Committee of another place was giving consideration to the possibility of a request from the Federal Government with dissenting provincial governments, that Select Committee said: “The United Kingdom Government is bound to exercise its best judgment in deciding whether the request in all the circumstances conveys the clearly expressed wishes of Canada as a federally constructed whole”.” So, in their view, there could have been a possibility of our Parliament not giving assent to a request made to it.

Like many other noble Lords, I have received massive communications which I have endeavoured to read as assiduously as possible, and, like other noble Lords, I have had a number of interesting and informative consultations. It was soon made absolutely clear that eight of the 10 provincial governments were opposed to the then proposals of the Canadian Government. If that had been the position in respect of a request made to the United Kingdom, presumably the view advanced by the Select Committee would have prevailed, and I think it is extremely improbable that our Parliament would have acceded to a request that had been rejected by eight of the 10 provinces.

Therefore, it is to the credit of the Canadian Government and of the provinces that, following the decisons of the Canadian Supreme Court, they arrived at the new accord, so that our Parliament has not been called 806 upon to decide upon a request of the Federal Government with dissenting provincial views. That could have led to an unfortunate constitutional problem and could have endangered our relations with our friends.

I hope it is not too presumptuous to say that the views of the Select Committee and also the strength of the representations made to many Members of this House and in the other place, and the way those representations have been received, may have assisted in reaching that accord. The snag is that it would appear that the accord and the eventual resolution was reached without Indian consent or meaningful consultation with their representatives. That view has been advanced to many Members in this House by representatives of the Indian peoples. I should like to feel that the representatives of provincial governments who have brought pressure in their representations about their own positions will have the same regard to pressures brought on behalf of the Indian peoples.

This may be our last opportunity to exercise some views on the treaty rights which were guaranteed to the Indian peoples by the Crown. It is the Indian peoples who have expressed their apprehensions of the provisions in the Bill as they are affected by them. I was pleased to hear from the noble and learned Lord, Lord Scarman, that he could understand the apprehensions voiced by the Indian peoples. I also echo the view of my noble friend Lord Soper that it is to my shame—I am certain others will feel the same that until my attention was drawn to these facts how ignorant I have been about certain aspects of the conditions of the Canadian Indian peoples. It is a problem that we face throughout the world: things go on about which we know such a little.

There was no reference as there now is in Clause 25 of the Bill to the rights of the original people in the original Federal Government’s proposals. These were inserted following the accord, but that alone has made the Indian peoples apprehensive about their future because they were not considered in the original draft. Surely we have a right, irrespective of our parliamentary position, to express our concern about the position of minorities in Canada, as we have expressed concern about the rights of minorities in many countries in the world. There surely can be no difference.

There is to be a constitutional conference within a year of the new constitution coming into force. As has been stressed already, representatives of the aboriginal peoples will be invited to participate. I think it is most regrettable that such a conference was not held before the Canadian Government actually decided on its final request to the United Kingdom. The Prime Minister, Mr. Trudeau, has also offered the Indian peoples, as also has been stressed today, the opportunity to discuss their problems and put forward their own suggested amendments to the constitution after patriation. I clearly recognise the rights of the Federal Government and the provincial governments to deal with their own constitution, but in view of the strong apprehensions and representations that have been made to many of us, I believe it would help the situation if some assurances could be given by the Federal Government before the Bill actually concludes its passage through this House and through Parliament. That would help to satisfy not only the Indian peoples 807 but many of your Lordships and others outside this House who have expressed some concern.

Mr. Richard Luce, the Minister of State, during the Second Reading debate on 17th February in the other place, said this at col. 370: “I do not need to remind the House that the Canadian people will be paying the greatest attention to the debate and will be aware of its great significance”.” I have no doubt that the same attention will be given to the views that have been expressed and will be expressed during our debate tonight. I believe that the Motion proposed by my noble friend Lord Stewart is, frankly, the least we can do as between one group of friends and another, to express quite sincerely what our views are. This is an opportunity to convey to the Canadian Government our felicitations and our desire for close accord, and it is also our last opportunity to say to them: “This is what we hope you mean in the Bill and we hope that you will give assurances not only to our Parliament but to the Indian peoples”.

7.37 p.m.

Earl Grey My Lords, I am of the opinion that this Bill is being unnecessarily rushed through Parliament, especially, as has been mentioned earlier, as the Canadian courts have not yet decided important issues which may have an effect on this Bill. As I understand it, this could make this Bill unconstitutional.

I am not in opposition to Canada requesting full legislative powers—that is natural and should have been done before—but I see no reason for this desire urgently to pass this Bill in days rather than in months. After all, Canada has already waited many years. The British Government is in a “Catch 22” situation—heads we lose, tails we lose—because, whatever the outcome, large numbers of Canadians are going to be dissatisfied.

With reference to the Indians, they have strongly lobbied Parliament and the British people since 1979, when 350 chiefs came to London and impressed us by their sincerity, concern and honesty, and put forward their fears and doubts regarding the entrenchment of their treaty rights and our legal responsibility to honour those rights. It is imperative that their culture and ideals are retained and promoted. An important point is that the Indian nations have not been consulted in the drafting of this Bill, which can affect their future. Decisions have been made for them, but not by them. This has been the historical experience for countless generations.

Much has been said today of assimilation into society. Assimility regarding equal opportunitites for educattion, jobs and health would be accepted, but not at the expense of culture, traditions and a natural everlasting way of life which the Indians value so highly. There is no course we can take to amend this Bill, and we should not wish to do so because I think the consequences would be far-reaching and damaging for us and for Canadians. It could possibly generate ill-feeling in Canada towards the Indians, which may set back what they are trying to achieve.

I notice that in Section 25 of the Bill a guarantee is made, upholding treaties and rights of the aboriginal peoples of Canada, including the recognition of the Royal Proclamation of 1763. I shall be interested 808 in what the noble Lord, Lord Trefgarne, has to say regarding this, and what representation has been made to the Canadian Government.

Canada is one of the strongest and closest members of the Commonwealth, and the relationship between our two countries has always had a strong bond of affection. I am speaking as one whose father was a Canadian. I am very proud of that and wish the bond to continue and to grow stronger. It is, therefore, of the utmost importance that proper care and consideration be given when discussing this Bill. When it was debated in another place, the Bill did not have a smooth passage, due mainly to the plight of the Indians, who, even now, are hoping for some change at this late stage, but I fear that that will not happen. We must accept Canada’s wishes, but must do so with a clear understanding of what is being done. I believe, and hope, that it is Canada’s wish, in general, that aboriginal rights are respected, and that when this Bill is passed that will be the case.

If we cannot amend this Bill, it is only right that we should debate it fully. If we passed this Bill “on the nod”, we should be accused of being a rubber stamp and not carrying out our obligations as we should. If we dictate too much, we shall be accused of meddling and will be told to mind our own business. It was essential, therefore, that due time and further consideration should have been given, in Canada, before presenting this Bill. I wish Canada success and a prosperous future when this Bill is passed, and hope that what we have done in Parliament agrees with the general wishes of the Canadian people, and that, at the end of the day, the actions we have taken will be respected and appreciated.

7.42 p.m.

Lord Jenkins of Putney My Lords, I am glad to follow the noble Earl, Lord Grey, because I find, as one has found throughout this debate, a considerable and unusual degree of closeness of opinion between us. Indeed, I found myself agreeing very largely with what the noble Lord, Lord Beloff, said. I feel rather alarmed about this, but I hope and believe that it is an unusual occasion and that we have a general feeling of responsibility in this matter.

What divides us, to some extent, is how best that responsibility should be discharged. That is the issue, rather than the responsibility itself. This was made clear by both of the noble Lords who made their maiden speeches today. I should like to join in the congratulations which have been extended towards them. Like others, I look forward to hearing them again on some other occasion, when what they have to say will possibly not be over-weighted, as it was today, by the knowledge that they were making their maiden speeches. Both noble Lords enjoyed a considerable degree of knowledge of the subject. I am not trammelled by that. I am no expert on Canada, but I have visited that great country on a couple of occasions and I hope to go again. I also have friends living in different parts of Canada.

What strikes one as a visitor to Canada are the unexpected differences of political opinion which exist not only between people of different parties, but between people who live in different parts of the country. There is a western body of opinion and an eastern body of 809 opinion, and a body of opinions lying somewhere between the two. I have carried on a correspondence over many years with an English friend of mine who lives in Toronto. He has been highly critical of the present Government of Canada, not only in relation to their attitude towards the aboriginal peoples, but also in relation to their attitude to the Quebecers—or, should I say, Quebecois? He feels—and I think he is right—that the Government of Canada, in their attitude over the years, have much to answer for and have left much to be desired, and that we, too, discharged our responsibility in earlier years in a manner about which we cannot be wholly proud.

But on this Bill, what he says is this: “With nine provinces supporting the Federal Government, I do not see how the United Kingdom Parliament can fail to pass the requested amendments to the BNA Act”.” I think he assumed at that time that what we should have was a simple series of amendments to the old Act, and not a fresh Bill. The noble Lord, Lord Beloff, has said enough about the consequences of that to make it unnecessary for me to add to it. But I believe that it is because, under the Bill, we are relinquishing our own responsibilities, and passing on those responsibilities, that we find ourselves in some difficulty. My friend in Canada made another point which is worth mentioning, and I think many of us will agree with him. He said: “I think that such a country as Canada should be ridden with a loose rein”,” and this echoes a number of points that noble Lords have made.

In what I hope will be a very brief contribution to this discussion, I should like to say a word about the Motion. We are all agreed that we must give the Bill a Second Reading and with it our blessing. On the question of the Motion, I rather suspect that my noble friend Lord Stewart, whose opening speech I followed with interest, was a little taken aback by the decision of the noble Lord, the Foreign Secretary, to say that he would not accept it. I think my noble friend expected that the Motion would be acceptable to the other side of the House. But the fact that it is not acceptable places us in a new situation.

We have the problem that the Government say, “This amendment is unnecessary, because if you say that you are confident in the Government of Canada, you indicate, in fact, that you are not confident. The expression of that confidence indicates a lack of confidence.” This point was made rather better than I have made it by the noble Lord, Lord Beloff. On the other hand, my noble friend Lord Gifford said that, so far as he is concerned, confidence is something which he notably lacks. He says that he has no such confidence, and such is his lack of confidence that he could not conceivably go into the Lobby in support of the Motion.

This faces us with a problem, because we have different interpretations of the consequences of carrying the Motion. In these circumstances, it is my hope that my noble friend Lord Stewart will think it appropriate not to push the Motion to a Division. I am bound to say that I would find it extremely difficult, in all the new circumstances that have arisen, to go into the Lobby in support of the Motion, because I, too, share the lack of confidence which my noble friend Lord Gifford has expressed.

810 I would not, for one moment, consider voting against the Bill. Neither would I vote against the Motion. Although the record in the past leaves something to be desired, although the Bill has gone through with what some feel was inadequate discussion and although certain legal proceedings are still taking place, all of which leads to a certain amount of disquiet, nevertheless it seems to me to be quite impossible that, at this stage in the proceedings, we can do other than give this Bill a Second Reading. I should have to abstain on the Motion.

So it is my hope that my noble friend will feel that, in the circumstances which have arisen and which he could not have foreseen when he put down the Motion, it is proper not to press it to a Division. We can then proceed with the Second Reading. As for all the further things that we have to say about the Bill, this may be possible at a later stage, as the Bill passes through the House.

7.50 p.m.

The Earl of Elgin and Kincardine My Lords, it is a pleasure to hear somebody who has only been once to Canada, or who is a first generation Canadian. My family and I are in the fifth generation of visitors to Canada. It was my great-grandfather who started off the whole debate with which we are concerned today. It was in his time as Governor General that the motion was put that Canada should become a nation. How it was rejected was one of the most exciting and inflammatory elements in Canada itself for, as my great-grandfather left the Parliament House, he was stoned and nearly killed; and the Parliament House was burned down. Yet as a result of six years of patience, he was able to bring all the people in Canada to an understanding of what responsibility meant in parliamentary government. This has been the tenor of our debate today.

Your Lordships have referred to the confederation of 1967 as perhaps the most important fact. However, the beginnings of Canada were, I believe, even more important. It was a hard beginning. It is worth while remembering this during the course of saying a farewell. It is a farewell filled with immense pride. The two maiden speeches of Canadians, so redolent of the excitement and fulfilment of their country at this time, contributed to the excitement of our debate.

My great-grandfather brought up his family in Canada. So my grandfather was Canadian-born, as are many other noble Lords who spoke earlier in the debate. He was perhaps the first Canadian-born Member of your Lordships’ House and he was certainly the first Canadian-born member of a British Cabinet. In 1907 he moved a most important amendment to the British North America Act. That amendment had two forces, as it were, both of which touch upon so much of what has been said this afternoon. The first was an imperial sum of £500,000, a very large figure in those days, to be spent upon the improvement of the trading facilities on both shores of Canada. It was to improve the transportation of goods between East and West. The other was to ensure that in the provinces of Canada there was proper administration of the funds which the Federal Government would raise on behalf of the people in the provinces.

811 When he was pressed at that time in your Lordships’ House—I have brought his notes with me so that I shall not make a mistake—he said about the Imperial Government’s contribution that no doubt trade would follow this facility. On the contributions to be given by the Federal Government to the provincial governments and the manner in which the provincial governments would look after the provinces, he said something else. He said, “I feel that this embodies the whole sentiment of union”. The union of province and Federal Government in Canada must always be borne in mind, for Canada is so large. It is governed more by the railway, then by air transport and perhaps also by telephone. It is these things which have brought unity to so vast a country and resulted in so many diverse but at the same time most agreeable and lovable people.

The passing of this Bill is of great importance to the people of Canada. It cannot be at all easy for a country to feel that at one moment it is a country—and then not so. The passage of this Bill will put an end to that. I believe also that it will bring out of Canada—perhaps just as it did at the very start—a passionate feeling for responsibility within their own country. They were the first of all the great self-governing dominions to show what responsibility meant in parliamentary terms. It is that which is so important, for it is what Canada created—perhaps in the most bitter way. However, after calm and quiet reflection they made of their country, despite all its difficulties in terms of width, scope and diversity of peoples, what has been spoken of this afternoon: a country which can produce, in terms of human relationships, something greater than any other of the free lands in the world today can produce. They have produced for us in this Bill something of greatness—and something still with a test before it.

What more can one ask of any nation than to turn to them and say, “Go on with your spirit of responsibility, with those tests of authority, kindness and understanding for all the peoples in your land, and know that we all wish you the very greatest of success”. I deeply believe that, though this Bill will be passed and become a part of the nation of Canada, there can never pass for me, nor for any member of my family, the feeling that in another land there is something in which we have taken part, both now and in past times, of which to be proud, for we have seen a country grow up and be strong in the greatest and most profound responsibility of our time. I wish and hope that this Bill may pass, with all your Lordships’ blessings.

7.58 p.m.

Lord Auckland My Lords, the Bill which we are discussing today is both very important and highly unusual. As I see it, it is the first time that we have an old Commonwealth country virtually being given at least a very large degree of independence. I must confess that I myself have never been to Canada. However, I have been to a number of other parts of the Commonwealth and I am a very dedicated member of the Commonwealth Parliamentary Association, which brings me into touch with a number of Canadians. I know New Zealand quite well. There are certain 812 affinities, particularly bearing out the problems of Clause 35, with New Zealand, even though they are not necessarily comparable, like with like. But the Maori population in New Zealand has, over the years, integrated very well, on the whole, with the rest of the population, even though there are today more problems than there were, say, 50 or so years ago. As has been said, there are in all countries problems facing minority groups. The great test is whether these problems can be solved.

The great test of this Bill when it becomes law will be whether the very high ethical standards for which the Commonwealth is renowned can be maintained and improved. There is also the question of how far Her Majesty’s Government can intervene in these matters. On the very vexed question of the aboriginals’ rights, it is of course absolutely proper and indeed central to the Bill that this matter should have been raised, both in another place and in your Lordships’ House.

Section 37 of the Bill seems to me to provide at least some degree of a solution, where it says in sub-section (1): “A constitutional conference composed of the Prime Minister of Canada and the first ministers of the provinces shall be convened by the Prime Minister of Canada within one year after this Part comes into force”.” What I hope this Government will take on board, possibly in consultation with the Canadian Government, is that this conference will be representative of a very wide spectrum of Canadian life; that the aboriginals will be represented at this conference, because it is clear that much of the significance of this Bill will come to light after it becomes law and when “Canada”, so to speak, takes over. I hope that very close attention will be paid to Section 37.

My noble friend Lord Elgin and Kincardine summed up the feelings not only of this House but also of the country as a whole when he spoke about his own family’s very strong connections with Canada. My noble friend’s remarks were backed up by the notable maiden speeches we have heard during the course of this debate. Everyone hopes that as a result of this Bill the links between ourselves and Canada (and I mean, with all parts of Canada) will be forged even more strongly. The Bill will enable much wider terms of discussion to take place, and it will be clear that the Canadian Parliament and our own Parliament will need to consult together even more closely than they do now.

It is also quite clear, since this is an unusual Bill, that problems will emerge. But despite the problems that this Bill might generate—and the transfer of any constitution must inevitably bring problems—it will strengthen the links between our two great countries. The sooner this Bill is on the statute book, the better—and when it is on the statute book, I believe that will be the time for some really close negotiations and discussions. My Lords, I wish the Bill well.

8.6 p.m.

Lord Briginshaw My Lords, I believe that I should immediately declare what is perhaps an oblique interest in wanting a successful passage for this Bill through your Lordships’ House, to give effect to a request made by the Senate and by the House of Commons 813 of Canada. I have travelled to Canada on a number of occasions. In 1968, 14 years ago, I was in New Brunswick at the Fall Convention of the University of New Brunswick, when honorary doctor of law degrees were conferred on Canada’s then Minister of Justice, the Honourable John Turner; Mr. Justice Boralaskin, then of the Ontario Supreme Court; Dr. A. F. Smith of the University of Michigan, USA; and R. W. Briginshaw, then general secretary of the Society of Graphical and Allied Trades, from the United Kingdom.

At the Spring Convention at the same university that year, honorary doctor of law degrees were conferred on the noble and learned Lord, Lord Goodman, and upon the Right Honourable Michael Foot, MP. Noble Lords might wonder what such a diverse number of recipients had greatly in common at that time. I will not attempt to explain in precise detail, but I am sure of one real common factor: their great admiration for the united strength of Canada and of its vast activities and potentialities, economically and diplomatically, on a world front.

The Bill now before us for Second Reading does not need long speeches in its support, for it is the sum of so many things that it speaks for itself. The presentation and passage of this Bill through Parliament could so easily have been bungled with dire consequences, whereas, on the contrary, it would be churlish of any supporter of this Bill in your Lordships’ House at this time not to compliment the Government of the day on their successful work in bringing this Bill so far. For my part, I am satisfied to use the words from a speech made last year in Edmonton, Alberta, by an eminent Canadian, the Honourable M. MacGuigan, Secretary of State for External Affairs. He said: “Canada has long since won its sovereignty and its independence, in two world wars and through a process of constitutional development, which in some ways at least serves as a model for the world”.” For both Canada and Britain it would be a tragedy to mar the shared history of that constitutional development at the very end of the process. I cannot see us solving a problem in Britain or in Canada by making it a problem between Britain and Canada. We cannot patriate the problem without patriating the solution. This is the essence of the Bill as I see it. I do not discount the interests of the Indian peoples when I say that we must let the responsibility for the measures contained in this Bill rest where it must rest in the end—with the Government and Parliament of Canada.

Finally, I only wish to make one general reference to the content of the Bill before the House, to ask noble Lords to look through the Bill itself, to peruse with me the Constitution Act 1982. Modernisation of the Constitution, and to traverse quickly with our mind’s eye the procession of our history and that of Canada marked out for us in the headings of the changes in column 1 on each of the pages 30 to 37 in the English and French languages. Let us fulfil our part in this graphic procession of history to which I draw your Lordships’ attention finally, and with good grace pass the Bill as requested.

8.12 p.m.

Lord Milverton My Lords, first of all I would like, as others have done, to congratulate the maiden speakers 814 on their excellent speeches, and say that one reason why I have a very strong affection for Canada is that I had a few years of schooling in Canada, in the Province of Ontario. The concern and interest for us in this House is that we may do our part in an honourable way and with some idea of the unique and the complex subject matter of this Canada Bill; at least it is for some when it comes to (shall we say?) the more legal side. There is a lot more behind this Bill than one realises at first sight. The more material one went through the more it brought this factor before one.

Can my noble friend the Foreign Secretary assure us that the assurances are positive to all, including the Indians? They do not seem to have come off very well from the treaties signed with them. They do not want to be assimilated as white people, but to develop in their own customs and culture as Canadian citizens, and they would be ready and are ready to support a constitution like any others of the peoples in Canada.

I will quote from a few voices of concern from several received. In fact, some of these may be satisfied now, since the eight provinces which first of all were in disagreement have come to agreement. But I think that a few possibly still are not all that happy because their words have come only recently. From Ruth Gorman, the Calgary Herald, we read: “You may think that past laws will still guarantee your property rights. That’s wrong. Built into this constitution is a section which makes any law ‘inconsistent’ with this charter ‘inoperative and of no effect’.” From the Calgary Herald, 12th February 1982: “Former Justice slams charter.” “Despite the lengthy enumeration of fundamental, legal, and non-discrimination rights in the charter, Martland said his ‘personal feeling is that it does not particularly add anything to the position of the individual citizen’.” “He pointed to Russia, which has what he described as ‘one of the broadest charters of civil rights’ in the world and remarked: ‘We all know how well that works out’.” “Martland explained that Britain has no written charter of rights, rather a ‘tradition of fair play and regard for the rights of others'”.” Then there is another criticism, “One Canada for all Canadians”; and another one, “Can bilingualism of Canada bring about one nation?”

I will end by expressing the hope that the Indians, all the different tribes, groups, nations, will be receiving a just settlement. May I quote the first few lines of “A Declaration of the First Nations”, by the Joint Council of the National Indian Brotherhood, dated 18th November 1981: “We the Original Peoples of this land know the Creator put us here.” “The Creator gave us Laws that govern all our relationships to live in harmony with nature and mankind.” “The Laws of the Creator defined our rights and responsibilities.” “The Creator gave us our spiritual beliefs, our languages, our culture, and a place on Mother Earth which provided us with all our needs.” “We have maintained our freedom, our languages, and our traditions from time immemorial.” “We continue to exercise the rights and fulfil the responsibilities and obligations given to us by the Creator for the Land upon which we were placed.” “The Creator has given us the right to govern ourselves and the right to self-determination.” “The rights and responsibilities given to us by the Creator cannot be altered or taken away by any other Nation”.” 815 Why has it been decided to wait until after this Bill has gone through and been returned to Canada to have talks within a year with the aboriginal peoples? Surely, they could have been brought into confidence (shall we say?) before that time. The documents of the Indian government of Saskatchewan, the Federation of Saskatchewan Indians, and others put some doubts in one’s mind; also, another one, the First Nations States of Canada and the United Kingdom.

I, too, would like to end by wishing Canada well and hoping that Quebec will be able to find a place and come into agreement with the other provinces; hoping and praying that the minority groups will be able to find a place; that it will be seen that we Europeans are not just trying to prevent them from being in poverty, not just trying to prevent them from being alcoholics and so on and so forth, but are really helping them to be a people, to be themselves, to have their culture, their ways, their traditions, but as part of Canada with all the rest of the Canadians. So, God bless Canada! I naturally agree that it is only right and proper that we agree to this Bill. So far as any little concerns have been expressed, I believe the Canadians will harken to them and try to respond. And I do hope that the noble Lord, Lord Stewart, does not press his Motion.

8.20 p.m.

Lord Morris My Lords, in opening I would like to say how I delighted in the rich Canadian tones of the noble Lord, Lord Shaughnessy, in his maiden speech. In fact, he made me feel less alone than I usually feel in your Lordships’ House, because I believed that I was the only person who bore two titular towns neither of which are in the United Kingdom. He, similarly, bears two titular towns neither of which are in the United Kingdom but one of which is in Canada and the other in the Republic of Ireland. This learnt from him, and he certainly delighted me with what he had to say.

I think that it would be churlish if I were not to make mention at the outset of my deep gratitude to those many parties and people who have kept me informed about this very complicated and extremely important subject over more than two years. I have learnt a very great deal from these very good people, and one thing in particular that I have learnt is that the Government of Quebec in London can boast the best table in London, and that the Government of Canada in London can boast the prettiest hostess.

There can be no one who would disagree with the intention of Parliament to transfer the legislative power to amend the constitution of Canada from the United Kingdom to Canada. It is patently absurd that the responsibility should reside other than in Canada. However, the dilemma for the Parliament of the United Kingdom is that it is being asked not only to transfer the legislative responsibility to amend the constitution of Canada, but to enact for Canada the supreme law of Canada; to enact that law which would make any subsequent statute enacted in Canada which is inconsistent with that supreme law, of no force and effect, and as such it is of vital importance.

The constant and consistent stance taken by the Government of Canada has been that it is not the business of the Government of the United Kingdom 816 in any way to hinder the request of the Canadian Parliament. I would entirely agree with that. However, what I do find monstrous—and it is typical of all government—is that they extend this principle by suggesting that it is not the business of Parliament. It manifestly is the business of Parliament—of this Parliament and the Parliament of Canada—for this request and consent comes from the Parliament of Canada to Her Majesty the Queen in the Parliament of the United Kingdom assembled. I believe that it is our manifest duty to consider those aspects which concern us.

I believe that very great credit should be paid to those few Members of the House of Commons of Canada and those few Members of another place and, indeed, to the Members of your Lordships’ House, who have had the courage to voice the reality that lies behind this Bill—namely, that this Bill pays legislative lip service to a noble and long overdue attempt to afford the first nations of Canada the protection of the courts and, in the long run, the protection of the Supreme Court of Canada.

In addition, this Bill erodes the ancient protection afforded to the Indian peoples by the sovereign in right of Canada through the person of the Governor General of Canada. These are no mere debating points or personal points of view. These are facts which are made manifest not only by careful consideration of the Bill, but by consideration and examination of the history of the Bill and of the relationship between the Executive and the courts of Canada and the Indian people.

The Parliament of the United Kingdom is being asked to send the North American Indians of Canada naked into their future with no, or at best little, remedy in the courts of Canada against any determined Government or legislature in the future—that is, the legislature of the Federal Parliament and the legislature of the provincial parliaments. The Bill provides the means whereby the Executive and parliaments of Canada in the future could fulfil their oft stated policy of extinguishment of native title without proper negotiation with those most affected and with no guarantee of proper compensation.

For those who have doubts as to what this policy is, or who have doubts about its intentions, may I be allowed to quote from a document which was issued by the Department of Indian Affairs a short time ago, in November 1980. I must read this because it is vital. The very language itself shows how many interests in Canada are seeking a final solution of the Indian question. It says: “While the 1973 policy did not mean government recognition that Natives owned the land or recognition of native title in legal terms, it was made clear that settlement would only take place in return”—” I repeat “in return”— “for whatever interest they might have in land. In adopting this position the government insisted on a clear and unequivocal legislative extinguishment of all traditional native rights, title and interests, whatever they might be, so that the claim in question could never be raised again and to remove every possible cloud upon the Crown’s title that might inhibit the exercise of that title”.” Equally worrying was one of the conclusions arrived at in that document. It was: “Greater emphasis should be placed on the concept of exchange of traditional interests for conferral of specific rights and benefits, de-emphasising the term ‘extinguishment'”.” 817 Look to the language and you will find the truth, for the use of the word “extinguishment” presumes the existence of title. How then, your Lordships might very understandably ask, could my noble friend Lord Carrington and many other noble Lords contend that this Bill (and I quote his words) “specifically recognised” the rights of indigenous people? I am reminded of the story of the reading of a will by a solicitor which went something like this “…and to my cousin Louis, who always said that I would never recognise him in my will, Hello Louis'”.

If one reads Section 25 it becomes immediately clear that this section is solely one of interpretation and construction—that was the point raised so beautifully, if I may say so, by the noble and learned Lord, Lord Scarman, and indeed by my noble friend Lord Renton. It is not a clause of substance. Moreover, it is only a clause of interpretation and construction as regards the Charter of Rights and not as regards the Bill as a whole. I can only hope that the courts in Canada—and it is quite wrong for me to presume this—will have the wisdom and understanding of the noble and learned Lord, Lord Scarman, and will interpret the Bill as the noble and learned Lord has suggested.

But the tragedy is that it can be looked at either way. Indeed, the Parliamentary Secretary to the Minister of Justice of Canada got it absolutely right when he recognised that Section 25 does not recognise and affirm the existence of indigenous rights. When this clause was discussed in the Canadian House of Commons he said: “In other words, if they have rights, then they will not be extinguished by the constitution”.” Furthermore, noble Lords might well believe that Section 35 does the job—

Lord Renton My Lords, I am very reluctant to interrupt. I think that this is the first time that a speech in this debate has been interrupted. But I must assure my noble friend Lord Morris that Section 25 is really a safeguard because it enjoins upon the courts that, when construing other sections of that schedule, they may not—to use the words of the Bill—”abrogate or derogate from any aboriginal, treaty or other rights or freedoms”.” That is an unusual provision, and one which we should welcome, because I believe that it is a safeguard.

Lord Morris My Lords, I do, indeed welcome this clause, of course, and I take the point that the noble Lord has raised. But, with the greatest respect to him—I really am jumping in with both feet arguing with a lawyer, for I am not one myself—my understanding of this clause is that it is only a clause of construction as bears on the Charter of Rights, and not on the whole of Schedule B. Furthermore, if the intention was real, that these rights be recognised, why was it not written in the positive within the Bill of Rights, instead of in the negative? As my noble friend Lord Renton himself raised in his excellent speech, the key words are: “not be construed so as to abrogate or derogate from”.” I should have loved to see this intent written in a positive way, affirming the particular rights. However, fundamentally these are Committee points and I am sure and hope that they will be developed in Committee.
818 The reason that I believe Section 35 is not strong enough is because of the inclusion of the word “existing”. It takes away from the original clause very strongly indeed. I shall not go into it in detail because, again, fundamentally it is a Committee point. However, one must read Section 35 in connection with Section 37, which sets up a conference which is deliberately designed to identify and define those existing rights—not the rights in the past, but the rights which will be defined under Clause 37, which are to be included in the constitution.

Section 37 itself begs these questions: who writes the agenda of the conference? How long will it last? What does the phrase, “the Prime Minister of Canada shall invite representatives of those peoples to participate in the discussions” mean? Will they be mere observers? Will they be part of the decision-making process? Will they be allowed to be represented by counsel? These questions cause great concern, and, as I have said before, I hope that they will be developed properly and fully in Committee.

Much has been said that even to question the merits of the Canada Bill is embarrassing, tactless and indelicate. Where natural justice and freedom of the individual is concerned, I do not believe that one should concern oneself with one’s personal feelings. Modern history has many terrible examples of the insidious effects of silence. If I may say so, I think that the official policy of the Liberal Party has all the charm of the policy of Pontius Pilate. We cannot and should not wash our hands of our real fears where freedom of the individual is concerned.

Lord Byers My Lords, is the noble Lord at this stage suggesting that we shall be asked to amend this Bill? Does he not realise that that is not possible?

Lord Morris My Lords, the noble Lord, Lord Byers, has inferred something which I neither stated nor implied. I think that that was very remote from what I said. I was simply suggesting that to wash one’s hands of these problems and to pretend that they do not exist is very disturbing. If one had read the proceedings in another place, which were admirable, I think that one would have received the message very clearly. Our only duty is to raise these points and hope that they reach the right hearts.

I know that history will undoubtedly place the noble and learned Lord, Lord Denning, among the greatest of this, or any other, century’s judges. When he ruled that: “No Parliament should do anything to lessen the worth of these guarantees”—” he was, of course, referring to the Royal Proclamation of 1763—his words must command immense respect. I find it deeply disturbing that this Parliament is being asked to do just that.

In 1967, when Canada celebrated its hundredth birthday, chief Dan George, a hereditary chief of the Coast Salish tribe, said these words: “How long have I known you, oh Canada? A hundred years? Yes, a hundred years. And many many ‘years’ more. And today, when you celebrate your hundred years, oh Canada, I am sad for all the Indian people throughout the land.” “For I have known you when your forests were mine; when they gave me my meat and my clothing. I have known you in 819 your streams and rivers where your fish flashed and danced in the sun, where the waters said come, come and eat of my abundance. I have known you in the freedom of your winds. And my spirit, like the winds, once roamed your good lands.” “But in the long hundred years since the white man came, I have seen my freedom disappear like the salmon going mysteriously out to sea. The white man’s strange customs which I could not understand, pressed down upon me until I could no longer breathe.” “When I fought to protect my land and my home, I was called a savage. When I neither understood nor welcomed this way of life, I was called lazy. When I tried to rule my people, I was stripped of my authority”.” It is this about which we are talking and it is this about which the noble and learned Lord, Lord Scarman, was talking. It encapsulates all the fears that were expressed in another place. I can only hope and pray that the free press in Canada, the independent Bench and Bar of Canada, and the Parliament and Governments of Canada keep good faith with the people of Canada and never mar in the future the conscience of their people. I hope and pray that the most liberal interpretation is placed on these sections designed to protect, because then and then only can Canada play confidently the role in the world councils for which Canada is, and has proven herself to be, so eminently suitable.

8.38 p.m.

Lord Elwyn-Jones My Lords, the historic importance of the Canada Bill, which we have been discussing all day, is reflected in the long list of distinguished speakers who took part in the debate, which was adorned by two admirable maiden speeches from the noble Lord, Lord Shaughnessy, and the noble Lord, Lord Rodney.

This Bill has raised considerable emotions, both in Canada and in this country, and in both Houses of Parliament. All of us regard the friendship between the peoples of Canada and of this country as of the most precious value to us. Most of us have personal links there. I have had the pleasure of being there on several occasions—legal, political and personal. I remember particularly representing this country at the celebrations of the centenary of the distinguished Supreme Court of Canada. However, my last visit to Canada was of a rather different nature. It was to preside in Vancouver over a fine Gymanfa Ganu, the singing festival of the Welsh Societies of Canada and the United States. We all sang mightily, as good as the singing in Cardiff Arms Park when Wales is winning.

What we are doing in this Bill, and what my noble friend Lord Stewart of Fulham, in his admirable opening speech made clear, is to respond affirmatively to the consent and request of the Senate and the House of Commons of Canada to enact their Constitution Act and to terminate the power of the British Parliament to legislate for Canada. The survival of that power in the British Parliament is a remarkable anomaly. We have not wished it, and it has survived because the Canadians themselves were unable to agree on a formula for the future amendment of their constitution. Now, with the important exceptions of Quebec, and, in terms of the amount of attention that has been paid to it, of the aboriginal peoples, a significant measure of consensus has been arrived at in Canada in support of the proposals in the Bill. The Government want it and nine out of 10 of Canada’s provinces have become parties to 820 it; the Canadian House of Commons and Senate have approved of the package with a large majority, and the Supreme Court of Canada ruled favourably on all the crucial issues before they were debated at Westminster. But that course of events has not eliminated the legislative duties of Parliament. I was delighted to hear the noble and learned Lord, Lord Scarman, emphasising that. Whatever the fate of these proceedings tonight, we shall certainly return to the battle at the Committee and Report stages.

The great value of the Motion in the name of my noble friend Lord Stewart has been that it has provided a crystallising and superb means of enabling the House to concentrate on what has caused most anxiety and concern; namely, the question whether the grievances of the Indian peoples are adequately resolved by the terms of the Bill. Those grievances have been described with great eloquence in the course of this debate. It is not merely the fact of Indian alienation and poverty, which is not in dispute; it is not merely a question of the lack or inadequacy of property and land rights; but, perhaps in some ways equally important, the continuing threat to their own unique and characteristic culture, as several noble Lords have indicated in their speeches.

The aim of the Motion that we put down was by way of help rather than advice. Although I agree with what advice the noble and learned Lord, Lord Diplock, gave on the legal and constitutional matters—and indeed I would be a brave man to disagree with him—I do not agree with his censure of the Motion in that it purported to give advice to the Government of Canada; and that he described as something horribly unconstitutional. The terms of the Motion have been indeed criticised by some of my noble friends as being too complimentary and congratulatory of the Canadian Government.

The terms of the Motion are, “That this House, aware of the anxieties which have been expressed about the Canada Bill now before the House by representatives of the aboriginal peoples of Canada”—” and there is no doubt about that— “is confident that the Government of Canada, in consultation with representatives of the aboriginal peoples, will use the provisions of the Bill to promote their welfare”.” Perhaps the fault of the Motion was that it was too innocuous and did not suffer from being what has been dismissed by one noble Lord as a piece of paternalistic admonition. I think that was the word the great historian used.

We in our Motion have sought that the House should concentrate its mind—and I think enabled it to do so—on the necessity for the protection of the minority peoples in Canada. As has been said by my noble friend Lord Gifford and others, the protection of minorities has acquired a new and important significance in the contemporary world. The experience of Nazism and Fascism, and the suppression of minorities and indeed of individuals, which was part of their régime, led to a determination of the post-war world to take whatever steps could be taken to avoid a repetition of that course of events. In the individual field, we have changed the position of the individual from being a mere subject of compassion to being an object of rights. Now the eyes of the world will be upon Canada to see how they deal with their minorities 821 in the months and years that are to come.

I shall not recapitulate at this point of time all the matters of concern that have been raised, apart from the basic fact of the way in which the aboriginal peoples have been dealt with by the white man. It was interesting that the noble Lord, Lord Shaughnessy, with great restraint, said, “Canada’s record in dealing with native peoples is not without blemish”. It is true that he added, “But it is better than most”.

Lord Morris My Lords, I wonder whether the noble and learned Lord would give way for a moment in order to back up the point that he was making. It was interesting to me to learn that in 1867, when the British North America Act was passed, the word “Indian” was not mentioned even once in either House of the British Parliament. It is interesting that today, and in proceedings in another place on this Bill, the term “Indian” has been used over and over again.

Lord Elwyn-Jones Indeed, my Lords, this is one of the values of the debates in both Houses of Parliament. It has brought their existence, their needs and their grievances into the forefront.

The two specific matters which will be referred to, I have no doubt, at the later stages have been mentioned in the admirable speech we have just heard from the noble Lord, Lord Morris; first of all, in regard to the important Section 35 of the Bill of the introduction of the word “existing”. We shall undoubtedly return to that later. But there is another matter which may well be of more significance than that, and that is the provisions of Section, or clause, 37 of the Bill. That provides for, “A constitutional conference composed of the Prime Minister of Canada and the first ministers of the provinces shall be convened by the Prime Minister of Canada within one year after this Part comes into force”.” Then, “The conference convened under subsection (I) shall have included in its agenda an item respecting constitutional matters that directly affect the aboriginal peoples of Canada, including the identification and definition of the rights of those peoples to be included in the Constitution of Canada, and the Prime Minister of Canada shall invite representatives of those peoples to participate in the discussions on that item”.” Then it goes on: “The Prime Minister of Canada shall invite elected representatives”—” of diverse territories, which are not immediately relevant, to the conference.

That conference is obviously going to be of great importance. We await a positive commitment by the Canadian Government that those representatives of the aboriginal peoples will have a seat at the conference when matters affecting them are discussed. We venture to express the hope that the Federal Government will be able to declare that the aboriginal peoples will be involved as profoundly as the provincial governments in the task of identifying the rights of the aboriginal peoples. We shall await with impatience the information that will emerge from the Canadian Government upon those matters.

We have had a long and impressive debate, and the comfort it will give to the Canadian peoples and 822 Government will, I hope, be considerable. The unanimity of admiration for what Canada has achieved has been expressed from all parts of the House. I hope that what has happened here, and the publicity we have given to the grievances of the aborigines, and what we expect to emerge, and hope to see emerging, hereafter, will have reached the world political map. However, in view of the lateness of this hour, and the desire to avoid an inadequate turnout, if that is the right word, of Members of your Lordships’ House in a Division, my noble friend Lord Stewart and I and the rest of us, have come to the view that, although our Motion remains on the Order Paper, it will not be moved and the House will not be asked to divide upon it.

Noble Lords Hear, hear!

8.51 p.m.

Lord Trefgarne My Lords, I have listened with the greatest attention to this most interesting, not to say historic debate, not least to the speeches of our maiden speakers today, my noble friend Lord Rodney and the noble Lord, Lord Shaughnessy. It is clear that the views expressed reflect deeply-held concerns about aspects of this Bill, and as my noble friend Lord Carrington said in his opening speech, it is a most unusual Bill. Indeed it is unique. We are the final executors of a responsibility which has for many years been out of its time. As a result of our deliberations the full authority for the constitution of Canada will be transferred to its rightful place.

My Lords, by tradition the task of the Minister winding up a debate is to respond on behalf of the Government to the questions raised. But your Lordships will be aware of the constraints upon me in that role tonight. The Government’s position is that the contents of Schedule B to the Bill, which will have application only in Canada and not in the United Kingdom, are a matter for the various governments and legislatures of Canada to decide, and not something on which the British Government should comment or offer interpretation. This attitude inevitably restricts what I am able to say in response to matters which have been raised. But I will attempt to give as full an answer as I can.

The main concerns expressed during the debate have related to the position of the aboriginal peoples and to Quebec. We are clear in our view that questions concerning the Indian and other indigenous peoples of Canada are Canadian internal matters and not matters in which the British Parliament any longer has a responsibility. It has consistently been the view of the Government that any treaty or other obligations concerning Indian interests, in so far as they still susbisted, became the responsibility of the Government of Canada with the attainment of independence, at the latest with the Statute of Westminster 1931, and that it is to the Government of Canada that the Indians must look for solutions to their problems.

This view was accepted by the Select Committee on Foreign Affairs of another place in their First Report presented at the beginning of 1981, and in their Third Report of December of that year. In paragraph 9 of their Third Report the Select Committee state: 823″The fact is that Indians rights and affairs have been an exclusive responsibility of the Canadian Government and Parliament for generations. For at least 50 years, the United Kingdom Government and Parliament have lacked even residual constitutional authority to intervene in relation to those rights or affairs”.” The question was also considered recently by the courts here, from whom the Indian Association of Alberta had sought a declaration that the position adopted by the British Government was wrong in law. Your Lordships will recall that on 28th January the Court of Appeal unanimously rejected the Alberta Indians’ application and gave it as their opinion that any obligations of the Crown to the Indians of Canada are now owed by the Crown in right of Canada and not by the Crown in right of the United Kingdom. In his judgment the noble and learned Lord, Lord Denning said: “…the obligations under the Proclamation and the Treaties are obligations of the Crown in respect of Canada. They are not obligations of the Crown in respect of the United Kingdom. It is therefore not permissible for the Indian peoples to bring an action in this country to enforce these obligations. Their only recourse is in the courts of Canada”.” On 11th March the Appeal Committee of your Lordships’ House refused the Alberta Indians leave to appeal to the House of Lords, and the noble and learned Lord, Lord Diplock, read verbatim their Lordships’ decision on that occasion:

The Government are therefore reinforced in their view that any dissatisfaction expressed by the Indian peoples with the provisions of the Bill can properly be pursued by them only with the Government of Canada and in the courts of Canada. Many of your Lordships, I think, accept that this is the constitutional position, but have nevertheless felt obliged to put on record their concern at various aspects of the Indian policy of the Canadian Government and their opinions on the welfare of the indigenous people of Canada. Her Majesty’s Government in the United Kingdom have taken note of these views and we know that they will be noted in Canada.

Your Lordships will be aware that it is this Government’s view that it is not for us to judge the rights or wrongs of the situation of the Indian peoples and the implications of Canadian law of the proposals of this Bill. I noted that one or two noble Lords suggested that we should not proceed further with this Bill until all the Indian court actions in this country had been completed. Indeed, the Government decided to await the outcome of the appeal by the Indian Association of Alberta to the Court of Appeal before we did so proceed.

The Government have of course considered very carefully all the issues raised by the respective plaintiffs in the two other cases touching on the Canadian constitution that are now pending, in their preliminary stages, before the courts in this country. Having regard, among other things, to the nature of these issues, to the way in which they have been presented to the courts and to what courts, both in this country and in Canada, and what they have already said on the matter, the Government have decided that it is right for us to proceed with the Canada Bill without waiting for these cases—or any others which may be instituted—to be disposed of by the courts. To do otherwise, my Lords, could lead to an indefinite delay.

824 The noble Lord, Lord Brockway, and I think one other noble Lord, asked if the Government would make representations to the Canadian Government to impress upon them the views held by some of your Lordships about the position of the Indians and other aboriginal peoples. While the Government fully respect the right of noble Lords to express their views on subjects about which they feel strongly, I do not think it would be right for the Government to put these views to the Canadians who are in any event, as I have said, well aware of them. Whatever our private views, it is not a British responsibility. Canadians have acknowledged that it is their responsibility: it would be an affront to suggest that they will not take that responsibility seriously.

One or two noble Lords suggested that the Government should not proceed with this Bill without the consent of Quebec. The fact that these proposals do not have the support of this great province, which is a founder member of the federation, is a matter for regret. The Government believe, however, that your Lordships should be guided by the views taken by the authorities in Canada on the question. The Supreme Court of Canada concluded that, as a matter of convention, at least a substantial measure of provincial support was required, but declined to express a view as to how many provinces or name any whose support was essential. Presumably, if the Supreme Court of Canada had thought that unanimous support was required, they would have said so.

The overwhelming vote in the Canadian House of Commons on 2nd December in favour of these proposals included 68 no less of the 75 Federal Members of Parliament from Quebec. The Resolution was later passed in the Senate by 59 votes to 33. The Foreign Affairs Committee of another place, to which I referred just now and which is of course an all-party body, in its Third Report said: “We consider that it would be proper for the United Kingdom Parliament to enact the proposals, notwithstanding that they will directly affect the powers of the Canadian Provinces and are dissented from by one of those Provinces, Quebec. We arrive at this view on constitutional grounds. It is regrettable that so large and distinctive a Province as Quebec, a founding Province, dissents from the present proposals. That dissent may have significance for the welfare of Canada. However, that is a matter of political judgment and not something which should concern the United Kingdom Government and Parliament in dealing with a constitutionally proper request from an independent and sovereign country”.” The Premier of Quebec, Mr. Levesque, has made known to the British Government his hope that we would not proceed with the Canda Bill until the Quebec Court of Appeal had ruled on the question of whether or not Quebec historically has the right of veto over constitutional changes with which it does not agree.

The Government believe that, given the terms of the judgment of the Supreme Court of Canada on 28th September and the fact that the Canadian Parliament then formally requested action by the British Parliament, the existence of further legal proceedings in Canada of the kind referred to is entirely a Canadian matter. Indeed, in those circumstances, I hope your Lordships will agree that it would not be appropriate for the Government to suspend action on the Canada Bill.

I will now deal with some of the other points that were raised. I would not accept the suggestion made by some noble Lords, including I think the right 825 reverend Prelate the Bishop of Chelmsford, that the United Kingdom would be in breach of their obligations under the International Covenant on Civil and Political Rights if the Bill were enacted in its present form. In the opinion of the Government, our responsibility is to enact the legislation as requested by the Canadian Parliament. The question of the compatibility of that legislation with Canadian obligations in international law, and its interpretation and application in conformity with Canada’s international obligations, are matters for Canada. Furthermore, the international covenant incorporates provision for ensuring its implementation. In the case of Canada, it is possible for individual allegations of breaches of particular articles of the covenant to be brought before the United Nations Commission on Human Rights. If, therefore, any of the aboriginal people believe that rights prescribed in the covenant are being violated, a remedy is open to them.

The noble Lord, Lord Brockway, also referred to the shortened time-table and other noble Lords criticised the time-table as well, suggesting that it was perhaps too condensed for proper consideration to be given. I acknowledge that many noble Lords feel the Bill to be of such importance that they would not wish it to be rushed through without the benefit of the measure of attention it deserves, but a number of noble Lords expressed a contrary view to that. In planning the time-table, the Government had in mind that we are dealing with a Bill which is not a piece of domestic legislation but one which has come before us in response to a request from the Senate and House of Commons of Canada, who passed it by substantial majorities in both Houses, to which I referred earlier. The substance of the Bill—that is, Schedule B—has been the subject of extensive debate in Canada and will apply in that country, not in this. For that reason our responsibility for it is limited.

I come to the question of the amendability of the Bill, a point raised by the noble and learned Lord, Lord Elwyn-Jones, by my noble friend Lord Morris rather obliquely, and I think it was implicit in the remarks of the noble Lord, Lord Gifford. The rule—I understand that this comes from the Companion—is that amendments must be relevant to the subject matter of the Bill. That derives from the more general statement of the rule in regard to the relevance in Standing Order 25, “Debate must be relevant to the Question before the House”. This Bill is clearly confined, as indicated by its Long Title, to provisions which give effect to a request by the Senate and House of Commons of Canada. The Bill is, therefore, concerned solely with giving effect to that request. If it is altered in any material particular by any amendment it would no longer be confined to giving effect to that request. I am advised that any amendment of any substance not tabled at the request of the Senate and House of Commons of Canada would thus be irrelevant to the subject-matter of the Bill. I very much hope the House will accept that advice and that noble Lords will desist from tabling amendments. I emphasise that that is advice which has been received and is in no sense a ruling, certainly not from me.

Lord Gifford My Lords, would the advice which the Minister has given apply not to amendments which 826 seek to change the actual constitution in Schedule B, but which seek to delay the coming into operation of the Bill until such guarantees that may be asked for in amendments are given?
Lord Trefgarne My off-the-cuff reaction to that, my Lords, is that we have received a request from the Government of Canada, that we should proceed with it forthwith and that any amendment which sought to prevent that would therefore be out of keeping at least with the spirit of the standing order. But I hesitate to offer a definitive ruling and I suggest the noble Lord takes the matter up with the authorities of the House at an appropriate moment.

In sum, we are here considering a request by the Federal Parliament of Canada. The Government have consistently taken the view that we must leave it to Canadians to judge what is good for their country. It is, after all, an anomaly that we are in a position of debating the affairs of Canada at all. The essential purpose of the legislation is to remove that anomaly and let Canada manage its affairs unfettered by this restraint. I do not think there is any noble Lord who questions that Canada is the right place for legislative authority over the Canadian constitution. We must be careful in dealing with the Bill not to put ourselves in the position that we are charged by Canadian people with being “neo-colonialists”. There is a big difference between this Bill and the normal sort of independence Bill passing through this House, and it is important that we remember that distinction.

The Bill before us is not concerned with independence. It is intended to remove an unnatural anomaly in the relations between two already independent sovereign states—the United Kingdom and Canada—which have enjoyed a relationship on the basis of equality for many decades. Throughout that period Canada has been, and remains, an important friend and ally of this country. We have many historical associations and many ties of kinship, which I know are reflected in the membership of your Lordships’ House. The ties to which I have referred have been very much reflected in the tone of the debate we have had today; and reflected in the decision of the Front Bench opposite not to proceed with the Motion which is on the Order Paper to follow this Second Reading.

In more practical ways, our countries are linked not only in our joint membership of the Commonwealth but in our joint participation in the family of Western industrialised states and in many other enterprises in international life. I confidently expect that, when the constitutional question is settled, we shall look forward to a further deepening and strengthening of the friendship and co-operation between our two countries. I therefore welcome this opportunity to render to Canada that which is rightly hers.

On Question, Bill read a second time, and committed to a Committee of the Whole House.

The following Motion in the name of the Lord Stewart of Fulham was not moved:

That this House, aware of the anxieties which have been expressed about the Canada Bill now before the House by representatives of the Aboriginal Peoples of Canada, is confident that the Government of Canada, in consultation with representatives of the Aboriginal Peoples, will use the provisions of the Bill to promote their welfare.

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