UK, HC, “Constitution Act, 1982 Enacted”, vol 19 (1982), cols 296-359
By: UK (House of Commons)
Citation: UK, HC, “Constitution Act, 1982 Enacted“, vol 19 (1982), cols 296-359.
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Mr. Michael English (Nottingham, West) I beg to move amendment No. 26, in page 2, line 14, after ‘Act’, insert ‘subject to the omission in Schedule B, section 41, of the words “each province” and the insertion of the words “provinces in which threequarters of the population of Canada reside”.’.
The Chairman With this it will be convenient to take amendment No. 58, in page 2, line 14, after ‘Act’, insert ‘subject to the omission in Schedule B, section 41, of the words “each province” and the insertion instead of the words “provinces in which three quarters of the population of Canada, being a majority of all the provinces, reside”.’.
Mr. English It will be apparent to anyone who reads the amendment and the alternative insertion proposed in amendment No. 58 that my object is not to replace one method of amending the constitution of Canada by another, although, for reasons that I shall explain, I have suggested a couple of alternatives.
The point that I wish to discuss and to have the Committee consider is the question of amending the constitution of Canada in certain respects solely by the unanimity of the federal Parliament and all 10 of the provinces of Canada. I do not believe that unanimity is a prescription for anything but disaster in relation to constitutional change in any country. The United States constitution can be amended only with the assent of three-quarters of the States. On one occasion that led to civil war, and a number of amendments to the constitution were passed only because the States which had lost were, disfranchised after the Civil War and forced to assent to the changes before their rights as States were given back. Yet even that is far freer and easier provision than the unanimity provision in the prospective constitution now under consideration.
I have no intention of pressing the amendment to a Division. In my view, it is not for this country to determine how the constitution of Canada should be changed. It is for the Canadians to do that. Nevertheless, I believe that we have in the debate at least the rights that Bagehot attributed to the Queen in the nineteenth century—the right to advise and to warn.
My purpose in moving the amendment is to advise and to warn Canada that a requirement for the complete unanimity of all the provinces is far too severe a limitation and in years to come—it may be next year or in 100 years’ time—will cause great difficulty. There will be no way out if the overwhelming majority of the people of Canada decide that they want constitutional change in respect of one of the matters on which the constitution is limited but 297 one province, perhaps with only 1 or 2 per cent. of the population of Canada, holds out against it. It will be necessary either to undertake a revolutionary and illegal procedure and to change the constitution in a way not set out in the Act, or to return yet again to the House of Commons and another place and require us to repeal section 2 of this Bill which will provide that we cannot legislate for Canada.
Mr. J. Enoch Powell rose—
Mr. English Perhaps I may finish my argument on this point before I give way.
I think that the right hon. Member for Down, South (Mr. Powell) will agree that, whatever the Canadian Parliament may be, this is a sovereign Parliament which can amend its own previous legislation. I refer to clause 2 of the Bill, not to any part of the schedule. The only way out would be to take us all back to square one—to the position in which we now are and the difficulty that we seek to cure in relation to section 7 of the 1931 Statute of Westminster.
In my view, the whole problem has been seriously mishandled on both sides of the Atlantic. It is not for me to say—nor do I know—whether Mr. Trudeau can be said to have handled it skilfully in Canada. He certainly aroused the opposition of most of the provinces, but now seems to have the support of most of them, so one may take various views on that, but to go round Canada suggesting, as at one time he did, that we would simply pass this without discussion was wrong and improper. Furthermore, as I have said before, for the Foreign Office over many decades to advise Ministers to give wrong answers on the question of how this should be done and whether it could be done has not helped the proceedings.
However, incorporated in the Bill is a schedule which has been requested and consented to by the Parliament of Canada. As I said previously, so far as I can see, two totally different principles apply to the Bill. One is that under the Statute of Westminster one cannot legislate for Canada without the consent and request of Canada. The other is that one does not need that request and consent precisely because of the existence of section 7 of the 1931 Statute of Westminster. By convention, that is required, but by law, although it may be required for other Commonwealth countries, in this regard Canada is different because Canada wrote that part of the Statute of Westminster differently.
It is important to state, as we all know, that a two-principle Bill would have gone through the House like a dose of salts. At two-principle Bill which repealed section 7 of the Statute of Westminster and incorporated into Canadian law an alternative amending formula for the Canadian constitution could have been passed almost on the nod—certainly in less than a couple of days and, I am sure, in a few hours in a single day. So far as I am aware, there has never been any resistance by any hon. Member to the two principles of providing an amending formula and taking out section 7 of the Statute of Westminster.
What many of us and what I think most provinces of Canada have objected to in the past has been that we were asked to do more than that. We were asked to legislate for Canada and to embody in the supreme law of Canada—its constitution—some things which most of us regard as none of our business.
Mr. J. Enoch Powell That is right.
Mr. English That is why, although I sympathise greatly with the Indians, I have not taken up their cause in speech. Those who have sought to do so, for reasons that I well understand, seek to add even more to the schedule than is currently in it—which, in my view, is already rather too much for a British Parliament to pass.
Leaving those points aside, the one thing that we cannot get away with is the issue raised by these amendments. We can ignore everything in the Bill—the charter of rights, the Indians and everything else—but the one thing that we would have to do, in the shortest possible Bill put before us is to decide how the Canadian constitution was to be amended. There is no doubt that it would have been desirable if the federal Parliament of Canada and the provincial Governments at least, and possibly their legislatures, had agreed upon an amending formula. That has not happened. It is regrettable that it has not happened because of the way in which these matters have been conducted in Canada. We are now asked to pass this amending formula at the request and with the consent of the Parliament of Canada and nine out of 10 provinces.
It must be a great misfortune to all on both sides of the Atlantic that the tenth province is the province of Quebec. Therefore, even though it may not be true, it appears that we are passing into law these two formulae—there is more than one—for changing the constitution as a sort of Anglo-Saxon plot. I deeply and sincerely regret, especially after all the hard work that the Quebec Government have put in on behalf of the majority of all the other English-speaking provinces of Canada, that M. Trudeau and the provincial leaders could not have taken the Quebecois with them.
We can say no more—we are probably obliged, morally if not legally, to pass the Bill—but I find it a matter of deep regret, and I hope that the people of Quebec will realise that not all the English speakers here, not all the people who represent the United Kingdom, agree with the way in which these proceedings have been conducted.
Hence the purpose of my amendment. Although it would not give anybody a total veto, it would mean that amendments of this serious character, which under the proposal will require the assent of all ten provinces, would be prevented at least by provinces containing a quarter of the population. There are two such provinces: Ontario and Quebec. That is not sufficient in a federal State because, in theory, three-quarters of the population of Canada could be in four provinces out of ten. In a federal State, that is not appropriate. Hence my other amendment, which mentions that there must be a majority of provinces.
I need not go into detail, because the point at issue is that we are here asked to create a formula which requires unanimity of the provinces in certain respects. It is a proceeding which we must reprobate in moral terms, because we are asked to do so at the request of nine only out of ten provinces. We are asked to entrench the unanimity of the provinces in certain respects into Canadian constitutional law, yet we are asked to do so not by ten provinces but by only nine. It seems to me that the moral basis for that is, to say the least, fragile.
I propose to give only one example, but let us consider what section 41 of schedule B says. It follows the general procedure set out in Section 38: An amendment to the Constitution of Canada may be made following resolutions of the Senate and House of Commons; and resolutions of the legislative assemblies of at least two-thirds of 299 the provinces that have, in the aggregate, according to the then latest general census, at least fifty per cent. of the population of all the provinces. That is the general formula.
The particular formula with which I am concerned is in section 41: An amendment to the Constitution of Canada in relation to the following matters may be made … only where authorised by resolutions of the Senate and House of Commons and of the legislative assembly of each province. Those matters are: the office of the Queen, the Governor General and the Lieutenant Governor of a province … the right of a province to a number of members in the House of Commons not less than the number of Senators by which the province is entitled to be represented at the time that this part comes into force”— subject to another section— the use of the English or the French language … the composition of the Supreme Court of Canada; and … an amendment to this Part. That is the amending formulae themselves.
I will illustrate that simply with the very first of those things— the office of the Queen”. There is in existence in international law, binding on the States which are parties to it, a United Nations convention on the elimination of all forms of discrimination against women. Canada ratified it on 10 December 1981. Canada is now bound by it in international law and cannot alter it. I congratulate the hon. Member for Down, South (Mr. Powell) on his amendment which is between my two amendments but which has not been selected. He makes the relevant point that the statute itself—the schedule passed by the Canadian Parliament—uses the words the office of the Queen in this formula for the amendment of the constitution.
Canada is now bound, however, in international law, among other things, to legislate to ensure that women, on equal terms with men have the right … To participate in the formulation of government policy and the implementation thereof and to hold public office and perform all public functions at all levels of Government. There are various other provisions in the convention, which are relevant to the same point.
For example, the point made in my Succession to the Crown Bill, as you know, Mr. Weatherill, was that the eldest child in each generation should inherit, irrespective of sex. Canada is now bound, of its own volition, under international law, to embody that principle at some time into its law. In other words, it must, at some time, legislate in order to comply with the convention. It does not much matter if Princess Diana has a son; but, if she has a daughter, Canada will be forced to legislate at some stage to ensure that ultimately that daughter is heir to the Throne. Whatever we do in this country, we have the strange spectre of a possible Queen of Canada reigning while her brother is King of the United Kingdom and Northern Ireland.
Mr. J. Enoch Powell It can happen.
Mr. English It can happen, as the right hon. Gentleman, who is an expert on these matters, points out.
Here we have the immediate possibility of legislation on the office of the Queen”. I might add that one of the few things not in the long schedule is any clarification of one of the deepest 300 obscurities of Canadian constitutional law—how one can ratify a treaty. In this case it would seem that the ratification could probably never now be given unless it had the assent—it was given before the Bill was passed—not only of the Canadian federal Government but of the Governments of all ten of the provinces. However, the ratification took place before this Bill is passed and there is now a distinct possibility that one of the first things that Canada may have to do is to pass some legislation that directly involves section 41 of schedule B.
I have used that matter as an illustration, but it shows the complexities that can arise. I do not think that we should attempt to pass an amending formula for Canada without its request and consent. The reason for moving the amendment today is to show how difficult it may be in future for Canada if unanimous consent of every one of ten provinces—who knows, it may be more than ten at some future date—is required.
When the United States passed a provision requiring assent from three-quarters of the states, there were only 13 states. There are now 50. Canada, geographically one of the largest nations on earth, might have more than 10 provinces in future. Large areas of Canada could be turned into new provinces should the Canadians so wish.
It appears inadvisable to have a provision for absolute unanimity. In this we have no greater rights than the Queen is said to have with her Government in either Canada or here. We may advise or warn. I advise the Canadians to think again. They have the time. They can request and consent to a change in the Bill without delaying it. We can include an amendment in this Chamber or in another place. It would be better if that were done. Otherwise, trouble is being stored up for the future.
Mr. J. Enoch Powell The ingenuity of mind of the hon. Member for Nottingham, West (Mr. English) has opened up many vast perspectives within the apparent narrow compass of his amendment. I am sorry that too soon, and sotto voce, I expressed dissent to his proposition as to possible amending legislation by the House to the Bill even after it has been passed. I agree that there is nothing which prevents the sovereign Parliament from repealing the Statute of Westminster if it wants to, but the only result would be that we should find ourselves in a vacuum of oar own creation—a fairyland limited to ourselves in which we could live our own unreal existence.
However, practically and politically—this does not contradict the hon. Gentleman’s argument—once the Bill is passed, whatever difficulties arise in Canada over this constitution, or anything else, the House will not legislate again for Canada. That is as politically certain as anything can be.
Mr. English What if Canada asked us to to do so?
Mr. Powell I am prepared to add, even if Canada asked us to, since the important adverb “politically”, which in the last resort governs all that we do in Canada, was contained in my sentence.
There are two practical questions—one broad, and a narrower one—to which the amendment obliges us to direct our attention. The first is whether the schedule, covering this part of the Canadian constitution, can subsequently be amended by the Canadian Parliament. There is a wider and a narrower aspect to that. On the wider aspect, it seems to me that the answer “Yes” is given by implication, at any rate, by section 49 of the schedule.
301 Within 15 years—which might, indeed, be next year—a constitutional conference will be convened to review the provisions of this part of the Bill which governs the amendment of the Bill. I find it difficult to make sense of that unless the Canadians themselves envisage that their Parliament would be able to alter the conditions for altering their constitution. That seems to me to be highly rational and implied on the face of the Bill. It gives the answer pro tanto to one of the questions that I have hitherto vainly addressed to the Government: is there anything in what we are doing that the Parliament of Canada cannot undo or amend? It seems to me—and there is other evidence to this effect—that there is nothing that it cannot undo or amend, including part V, which says, or may say, how alone it can amend.
The second and narrower point is this: “Is that what part V says?” Part V begins by saying that an amendment may be made by proclamation”. So it may. But neither that section, nor, as far as I can see, any other section in part V is so drafted as to exclude any other method of making an amendment to the constitution. It appears on the drafting that even without amending part V as a result, or otherwise than as a result, of the conference convened under section 49 there are other ways of amending the constitution. If that is so, that is not an unimportant result, especially to those who have been led to think that either we are entrenching the contents of the constitution, or at any rate, entrenching a unique method of amending it. On the drafting, it appears that we are not doing that.
The amendment relates to section 41. The word “only” is limited to the modality of amendment by proclamation. It does not say “Amendment may only be made by proclamation in relation to the following matters.” It says that in relation to the following matters it may be made by proclamation “only” under the conditions specified in that paragraph.
Sir Bernard Braine It is even worse than that because we are legislating in a way which could lead to extinguishing basic rights for certain communities in Canada.
Mr. Powell It is certainly important, because unless we understand what this part does or does not purport we might be party to deceiving persons in Canada or elsewhere into imagining that things are entrenched and unamendable, or only amendable in certain ways, which in reality can be amended in other ways.
By now the Committee is familiar with the condition of nescience, self-imposed upon the Government by the terms in which they view the Bill. I am appealing to the Minister to venture out beyond the boundaries of his adopted nescience, at any rate so far as to confirm the drafting and what it means. Otherwise, the Government are in the difficult position not only of putting before the Committee a document which they say the House cannot amend—and they do not think that the House should amend it—but of saying that they do not understand what it means. I hope that that is not the Government’s position. I hope that the Government are not saying “You cannot amend this document and if you ask us what it means we will not tell you.”
I am having another try. I am asking the Minister if he will please indicate whether he is advised that I am 302 mistaken in thinking that part V does not prescribe one, and only one, lawful and constitutional way of amending the constitution, but deals only with amendment by proclamation and a method which may—and therefore may not—be adopted for amendment.
The Minister of State, Foreign and Commonwealth Office (Mr. Richard Luce) First, I shall take up a point made by the hon. Member for Nottingham, West (Mr. English) about Foreign Office advisers giving wrong advice to Ministers. The hon. Member feels strongly about the constitution, Governments and their systems. I hope that he will agree that Ministers carry responsibility for the advice that they receive. Ministers are accountable to the House. They take the decisions and try to determine whether the advice is right or wrong. They take the responsibility.
The hon. Member for Nottingham, West has spoken to the two amendments that concern the procedures for amending the new constitution of Canada. Part V sets out the amending formula agreed to by nine out of the 10 provinces at a special conference that was held in early November. I do not need to reiterate the Government’s view about what we mean by “substantial measure of support”, because we have had that debate. We feel that that fulfils the request and consent provisions set out in the Statute of Westminster 1931.
The whole of part V is the fruit of lengthy deliberations in Canada, and is acceptable to all those who were signatories to the agreement following the first Ministers’ conference in November. I am anxious not to bore the Committee by repeating myself, but the right hon. Member for Down, South (Mr. Powell) is enticing me to be a little more interesting than I may have been before. However, we must stick to the point of principle—the nature and relevance of the request and consent convention set out in the Statute of Westminster.
It would intrude into matters which are properly the concern of Canadians if the British Parliament were to seek to modify the procedures for amendment of the new constitution that have been worked out in Canada. Amendments Nos. 26 and 58 seek to cut down the requirements of unanimity in clause 41 and that would be in direct contravention to the request and consent convention. To stick out my neck a little further, the hon. Member for Nottingham, West expressed deep concern that Canada had not consented, and was not part of this.
Mr. English Quebec.
Mr. Luce I apologise to the hon. Gentleman—Quebec. We debated this matter on Second Reading two weeks ago. We all feel that it is a matter of great regret that not all the provinces, including Quebec, feel able to accept the request and consent provision.
We all hope that in due course it will be possible for Quebec and the rest of Canada—under the leadership of the federal Government—to reach agreement, but it is not for the British Government to express any further view, and we must abide by the request and consent provisions.
I am sorry if I am not being helpful to the right hon. Member for Down, South who asked whether I could give some further interpretations. If I can be helpful to him, I shall be. It might be easier if I were given more time, but I shall seek an opportunity in which to reply.
I must ask the House to reject the two amendments.
Mr. English My amendment has served its purpose in instituting this short debate.
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. Clinton Davis (Hackney, Central) I beg to move amendment No. 27, in page 2, line 14, after ‘Act’, insert ‘subject to the substitution in Schedule B, for section 49 of the following words— 49.— (1) A constitutional conference composed of the Prime Minister of Canada and the first ministers of the provinces and (in so far as constitutional matters arise that directly or indirectly affect the aboriginal peoples of Canada) representatives of the aboriginal peoples of Canada duly authorised in accordance with subsection (2) shall be convened by the Prime Minister of Canada within fifteen years after this Part comes into force to review the provisions of this Part; (2)(a) The representatives of the aboriginal peoples of Canada at the conference convened under subsection (1) shall be—
(i) in the case of Indians, those duly authorised to take part in the conference and to give such assent by and who are appointed by The First Nations Assembly of Canada at a special meeting summoned for the purpose;
(ii) in the case of other aboriginal peoples of Canada respectively, those duly authorised to take part in the conference and to give such assent by and who are appointed by a majority of authorised representatives of the class or category of such peoples at special meetings summoned for the purpose;
(b) In this section and in Schedule 2 ‘The First Nations Assembly of Canada’ means the Chiefs of the Indian tribes, bands and Nations of Canada.”.’.
The Deputy Chairman (Mr. Ernest Armstrong) With this it will be convenient to take the following amendments: No. 29, in page 2, line 14, after ‘Act’, insert Amendments requiring assent of aboriginal peoples of Canada. 49B.—(1) No amendment may be made to the Constitution of Canada by proclamation issued by the Governor General under the Great Seal of Canada under this Part which proposes to
(a) affect any aboriginal treaty rights or other rights or freedoms of the aboriginal peoples of Canada; or
(b) repeal, amend, alter or make further provision in the Constitution of Canada, including provincial legislation, or any Act or order made thereunder by enactment affecting any of the aboriginal peoples of Canada unless, before it has been submitted to the Governor General, such amendment has been assented to
(i) in the case of Indians, by representatives duly authorised to give such assent from time to time and by and who are appointed by The First Nations Assembly of Canada at meetings summoned for the purpose;
(ii) in the case of other aboriginal peoples of Canada respectively, by representatives duly authorised to give such assent from time to time by and who are appointed by a majority of authorised representatives of the class or category of such peoples at meetings summoned for the purpose. Provided that in case of doubt as to whether an amendment proposed under this Part would have the effect referred to in paragraphs (a) and (b) above the matter shall be referred for determination by a court or tribunal of competent jurisdiction.
(2) In this section ‘The First Nations Assembly of Canada’ means the Chiefs of the Indian tribes, bands and Nations of Canada.”.’.
No. 40, in page 2, line 14, after ‘Act’, insert ‘subject to the insertion, in Schedule B after section 49, of a section (Further constitutional conference) as follows—
Further Constitutional Conference
“49A. (1) A constitutional conference composed of the Prime Minister of Canada and the duly authorised representatives respectively of the aboriginal peoples of Canada shall be 304 convened by the Prime Minister of Canada within fifteen years after this Part comes into force to review the provisions of this Part in its application to the said peoples of Canada.
(2) For the purposes of this section, the duly authorised representatives of the aboriginal peoples of Canada shall be
(i) in the case of Indians, those duly authorised to attend the conference by The First Nations Assembly of Canada at a special meeting summoned for the purpose;
(ii) in the case of other aboriginal peoples of Canada, respectively, those duly authorised to attend the conference by a majority of authorised representatives of the appropriate class or category of such peoples at special meetings summoned for the purpose.
(3) In this section ‘The First Nations Assembly of Canada’ means the Chiefs of the Indian tribes, bands and Nations of Canada.”.”.
No. 41, in page 2, line 14, after ‘Act’ , insert ‘subject to the insertion in Schedule B after section 49. of a section (Amendments requiring assent of aboriginal peoples of Canada) as follows—
“Amendments requiring assent of aboriginal peoples of Canada
49B. (1) Notwithstanding any provision in this Part, no amendment may be made to the Constitution of Canada by proclamation issued by the Governor General under the Great Seal of Canada under this Part which proposes
(a) to affect any aboriginal treaty rights or other right s or freedoms of the aboriginal peoples of Canada; or
(b) to repeal, amend, alter or make further provision in the Constitution of Canada, including provincial legislation, or any Act or order made thereunder by enactment affecting any of the aboriginal peoples of Canada unless, before it has been submitted to the Governor General, such amendment has been assented to
(i) in the case of Indians, by representatives duly authorised to give such assent from time to time by, and who are appointed by, The First Nations Assembly of Canada at meetings summoned for the purpose;
(ii) in the case of other aboriginal peoples cf Canada respectively, by representatives duly authorised to give such assent from time to time by, and who are appointed, by a majority of authorised representatives of the class or category of such peoples at meetings summoned for the purpose.
(2) In this section ‘The First Nations Assembly of Canada’ means the Chiefs of the Indian tribes, bands and Nations of Canada.”.’.
No. 61, in page 2, line 14, after ‘Act’ , insert ‘subject to the omission in Schedule B, section 49, of the word “within”.’.
Mr. Davis I thought for a moment that the right hon. Member for Down, South (Mr. Powell) would perform the greatest miracle since Moses struck the rock. Indeed, perhaps he has, because the Minister has said that he may be a little more forthcoming and a little less reticent than before. We must be thankful for small mercies. I was beginning to wonder whether his journey to the Committee for the debate was necessary. Perhaps it is, after all.
The amendments standing in my name and that of my right hon. and hon. Friends seek to probe the proposals for the constitutional conferences contained in sections 37 and 49, and to consider the impact of section 54, which repeals part IV, which in turn comprises section 37. I hope that the Minister will be less reticent than he has been when answering some of the points raised earlier in this important debate. The amendments deal specifically with the second constitutional conference, but are, in a sense, integrally related to the way in which the first constitutional conference will operate. Essentially, the issues are inseparable.
305 I understand that the Indian peoples strongly believe that there will be an interval of about 15 years between the two conferences and that they will have no status at the second conference. Those concerns compound their anxiety about the integrity of the constitutional proposals. They claim that they are entitled to a continuing dialogue because their rights, lands and culture are at issue. The anxieties that I have frequently referred to have been exacerbated because the Indian peoples were not involved in the formal consultations that preceded the presentation of the proposals. No explanation has been given for that serious omission. In their representations to hon. Members they claim that the omission constitutes a breach of their constitutional rights, which are adumbrated in their treaty, and a breach of other rights, such as the right to be consulted. That omission adds—as I well know from my recent visit—to the Indians’ scepticism about their ability to influence Government policy.
The Department of Indian Affairs commissioned a survey on Indian conditions in 1980. The document is interesting and I congratulate the Department of Indian Affairs on it and the Federal Government on enabling its commission. The document emphasises the points that I have made. The summary dealing with political conditions stated, on the basis of interviews, that there had been major and positive changes in the Indian political situation, notably in the increased independence and administrative capacity of Indian band councils, Indian political awareness and influence, and Indian representation at all levels of Government, through the development of Indian political associations. At the same time, there was scepticism about the Indians’ ability truly to influence Government policies. That is the point that I was making.
The summary also stated that some people feel that current Government-Indian relations are outmoded and negatively affect local self-reliance, political accountability and development. This is a remarkable document and it is to the manifest credit of the federal Government that it has commissioned and published such a detailed report on the conditions of Indians over a wide spectrum.
Having regard to treaty rights, it is strange that at the first conference the aboriginal peoples are not to be present as of right but are mere invitees. One simply does not know the limit of the contribution that they will make or are expected to make. Their position is vastly different from and inferior to the position of the provincial Prime Ministers and the Prime Minister of Canada. As far as one can see, the role that they are expected to perform is merely to participate in the consultations that directly concern them. What directly concerns them is to be determined by others, not by them.
One of my reasons for inserting the words “directly or indirectly” in the fifth line in my amendment was specifically to deal with that question. Despite the posture that the Minister has adopted, may I ask him to tell us what the term “directly” means? How can that position be an equitable one when it is the treaty and other rights of the aboriginal peoples that are at stake? Lord Denning has said that the conference settles exactly what their rights are”. How can it be equitable that they should be given so inferior a status at the conference? Their position should be clarified on a matter that is fundamental to them. Is the Indians’ fate to be determined—perhaps dictated—by 306 those very provincial Prime Ministers who not long ago were responsible for removing what is now section 35, and who will themselves control the amending formula?
Another major matter of concern is that the First Accord originally envisaged that the conference would be held annually—the continuing dialogue to which I have alluded. Under section 54 the first conference will cease to exist one year after the Act comes into force. Therefore, even if it were contemplated—and there is no such provision in section 49—that the aboriginal peoples were to have some role in the second constitutional conference, is it to be expected that they should wait for 15 years to know their ultimate fate? What will be the position if their rights are not identified and defined within the time allotted for the first conference? What part will they have in framing the decisions? For how long are they expected to be present at the discussions? What will be included on the agenda? Who will decide that very issue? Who will determine what “directly” affects them? If they feel that they are being denied any satisfactory consideration, or if decisions are made that they consider to be contrary to their interests, what right of appeal will they enjoy?
This is a matter of specific importance, for it has to be remembered that in the constitution that we have before us the courts are provided with no guidance as to the interpretation of aboriginal and treaty rights. How is it possible, without that guidance, for the courts to be able to consider those matters and to administer justice satisfactorily? Is it not possible, moreover, that the courts may have to give effect to legislation that simply overrides aboriginal rights, title and treaties? If that is the position, it is one that the Indian peoples would be entitled to look upon with very great anxiety.
The whole process of identifying and defining the rights of the Indian peoples is deadly serious for them. It is incumbent upon the Canadian Federal Government to provide far more reassurances on the matter than have been provided hitherto.
I have asked these questions—because I know what the Minister’s position will be—primarily in the hope that between now and Third Reading—or, if not, between now and the time when the Bill comes to be considered in another place—the Canadian federal authorities will recognise that it is in their own interests to be able to allay these anxieties.
I have said—as has every hon. Member who has participated in the debate—that we wish the Canadian people well. We want to see the patriation of the constitution succeed. We want to be rid of the quirk of history with which we are faced today in having to deliberate at all on these matters. It must be recognised that there are real doubts, and I can only hope that something will be said in answer to these points within the time that I have stated.
With regard to the second conference, there is an astonishing provision, which does not even include reference to the aboriginal peoples. They are in no way assured—as by section 37—of a seat at the conference. It is not even contemplated that they should be close to the table, let alone sitting at it. I ask the Minister to tell the House why they have no such assurance.
Is it to be assumed that by the time, the second constitutional conference takes place, the whole issue of aboriginal rights will have been consigned to the 307 wastepaper basket, or do the Canadian Government feel that these questions will have been satisfactorily resolved? If so, on what basis do they come to that conclusion, having regard to the qualifications and doubts that I have already mentioned concerning the first constitutional conference and the difficulties that arise in relation to that?
I suppose that it is possible—this is the fear of the Indian peoples—that the amending formula will have been used in order to produce new amendments to the constitution, with no aboriginal involvement, consultation or consent. It is because of that anxiety that we have proposed in our amendments some ways of mitigating, if not of overcoming, those difficulties. They are ways that would provide the aboriginal peoples with a right to attend the subsequent conference and to be involved and consulted properly in matters that directly or indirectly affect them. They are rights that they should clearly have, not simply at the second conference but at the first conference, too. The amendments would provide a way of enabling a procedure to obtain for the selection of the representatives of aboriginal peoples—a selection that should be made by them, not something that is imposed on them. Amendment No. 29 provides a procedure for obtaining their assent to amendments of the constitution, as defined in various parts of the proposals to amend section 49b.
Why are these matters fundamental in the eyes of the Indians? In my opinion, it is because they want to see developed at the constitutional conferences that which they have no faith exists at present—a more comprehensive understanding, feeling for and appreciation of what they are, their history, culture, religion and way of life. They insist that, to achieve that, there must be a reassessment of the promises that have been made to provide adequate education facilities, a reassessment of the federal Government’s obligations relating to the health and welfare of native peoples, and of the Crown’s administration of Indian lands. In the representations that the Indian peoples have made to many hon. Members of this House they say that they are deeply concerned about the federal Government’s honouring of the terms and spirit of the treaties—a concern that is expressed against a background in many of the provinces of appalling housing, social services, education facilities, and alcoholism, all of which are manifestly evidenced in the Canadian Government’s survey of Indian conditions. The fact that the federal Government’s expenditure for Indians increased 14 per cent. per capita in real terms between 1970–71 and 1978–79, compared with 128 per cent. per capita growth in other federal social programmes, illustrates what I mean when I talk about the Indian’s concern.
Harold Cardinal, a notable Indian leader, said that the mistake made by the aboriginal peoples in the past was that they “trusted too much”. It is, he said, the duty of each succeeding generation to ensure that the sacred obligations of the treaties are respected. These peoples know only too well that in some Indian reserves there are vast mineral, oil and gas deposits that are vulnerable to compulsory legislation. They know that their way of life cannot survive without an adequate economic base, of which the land claims represent an essential part. That they are lacking in trust and confidence is clear beyond peradventure. They sense that, after patriation, federal Government policy, by the use of the amending formula, 308 can enable the federal Government to acquire lands or transfer reserves currently under federal responsibility to the Provinces. That they fear deeply.
Thus, they feel that there is a need for assurances that there will be no derogation from the obligations of the Crown in Canada by the misuse of the amending formula. It is in those circumstances that we put forward amendment No. 29, which to some extent would provide those assurances and protections, to which the Indian peoples feel that they are entitled, if they are to repose their faith in these constitutional changes.
We may not have got the phraseology or terminology right in drafting our amendments. That is quite possible. However, I have no intention of dividing the Committee on the amendments, although other hon. Members may wish to do so. If so, I shall not prevent them from doing so by withdrawing the amendments. The advice that I give my hon. Friends is not to divide, as I have said on a number of occasions. I want to focus attention on the representations that have been made to us out of deep concern and the utmost genuineness of spirit. These people have not been given a fair deal over the years. Their position has unquestionably been improved in more recent times, but there is still a residue of mistrust. It is that residue of mistrust which it would be wise for the federal authorities to do their best to expunge. I hope that that will be a useful result of our debates on these important matters.
Sir Bernard Braine I wholeheartedly support the hon. Member for Hackney, Central (Mr. Davis) in what he has been saying. I speak to the first of the amendments standing in my name and in that of the hon. Member for Walsall, South (Mr. George).
Section 49, as the Bill stands, is the final section of part V of schedule B. Part V relates to the procedure for amending the new constitution of Canada. Under this section, a constitutional conference, composed of the Prime Minister of Canada and the First Ministers of the 10 provinces, will be convened by the Prime Minister within 15 years after part V comes into force to review its provisions; that is to say, the procedure for amending the constitution. By the time the constitutional conference takes place under section 49, there will already have been a previous constitutional conference under section 37 of part IV of schedule B. The Committee discussed section 37 last week. There was a Division and our amendment was rejected.
Thus, the situation now is that the first constitutional conference will take place in accordance with section 37. It will take place within one year of part IV coming into force, and it will be repealed under section 54 as soon as it has taken place. By the time that section 49 is implemented, the first conference will have receded into the distant past, never to be repeated. I shall therefore remind the Committee of the kind of “once-for-all” constitutional conference that will have taken place under the ephemeral section 37. This will have been conducted by the Prime Minister of Canada and the 10 provincial Premiers alone. In accordance with section 37(2), they will have identified and defined the rights of the native peoples of Canada to be included in the Canadian constitution. It is true that representatives of the native peoples will have been invited to participate in the discussions, but it will not have escaped the Committee 309 that there is no provision for native interests to be represented in the further constitutional conference which takes place under section 49, up to 14 years later.
I therefore ask the Committee to consider the following questions. By the time section 49 is implemented, will there be any native interests for the then Prime Minister and 10 Premiers to take into account? How will native rights have been identified and defined on that sole, fleeting occasion upon which this can happen under the constitution that we are considering—that is, within the one year of the Act coming into force? What confidence can we expect the native peoples of Canada to have that their rights will have been properly recognised on the occasion of the first conference, on that single occasion when they respond—if they do—to the Prime Minister’s invitation, when they participate—should they deem it in their interests to do so—in the discussions that he is having with the provincial Premiers to decide the future of their communities?
While there has been some expression of confidence during our debates on the Bill that the natives peoples of Canada need have no fear that their rights will be ignored during the first conference, I have not so far heard any of my right hon. or hon. Friends on the Front Bench expressing clearly their complete confidence that the 11 Canadian Governments will uphold the treaty and aboriginal rights so forcefully and eloquently expressed by the Master of the Rolls on 28 January.
The Government appear to be relying—we had a repeat performance this afternoon by my hon. Friend the Minister of State—on the proposition that what goes on between Canadian Ministers and the native minorities does not concern the British Government and should not concern the British Parliament. If I am wrong about that, I am sure that my hon. Friend will correct me. I have not heard my right hon. Friend the Lord Privy Seal assure the Committee that the Government are confident that the 11 Canadian Governments will give statutory force to Lord Denning’s interpretation of the royal proclamation and the treaties with the Crown when they come to define and identify native rights during the next 12 months.
As I recall, only the hon. Member for Inverness (Mr. Johnston), who is not present this afternoon, was prepared to express any confidence during Second Reading that the Canadian Government will live up to their obligations under the international covenant on civil and political rights. It is not a question of obligations under the Crown or whether the Crown is no longer the Crown of England but the Crown of Canada. We are talking about a new position where our obligations to minorities here, in Canada or anywhere else are governed by a convention solemnly entered into by all civilised nations. There has been precious little reference to that during the debate.
The hon. Member for Inverness, with the fairness that the Committee has come to expect of him, quoted a statement by the Saskatchewan Indians, setting out their fears that the constitutional status of the Indian nations would be eliminated within five years, that their lands would be expropriated, their hunting, trapping and fishing rights reduced and extinguished and their languages systematically eradicated. He quoted the fears that they expressed to him and, with his customary sensitivity to any 310 group or person who comes to him with a grievance, conceded that the Indians genuinely harboured those fears. However, he concluded that he found it impossible to believe that such fears were well-founded. He argued that Canada has a good record on human rights. Although the Indians might have difficulties, he believed it unlikely that any Canadian Parliament or any future Canadian Government would act in a way that most Indians fear is possible.
For a moment—a fleeting moment only—responsibility for this matter rests with this Parliament. The Bill has not yet passed. We should, therefore, examine closely the fears expressed to the hon. Member for Inverness and to other hon. Members and decide for ourselves whether they are groundless. We should consider closely what we already know about the matter. There is irrefutable evidence—I gave it to the House previously—of a strong resistance by the provincial Governments to allowing the native peoples any guarantees in the constitution that would override the legislative powers of the 11 Canadian legislatures. That evidence is important, because both in the first year conference and in the conference that is to take place within 15 years, 10 of the 11 First Ministers who will decide on the future constitutional position of the native peoples will be the provincial Premiers.
What of the Canadian federal Government and Parliament? Nothing, irrespective of provincial desires, can be done to alter the constitution if the federal Parliament forbids it. We should ask ourselves two questions. First, what is the record of successive Canadian Parliaments and federal Governments on aboriginal and treaty rights? Secondly, what are the present Canadian Government’s policies on native rights?
I turn first to the sorry story of the extinguishment of aboriginal and treaty rights. If any one wishes to read it, the story is there. My case for saying that section 49 to schedule B should be amended relies as much on the existing legislation and on the attempts of Canadian courts to interpret it as upon an examination of the present intentions of the 11 Canadian Parliaments and Governments on the unsatisfactory nature of the legislation before us today. Not only the hon. Member for Inverness but other hon. Members may, understandably, be unaware of how native rights, so recently pronounced solemn and binding in our Court of Appeal, have been set aside by the Canadian Parliaments and how Canadian judges have been powerless to protect them.
For all who are prepared to listen to the story, it is quite fascinating. In 1964, and Indian named Michael Sikyea appealed against a conviction under the Migratory Birds Convention Act 1952 for shooting a wild duck. His defence was that he was entitled, under his treaty with the Crown, to do so. Mr. Sikyea was convicted by a magistrate. His appeal to the court of first instance was upheld and he was acquitted by Mr. Justice Sissons. The Court of Appeal of the Northwest Territories subsequently overruled Mr. Justice Sissons on the ground that the Migratory Birds Convention Act 1952 was valid legislation and abrogated Mr. Sikyea’s treaty rights.
The Supreme Court of Canada unanimously upheld the decision of the Court of Appeal on 6 October 1964. In his decision, which was to be overruled by the Appeal Court, Mr. Justice Sissons quoted the words of Mr. Justice Gwynne of the Supreme Court in an earlier case of 1902: Indians still have their ancient hunting rights unless the proclamation of 1763 and the pledge of the Crown therein … 311 are to be considered now to be a dead letter having no force or effect whatever: and unless the grave and solemn proceedings which ever since the issue of the proclamation until the present time have been pursued in practice upon the Crown entering into treaties with the Indians for the cession or purchase of their lands are to be regarded now as a delusive mockery.
Mr. Justice Sissons, commenting upon the treaty that applied to Mr. Sikyea—treaty number 11—which was made and concluded in 1921 between His Most Gracious Majesty George V and the Slave, Dogrib, Loucheux, Hare and other Indians, inhabitants of the territory had this to say in amplification of the observation made by Mr. Justice Gwynne 62 years before: The solemn proceedings surrounding treaty 11 and the pledge given by the Crown and incorporated in the treaty would indeed be delusive mockeries and deceitful in the highest degree if the Migratory Birds Convention, made just five years previously, had curtailed the hunting rights of the Indians.
Despite those outspoken words, the Court of Appeal had no choice but to uphold the magistrate’s decision and convict Mr. Sikyea. However, it did so not without foreboding. Mark well the words of Mr. Justice Johnson, who spoke for the appeal judges who were obliged to reach that conclusion: It is, I think, quite clear that the rights given to the Indians by their treaties as they apply to migratory birds have been taken away by this Act and its Regulations. How are we to explain this apparent breach of faith on the part of the government, for I cannot think it can be described in any other terms? This cannot be described as a minor or insignificant curtailment of these treaty rights, for game birds have always been a most plentiful, a most reliable and a readily obtainable food in large areas of Canada. I cannot believe that the Government of Canada realise that in implementing the Convention they were at the same time breaching the treaties that they had made with the Indians. It is much more likely that these obligations under the treaties were overlooked—a case of the left hand having forgotten what the right hand had done.
Those hon. Members who think that under my guidance the Committtee is descending to trivialities by considering the fate of an Indian convicted for shooting a duck out of season should ponder the words of the Saskatchewan Indians, which the hon. Member for Inverness quoted on Second Reading. Their fears were that under the present policies of the Canadian Government, not only would their lands be expropriated and their languages eradicated, but also that the very means of life itself—their hunting, trapping and fishing rights—would be extinguished.
These are not baseless fears. The Indian chiefs knew full well what the Canadian courts had decided in the case of Regina v. Sikyea. If hunting rights conferred by solemn treaty could be extinguished—one could say, almost in a fit of absence of mind—so could other rights, including their right to land and their right to preserve their language, culture and separate identity. Indeed, Regina v. Sikyea was not an isolated incident. The legislation that led the Supreme Court to confirm Mr. Sikyea’s conviction was once again shown to apply, this time to overlay the provisions of an earlier treaty—the treaty of 10 July 1827 with the Chippewa Indians of Ontario. The Committee may wish to reflect that this treaty pre-dated the creation of the Dominion by some 40 years. The obligations under that treaty were at that time clearly and exclusively the obligations of the Crown of England.
Before pursuing this point, I should tell the Committee in passing that the Government have put us in some difficulty. I have argued this before and I must do so again. We still do not have the benefit of a final decision of the Appeal Court of the other place on the complex questions that arise out of Crown obligations. We do not have the benefit of that decision because, no doubt for reasons 312 touching upon the relations with the Government of Canada, the Government are bent on riding roughshod over the legal process.
Had my right hon. Friends the Lord Privy Seal and the Leader of the House not been so eager to act hastily at the behest of the Canadian Government, we should have had final guidance on this important aspect of the Canadian constitution from the highest court in the land. Why the hurry? What was the necessity? We could have waited a few days or a week or two for guidance from the highest court in the land, but the Bill is being pushed through the House and we are, therefore, faced with these difficulties.
As it is, we must apply a political judgment to how the obligations of the Crown, affirmed in the Royal Proclamation and the Indian treaties, have been complied with on the advice of the Crown’s Ministers. Whatever the position of the Crown in law, under section 91(24) of the British North America Act 1867, the United Kingdom Parliament handed responsibility for Indians and land reserved for Indians in trust to the Dominion Parliament.
I submit that the considered pronouncements of Canadian judges that I have quoted have clearly established that treaty obligations entered into by the Crown on the advice of Canadian Ministers have been treated in a fashion described judicially as a “delusive mockery”, “deceitful in the highest degree” and “an apparent breach of faith”.
The case that resulted in the abrogation of a right under the 1827 treaty with the Chippewa Indians of Ottawa concerned a similar charge and was finally decided shortly after the case of Regina v. Sikyea, to which I referred earlier. This was the case of Regina v. George in which the final decision was reached by the Supreme Court of Canada, with the precedent of the Sikyea case before it. The court’s conclusion, in which it referred specifically to the judgment of Mr. Justice Johnson in Regina v. Sikyea, anticipated the judgment of the single dissenting judge, Mr. Justice Cartwright. He said: The questions of law decided by Johnson, Justice of Appeal (and therefore by this Court since it adopted his reasons as well as his conclusion) in so far as they are relevant to the case at bar were (i) that it is within the power of Parliament to abrogate the rights of Indians to hunt whether arising from treaty or under the Proclamation of 1763 or from user from time immemorial and (ii) that on its true construction the Migratory Birds Convention Act shows that it was the intention of Parliament to prohibit Indians from hunting during the closed season subject only to the exceptions in their favour set out in the Act. 6.15 pm
Mr. Justice Cartwright strove to identify a reason in law why the defendant’s treaty rights should not be abrogated by the Canadian Parliament’s legislation. Significantly, he said: We should, I think, endeavour to construe the treaty of 1827 and those Acts of Parliament which bear upon the question before us in such manner that the honour of the Sovereign may be upheld and Parliament not made subject to the reproach of having taken away by unilateral action and without consideration the rights solemnly assured to the Indians and their posterity by treaty. Johnson, Justice of Appeal, with obvious regret, felt bound to hold that Parliament had taken away those rights, but I am not satisfied that on its true construction section 87 of the Indian Act shews that Parliament was careful to preserve them. Mr. Justice Cartwright ways, however, unable to persuade his fellow judges that the Canadian Parliament had been careful to do any such thing or that the relevant section of the Indian Act made the provisions of the Migratory Birds Convention Act subordinate to the treaty of 1827.
313 Mr. Justice Cartwright’s five fellow judges concurred that it was not the purpose of that section of the Indian Act to make any legislation of the Parliament of Canada subject to the terms of any treaty.
To show that it is not only the right to hunt under the treaties that has been extinguished by legislation of the Canadian Parliament, I shall mention briefly the now famous decision in the case of Hamlet of Baker Lake v. The Minister of Indian Affairs. That case concerned aboriginal land rights and is of particular relevance to the amendment proposed to section 49 in schedule B. It is also a recent case. It was decided in 1979.
The case concerned the Inuit or Eskimo of the Hamlet of Baker Lake in the North-West Territories. These people complained to the Canadian courts in 1979 that certain mining activities were an unlawful invasion of their aboriginal title. Mr. Justice Mahoney ruled against them on the grounds that their aboriginal title had been extinguished by the Territorial Lands Act 1950. In his decision, the judge made a remarkable and valuable comment on the legislation that had obliged him to reach his decision. Referring to the Minister and certain mining companies joined in the action, he said: The defendants argue that the removal by Parliament of the earlier express recognition of unextinguished Indian title is to be seen as an expression of its intention to extinguish aboriginal title. As part of my historical research, I referred to Parliamentary Reports pertinent to the enactment of the Territorial Lands Act. He observed that the debate on all stages of the Bill occupied a mere six-and-a-quarter pages of the Official Report, and went on to say: The word ‘Indian’ appears only where the sponsoring Minister stated that the bill did not apply to lands under the Indian Act. The word ‘Indian’ does not otherwise appear in the report, and the words ‘Eskimo’, ‘Inuit’ or ‘aborigine’ do not appear at all. Debate in the Senate was considerably less extensive. While I cannot have regard to anything said in either House in interpreting the statute, it is, I think, fair to remark the irony implicit in the idea that such a basic right, particularly vested in certain people, then helpless to look after their own interests over whom Parliament had exclusive legislative competence, was, in 1950, so casually extinguished. Without regard to what was intended or achieved, it is an historic fact, of which I am entitled to take judicial notice, that, in enacting the Territorial Lands Act, Parliament did not expressly direct its attention to the extinguishment of ‘aboriginal’ title”. I make no apology for dealing with those cases at length, because it is necessary to demonstrate to the Committee what has been happening.
So it is that we find a situation where, without the slightest doubt, native treaty and aboriginal rights have been extinguished by the Canadian Parliament. We find a situation in which the Canadian courts have, time after time, been rendered powerless to protect native rights. We find a situation where distinguished Canadian judges have acknowledged the solemn nature of the Crown pledges, the grave and solemn proceedings which have been pursued by the Crown, ever since the issue of the royal proclamation of King George III, when entering into treaties with the Indians for the cession or purchase of their lands. We find a situation in which those judges have been forced to acknowledge also that the Canadian Parliament, by its enactments, has caused the obligations of the Crown towards the native peoples of Canada to be regarded as a “delusive mockery”, a “breach of faith”, and “deceitful in the highest degree”.
314 So much for past compliance with the Crown’s promises to the native peoples which, the Committee will remember, our own distinguished Master of the Rolls has said must never be broken. Alas, once the Bill has left us, there is no way in which we, all honourable men, can say those promises will never be broken. What of the future once the Bill has left us? What will native rights amount to when, at some time in the 1990s, section 49 of schedule B to the Bill has been implemented?
Grave doubts have already been expressed in Committee as to the adequacy of the affirmation of native rights in section 35, of existing native rights—of native rights which may just have survived by the time the Bill comes into force. Perhaps some hon. Members feel that, whatever the errors in the past, the future may be counted upon to bring about something better. Perhaps cases of extinguishment of aboriginal land might simply have been unfortunate errors because the Canadian Parliament did not “expressly direct its attention to the extinguishment of aboriginal titles”; in other words, it was not in its view a matter of much moment. Perhaps in future, to repeat the hope expressed by Mr. Justice Cartwright, the treaties and the royal proclamation will be construed in Canada in such a manner that the honour of the Sovereign will be upheld and the Canadian Parliament will not be made subject to the reproach of having taken away, by unilateral action and without consideration, the rights solemly given to Indians and their posterity by treaty.
What indications have been given by the Canadian Government of their future intentions towards native rights? Do we have anything tangible to bolster the confidence expressed by the hon. Member for Inverness or to remove the fears so genuinely expressed by the Indians who sought his help? There is considerable information available to guide the Committee in its deliberations on the need for the amendment that I have proposed.
We are fortunate to have on record many statements of policy by the present Prime Minister of Canada. Some of these pronouncements do not restrict themselves to statements of policy. They are frank and reasoned expositions of his political philosophy. On 8 August 1969 Mr. Trudeau spoke in Vancouver on aboriginal and treaty rights. He acknowledged that Canadians had no great cause to be proud of the way in which they had treated the Indian population in the past. What he considered was wrong was that Indians had been set apart as a race. They were not citizens of their provinces as the rest of Canadians were, he said. They got their services from the federal Government rather than from the provincial Governments. They had been set apart in law, and they have been set apart socially too.
The Canadian Prime Minister took the view that Indians were at the crossroads. They could continue having a special status. Other Canadians could go on adding bricks of discrimination around the ghetto in which Indians lived, helping them preserve certain cultural traits and ancestral rights. On the other hand, Indians could become Canadians of full status.
It is of very great importance that I should not misrepresent or exaggerate what the Canadian Prime Minister said on that occasion. He was speaking with the utmost frankness, and we must heed what he said. It is important that the Commitee should hear his actual words, if only because this statement of policy, and all the 315 indications of the Canadian Government’s native policy which have followed since, have made the blood of Indians and Inuit run cold with apprehension.
Mr. Trudeau, referring to the crossroads that the Indians had reached, said: This is a difficult choice. It must be a very agonising choice to the Indian peoples because, on the one hand, they realise that if they come into the society as total citizens they will be equal under the law but they risk losing certain of their traditions, certain aspects of a culture and perhaps even certain of their basic rights, and this is a very difficult choice for them to make, and I don’t think we want to try to force the pace on them any more than we can force it on the rest of Canadians; but here again here is a choice which is in our minds, whether Canadians as a whole want to continue treating the Indian population as something outside, a group of Canadians with which we have treaties, a group of Canadians who have as Indians, many of them claim, aboriginal rights, or whether we will say, well, forget the past and begin today; and this is a tremendously difficult choice, because, if—well one of the things the Indian bands often refer to are their aboriginal rights, and in our policy, the way we propose it, we say we won’t recognise aboriginal rights.
I pause there because this was a policy statement, an expression of intent by the man who is likely to be identifying and defining those rights under section 37(2) within 12 months from now. It is a statement, therefore, of the most profound importance to the Committee in considering the need for amendments to section 49.
Mr. Trudeau said: In our policy, the way we propose it, we say we won’t recognize aboriginal rights. But then he continued: We will recognise treaty rights. We will recognise forms of contract which have been made with the Indian people by the Crown, and we will try to bring justice in that area and this will mean that perhaps the treaties shouldn’t go on for ever.
The Committee should recall Lord Denning’s considered view: No Parliament should do anything to lessen the worth of these guarantees. They should be honoured by the Crown in respect of Canada `so long as the sun rises and the river flows’. That promise must never be broken.
Never be broken? The view of the Prime Minister of Canada is that perhaps the treaties shouldn’t go on for ever. Mr. Trudeau amplified this proposition that the treaties should be terminated. He said: It’s inconceivable, I think, that in a given society one section of the society have a treaty with the other section of the society. We must all be equal under the laws and we must not sign treaties amongst ourselves and many of these treaties, indeed, would have less and less significance in the future anyhow, but things that in the past were covered by the treaties like things like so much twine or so much gun powder and which haven’t been paid, this must be paid. But I don’t think that we should encourage the Indians to feel that their treaties should last forever within Canada so that they be able to receive their twine or their gun powder. They should become Canadians as all other Canadians and if they are prosperous and wealthy they will be treated like the prosperous and wealthy and they will be paying taxes for the other Canadians who are not so prosperous and not so wealthy whether they be Indians or English Canadians or French or Maritimers and this is the only basis on which I see our society can develop as equals. But aboriginal rights, this really means saying, ‘We were here before you. You came and you took the land from us and perhaps you cheated us by giving us some worthless things in return for vast expanses of land and we want to reopen this question. We want you to preserve our aboriginal rights and to restore them to us’. And our answer—it may not be the right one and may not be one which is accepted but it will be up to all of you people to make your minds up and to choose for or against it and to discuss with the Indians—our answer is `No’.
I submit that we could not have had the intentions of Mr. Trudeau towards the native peoples of Canada laid 316 barer than that. He is the Prime Minister of Canada; he is the architect and prime mover of the Bill before the Committee today. He looks to a future when the Indian, Metis and Inuit peoples of Canada are Canadians just like all other Canadians—white Canadians, like himself. He has preached with some eloquence a sermon of assimilation.
It will not escape the Committee that Mr. Trudeau was powerless in 1969—indeed, that he has remained powerless to this day—to put into legislative effect the policy of assimilation which he so frankly expounded. It would require changes in the Canadian constitution to bring the policy to fruition. To make the native peoples citizens of the provinces in which they live, to sever the special connections between them and the Canadian Government, acting for the Crown, would have required an amendment to the British North America Act. It would have required the transfer of subsection 24 of section 91 to section 92.
Mr. Trudeau has not been able to do that until now. He will be able to do it, with the support of seven out of 10 provinces, if the Bill goes on our Statute Book unamended.
In the same year, 1969, as Prime Minister Trudeau made the policy speech from which I have quoted, an official statement of the Government of Canada on Indian policy was presented to the Canadian Parliament by the Hon. Jean Chrétien, the Minister of Indian affairs and Northern Development. It was a more circumspect statement than the Prime Minister’s. He paid tribute to the contribution of Indian culture and ancestry both to Canada as a whole and to the Indian peoples themselves, but he also pointed to the crossroads that the native peoples had reached. It was his recommendatiion that the Indian peoples should leave the road that had existed since confederation and before, the road of different status, a road which, he argued, had led to a blind alley of deprivation and frustration. He pointed to another road for Indians, a road that would lead gradually away from different status to full social, economic and political participation in Canadian life.
Mr. Chrétien argued that the policy of treating Indian people as a race apart should be ended. He said: The tradition of federal responsibility for Indian matters inhibited the development of a proper relationship between the Provinces and the Indian peoples as citizens”. He also said: The ultimate aim of removing the specific references to Indians from the Constitution may take some time, but it is a goal to be kept constantly in view.
Referring to section 91(24) of the British North America Act, which allocated to the federal Government exclusive responsibility for Indians and land reserved for Indians, Mr. Chrétien said—and I ask the Committee to ponder these words: In the long term, removal of the reference in the Constitution would be necessary to end the legal distinction between Indians and other Canadians.
The native peoples of Canada were far from reassured by that official representation of Prime Minister Trudeau’s political philosophy. All that they could rely on was the knowledge that there could be no amendment to section 91(24) without the concurrence of the British Parliament.
Furthermore, there were in Mr. Chrétien’s policy statement clear indications that if changes were to be made in Indian status they would be made with. Indian consent. 317 But we are considering a Bill here which, drafted and passed by resolution of the Canadian Parliament, does not have the consent of the native peoples of Canada. That is the point. They have not been consulted on matters vital to their continued existence. For that reason above all the Committee must consider the amendments, which would ensure full consultation with native interests and ensure that consent was obtained to any changes in the constitution of Canada which affect the Indians, the Metis and the Inuits.
There is further evidence of this urgent need and this is the last opportunity I shall have to give it to the Committee. Further public references to Indian policy were made after 1969, particularly in 1973 and last November, when the present Minister of Indian Affairs and Northern Development issued a document entitled “In all Fairness—a Native Claims Policy—Comprehensive Claims”. These later pronouncements add nothing of significance which can be said to throw any further light on the Canadian Government’s intentions towards the native peoples. They do not add to, or subtract from, the approach illustrated by Mr. Trudeau’s 1969 speech and Mr. Chrétien’s statement.
It has been represented to many of us by Indian representatives that any remaining confidence that their peoples had in the good faith of the Canadian Government was finally and inexorably destroyed when a confidential discussion paper was leaked to Indian interests last year. The paper, sponsored by the Hon. John Munro, Minister for Indian Affairs and Northern Development, was entitled “Native Claims Policy—Comprehensive Claims”. It was dated 5 November 1980, and thus followed upon the decision of Prime Minister Trudeau to proceed unilaterally with the patriation of the Canadian constitution.
As the paper’s title suggests, detailed questions of unsettled claims based upon aboriginal rights were discussed. I shall not dwell in any great detail on what this most revealing document contains since many hon. Members who have followed this question in detail have copies in their possession. I shall come rapidly to the central policy decision which this paper recommends and which is vital to our debate on the amendments.
The paper confirmed that it was the policy of the Canadian Government to negotiate the settlement of native land claims where the Government is satisfied that a lawful obligation exists Or where native rights based on traditional use and occupancy of the land had not been extinguished by treaty or superseded by law”. But Mr. Munro’s paper went on to make plain that the 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 for whatever interest they might have in the 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 any possible cloud on the Crown’s title that might inhibit the exercise of that title.
It is important at this point to reflect upon the fundamental importance of land rights and land title to the native peoples of Canada. Without a land base of their 318 own, how are these people to benefit from the right to self-determination, the right by virtue of which, in the words of the international civil and political rights covenant, to which both Britain and Canada subscribe, they freely determine their political status and freely pursue their economic, social and cultural development”?
The answer is given with stark clarity on page 5 of Mr. Munro’s confidential discussion paper: the native people’s claim to self-determination is to be staunchly resisted. As paragraph 14 states: one of the most difficult issues encountered in the negotiations has proven to be native demands for future political and administrative structures which would permit varying degrees of `self-determination’ or ‘autonomy’. There is also a strong belief among the native leadership that Indian title, rather than being extinguished, should be continued, which is diametrically opposed to existing federal policy.
I emphasise that statement. Is it any wonder these native people are not consulted? Is it any wonder that there are no safeguards for them in the constitution that we are being asked to enact?
Mr. Munro adds, in this revealing paper, that that belief, together with inflated expectations of what can be obtained through a settlement in monetary compensation, land, and control over resources—as well as political autonomy—has further inhibited progress in reaching agreements. How unsatisfactory that people should trust to the solemn promises and obligations that were entered into in treaties with the Crown! How inconvenient! Let them be brushed aside.
The question that the Committee must consider is this: how is the right of the native peoples of Canada to secure their future as distinct communities within Canada to be protected, when the policy of the federal Canadian Government—to which we are fortunate enough to be privy—seeks to deny them autonomy and the ownership of land?
If we are to comply with our clear duty, we in this Parliament must propose amendments to the legislation for which we, and we alone, are responsible, so as to ensure that we do nothing, in Lord Denning’s words, to lessen the worth of the guarantees which the native peoples of Canada have been given by the Crown.
Our amendments to section 49 of schedule B propose, first, that native interests be directly consulted by the Prime Minister of Canada in the course of the constitutional conference which is proposed; and, secondly, that a proper and adequate formula be devised for future amendments to the constitution affecting the native peoples of Canada, a formula that requires their consent.
Our amendment No. 40 proposes that a constitutional conference composed of the Prime Minister of Canada and the duly authorised representatives of the aboriginal peoples of Canada should take place within 15 years after part V comes into force, in order to renew its provisions in its application to the aboriginal peoples. The amendment goes on to define who the duly authorised representatives of those people should be.
I shall not detain the Committee any longer on this amendment and will advance important new arguments later, when I hope to speak on my amendment No. 41. If I have spoken at some length it is because these matters were never properly discussed in Canada, which, in itself, is justification for my comments. It is a sad commentary on the way this Bill has been rushed before us that the issues of native rights have to be discussed here, where we 319 have no power to implement any decisions, and not in the Ottawa Parliament, where the real responsibility lies. By the time we have finished debating the matter here, the message may have reached the Canadian people. I profoundly hope so.
Mr. Grimond I speak with some diffidence on this Bill because I know little about Canada, even less about the Indians and I am no expert on constitutional law. However, I will be brief and will speak only because I am concerned at the anomalous position in which this Parliament seems to find itself.
I do not understand the need for such haste over this Bill. No good reason has been advanced for pushing it through before the pending cases are heard in Britain and Canada. The statement of the Leader of the House, during our last proceedings, showed that largely domestic difficulties existed between the usual channels. That would not be a compelling reason, when the Bill comes to the notice of those concerned and its effect on their lives is known, for rushing it through.
I am also concerned with the Indians’ position, and, therefore, support the amendments moved. Most of these arguments have now been well rehearsed and I adopt many of the remarks made from the Opposition Front Bench in support of the amendments. The two conferences will clearly be of the greatest importance and we should ensure that the Indians are represented.
However, we should not be too self-righteous or attack the Canadian Government too vigorously about their possible errors, past or future. My constituency of Orkney and Shetland came by treaty to the Crown of Scotland and, therefore, the Crown of Great Britain. At the time of what was called “impignioration”, we were guaranteed for all time the rights of fudal law. Those rights have been constantly infringed by the British sovereignty. We must fight very hard to retain the last vestiges of those rights. I was involved in a considerable dogfight with no less an authority than the Crown Commissioners on those rights.
Although we were apparently responsible for the rights of the Indians over a very long period, I am not aware that the Crown in Britain did much to protect them. However, “put not your trust in princes, ” or in any authority of that sort. I keep an open mind about future actions of the Crown in Canada. It is our duty to ensure, whatever our past shortcomings may be, that we do our best for these people in future.
I do not know whether the Government have seen the paper prepared by Professor Fawcett, who is an expert on international law. Under the international, civil and political rights covenant, he is sure that it is the business of this Parliament to ensure that all individuals within Britain’s territory and subject to its jurisdiction, have their rights recognised. He is equally clear that the Canadian Indians are subject to our jurisdiction, although not within our territory. He said: It cannot be disputed that, under relevant statutes from the British North American Act 1867 onwards, the United Kingdom Parliament has jurisdiction, which it can and must exercise, over the form and provisions of the constitution of Canada, though this jurisdiction will be terminated on adopting the Canada Act.
So it seems possible as I put it no higher than that—that we have a duty and right to take cognisance of this matter and, clearly, to amend the Bill. I take the point that if we amend the Bill and, particularly, the schedules, it will no doubt have to return to Canada. As I said in an earlier intervention, the Government would have to withdraw it.
320 There is no doubt that we have a right to deal with this Bill. Suppose the Bill contained a provision that the Indians should be exterminated? That would be absurd, and it could not be said that we were bound to enact such a suggestion because it was recommended by the Canadian Government. We would, in that case, have had to reject the whole Bill. The view that we are bound to say nothing about the Bill and simply let it go through cannot be supported.
I appreciate the Government’s point of view but they might have been a little more helpful in explaining what some of it means and exactly what they feel is the purpose of these already lengthy proceedings. The peculiar constitution of Canada was explicitly enacted in its present form so that there would be some extra protection for minorities—that was the whole reason for it. It is just at this moment, when minorities’ rights are raised, that we should give considerable care to further developments of the Canadian constitution.
It seems clear from the amendments that there are inadequate safeguards for consultation with the Indians, to ensure that they will be represented at these conferences and, indeed, that the conferences will respect the undertakings of treaties that are already in force.. The Indians’ land rights are extremely important and should be particularly protected. As the matter stands, I do not know what we can do, other than draw forcibly to the attention of the Canadian Government the views of this Parliament. I hope that the main features of the Bill are enacted and wish it well as a whole.
However, I am unhappy about those aspects and will be extremely unhappy if the Bill leaves this House without note being taken of the strong objections voiced on all sides, first, about the speed in which it has been enacted, secondly, about the extreme doubt as to what it means and, thirdly, about whether we have discharged our obligations to a minority people to whom we owe a great deal. The Indians were, after all, the original inhabitants of the continent and, on any showing, have been extremely badly treated over the past 150 years.
Mr. Ennals I am glad that today’s group of amendments gives us a further opportunity to discuss the effect of the proposed legislation on the Indians and aboriginal people.
I much welcome the intervention made by the right hon. Member for Orkney and Shetland (Mr. Grimond), partly because it showed the great sympathy with which he considers the problems of minority peoples and the Indians, and also because it shows a sharp contrast with his hon. Friend the Member for Inverness (Mr. Johnston), who seemed to be completely satisfied that everything was all right in Canada; there was no reason for us to have arty concern. Having delivered his speech, the hon. Member for Inverness left, and we have seen no more of him.
A very powerful case for the amendments was made by the hon. Member for Essex, South-East (Sir B. Braine). I am especially concerned with amendments Nos. 29 and 41, which are of fundamental importance and on which I hope that the Committee will have the opportunity to divide.
What we had to say in our debate both on Second Reading and in Committee last week has aroused a great deal of interest in Canada and, naturally, greater interest in Canada than in Great Britain. If one seeks, as I have 321 done, to follow the press in Canada, it is interesting to see the position that the press has taken on our debates. I shall give two quotations, one from the Toronto Globe and Mail of 25 February. I shall quote from a short extract from the leading article that was entitled: The Man who Complained of Debate
The article stated: Justice Minister Jean Chrétien sighs wistfully and wishes that Britain’s MPs were as diplomatic as he is: ‘I will not comment on British affairs because I don’t like people commenting on Canadian affairs’ he said after watching a five hour debate on the Canadian Constitution on Tuesday in Westminster. Mr. Chrétien is a mature man and he doesn’t fly into a rage about the impudence of the 40 odd backbenchers who were supposed to hold their noses and follow Canada’s demands. Instead he quietly mourns the lack of decorum among those upstart backbenchers like a father who sadly turns his eyes away froth the indiscretions of his adult child”.
Perhaps we ought to tell the Toronto Globe and Mail that those rumbustious young backbenchers included three right hon. Members who formerly were members of the Cabinets of different Governments and the former leader of the Liberal Party. Those Members of Parliament included right hon. and hon. Members from both sides of the House and from different parties. Therefore, the actions of those people are not to be taken lightly and it is encouraging that they are not.
My second quotation comes from the Montreal Gazette as recently as 27 February 1982, which states: In last week’s debate on the Committee stage of the Canada Bill the British critics often were right. They focused their attention on the native peoples, who have mounted an effective, high-profile lobby in London over many months. Our record of dealing with the native peoples is indeed disgraceful. The present condition of the Indians is indeed shocking. The failure of Ottawa to consult the native peoples’ organisations frankly and fully on the constitution in advance was deplorable. The Provinces’ success in pressurising Ottawa into inserting that weasel word `existing’ before ‘aboriginal and Treaty rights…are hereby recognised and affirmed’ was a cynical betrayal of the Indians’ interest. The sad fact is that the native peoples have practically no political clout in Canada when larger economic interests are threatened”.
That point was well made by the hon. Member for Essex, South-East.
It is therefore of greater importance that before the Bill leaves the House we should enunciate, understand and express the concern of the Indian peoples, which leads to the importance of the group of amendments that we are discussing.
I was encouraged to see that the Indian Governments of Saskatchewan produced a statement to the effect that: The Indian peoples of Canada are deeply moved by the intelligence and compassion with which the House of Commons has dealt, so far, with aboriginal and treaty rights in the Canada Bill. In response to the advice of many Members, all the Indian Nations have agreed to a united, clear and specific negotiating position, have set up a negotiating team in Ottawa, this week, and have invited the Government of Canada to negotiate a just and lasting constitutional settlement. The Indian negotiating position is based on the principles contained in two amendments to the Canada Bill. Those amendments are the new clauses proposed by the hon. Member for Sevenoaks (Mr. Wolfson) and me. I shall not pursue them at this stage. The Indian Governments stated further: So far, we have had no response from the Government of Canada. However, we have reason to believe that the tide of world opinion and national opinion, in Canada, has been turned 322 in our favour by the British House of Commons. What we need now is determined diplomatic initiatives from Britain and an impressive, if not decisive, vote for the … amendments.
It is encouraging that the Indian people about whom we have expressed so much genuine concern recognise and appreciate those expressions in the House. We all hope that the Canadian Government will respond to what has been said during the debate.
During the debate last week some hon. Members, particularly the hon. Member for Islington, South and Finsbury (Mr. Cunningham), raised the question of why the Indians had not objected before now about their treatment or about the infringement of their aboriginal rights. A second question was: if their legal actions now before the English courts are not vexatious or dilatory, why have not the Indians appealed to the English courts before? We should look at those questions in the light of the amendments
I shall refer first to the second question. We must recognise that the Indian peoples of Canada were forbidden by Canadian law to prepare legal actions until 1951. I have section 141 of the Indian Act before me. An amendment was made to it in 1927. I shall not read it, but it spells out explicitly that the Indians could not even prepare legal action, let alone take it. Indians were not even granted the vote until 1960.
Since that time the Indians have done everything that could reasonably be expected of somewhat oppressed aboriginal people to settle their grievances with Britain and Canada through political means. I am sure that they were right to do so. They have come to the English courts only as a last resort after more than two years of careful and costly preparation of their case and after all the doors to power in Canada and Britain seemed to have been closed in their faces. They issued a writ the day after the constitutional package came to Westminster—the first day that they could launch their action. They have asked the courts to expedite their case.
Last week Mr. Justice Vinelot ordered the British Government, who had been pleading for more time, to prepare their defence by 16 March. The pressure is on the British Government in the same way as the British Government are putting great pressure on us to pass the legislation. Mr. Justice Vinelot said that the Indian case raised issues of great constitutional importance that must be clarified at the earliest moment. He noted that if the Indians succeeded, the Canada Bill would be declared unconstitutional and of no effect. He recognised the supremacy of Parliament but noted that it was the proper function of the courts to interpret that supremacy.
The Saskatchewan Indians issued their writ in January only after the Select Committee on Foreign Affairs had issued its final report on the Canada Bill. The Saskatchewan Indians wanted a political, not a legal hearing. They sought to be heard by the Select Committee, but in its wisdom—or otherwise—the Select Committee thought not. The Indians sought to be heard by representatives of Her Majesty’s Government in London, but in their wisdom the Government thought that that was inappropriate.
The leading counsel on behalf of the Indians submitted to the Select Committee that, even if the Crown was divisible, the Committee should satisfy itself that a proper novation had been agreed with those concerned about the treaties. The Committee did not respond to those submissions, nor did it acknowledge those legal opinions 323 in its published report. It was only when they received that report that the Saskatchewan Indians felt that they were free to institute court proceedings. They, too, are asking the courts to expedite their case.
Hon. Members should not say that these cases are dilatory. We might wonder why the Government have sought the passage of the Bill even while their lawyers have been attempting to delay the hearing of Indian legal actions. Like the hon. Member for Essex, South-East, I cannot for the life of me understand why the Bill has been forced on us when in both the House of Lords and the Chancery Division of the High Court legal proceedings are being taken. The House should await the outcome of the cases now before the courts.
Before I turn to examples of political protest I shall draw attention to certain beliefs held by Indians about their relationship with this Parliament. They explain why it is so important that the amendments be accepted, either in the Bill or by the Canadian Government when they receive the Act. The Indians’ beliefs may cause some of us discomfort. Nevertheless, they are political realities and we and our Canadian friends must deal with them now.
Every Indian in Canada believes that the Canadian federal Government and its agencies are agents of the British Crown in Parliament, endowed by Britain with certain administrative and legislative powers, and entrusted by the British Crown with powers to implement on its behalf the promises that Britain made to the Indians when we signed treaties with them. Because of that belief, Indians have protested both to the Canadian Government, as one would to local agents, and directly to the British Government as one would to an absentee landlord. Whether the Indians direct their protests to Canada or to Britain, they have always believed that they are dealing directly or indirectly with the British Crown and therefore with this Parliament. That is why they have looked to this Parliament and why their representatives have come and spoken with so many hon. Members in this Parliament.
Before we dismiss that belief or question its sincerity, we should remember that that was also our belief at least until Canada became functionally independent and the British Crown became divisible. It is interesting to ask when that happened. None of us can be sure. In a recent decision by the Court of Appeal, one judge suggested that it was 1867, another suggested 1926 and a third suggested 1931. There is, therefore, already doubt about when the divisibility of the Crown occurred.
We cannot be certain about how it was done, either. No one Act brought it about. Rather, it is thought to have been an evolutionary process, a question of practice and usage that we call devolution. We say now, some 50 years later, that as a result of this evolutionary process, the British Crown’s obligation to the Indian nations of Canada, solemnly undertaken according to the terms of the Royal Proclamation of 1763 and more than 85 major treaties, devolved to the Crown of Canada. The practice of devolution follows a long tradition of doctrines created by Europeans to rationalise and legitimise what would otherwise have been blatant and cruel usurpations of the lands, cultures and societies of aboriginal peoples.
The doctrine of devolution, of granting sovereignty to our former colonies and dominions, and fostering the concept of Commonwealth may make sense to us. 324 However, it must be one of the more abstruse politico-legal concepts, the implications of which are not clear to our own best legal minds, if the Appeal Court’s decision is any guide, let alone to the Indian peoples. Can we honestly and reasonably expect that this concept should have been obvious to the Indian nations more than 50 years ago, scattered as they were over thousands of miles of Canadian wilderness, separated by 60 distinct languages and with different cultural traditions and backgrounds?
We should ask whether the concept of devolution was obvious to us. If it was, why did we not tell the Indians and make it absolutely clear what the constitutional relationship was? We did not. There can be no mistake about that. No British Government from then until now have claimed that they told the Indians or that we sought their consent. Had we sought that consent, we should never have obtained it without there being equal agreements in Canada giving the Indians the assurances that they have not so far had. There was no mention of it in the British North America Act 1867 or in subsequent amendments to that Act, and there is no mention of it in the Statute of Westminster. The British North America Act 1867 was drafted on to, and did not disturb, pre-existing constitutional arrangements between the Indian nations and the British Crown.
Nowhere has there been a clear statement or any negotiation involving the Indians accepting the divisibility of the Crown. Did we forget to do it? The problem goes back over many years and Governments. There could not have been an intention to mislead the Indians. Whatever the explanation—there must be one—we must not turn the Indians away now with a casual reference to a politico-legal theory which is as meaningless to them as I suspect it is to most Britons and Canadians.
After 1867, the Indian nations were deeply concerned about the dominion Government’s persistent and serious infringement of the rights guaranteed under the Royal Proclamation of 1763. They feared that the Dominion Government would progressively extinguish their rights as that Government grew in power. Those fears were the subject of many petitions, addressed by the Indians to the British Crown prior to the confederation in 1867, of which the British Crown took note. There were referred to in the negotiations leading up to the signing of the treaties and the speeches of the commissioners at the time of the signing.
It could be said that the British Crown induced the Indians to sign treaties, thereby yielding up vast quantities of rich land, by promising them that if they signed those treaties and honoured them peacefully the British Crown would guarantee that the aboriginal nights and treaty tights of the Indians would be constitutionally protected forever. That protection was offered against local powers. That was the point of the treaty. When Queen Victoria said that she would observe those treaties for as long as the sun rises, the grass grows and the river flows, she was not using the language of municipal law, but what she said was believed by the Indians. Can anyone believe that the Indians would have signed those treaties and surrendered their lands if they had known of the road down which the would find themselves forced over the years?
In his recent decision, Lord Denning said that all the post-confederation treaties were between the Indian nations and the indivisible Crown of Great Britain and Ireland as it then was. Therefore, those treaties were the responsibility of the House. Nevertheless, Lord Denning 325 said that the Crown became divisible after the treaties were signed, sealed and delivered. I do not question the fact or the appropriateness of the divisible Crown, but I question our political behaviour as a powerful State in failing to dispose of our treaty obligations in a fit and proper manner and in full conformity with the requirements of international law.
We have failed to notify the Indians and we have failed to gain their consent. The Crown became divisible, but it was, and is, still obliged in international law to seek the consent of the Indians if there is to be a legal novation of the treaty. As I understand it, “novation” is the legal term denoting the re-arrangement of a contract with the consent of all the parties to the original contract. I am not a lawyer—that is why I would appreciate a ruling on this from our courts, and why I believe that the House should await final judgment in the case brought before the British courts by the Saskatchewan Indians on this very point of novation.
I am certainly not a lawyer, but I am a Member of this House and I believe that, irrespective of any legal rights that the Indians may or may not have, they have the right to be heard with due respect, in keeping with the solemnity with which we went about securing their signatures to the documents by which they surrendered to us vast quantities of their homelands. We sent uniformed officers of our Armed Forces to the treaty-signing ceremonies. We appointed the Royal Canadian Mounted Police as officers of the Queen with a special duty to protect Indians from the “frauds and abuses” of the white man. We invoked the name of God and sent our Christian clergymen. As ultimate proof of our good faith we had our Queen give her personal and solemn oath that she, her heirs and her Governments would protect the Indians’ right to lead their own way of life on their own homelands for ever.
Is it fitting that the House should now dismiss Indian claims as naive, insincere or uninformed? I believe that it is not. That is why I believe so powerfully in the amendments. In 1763, we promised the Indian nation an open assembly to discuss their rights and the transfer of land titles. We kept our promise in the treaty-making process and we should keep our promise now that we are about to pass a Bill which will alter the constitutional status in Canada. To pass a Bill which does not oblige the Canadian Government to consult and secure the agreement of the Indian peoples would bring disrespect to this House. The Indian nations deserve a constitutional conference at which their consent can be sought for all the constitutional proposals that affect their rights. The fact that the Indians are now a poor, dispossessed minority in their ancient homeland does not excuse us—it obliges us even more to treat them with honour and respect.
Although the Indians took most seriously their treaty promise to keep the peace, their oppression at the hands of the Indian agents resulted in violent uprising in the mid-1880s. As a consequence, a band of Saskatchewan Indians led by the distinguished Chiefs Poundmaker and Big Bear, both of whom signed the treaties, was captured, and found guilty of treason and felony because they stole rations from the whites to feed their starving communities. Poundmaker and Big Bear were imprisoned, and eight of their band were convicted of murder and hanged.
The next wave of Indian political protest resulted on the return of the Indian soldiers who had volunteered to protect 326 the British Crown in the First World War. We should never forget how many Indians fought with us not only in the First Word War but also in the Second World War. After the First World War, the Soldiers Settlement Act of Canada gave returning soldiers land in reward for their services. But the returning Indian soldiers were not given land or even the cash compensation. They were treated as second-class citizens. Instead, their own Indian community was forced to surrender Indian reserve lands.
Some hon. Members may have been privileged to meet John Tootoosis, an Indian elder from Saskatchewan who is now 83 years of age. He is the grandson of Chief Poundmaker and, as those who know him are well aware, an indefatigable champion of his people’s rights under the treaties as he understands them. John Tootoosis bridges the Indian protest of the mid-1920s with those that we are seeing today. For more than 50 years, he has travelled thousands of miles by train, horseback, wagon and even on foot, to all parts of Canada to organise his people and to protest at the encroachment of their rights. Time and again, he was returned to his reserve by the Royal Canadian Mounted police. He was threatened with excommunication by the Christian churches and pilloried from pillar to post. In 1979, he arrived in London with 350 chiefs to give advance warning that the Indians were not being consulted in Ottawa on the constitutional proposals which would be arriving in England. Since 1981, he has become a familiar figure in England. His trust in our honour is a challenge to all of us.
The Indians have been administered under some duress from 1860 to 1951. Acts were passed in Canada which outlawed their religions and social ceremonies, forbade them to make land claims or to use the courts, restricted their movements to the reserves except with the written permission of an agent, forbade political assemblies and denied them the right to vote until 1960.
Despite all this, the residual responsibility for Indians retained in the British North America Act—the link with the British Crown, as they believe it to be—has been their lifeline. The present constitutional status quo may not have served the Indians well, but they believe that it has protected their culture and their communities from total extinction. They point to the White Paper of the first Government of Mr. Trudeau, as the hon. Member for Essex, South-East has said. In 1969, Mr. Jean Chrétien, then Mr. Trudeau’s first Minister of Indian affairs proposed to eliminate the special constitutional status of the Indians within five years, to put them for the first time in Canadian history under the jurisdiction of the provinces and to bring them into what he called the “Canadian mainstream”. But he could not carry that policy forward. The Indians and many non-Indian Canadians protested.
More important than Indian protests, which have had little effect in Canada, was the incontrovertible constitutional fact that in order to implement the policy Westminster would have to amend the British North America Act. Would Westminster do it? Rather than try us, the White Paper was withdrawn for “further consideration” and the patriation package now before us was prepared instead. Now, little more than 10 years after the White Paper, which was very frightening for the Indian peoples, we are apparently prepared to remove constitutional protections for the Indians and to put their 327 future unconditionally in the hands of Canada without first seeking the reasonable protections that we promised to the Indians for ever.
That is why the amendments now before us are fundamental. Even if the Bill has to go to Canada in an amended form, be revised there and returned here, I still wish to see the change made. In view of the long history of Indian protest, is it proper that we should lightly dismiss the fears of the Indian people simply because they are a small minority in their own country? Is it not our duty under the royal proclamation and the treaties, and in accordance with the Statute of Westminster, to ensure that in the new Canadian federation to which we all look forward with hope and good will, the Indians, too, should have some cause for celebration—as they will, if the amendments are passed. Otherwise, they will be left to the devices of the Canadian Government. I make no attack upon the Canadian Government. Indeed I plead with them to understand that and to respond to the views expressed here and of their own volition to do what hon. Members on both sides of the House urge should be done in the amendments.
Mr. Mark Wolfson (Sevenoaks) I am pleased to have the opportunity to support the amendments because they continue the debate on the question of Indian rights and the importance of those to the future of a united and prosperous Canada. It would be wrong for anyone in the House to underestimate the effect that our debate, both on Second Reading and in Committee, has had on public and political opinion in Canada.
Our discussion has provided time for the Canadian Government possibly to reconsider their somewhat intransigent position over refusing to have discussions with the representatives of the Indian people on the constitution Act before patriation. It continues to be my hope that we may yet see a change in that stance. In saying that, I make the point that I am not wishing to be unrealistically critical of the Canadian Parliament, people or Government. I am saying that because it is my genuine wish, as it is of many other hon. Members who have spoken, that we shall see a happy result from the Bill and its enactment. I hope that I am speaking not only for the Indian people, but for all Canada.
I shall refer in addition to an article in the Montreal Gazette, which was syndicated across Canada, following our first day’s debate in Committee. I shall take one or two points from that. About our debate it says: They focussed their attention on the native peoples, who have mounted an effective, high-profile lobby in London over may months. That is important. There is a Canadian paper referring to the fact that the Canadian Indians’ lobby in London has been effective. Yet, on Second Reading some hon. Members suggested that the Indians had not clearly articulated their real demands. It is becoming clear now, not only to hon. Members but to Canadians, that the Indians have articulated their requests with considerable clarity.
The report goes on: The failure of Ottawa to consult the native peoples’ organisations frankly and fully on the constitution in advance was deplorable … The sad fact is that the native peoples have practically no political clout in Canada when larger economic interests are threatened. I hope that I have not wasted the time of the Committee by making those points a second time.
328 As a result of reports in Canada, there has been considerable discussion at the highest levels. I have it on good authority that Ministers in Canada who are most closely involved with the constitution Act and Indian affairs are giving active consideration to possible new initiatives. Up to now, it has been clear in Canada from civil servants who have been dealing with the Indians that there were to be no talks with the Indian representatives before patriation. In particular, Mr. Kirby, the civil servant responsible for federal and inter-provincial affairs is on record as having made that point to the Indian representatives.
Indians had the opportunity to put their views to the Government as members of the general public in Canada. But they had no opportunity to do so as a separate group with their own identity. Members of the federal Parliament have been affected by our debates here. They have been surprised, and many of them have been impressed and concerned, at the interest in the Indian problem shown by hon. Members.
In Ottawa, the Indian chiefs have invited the Prime Minister and the provincial Premiers to talks before patriation, so the offer is there from the Indian side. I hope that it will not be considered wrong that those of us who support the amendments should make it clear that, if possible, we wish to see the Canadian Government respond to that request.
I hope, too, that it is not out of order for me to say that perhaps our Ministers could take the initiative in reporting to their opposite numbers in the Canadian Government the strength of feeling that has been shown in our debates on this issue. I know that on the first day in Committee my hon. Friend the Minister was asked whether any such initiative had been taken, and he said that it had not. I ask that question again today. Can my hon. Friend hold out any hope that he can see a way of making such representations?
I wish to spend a moment or two spelling out—I hope in practical and fairly clear terms—what the Indian peoples would like to see as a form for increasing their opportunity for self-determination. That follows the points made in the amendments concerned with ensuring that the Indian peoples are properly consulted about their own future. They want the opportunity at local level, the band or village level, provincial and national level to build into the Canadian political organisation their own representation to the area government system as it is now, to the provincial Government and to the national Government. These are issues that they will be asking for and discussing if and when they are given the opportunity to do so at a post-patriation conference.
What then would they want to contribute towards in terms of their own self-determination? They would like to utilise their Indian law and culture in reaching decisions on how their local band should be run and how moneys available to that band should be spent. All too often the federal Government’s representatives take decisions on the most minute details concerning Indian life. For example, at provincial level in British Columbia, the social services of the provincial Government organise the adoption of Indian children into families outside the Indian culture and occasionally outside Canada itself.
That may often be done for good social reasons, on the basis that life for a child is better outside an Indian community than within it. Hon. Members will agree that that follows the policy designed to achieve assimilation of 329 the Indians, rather than the policy of self-determination by Indians of their own future. Indians would like to have the opportunity of organising such adoptions within their own bands in their own way, but obviously with the assistance of, and discussions with, those who give professional help in these matters. At the moment, they have no opportunity to determine such matters for themselves.
At provincial level they would like to have a dialogue, on an equal level, on education, economic development and the use of revenues from their resources. They would like to be able to monitor provincial legislation, which could affect their hunting, trapping and fishing rights. At present they have no opportunity to do that effectively.
At national level, the Indians would like the Assembly of First Nations, of which all 575 chiefs are members—they sit and vote in that assembly—to be recognised by the federal Government. They could then have a national political agenda of outstanding issues to be worked out between the assembly and the federal Government—for example overall national policies which affect the Indians, large-scale settlements of land claims and the implementation of treaties. All those points have been raised in our debates. They spell out some of the real concerns of the Indian people. They fear that their present protection will be altered by the patriation of the Act to Canada.
In addition to the political organisations for which they look, which are regarded as being totally within the Canadian federal system, they look for the establishment of an office for the protection of Indian rights. That would operate at only one level. It would be appointed jointly by Parliament and the governor-general in consultation with the Indians. It would have two functions. The first, which I might describe as the active function, would be to encourage the settlement of outstanding land claims and other issues. It would monitor draft legislation by the federal Government which might infringe Indian rights. It would disseminate political information and politically educate the Indian people.
Secondly, in a passive role, the office would act as arbritator, or it would intercede on behalf of Indians in judicial proceedings. The interesting point about that suggestion, which was made by the Indians, is that it would represent a continuing link between the governor-general, as representative of the Queen in Canada, and the federal Government.
The point has been made several times that the Indians have a view—and we should accept that it is a real view—of the Crown’s concern and long-standing involvement with them and their rights.
The Indians have detailed and varied models on the table with the Canadian Government about how such political activities can be achieved. The over-riding point that they make—and it is germane to our debate—is that changes in the constitution which affect their rights must have their consent, and that the protection requiring their consent must not be taken away. Historically, that is what the British Crown and Parliament in their jurisdiction in Canada, before Canada became a sovereign power in her own right, always followed.
330 Obtaining Indian consent is consistent with the royal proclamation of 1763. It is consistent with the basis of treaties, with the British North America Act 1867 and with the Statute of Westminster.
Canada as a nation has been built on the basis of achieving consent for change for the Indian peoples. They were not conquered. The opportunity for white expansion in Canada was carried out through treaties which were made with the consent of the Indians. We are asking that the principles be continued, despite the fact that over the years there have been many barriers to achieving that consent.
I shall give an example of the situation that existed for the Indian people for many years. It highlights the progress that they have made in a relatively short time in being able to put their case forward in a politically sophisticated way. In 1927 an amendment was added to the provision which prevented Indians from raising money to press their claims. Part of the relevant section states: Every person who, without the consent of the Superintendent General expressed in writing, receives, obtains, solicits or requests from any Indian any payment or contribution for the purpose of raising a fund or providing money for the prosecution of any claim which the tribe or band of Indians to which such Indian belongs, or of which he is a member, has or is represented to have for the recovery of any claim or money for the benefit of the said tribe or band, shall be guilty of an offence and liable upon summary conviction for each such offence to a penalty not exceeding two hundred dollars and not less than fifty dollars or to imprisonment for any term not exceeding two months.
That was the law in 1927 in British Columbia and it continued until 1951. That may surprise many hon. Members. It was a constraint on any opportunity for political development for the Indian people in that part of Canada. During that time, Indians in most parts of the country were refused permission to leave their reserves to attend political meetings. The exceptions were the war veterans from the First World War who had special privileges. That group maintained the organisation of Indian activity and representations to the federal Government. Yet even they were often returned to the reserves from political meetings accompanied by the Royal Canadian Mounted Police. I do not suggest that the situation is like that now, but it demonstrates the difficulties that Indians have faced over the years when trying to represent their case effectively to the Canadian Parliament.
Over the past 10 years, the achievements of Indian organisations and individuals have been enormous. They have identified the problems of native peoples and suggested practical solutions that take account, as no Government policy has ever done, of the fundamental, social and historical factors underlying the Indian situation. They have gained power, respect and great political expertise after a century of being discredited and sapped of initiative. They have given more hope and determination to the Indian community than it has had for 100 years.
It is right to pay tribute to the fact that the Trudeau Government have played their part in bringing about that change. Mr. Chrétien, the Minister of Justice, who is responsible for the Canadian constitution Act and who has recently spent long hours in the Gallery, was previously the Minister for Indian Affairs. In that role he was probably criticised more than any previous Minister of Indian Affairs. However, he was also instrumental in 331 creating an atmosphere in which such criticisms were possible—most notably by giving financial support to national and local Indian organisations.
Mr. Chrétien had many well-publicised and ferocious debates with Indians, but they demonstrated a readiness that had been markedly absent in earlier Administrations to take the views of the native peoples seriously. His successors as Ministers for Indian Affairs appear to have followed the same basic approach. But, despite those encouraging signs, there has still not been a major transformation of Indian life. Indeed, Indians fear that their future could worsen under the new constitution.
Hon. Members may still ask why that should be so. The reason is that the Indian peoples have no representative rights at the constitutional conference. They know that in the many discussions, arguments, and negotiations, and, indeed, deals that are bound to take place over the years between the provincial and federal Governments, the aboriginal peoples could be the losers. Those facts are just some of the many justifications for discussing the Indian position in Canada today.
The Department of Indian Affairs in Canada is a huge and costly vested interest which perhaps unwittingly obstructs the movement of power and resources to the Indians in the way that they would wish. The acceptance of educational reform and the adoption of a new approach to land rights are nothing more than gestures by the Government until the new measures have been implemented. Indeed, the enormous need for economic assistance has not yet been met.
There is still much mutual resentment and misunderstanding between the white population and the Indian people of Canada. Many Canadians do not accept the remedies which native peoples propose for their problems. For example, it is argued that Indian pressure for financing economic development on the reserves—which other hon. Members have discussed—represents an unnecessarily expensive and out-of-date method and that if the Indians would move nearer to the white centres of population such development could be achieved at a fraction of the cost. That economic argument is correct, but it totally overlooks the basic rights of the Indians and their wish to retain their ancient land base, culture, laws and way of life.
Indians are still denied the right to tackle their own ills on their own terms, and they now wish to do that. In the past 100 years no satisfactory solution has been found by either the British or Canadian Governments. The assimilation policy was one answer, leading—as its name implies—to the ultimate disappearance of the Indian peoples into the rest of white Canada. That is in total contrast to what the Indians want.
I hope that the Canadian Government will now take the view that solutions can no longer be imposed from outside and that they need to have the courage, strength and enlightenment to give responsibility to the Indian peoples. There is a widespread conviction among the Indians that, whatever paths they follow in future, they must retain their Indianness.
An impressive expression of that feeling was given in a speech by Chief Dave Courchene, president of the Manitoba Indian Brotherhood at treaty centennial celebrations in 1971. He said: Our struggle will be over when we have in our own way found our place among the many peoples of the earth. And when that time comes, we will still be a people identifiable and 332 independent and proud … Your culture, we say to non-Indian Canadians, is not the culture of your ancestors of one or of five hundred years ago. Nor is ours. Upon us both impinge cultural forces which our traditional societies have not prepared us to face. … Our identity must be clear; our culture is creative. We are developing a twenty and twenty-first century culture And it is and will be an Indian culture … We recognise that there have been changes, but we must see those changes through our own eyes and adapt to them on our own terms. Those words summarise most exactly the aims and aspirations of the Indian peoples today. With good sense, feeling, and some eloquence, the Indians ask that white Canada allows them a future worthy of their part of the land of Canada itself.
Mr. D. E. Thomas (Merioneth) I am not sure whether I should apologise in advance to the Lord Privy Seal, because he will have to listen to me for a second successive evening. I hope that he will find my remarks about North America less controversial than those that I made last night about Central America.
I very much agree with the comments made by the hon. Member for Sevenoaks (Mr. Wolfson) and by other hon. Members. I am grateful to the hon. Gentleman for putting on record the forms of political and cultural autonomy that the Indian nations seek. I hope that his remarks will be heard by the Foreign and Commonwealth Office and by the various levels of government, federal and provincial, in Canada.
The hon. Member for Sevenoaks contrasted the two policies towards the Indian minority—that of assimilation, and that of self-determination. As a member of one minority—Plaid Cymru—showing solidarity with another, I am pleased to support the amendments. They seek to bring the Indian nations into constitutional dialogue with the federal and provincial Governments. They should be guaranteed a place at the constitutional conference and an opportunity to assent to any amendments made to the constitution. That is absolutely crucial to any notion of self-determination. The group concerned should have access and representation in constitutional terms and be able to express its own position. Its position and views should be binding and effective in any settlement. That is the historical position of the Indian communities within Canada.
The position of the Indian minority is similar to that of other minorities throughout the world. Indeed, the issue of minorities is one of the most pressing issues that face Governments throughout the world. It is an issue which Governments in Eastern Europe and the British State have had to face. The Lord Privy Seal is more experienced than most hon. Members in dealing with minorities within the British territories. I am certain that the sensitivities he has developed will be useful in the representations which I hope he will be prepared to make to the Canadian Government as a result of our debates.
The position of minorities has to be defined by the minorities themselves and by the majority within a given territory which has a minority within it. I hope that these remarks will not be regarded as being out of order. They relate specifically to the political structures proposed in the amendments. The position of the minority has to be guaranteed in political terms. That is what the amendment s seek to do. There must be a cultural dimension. However, there must also be an economic dimension. That is where the various arguments advanced by the Indian peoples coalesce. They are economic arguments for rights. They are ecological arguments for rights to land and the Indians’ 333 particular relationship with their land. They are also cultural arguments, for, in order to survive, a minority group must have a cultural base. They may be newly arrived minority groups—so-called immigrants—in a community where they form ethnic minority groups. They must have their institutions. They must also have an economic base within society.
Therefore, in order to sustain itself under the complex pressures that late twentieth century society puts on any minority, any cultural minority must have an economically secure base and a linguistically secure base within the education system. It must be able to reproduce itself in all the senses of that term—the biological sense as well as the cultural sense.
That is why the rights of the Indian peoples, as they have been argued in Canada and to hon. Members here, are an attempt by them to ensure the survival of their own culture. They see their culture in historical terms. They also see it, as the hon. Member for Sevenoaks reminded us so forcefully, in terms of a culture which must survive—a culture for the future and not merely the tradition of a minority. They want to have their place as a minority without surrendering their identity. Arguments for assimilation always arise from majorities—or have done in the past.
Majorities generally are less assimilationist than they used to be. One of our bitter regrets about the attitude of federal and provincial Governments of Canada—most provincial Governments seem to have this attitude, and certainly the federal Government have it—is that at a time when there is a world-wide trend, with majorities having to respond to minorities, and some more positive majorities granting rights of cultural survival to minorities, the Canadian Government still seem to be pursuing a policy which narrows the base of the Indian peoples and nations and in fact reduces them.
One would have thought that in that kind of climate the Canadian Government would be seeking to enhance the rights of the Indian communities, and would be seeking to find ways in which legal forms which have developed orally within Indian legal culture could be adapted to meet the needs of twentieth century codified law. Those are the kinds of issue to which one would have hoped the Canadian Government would be addressing themselves, rather than to the broad issues raised in section 35. We hope that those issues will be open to amendment by the Indian communities themselves rather than by the British House of Commons, or, after patriation of the constitution, by Canadian Governments themselves.
The Indian peoples are not historically an ethnic minority within Canada in the way in which the ethnic minorities within the British State would see themselves. They are not an ethnic minority in the way that the Italian community or the Spanish community or the other communities of people who have moved into North America would see themselves.
I would argue that all minorities, regardless of their arrival in a particular territory, have rights inherent in their being a minority and in having their culture. But I would argue even more forcefully in the case of minorities that are historically, as it were, within their own territory, into which other “immigrants” have arrived and negotiated rights to that territory. Historically, the Indian peoples are 334 nations in their understanding of that term, and they are seeking a political translation of the term into the structure of government in Canada.
It was in that context that many of us were concerned to re-read the statements of Mr. Trudeau in 1969 in which he was pursuing an assimilationist policy. I was very surprised to find a strange notion of equality put forward in Mr. Trudeau’s position in 1969. He seemed to argue that Indians should be equal under the law and should have equality with other Canadians, but that in order to have equality with other Canadians they had to cease to be Indians, or at least to give up part of their heritage. He specified that position. I shall not quote from his statements because the hon. Member for Essex, South-East (Sir B. Braine) has done so, but the notion was that for a minority to become, as it were, acceptable and equal within the majority community it had to give up its minority status.
Recently within Britain we have had to address ourselves towards ethnic minority groups. I commend to the Committee, and to the Canadian Government under Mr. Trudeau—I am sure that he will read the reports of our debates—the statement made in the recent interim report of the committee of inquiry into the education of children from ethnic minority groups in Britain. It refers specifically to education but it applies in social, cultural and economic terms. The report said: A ‘good’ education cannot be based on one culture only, and in Britain where ethnic minorities form a permanent and integral part of the population, we do not believe that education should seek to iron out the differences between cultures, nor attempt to draw everyone into the dominant culture.
The authors of that report realise that in Britain it is not necessary for people to give up their own cultural distinctiveness—whether, as in my case, it is the ability to speak a Celtic minority language, or some other characteristic. There is no need for minorities to surrender such characteristics to have equal treatment in a majority community. We hope that that argument will be endorsed by the Canadian Government in connection with the Indian right to hold land and to keep their culture, mode of work, and way of life protected and not encroached upon by land acquisition or by investment and capital developments of natural resources.
The issue was recently highlighted in the Edmonton Journal of 18 February which described the deals that are going on with foreign investors on the Alsands project, using natural resources in Indian land. I shall not quote the press report in detail, because I am sure that the matter will be familiar to people in North America. The rights of the Indians are already being denied by the Energy Resources Conservation Board. When we read of such cases in the Canadian press, we realise what will happen in Canada unless we ensure the rights of consultation for the Indian community.
I want to say a word about the recently revealed memorandum of understanding between the Government of Alberta and the Government of Canada concerning the Alsands project. The Indian nations regard that as an abrogation of treaty rights and a breach of trust by the federal Government. In these cases, Indians are not being dealt with in a specific manner as national communities. The treaties and all the rights to treaty land and trapping, hunting, fishing and gathering are ignored by this development agreement. Already, according to the 335 memorandum, in the process of assimilation whereby Indians become “local communities”, their special status is subsumed under the definition of ‘Natives’ who have no special status or relationship to the Federal Government. So in those instances of development the rights of the Indians are already being overriden.
Agreements of that kind for the exploitation of natural resources in the Indian community between Alberta, Canada and multinational capital can only result in the destruction of the reserve system and the system of communal land holding. That system will be replaced by individual land holding, which is easier to deal with within the framework of Canadian property law. There is thus an economic political and social incursion into the Indian way of life and the existing structures of the parallel Governments of the Indian nations. The structure of chiefs and councils is being deliberately bypassed and undermined.
The cause of that incursion lies in the investment in the development of natural resources in Indian communities. I represent a national park and a heritage area, and I am therefore concerned about ecological policy. Already we see the exploitation of natural resources. That exploitation is deliberately damaging the environment of the Indian nations. Capital goes into an area, and the result is the destruction of the ecology. The political and constitutional proposals, as often happens with so-called political initiatives, are really an attempt to facilitate the economic exploitation of areas at present under the control of Indian social structures. The intention behind the proposal to bring Indians into “equality” is for their lands and communities to be available for equality of exploitation. In an economy where the main determinant is capital exploitation and where there is a traditional way of life, the latter has to give way and the rights of the community have to be set aside so that the development can take place.
In the amendments we seek to ensure that the Indian communities are drawn into active consultation and have a veto for any changes that take place in the constitution. We seek to ensure that any developments which take place in areas that are controlled by the Indians are under their own control, and that the natural resources there are under their own control. I shall not mention Welsh water, but the issue of the control of natural resources by the local community is a crucial one.
Professor Douglas Sander of the Faculty of Law of British Columbia University showed the way in which various titles to land are interpreted. The Indian aboriginal approach to land tenure, the communal form of tenure, and the Indian understanding of the land holding system always has to be translated into the major Canadian code and into private property rights. So there is not merely a culture clash, but a clash of two different approaches to the control of property and natural resources. The communal approach of the Indians has much to teach us, because we have become privatised and individualised in our approach to property in the community.
In trying to ensure that the Indian minority in Canada has a degree of autonomy and self-determination, we are contributing to the civilising tendency whereby minorities have a special position in the world, whereby they are endorsed and maintained, and not set aside, whether in the interests of multinational capital or of some kind of uniform mass society.
Mr. Richard Body (Holland with Boston) I shall not follow the hon. Member for Merioneth (Mr. Thomas) except to say that I agree with all his sentiments. What I have to say can be said within a few moments. As I understand it, the proceedings are being reported quite widely in Canada. I hope that no one in Canada suspects that we are trying to interfere with how they should be governed. Some of us resent very much the fact that we should have put before us a draft constitution, because we believe that it is no business of ours to say how Canada should be governed, nor perhaps how the Indian nations should be treated.
However, some of us have had the opportunity of meeting representatives of the Indian nations in recent weeks. We have been more than impressed by the justice of their case. We have all been persuaded that they feel that they have been neglected and not heard fairly or properly. Above all, they have grave suspicions of how the Canadian Government will treat them once the new constitution comes into effect. They support those suspicions with hard facts. Those facts include speeches made by Mr. Trudeau—one of which was referred to a few moments ago by the hon. Member for Merioneth—and the failure of anyone who speaks with authority on behalf of the Canadian Government to meet the Indian peoples to discuss what their rights will be.
I am glad to see my right hon. Friend the Lord Privy Seal in his place. Perhaps during his reply he can tell the House what information he has had from the Canadian Government on this matter and whether they have given any assurances that they will consult the Indian nations and negotiate what the Indian rights will be before the constitution comes into effect—since it will be too late to put matters right afterwards—and to see justice done to the Indians.
We have been told that the Indian nations have representatives in Ottawa waiting to meet representatives of the Canadian Government to discuss the matters. Let us hope that what we have said in the House may do something—perhaps not much—to persuade Mr. Trudeau that he or his representatives should meet the negotiating team now. If that were done, it would be an opportunity to set at rest the minds of the Indian nations and to assure them that their fears are without foundation.
Mr. Bruce George (Walsall, South) We are now reaching the closing stages of the third parliamentary day that has been devoted to the Canada Bill. I was highly critical of the indecent haste with which the Government were proceeding and I believed, as a consequence, that the rights of this House and the rights of the native peoples of Canada were being trampled underfoot in the rush. However, I am pleased that the Government have relented and given not one extra day after Second Reading but two. I wish to express my appreciation to the Leader of the House, the Secretary of State for Foreign and Commonwealth Affairs, the Lord Privy Seal and the Chief Whip, because the extra time has allowed us to air serious issues before a wider audience and, as other hon. Members have said, has given the Canadian Government the opportunity to make a real gesture to prove that this House and the Canadian House of Commons can speak to each other and ensure that the movement for human rights has some strength. It means that we can express our interest and concern to fellow legislators and hope that they will pay some heed to what we are saying.
337 In the two votes, over 70 hon. Members have supported native rights. The Government’s vote on Second Reading was 334. It was halved in Committee and perhaps this evening they will be in real trouble. I suspect not, but we are not talking about majorities. We are talking about Members of Parliament in Canada listening to what we are saying, I hope, reading the debates and then acting upon it.
A Canadian journalist told me recently that he had listened to and watched our proceedings with some anger because he was listening to and seeing foreign Members of Parliament talking about Canadian issues. He was also angry because those Members of Parliament appeared to speak with more authority than do many Members in Canada—those who have spoken. It was a matter of acute embarrassment to the journalist and, I suspect, to many other journalists.
I did not table any more amendments, although I confess that the temptation was enormous. I did not succumb to the temptation. Although my speech will not be as brief as usual, I am not attempting to filibuster and I have no desire to speak on clause stand part. The aim of my speech is to talk not just to hon. Members but to those across the Atlantic. We can be helped by the media in that. A journalist said last week “I am very bored by Canada”. It is sad that journalists and hon. Members should be bored, because we are talking about the fundamental rights and freedoms of over 1 million people—when one adds mixed bloods, such as Inuits, to the Indians of whom we are speaking.
When journalists write about the subject, they often use ancient clichés and stereotypes. Many do not write at all. There are some honourable exceptions who regularly report the proceedings, but some resort to ancient clichés. I should have thought that The Times and The Sunday Times would have been more sympathetic. After all, they, more than anyone, can speak with force about a group of people taken over by foreigners, having had their numbers depleted, and being threatened with extinction. The Daily Telegraph could have more affinity with the position. It was the same machinery that it is using now that probably brought to the British public the news of Little Big Horn, the treaties that were signed and certainly military disasters of our own at Isandhlwana. I hope that the press will report our concern.
The amendments to which I put my name are pivotal to the whole issue of Indian rights. We are talking about the process of amending the constitution, which is central to any constitution and especially crucial when one is talking about a federal constitution. I shall argue later that the Indians should be properly consulted, not only at the post-patriation conference but in the deliberations that will take place some 15 years from now. They are important amendments—some tabled by the official Opposition and some tabled by myself and other right hon. and hon. Members—relating to the protections that must be created by the Committee, and, we hope, picked up by Canada, so that any legislation or decisions that are detrimental to the interests of the Indians cannot go through without consent. I shall be talking about the treaty rights and freedoms of Indians that must be protected. If we cannot provide that protection, I hope that Members of Parliament in Canada will belatedly try to do what the provincial 338 premiers and Mr. Trudeau so singularly failed to do—genuinely to entrench those Indian rights in the new constitution.
Whom are we talking about when we talk of natives? We are talking about 1 million aboriginal, tribal or indigenous people. It may be a simple question but the answer is complicated. There are 13 different legal definitions of a native person, which makes the complexity even more obvious.
When Columbus arrived in North America, he made a number of mistakes. One was to lump together all Indians as one group. The hon. Member for Merioneth (Mr. Thomas) perhaps represents the area from which Prince Madoc departed 1,000 years ago, allegedly to discover America. Unfortunately, he was 19,500 years too late and he disappeared. If he did make contact with the Indians, as legend has it, perhaps the hon. Member for Merioneth and myself can have our affinity with them explained by the fact that perhaps we are distant relatives.
When Canada and North America were discovered—I use the word “discovered” in a constrained form because we are talking about Western discovery of something that was an established fact—the continent was obviously populated by about 100 million people. We are not talking about a barren terrain into which intrepid explorers came, fired a few shots, read out a proclamation, planted a flag and claimed uncharted territory. It was occupied by a people who had a sophisticated form of government.
There were the civilisations of the Mayans and the Aztecs in central and southern America. There was the civilisation and form of government of the Iroquois confederacy. We are talking about a sophisticated structure of government—a federal structure of government. Indeed, the American constitution was to a large extent derived from the experience of federalism within North America.
In the eighteenth century, one Cadwallader Colden said of the Iroquois federation: Each nation is an absolute Republic by itself, governed in all public affairs of war and peace by the Sachems or old men, whose authority and power is gained by and consists wholly in the opinion the rest of the nation have of their wisdom and integrity.
The Indian governments were in many cases developed. In other cases, the form of government was rather loose. Nevertheless, we are talking about a large group of people. There were Eskimos in the North who occupied a third of the land mass of Canada. The Métis do not have a land base, but despite the hopes of politicians in the last century still have not lost their Indian identity, although legally they are not classed as Indians. There are also the status Indians—the full-blooded Indians—who have occupied most of our attention in these debates.
These people were self-governing and concluded alliances with each other. The Iroquois federation concluded alliances with other Indian groups and foreign countries. The Wabanaki confederacy of New England, the maritime Indians and the Blackfoot and Cree concluded a treaty to cement peace. They concluded treaties with themselves and with foreign Governments that were regarded by the participants as binding and representing sovereign entities.
I want to talk about the reasons for the mistrust, why Indians are demanding entrenchment of their rights and why that can come about by proper consultation and an acceptance of the amendments. In the very early period of 339 Indian-European contact, the indigenous peoples offered assistance to the intruders—one could call it “accommodation”—in which the indigenous peoples were incorporated into the commercial system and became dependent on foreign companies. Some intermarrying produced the Métis or mixed bloods, and there was also some cultural co-existence. This period of prudent cooperation with the Indians led to the second phase of domination, military conquests in America and the surrender of land in Canada by treaty and arm-twisting consent.
This was the beginning of a period of cultural destruction. It was a policy of isolating natives from white society. It was a policy of gradual assimilation into the English or French language or culture.
The Indians always realised that the eventual goal of government policy was assimilation. There were attempts at assimilation—or termination as it was called south of the border—terminating 20,000 years of history and culture so that Indians would become the unwilling victims to be thrown into the melting pot. Part of the “superior race” philosophy was “Civilise the savage”. The savage, if he is to be called that, was not civilised. He wished to have a foot in both societies. He wanted to be part of his indigenous society while retaining the link with the new society. That is something that any sophisticated society such as Canada should be pleased to support.
Thus, the policy of assimilation reached its high spot in 1969, and we have heard what both Mr. Chrétien and the Prime Minister have said. The policy of duplicity and subterfuge—the termination policy that we have seen in the past—has resurfaced. We shall be either the willing or unwilling tool of this process of cultural and linguistic genocide. The Canada Bill is the means by which the Indian culture, its lifestyle, its institutions and the rights enshrined in the Indian treaties will be undermined and systematically destroyed.
A picture in my home has always made a deep impression on me. It depicts an Indian on a pony. The Indian is bowed and the pony is weak. It symbolises that period of Indian history when the spirit was almost broken. We can read about that in a book entitled “The Vanishing Race”.
I refer hon. Members to a book regarded by many as the seminal work on Indians. It is Diamond Jenness’s “Indians of Canada” which was written in 1934. It has run to seven editions, the latest in 1977. That so-called seminal work—
The Chairman (Mr. Bernard Weatherill) Order. I am sorry to interrupt the hon. Gentleman, but he is straying wide of his two amendments, Nos. 40 and 41, which do not relate to the subject he is now discussing. Perhaps he will address his remarks to the amendments.
Mr. George Today of all days I have no desire to thwart the Chair. I had thought my points were in order. If I might come very quickly to the point I was seeking to make, it was that before one could look at the actual amendments one needed to look at who were to be the participants. In the amendment mention is made of “aboriginal peoples”; I was simply defining who would come within the conference, the post-patriation conference and the consultation 15 years from now. I had thought, therefore, that this was one of the elements. The second 340 element was why Indians feel the need to be consulted 15 years from now and the need to have their rights entrenched.
So, whilst I appreciate that it might look as though I was going off at a tangent, I believe I was not. Nevertheless, I will make even more strenuous efforts to keep within the scope of your directive, Mr. Weatherill.
Without appearing truculent and incurring possible wrath, the point I was seeking to make was that Jenness said that it was not possible to determine what would happen to the Indians. They would probably die out. He went on: Doubtless all the tribes will disappear. Some will endure a few years longer, others, like the Eskimo, will last several centuries. Some will merge steadily with the white races … Certainly they have already contributed everything that was valuable for our own civilisation.
That is absolute nonsense. Jenness’s predictions proved to be totally wrong because these people have not died out, they have survived, and they are coming here to seek from us the means by which their culture, language, and institutions can survive into the future.
We have to ask what is to be done to protect native peoples, their rights and freedoms, their institutions and culture. First, there must be real participation by native people in conferences—the post-patriation conference and the conference 15 years on—and a number of amendments that I put down previously—Nos. 34, 35, 37, 38 and 39—related to that. Secondly, an aboriginal rights commission is needed to determine what the rights are to be and to settle land clearance; amendments Nos. 39, 40 and 44 related to that commission.
Thirdly, Indians must have a real role in the conference 15 years on. Amendment No. 40 deals with that. Fourthly, it is necessary to amend the amending formula to ensure genuine consent before decisions are made by the Canadian Government that adversely affect the native people. Fifthly, there is a need to strengthen the power of the governor-general and not to endorse the view of this constitution that the royal proclamation of 1763 becomes a dead letter.
The sixth thing that needs to be done—this is a battle that was lost on a previous amendment—is to bring about the re-introduction of a clause that deletes the word “existing” from aboriginal rights. Lastly, we need lb devise amendments so that future legislation that may adversely affect native rights will not be feasible.
The Indian peoples have a great deal to offer our civilisation, a great deal that they have developed for us in the past. What they need from us is protection for their lifestyle. There is no way that any society can be totally immune from the pressures surrounding it but obviously it has to devise a structure to allow it to co-exist with a different lifestyle and a different culture, which is what most of the native peoples wish to see.
They wish to have their rights preserved. What are these rights? As one judge has said in the Calder case, when the settlers came the Indians were organised in societies and occupying the land as their forefathers had done for centuries. Aboriginal rights are much broader than simply land title and title to hunting and fishing; indeed aboriginal rights would include native law and government. Those rights were embodied in the royal proclamation. What the proclamation in 1763, and the St. Catherine’s milling case two centuries later did, was to 341 make clear that rights could be extinguished by the Sovereign. In fact, they have been extinguished by the Government of Canada and the process continues. After 400 years of international law the concept of aboriginal rights cannot be cast aside, which is what the constitution of Canada seeks to do.
If there is to be extinguishment of aboriginal title—and my amendment seeks to prevent this—it must be done with genuine consent and generous compensation. However, there is real evidence that the federal Government of Canada is granting leases to companies to explore aboriginal land without the aboriginal people’s consent. The Indians have a very good case for compensation for lands taken in the past, and I shall discuss this shortly.
Aboriginal rights are broader than simply treaties, but the treaties with which we deal in amendment No. 41 were regarded by the Indians as solemn, binding, sacred and perpetual. The first was signed with the Indians in the maritimes in the 18th century. Those which we are debating further tonight were signed in the nineteenth century and early twentieth century. These were the so-called numbered treaties.
According to Lord Denning, the Royal Proclamation of 1763 was ranked by the Indian people as their Bill of Rights”.
He said: To my mind the Royal Proclamation of 1763 was equivalent to an entrenched position in the constitution of the colonies in North America because it formalised the procedure for the Crown to “purchase” land from Indian tribes.
Those treaties were not always written down, which causes us problems today. There are many examples of treaties agreed on by word of mouth. The Indians have a far stronger memory of what the treaties contained than the Canadians or the British with whom they negotiated.
The Indian view of the treaties has often been overlooked. They were entered into with the Queen and her successors by sovereign nations. There are those who outline in detail, from American and Canadian sources, the fact that these treaties were within the confines not of constitutional law but of international law, but that is a matter of some further debate.
The Indians who made the treaties that we are talking about were in a weak bargaining position. The negotiating representatives of the Crown had the diplomatic skills, and they provided the interpreters. The Indians had no written language and lacked familiarity with the law. It is not surprising that the treaties were one-sided.
Despite the existence of the treaties, the Indians’ rights have been encroached upon with monotonous regularity. The status of treaties has been downgraded. In the case of R. v. Syliboy in 1929, the judge said: Having called an agreement a treaty, and having perhaps lulled the Indians into believing it to be a treaty, with all the sacredness attached to it, it may be the Crown should not be heard to say it is not a treaty. But in Canadian law if a treaty conflicts with statute the courts are bound to apply the latter against the former, and this is causing considerable problems.
The treaties that the amendments seek to perpetuate are vital for Indians. Although the federal Government have not always acted maliciously, interpreting treaties against Indian interests, the Indians rightly feel that the federal Government view their obligations as a political trust 342 rather than a sacred one, stemming from a belief that the treaty process was a legal rationalisation of the crude political realities implicit in that process, the philosophy being “Either you lose your land with treaties or you lose it without them.”
Other crucial cases have already been referred to. There were Hamlet of Baker Lake v. Ministry of Indian Affairs; R. v. Sikyea; and R. v. George. In all of them the judges commented unfavourably on the way in which treaty rights had been extinguished and aboriginal rights had been overturned.
There are so many instances that I do not wish to bore the Commmittee by outlining them. Suffice to say that one issue in particular that has bothered the Indians is the Rupert’s Land case. The Indians say that it is vital that the British Government try to compel the Canadian Government to honour the Rupert’s Land claim, which discriminates against the Indians. The Indians are asking that this be done while the Bill is going through Parliament.
There are many instances of legislation—the Game and Fish Act, the Gas and Oil Leases Act and the Petroleum Resources Act—in which Indian interests have been overridden. Those interests must be protected. Aboriginal rights must be protected within the new constitution, as must the sacred treaties. The Indians’ culture, language and traditions must be continued, and must not be extinguished by Canadian federal Government action.
How will these amendments help to secure aboriginal rights? Is it not important that Indians are involved in the consultative process? I spoke at length in the previous debate on the bogus consultations to date and also produced an affidavit signed by the President of the National Indian Brotherhood which stated that the Indians had not been properly consulted. I also spoke about proposals within the constitution for this so-called “conference” to occur a year after our proceedings are completed. I put down amendments Nos. 33 to 39 inclusive in an attempt to remedy the grotesque inadequacies of the so-called “accord” which was previously called “political blackmail”, “larceny”, “treachery” and “a denial of basic justice; the latest in a long line of broken promises”. Mr. Chrétien described the so-called “accord” between Mr. Trudeau and the provisional Governments as “quintessentially a liberal compromise”.
I do not intend to deal with the amendments relating to the first conference. Amendments were put down for the Aboriginal Rights Commission which would certainly allow the Indians, if they were unable to make an impact at the first conference, to have some of their rights properly accorded. Mr. Trudeau clearly expressed his view to the Canadian Parliament that, when the constitution’s responsibility was passed to us, that Indian rights were entrenched. He said, in the Canadian Parliament on 27 November 1981: It is true that with regard to the two amendments, one concerning women and equality between the sexes, and the other concerning aboriginal rights and the entrenchment thereof in the constitution, the Minister of Justice did support changes.
Mr. Trudeau apparently genuinely believed that aboriginal rights were entrenched. He either believed that or sought to confuse. Anyone considering clause 35 will know what has happened. The Prime Minister of Canada gave way to provincial pressures on aboriginal rights. People will believe that Mr. Trudeau is either deluding 343 himself or others when he says that aboriginal rights are definitely entrenched. They are definitely not entrenched. Some of our amendments endeavour to include provisions in the Canadian constitution that should have been in it originally—rights of Indians that precede the Canadian political system.
Considering the amendments that seek to protect those rights, it is apparent that we are concerned with land claims. That is a subject of great confusion within Canada and on which the Indians’ position has been consistently diminished. The cards are stacked against them on a regular basis.
The amendments are designed to allow Indians, with their land bases, control over and under the resources. It is only with that sound economic base that they can end their dependence on federal Governments and perpetuate their language and culture.
After patriation, the protections bestowed on Indians, although imperfect, by the governor-general, the royal prerogative, aboriginal title and the treaty protection, will all be swept away by the amending formula. That formula will place the Indians in an even weaker position because land may then be transferred to the provinces.
Anyone with a minimal knowledge of provincial Governments in Canada knows full well what will happen to Indian land if the provincial Premiers get their hands on it. Therefore, it is vital that our amendments are able to stop legislation affecting Crown obligations.
Section 50 in schedule B would confer on the provinces exclusive powers of legislation and taxation over “nonrenewable” resources. The words “on the provinces” do not exclude Indian reserves.
According to the amendments the Aboriginal Rights Commission will determine compensation fairly. We have looked at the Indian Claims Commission of the United States, which is infinitely superior to the Native Claims Office in Canada, where few of the disputed claims have been resolved. It is operating within the parameters set down by the federal Government. Therefore, the Aboriginal Rights Commission will determine compensation fairly, not the Canadian Government, which has secret documents. That suggests that the framework of compensation should be determined by parliamentary committees. We have seen from the example of section 34, which became section 35, how little Parliament can do to protect Indian rights.
The secret document mentions negotiation for claims, but so far the negotiations have proved disastrous. Although the federal Government likes to elevate the James Bay agreement as a model to be pursued for the native peoples, the solution provided by negotiation as laid down by that model is not to be followed. If anyone thinks that the courts could act as mediators, they should know that the Indians think that that is not feasible. Therefore, the dangers for Indian and aboriginal peoples inherent in section 50 are clear and evidenced by the notorious McMurtry letter, which shows that Indians can have little faith in provincial government. Hence there is a need for amendments to section 50 because the cards are stacked against the Indians.
When one looks at the amending process, one sees that the amendments relating to part V of schedule B that I have tabled and that other hon. Members have tabled relate to the formula for amending the constitution, which is 344 absolutely crucial because the amending process is at the heart of any constitution. It is pivotal to the whole federal structure. It is in the scope of the amending formula that the Indians are most vulnerable. Their rights have been eroded already, even with the constitutional protection that the Crown could give.
I remember listening to Lord Denning reading out his judgment and the emotion in his voice. He believed that in future the Crown could provide the protection that the Indians are demanding and for which they are pleading. Lord Denning’s knowledge of the law is infinitely greater than mine. My knowledge is greater on Canada than on other areas of the constitution and the law. Lord Denning’s faith in the future and in what the Crown can do in Canada is sadly misplaced. We are now seeing the dishonourable process in Canada of reneging on legal and moral obligations. That reneging process will be accelerated by what we shall do over the next few weeks in the Committee and in another place.
It is not those who have sounded warnings, but those who come and vote and have not taken as much interest as we have who are conniving in a process of assimilation begun hundreds of years ago, which was never completed. I and others will argue that the constitution that we are passing is the mechanism by which the process of assimilation can be accelerated and completed. Therefore, the aspirations and hopes of assimilation of those in Canadian Government, which were thwarted in the past, ride again.
The treaties that were held sacred, but that at present provide some obstacles to the present Government, will be swept away and will become an irrelevance. With that will go aboriginal land titles and ownership of resources. One should contrast the landgrabbers in buckskins of the nineteenth century or the coonskin hats of the century before with the landgrabbers in pinstriped suits in Ottawa and the provinces today. The greater sophistication that education, computers and legal advisers bring does not mask the fact that the process taking place today is even more heinous and disreputable than that of the last century.
The Canadian Government know that with this constitution they can resolve the “Indian problem” That can be done by section 35, which has already undercut the concept of aboriginal rights by bringing in the nasty word “existing”. To the outsider that may seem a superfluous word, but it is fundamental to aboriginal rights. The accord and the inclusion of the word “existing” in section 35 are part of the process of the destruction of Indian rights.
After patriation, the amending formula can achieve all that the federal and provincial Governments desire without any Indian, Inuit and Métis participation or consent. For the first time, those Governments have an authentic legislative mechanism that is unimpeachable before the Supreme Court of Canada. It is judge-proof. The Queen’s representative in Canada, the governor-general, will be powerless to intervene, as he can now, if the federal Government act unconstitutionally. The federal Government are seeking to cut the powers of the governor-general and to eliminate what Lord Denning regarded as the Indians’ bill of rights—the royal proclamation—and we are conniving in that process.
For the Canadian Government, the role of the Indians, 15 years after the first conference, as provided by amendment No. 40, does not exist. We must alter the amending formula. Where aboriginal rights are affected, 345 Indian consent must be secured. The native peoples must play a vital part in the first post-patriation conference. As we know, they will be there merely as observers. They might just as well watch the conference on television for all the impact that they will have on the proceedings. They will be there for one part of the proceedings. Busy men will probably spend a few days on the Indian position, go in with fixed ideas and wheel and deal as they have done before. One needs only to examine the events leading up to the accord to see how well they can do it. The Indians will be worked over yet again.
Section 49 provides: 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 fifteen years”. There is no mention of the Indians, even as observers. At least they are included as innocent bystanders in the first conference, but there is no mention of them in the conference 15 years later. Where are they? Why are they not there, even as observers? Is this the culmination of the process of assimilation? Does Mr. Trudeau believe that, after the failures of 1969, the Canadian Government at last have the machinery to incorporate the native peoples into the mainstream of Canadian society? Those who wish, can be incorporated, but for those who do not it is deplorable that this constitution will accelerate the process. It gives the game away by not including the Indians, even as spectators, because that implies that the “Indian problem” will have ceased. The process of assimilation would have culminated by then.
Fifteen years from now the actors in the drama may not be the same. Mr. Trudeau will be nearing 80 and will probably have retired, as, one hopes, will the provincial Prime Ministers, most of whom do very little to advance Indian rights. But let us imagine that the same actors could jump into a time machine and go forward 15 years, and make decisions then as they have now. They have certainly shown themselves to be masters of nefarious tactics. Are Peter Loughheed, Stirling Lyon, Bill Bennett and Richard Hadfield the people to advance Indian rights? I hardly think so. One could go right through the list of provincial Premiers. There is Mr. Buchanan. There is Bill Davis of Ontario—Mr. McMurtry’s boss. It is no wonder that the Indians are suspicious. They wish to be at that conference 15 years from now, because the sons of those people may be Prime Ministers.
In dealing with a constitution, one is entitled to look at the bottom line. The Indians are not there. The amendments seek to put the Indians at that conference, and that change should be achieved.
Part V of the Bill is the legislative culmination of the policy of assimilation. Before patriation, assimilation could not take place, but section 38 provides a formula whereby any constitutional change can be achieved, still further diminishing the worth of the guarantees supposedly provided for the aboriginal people.
Even section 35, defective though it is, would be prey to amendment under the formula and could be weakened still further. The treaties, the questions of land title and land claims are all vulnerable under the amending formula by federal and provincial agreement.
Section 41, unlike section 38, lays down requirements for unanimity of the provinces and the federal Government 346 in certain spheres, but there is no mention of amendments affecting aboriginal peoples and the involvement of those peoples in such changes. Their consent is not sought.
In Britain, over the centuries, even before the emergence of democracy, any decisions taken by Governments without active consultation with groups affected have been seen by those groups as being on the very margin of legitimacy. The Indians will see the conferences and the deals in that light. What legitimacy can be bestowed on agreements when native peoples are denied access? The frustration that this will generate will cause problems for future generations in Canada, not just for the native peoples but for the Canadian politicians now rather smugly viewing their handiwork over the last couple of years.
Despite assurances from the Canadian Prime Minister and Mr. Chrétien, there is no entrenchment of aboriginal rights. Section 35 has seen to that. Indeed, the identification and definition of aboriginal rights under section 37 will settle those rights. I have already mentioned the jury that will settle those rights—the Hadfields, the Davis’s, the Bennetts, the Loughheeds and the Lyons of Canada.
There must be legislative protection against part V and the amending formula being used, as they undoubtedly will, against Indian interests. The amendments in my name and that of the hon. Member for Essex, South-East (Sir B. Braine) provide that no amendment can be made to the constitution affecting aboriginal treaty rights and the rights of Indian peoples outside treaty rights unless assented to by the aboriginal peoples themselves. We have laid down who shall be the representatives among the status Indians, the mixed bloods—the Métis—and the Inuits. It must be laid down by those who will participate. They must not have to rely on a Prime Minister of Canada playing off one group against another.
The other amendments are important. I have mentioned the Aboriginal Rights Commission and, in the amendment to which I have just referred, the governor-general is crucial in this process. But his powers are being stripped away. Those powers were not debated in the Canadian legislature, because the closure was moved before they could be debated.
Lord Denning saw the governor-general as guaranteeing Indian rights. At present, the governor-general is expected, under conventions determined at the imperial conferences between 1926 and 1930, to take the advice of the Privy Council in the Canadian Cabinet. If that advice is unconstitutional, he can veto and exercise his prerogative. That was done as recently as 1979 when Mr. Trudeau sought to make legislative amendments that would change the power of the Senate. The governor-general referred to the Supreme Court the legislation under section 55 of the British North America Act, and the Supreme Court ruled this unconstitutional.
Under section 48 the governor-general would not be able to veto changes brought about by the amending formula, so his prerogative will be diminished. The Indians will have no protector and their rights will be diminished as a result of the gelding of the governor-general. The royal proclamation, held up as so essential to Indian rights by Lord Denning, is prey to the amending formula. Section 52 of the Canada Bill talks about the constitution of Canada being the supreme law of Canada 347 and lists what is within the constitution of Canada. That section does not include the “Indian Bill of Rights”, The royal proclamation of 7 October 1763. Amendment 30, which regrettably has not been called, would have resolved that problem by including within the constitution the royal proclamation of 1763.
The last point that needs to be made to protect the Indians is that we must stop future legislation being introduced that adversely affects the Indian peoples. Any section of the Bill affecting native peoples is at risk under the amending formula, because new legislation could be introduced with disastrous effects.
We have heard that there will be a new Indian Act. The present one is a disaster. The new one could be even worse. It would affect entitlement to land, it could affect Indian government and it would affect Indian rights to compensation. It would also affect hunting and fishing rights. Hence, the need for an Aboriginal Rights Commission to protect the Indians.
I shall briefly examine what the Indians are asking for. Where will they be 15 years from now? Will their legal rights have been extinguished, or will the renaissance that many of us have observed be continued? In Canada there is a clear and growing self-confidence among native peoples. Their aspirations are legitimate and must be assisted. If they are thwarted, the Canadian Government can only put a lid on a steaming saucepan. That lid will come shooting off at some stage in future.
I hope that self-determination will be seen by most Indians as being within the Canadian federation. The Eskimos are asking for a separate province—Nanuvat—which occupies about one-third of Canada above the tree line, but they are asking for it within the Canadian federation. The Indian people are not content with a municipal government solution. The paternalism of the Ministry for Indian Affairs has created and perpetuated this feeling of isolation and inferiority.
The Indian Acts and the Indian Affairs Department need to be either abolished or substantially reformed. The policy needs to be altered. In 1974 George Manuel, a former president of the National Indian Brotherhood and a joint founder of the World Council of Indigenous Peoples, said: The fastest way to bring about changes amongst an oppressed people is to put the decision making authority and the economic resources that go with it into their own hands. Self-determination should not be anathema to the Canadian federal Government. A United States politician, who is not renowned for his radicalism, said: Self-determination among the Indian people can and must be encouraged without the threat of eventual termination … This then must be the goal of any new national policy towards the Indian people—and we must make it clear that Indians can become independent of federal control without being cut off from federal concern and federal support. That was Richard Nixon in 1970. That was a stirring advocacy of a policy of self-determination.
For five centuries the Indians in North America have been fighting defensively for their right to exist, their freedom, their land, their livelihood, their organisation in societies, their beliefs, their way of life, their personal security and their lives. The events of the past 300 years may be seen as a brief interlude in a 20,000-year history.
Chief Crowfoot, of the Blackfoot tribe, said: What is life? It is the flash of a firefly in the night. It is the breath of a buffalo in winter time. It is the little shadow which runs across the grass and loses itself in the sunset.
348 The past 300 years of white domination in Canada must be seen against a backcloth of 20,000 years of Indian history and institutions. I desperately hope that Indians in Canada will achieve that to which they are entitled morally, legally and constitutionally. I hope that the problems are resolved in Canada, which is where they should be resolved. Surely it is humiliating for Canada that the problems of the Indian peoples have to be aired in a legislature thousands of miles away. I hope that the endeavours of hon. Members, who will become informed on the subject, will not be seen as a superfluous exercise. I desperately hope that the recommendations and exhortations that we are making will not fall on completely deaf ears in Canada, and that the Canadian Indians—the Canadian natives who were in Canada 20,000 years ago—will achieve that to which they are entitled
Sir Bernard Braine I indicated earlier to the Chairman of Ways and Means that I should like to speak to my amendment No. 41. I shall not delay the Committee unduly.
We are considering possible safeguards to ensure that the native peoples of Canada are consulted and that their consent obtained to changes which affect their treaty and aboriginal rights. Part V of schedule B concerns the procedure for amending the constitution. It is the heart of the constitution. Within it lies the means for amending the charter of rights and freedoms contained in part I. Section 35, which purports to affirm native rights, as the right hon. Member for Down, South (Mr. Powell) pointed out, stands ominously alone in part II of schedule B. That section has already gone through a process of amendment during the course of the secret and somewhat doubtful dealings which led to the agreement last November between Prime Minister Trudeau and the Premiers of seven of the eight dissenting provinces. It can also be further emasculated, or deleted, under section 38 of part V.
Part IV of the schedule, which contains the sole reference to possible consultation with native interests, will have automatically disappeared long before the review under section 49 takes place. It is Part V of the schedule, at the centre of the constitution, which will decide the future of the native peoples of Canada.
We must face the fact that we may not succeed in carrying our amendments. Not only are our Government determined to do the bidding of the Canadian Government but many hon. Members are reluctant to do that which justice cries out for them to do. They feel, not unreasonably, that the task should be carried out in Canada.
If that is so, it is essential that the Committee should place clearly on the record the deficiencies of the constitution we are being asked to enact. The record should also reveal the reluctance, nay, the revulsion, of many hon. Members at being party to placing this measure on our statute book. Not only does the Bill put us in breach of our international obligations to protect the rights of minorities but I fear that history’s verdict will be that we, albeit unwillingly, have endorsed legislation which breaches obligations that are binding on the Crown.
This is an odd debate. We are talking not to ourselves but to people across the Atlantic in Canada. They must be told of our reluctance. They must be left in no doubt about the reasons for our revulsion. The Minister of State and his colleagues must be given a last opportunity to pause and 349 reflect, and to convey the Committee’s feeling to the Canadian Government before the Bill goes to another place.
The Committee’s duty becomes even more compelling when we consider the circumstances in which the Canadian Parliament passed the resolution of which the Bill is a carbon copy. The official record of the Canadian House of Commons shows that the debate on the resolution was concluded before any discussion had taken place on the final, and perhaps most important, sections of part V. Section 49, to which my amendment is addressed, was not even discussed, nor was section 48. That has special significance in relation to the discretionary powers of the Queen’s representative in Canada. That section was the product of the bargain struck less than a month before between the Canadian Prime Minister and nine of the 10 provincial Premiers in which Indian rights were sold down the river.
Those sections of part V of the schedule which are of great significance to the future of the Canadian people, were not debated by their elected representatives. For whatever reason, the Canadian Government were not prepared to allow an extra couple of days to debate some of the most vital provisions of a new constitution which had taken long years to agree. The duty of the Committee is clear. We must complete the task which our Canadian friends were unable to finish. I therefore pose the following questions. How is part V devised? What can it achieve? How should it be amended?
The present Canadian constitution is founded upon the consent of the native peoples. Enough has been said of the royal proclamation and treaties to establish that beyond question. My argument throughout has been that those constitutional obligations persist today. Yet Prime Minister Trudeau’s speech in 1969 in Vancouver and all succeeding policy statements by his Government and the Governments of the provinces lead us to the unavoidable conclusion that treaty and aboriginal obligations are not going to be allowed to stand in the way of assimilation of the native peoples, the termination of their land rights and of their right to self-determination. By the time that section 49 comes into operation any constitutional need to consult the native peoples will have passed into obscurity. Section 38 of part V provides the means for amendment or deletion of sections 25 and 35 without the consent of the native peoples, or even consultation with them. If therefore any native rights survive at all, they will be as defined by the authors of the assimilation policy and the provincial Governments who want to control Indian resources which have previously been outside their legislative control.
The identification and definition of native rights arrived at in section 37 (2) will provide the sole guidance for the Canadian courts. That definition will have replaced the constitutional obligations set out under the royal proclamation and the Indian treaties. Under section 52, the Supreme Court of Canada will be powerless to remedy any breach of faith which may arise from the operations of the amending formula under section 38.
Under section 48, any breach of Crown obligations under the royal proclamation or the treaties will be incapable of remedy under the royal prerogative. Under the section, the governor-general is powerless to exercise 350 his discretionary powers, irrespective of the circumstances. Despite the impressive statement of Mr. Munro, the Minister for Indian Affairs, in February 1981, native rights will not be entrenched to the same degree as the other fundamental provisions of the constitution, including the office of the Queen, who, as Mr. Munro rightly said, the native peoples have always regarded as the symbolic protector of their rights and freedoms.
Native rights and freedoms will not be protected, as the office of the Queen is protected, under section 41. Under section 38, they will be prey to the combined will of the Federal Government bent upon a policy of termination of Indian title, and to seven out of 10 provincial Governments who will now obtain through the usual political bargaining processes the power, for the first time, to achieve control over native resources and community government.
The royal prerogative is a sensitive subject. There is none more delicate nor, at the same time, more important to our constitution. I hesitate to comment upon the position of the Queen with her Ministers in Canada. But we are considering our Bill, and we have both the right and the duty to consider how it leaves the role of the Queen’s governor-general in Canada.
We are all aware of the Monarch’s residual powers and of the role of her representatives in the independent nations of which she is Queen. Let us reflect for a moment on the part played by the Crown’s representatives overseas. They should act impartially, in a manner untainted by party politics, and in the interests of the nation as a whole. In Canada, there has been more than one instance in which the governor-general has seen fit not to follow his Minister’s advice. Lord Byng refused a dissolution in 1926 with the result that the Canadian Government had to resign. One learned jurist has said that Lord Byng acted improperly. Others have disagreed.
The imperial conference of 1930 suggested that the governor-general should follow the advice of his Ministers, but in Canada there have been other departures from that convention, if indeed it was one. The hon. Member for Walsall, South (Mr. George) reminded us that the Canadian Government’s proposed legislation would change the role of the Senate. The governor-general exercised his prerogative and referred the matter to the Supreme Court of Canada under section 55 of the British North America Act 1867. The Supreme Court ruled that the proposals that he had exercised his discretionary powers to challenge were, indeed, unconstitutional. It is perhaps significant to the way in which part V of schedule B is drafted that the present governor-general of Canada has stated publicly that if the Canadian Government had proceeded with their first unilateral resolution last year he would have exercised his prerogative and disallowed it.
The Committee should be under no illusion as to the effect of part V of the schedule. Under section 48 the Queen’s representative in Canada would be powerless to do in the future what he has done, and what he has said he would have done in the past—exercise his prerogative to frustrate unconstitutional proposals. Section 48 puts his role beyond question. He will be an automaton, and he will nod forthwith at his Ministers’ commands. That is a matter for Canadians and I make no further comment.
Is this not a decision of sufficient constitutional importance to have merited at least some debate by the Canadian people’s elected representatives? There was no debate. The Canadian Parliament did not debate that basic constitutional point. However, that is not all that causes 351 the Committee and me grave concern. The issue of the royal prerogative affects the Queen. Granted, it concerns her as Queen of Canada, but the Committee cannot ignore the fact that this is British legislation and must necessarily affect the Queen in Parliament. I regret—as no doubt do many of those who are uneasy about this aspect of the Bill—that the Government, who have a clear duty to ensure that the Queen is given the best advice available, have refused to respond to the wise suggestion made by the hon. Member for Hackney, Central (Mr. Davis) that the question should be referred to the Judicial Committee of the Privy Council.
Why are the Government in such haste and why are they determined to put expediency before their duty to the Queen? I ask that question, but alas, answer there is none. However, I still live in the hope that we shall receive a reply. I have great faith in the Minister of State, but I doubt whether he will be able to answer that question.
Amendment No. 41, which stands in my name, would preserve a discretionary role for Her Majesty’s representative in Canada and will preserve his role in respect of the Crown’s solemn and binding constitutional obligations towards the native peoples of Canada. Those obligations of the Crown are otherwise severely at risk and we would, I fear, be more than likely to see them breached in the Queen’s name if my amendment is not accepted. The proposed section 49B provides that no proclamation may be made by the governor-general where amendments to the constitution that affect native rights do not have the consent of the native peoples’ duly authorised representatives.
Nothing could be more appropriate. After all, as Lord Denning said, it is the governor-general who represents the Crown whose promises to the native peoples must never be broken. It is he who has and should continue to have executive responsibility on behalf of the Crown, and that responsibility is to uphold—as Mr. Justice Cartwright of the Supreme Court said—the honour of the Sovereign.
Mr. J. Enoch Powell In his charity, the Chairman decided that amendment No. 61, which stands in my name, could be taken into consideration, together with the four other amendments.
The amendment is a poor little thing. It merely proposes to leave out the word “within”. It stands no comparison with those large amendments, covering pages of the Notice Paper, which have been the subject of so many speeches—I was about to say “read”, but I hastily substitute “delivered”—to the House during the past three hours. Nevertheless, whether the word “within” remains is of some slight importance. Many people, including many in Canada, who have read part V are under the impression that most of the constitution is safe from amendment—other than in accordance with that part—for 15 years. That will not be so if “within” remains in section 49.
The word “within” means that there can be a review at any time not from tomorrow, but from the near future onwards. The phrase “fifteen years” is perfectly meaningless when prefaced by the pronoun “within”.
As we go on through the Bill, my fear deepens that we are engaged, largely innocently, in perpetrating a fraud. The fraud consists in persuading large numbers of people and interests in Canada that our passing this Bill will 352 entrench—whatever meaning may be attached to that—certain rights on their part and will entrench certain portions of the future constitution.
As we go on, and as we study the Bill more closely, it becomes clear that that notion is false. It becomes clear that the reason why we are being put through this farce of both patriating the right to legislate for Canada avid legislating for Canada is to deceive as many Canadians as possible into the notion that even in the future, after the constitution is patriated, it will be appealable, it will be justiciable, it will have a certain sacrosanct character—at any rate within the apparent terms of the schedule to this Bill.
That is a fraud. Innocently or not, understanding it or not, both the Government and the House are assisting in perpetrating that fraud. Part of the truth of that is in the words of the subsection to which my amendment relates. It says: A constitutional conference … shall be convened by the Prime Minister of Canada within fifteen years in order to review the provisions of part V. It does not say what happens after that. It just says that there shall be a conference to review the provisions of part V. What is the point of a conference to review the provisions of part V either next year or 15 years hence if the provisions of part V cannot be changed? By definition, if the provisions of part V are changed—and I am still awaiting a reply on this from the Minister, which I am sure he will courteously give me even if the provisions of part V are exclusive—and I cannot read them that way—it would still mean that there was a power in Canada after the review to amend the constitution otherwise than in accordance with part V.
Nothing whatever in part V and therefore nothing whatever in the constitution, is entrenched. If there is a power in Canada to make those amendments after a conference of the federal Prime Minister and the ten Premiers, where is that power at other times? It is not created by this section. It is not mentioned in this section. It is not brought into being by this section. It is treated as existing—and, of course, it will exist—and that is what the Canadian Parliament is about.
It is strange that if one asks the Government the same question long enough they will surely give the answer in the end—and a truthful answer. Indirectly, perhaps unintentionally, I do not know—and I do not mean that in any derogatory sense—the Minister answered one of the most important questions in citing the preamble—citing preambles is in fashion on this Bill—to the Address to Her Majesty which brought the Bill before us. It says: AND WHEREAS it is in accord with the status of Canada as an independent state that Canadians be able to amend their Constitution in Canada in all respects”.—[Official Report, 23 February 1982; Vol. 18, c. 825.]
We have been told. We are allowed to read the preamble even to an Address to Her Majesty. We know what we could have deduced from some of the provisions of this schedule—that there is, in the view of those who sent this proposal to us, from the moment of the patriation of the Canadian constitution, a right in Canada, as an independent State, to be able to amend its constitution in Canada “in all respects”.
Let those words be understood and pondered by those deluded persons, whether Indians or otherwise, in Canada who imagine that they are getting an entrenched 353 constitution; who imagine that they are getting entrenched rights; who imagine that by any amendment whatsoever of this Bill—I shall vote for the amendments as a demonstration—there can be, to quote the words of the hon. Member for Walsall, North (Mr. George), genuine entrenchment of rights, or that the demand of the Indians for the entrenchment of their rights can be achieved. It cannot be achieved.
There is a reminder of that fact in the wording of this section. My amendment removes only one small bit of spoof—the illusion that there is a 15 years moratorium. [Interruption.] That is the illusion which is intended to be created by the present wording of section 49, which my amendment would change, but no amendment that we can make, if we patriate the constitution at all, can entrench anything in the constitution of Canada when the constitution of Canada has been patriated.
I ask myself and I will answer one last obvious question: how comes it that the Canadians can be so simply led by the nose as to imagine that by this legislation being passed through this place it can become an entrenched constitution, it can become a justiciable constitution, it can become a constitution rather like that of the United States? The answer is that Canadians, and their fathers before them, have lived all their lives with a written constitution, the British North America Act, which was justiciable, and which, in relation to Canada, was as if it were the constitution of the United States in relation to the legislation of that country. It is because of that habit that they have been able to be deceived to the point of thinking that they are getting an entrenched constitution, a charter of rights, and that anything can be done to prevent the will of the Canadian people, against which I have nothing to say—the will about which they informed Her Majesty and us that it is in accord with the status of Canada as an independent State that Canadians be able to amend their Constitution in Canada in all respects”.
The case against the Bill is that it is participation in a deceit. For my part, I wash my hands of it.
Mr. George Robertson (Hamilton) Nearly four years ago, when I came into Parliament for the first time and made my maiden speech I had the honour of being followed in that debate by the right hon. Member for Down, South (Mr. Powell), to whom fell the responsibility of commending and complimenting this new Member of the House. He said some very complimentary things about me then and expressed the wish that he would hear from me again.
I have to say, following the right hon. Member this evening, that I fail to understand quite a lot of what he has said. Perhaps in the four years in which I have followed his wish to hear me more often, I have not yet sufficiently come to terms with the intricacies of the constitution on which he speaks with such obvious authority.
Mr. J. Enoch Powell It is too simple.
Mr. Robertson The right hon. Gentleman says that it is too simple. That can often be as great a problem for hon. Members as when the issues are too complex.
This evening we have gone over much of the ground that was covered in the first two days of debate on the Bill. That is no fault of the Committee or of the House. Indeed, it is an example, both to us and to people outside, of how 354 debates should take place on important constitutional matters. The question of whether the British House of Commons has the right to go into such detail on points of domestic interest to the Canadian people is one that will not be resolved here. The sincerity of those who hold views on the issues that we have discussed today and on the two previous days is beyond question. Their authority and eloquence have spoken strongly on issues primarily concerned with the aborignal peoples of Canada.
The hon. Member for Sevenoaks (Mr. Wolfson) spoke earlier today of the influence of debates in this House on public opinion in Canada. It has been said on several occasions that we are not addressing this House but are talking directly across the oceans as though we were somehow directly feeding into the Canadian system. Perhaps we occasionally take ourselves too seriously.
This evening I was given by Monsieur Gilles Loiselle, the Délégué-général du Quebec, a cutting from the Montreal Gazette of last Wednesday, which dealt in part with our two days of debate on the Canada Bill. The article is datelined Ottawa, and the author is a Mr. L. Ian MacDonald. Of course, Canada is populated by expatriate Scots, and I dare say that Mr. MacDonald has relations in Hamilton. There are precious few of my constituents who do not have relations in Canada.
Mr. MacDonald’s long article is primarily concerned with his interest in whether a national holiday will be declared on the patriation of the Canadian Constitution, and the need for some break between Christmas and Easter to slake the thirst of those whose need for holidays is greater than their interest in the details of the Canada Bill. He says, however, that we are perhaps dealing too tardily with the process of patriating the Canadian Constitution. Indeed, he throws up the words of my hon. Friend the Member for Walsall, North (Mr. Winnick), who claimed that we were dealing with this in indecent haste. He said that that was not the view of those who watched these affairs in Canada. He said: Well, the British are getting with it, at about the same pace as British industry, in their own way, with a certain number of legislative tea breaks. Then, to display his knowledge of what is happening here, and interpreting the information that we are giving across these gigantic oceans, he said: Though none of the 60 amendments offered in Westminster is likely to be accepted by the Thatcher government, more than two dozen amendments were ruled as receivable for debate”. In misinterpreting your ruling, Mr. Godman Irvine, Mr. MacDonald went on to say: In accepting so many amendments for discussion, the Thatcher government is apparently trying to mollify those who accuse it of steamrollering parliamentary and constitutional convention, a principle that lies at the heart of British democracy”. So, if we are talking across the oceans, we are not getting over to the Canadian people the basic issue that the House selects the amendments for debate, not the Government.
Mr. MacDonald, in his search for a new holiday for Canada, has not finished with the delays that might occur. He said: Nor have we seen the end of it. The Canada Bill is not slated to go to Britain’s House of Lords before March 11, and it may have a stormy passage in the British Upper House, where there are many patron saints of lost causes”. I do not know whether their Lordships will like that accolade heaped upon them by Mr. L. Ian MacDonald. All that one can hope is that his analysis leads, if anything, to 355 the new national holiday that he seems to believe is such an important outcome of the consideration on the Canada Bill.
However, this evening’s debate has been on serious issues and the motivation for the long and full speeches about the native peoples of Canada have been directed principally not to amending the Bill—although those who will press the amendments might try by accident to obtain amendment to the Bill, they know and they admitted in the debate that there is little likelihood of that happening—but it is an attempt to influence the climate of public opinion in Canada. The nature of the process of the Canada Bill gives them every right to express those worries, to place on record their concern and to express their views about the future protection that will obtain for the native people of Canada.
My right hon. Friend the Member for Norwich, North (Mr. Ennals) mentioned the ancient treaties that gave rights to the native people of Canada. He said, quoting one of them, that the protection was “for ever”. Although one must say that the native peoples’ concern about their status is genuine, right and proper, and we hope that the Canadian people and Parliament will take their views very much into account, the idea that any treaty, Act of Parliament or constitutional settlement could stand on its own for ever is not tenable in a political world of pluralities and genuine democracies. However, in expressing those views and in referring to the treaty, we must have regard to the history of the country that will now be taking decisions on its own and bearing the burden of responsibility.
The hon. Member for Merioneth (Mr. Thomas), who, unfortunately, is not with us now, made an interesting speech about the need to protect minorities even if those minorities are in another country. He drew many parallels between the protection of minority rights in Canada and in the United Kingdom. He mentioned not only the ethnic minorities but the cultural minorities in the celtic fringes of the United Kingdom. I find some inconsistency in the argument put forward by a Welsh Nationalist Member of Parliament which, expressed at some length, concerns the internal affairs of the Canadian people, when the very raison d’ etre of the Welsh Nationalists in Parliament is to get the English, the Scots and the Irish off the back of the Welsh people and to stop them from interfering in the internal affairs of Wales. That is perhaps to expect some consistency in the nationalist argument that has never been displayed eloquently in the past.
My right hon. and hon. Friends, on the Opposition Front Bench at least, do not wish to have a vote on the amendment that we tabled primarily to probe and to find answers to the expressions of interest and concern that we have put forward in the debates. Therefore, we propose to seek to withdraw amendment No. 27. Our intention was simply to place on record the concerns that have been expressed to us by people in Canada and the fact that we demand and expect the right to express those views and to put them on the record. Perhaps the Committee has moved at its own pace, but in the style with which we normally deal with such affairs and the seriousness with which we take them, we hope that attention will be paid in the sovereign Parliament of Canada so that the interests will be taken into account and that the people of Canada will recognise the spirit in which the advice and comments are made to them.
Mr. Luce The hon. Member for Hamilton (Mr. Robertson) referred to the fact that there has been considerable discussion in Canada about the possibility of a national holiday. Perhaps that is something we should contemplate after we have considered the Bill.
The hon. Member for Hackney, Central (Mr. Davis) wondered, in view of the consistency of my speeches, whether it was worth my while coming into the Chamber. At one point I was tempted to accept his implied offer, but I am sorry to have to disappoint him. I feel that in some way I ought to respond to the debate.
The right hon. Member for Down, South (Mr. Powell) has continuously probed about part V of schedule B relating to amendments to the constitution. I did not hear his precise words, but I think he felt that it was like waiting for Godot and that nothing ever happened. I want to ensure that I give the right hon. Gentleman an adequate answer. Therefore, tomorrow morning, I propose to give him a letter setting out my response to the point that he has raised. I hope that the right hon. Gentleman will find that satisfactory.
Mr. Clinton Davis That may be satisfactory to the right hon. Gentleman and the Minister, but the Committee will not be seized of that information. Having regard to the importance of the right hon. Gentleman’s question. would it not be better for the matter to be reported in the Official Report through a device that I am sure the right hon. Gentleman could use? After all, this is not a private matter between the Minister and the right hon. Gentleman.
Mr. Luce I am anxious to give an adequate reply. I therefore want to take a reasonable amount of time over it. I shall certainly consider what the hon. Gentleman has said, but my response will be to a specific question from the right hon. Member for Down, South.
Mr. J. Enoch Powell I am obliged to the Minister for his courtesy. It may perhaps be for the convenience of the Committee if I table immediately a written question to the hon. Gentleman so that in due course his reply can appear in the record.
Mr. Luce I would be happy if the right hon. Gentleman proceeded on that basis.
As the hon. Member for Hamilton said, the debate has focused extensively on the Indians. Although there has been considerable repetition, no one would criticise that in any way whatever because we are all aware of the fact that there is much anxiety about Indian interests.
The Committee has every right to debate these issues. I hope that my hon. Friend the Member for Essex, South-East (Sir B. Braine) will accept that, because at one point in his speech the implication was that Ministers were seeking to deny hon. Members the right to do so. That is quite wrong. That is not what we are seeking to do. The speeches from hon. Members on both sides have once again been powerful and impressive on this issue.
Of course, I have to bore the Committee by repeating the position of Her Majesty’s Government with regard to the Indians, although I should also like to respond to a point that has been made by for example, my hon. Friend the Member for Sevenoaks (Mr. Wolfson) about the question of the Canadian Government raising issues in this debate. As the Committee is aware, and as I said in Committee last week when we were debating some aspects 357 of the Indian issue, we have made it absolutely clear that questions concerning the Indian and other indigenous people in Canada are, in our view, internal matters for Canada and not matters for which the British Government any longer have responsibility. It has consistently been the view of the Government that any treaty or other obligations concerning Indian interests that still subsist became the responsibility of the Government of Canada with the attainment of independence and, at the latest, with the Statute of Westminster 1931. It is to the Government of Canada that the Indians must look for the solution of their problems.
I also mentioned on that occasion that the Foreign Affairs Committee—and my right hon. Friend, the Lord Privy Seal on several occasions bore out this view—
Mr. Clinton Davis Could the Minister say why, in his view—or perhaps in the view of the Canadian Government—the Indians are given no status in the second constitutional conference that is to take place, whereas they are given a limited status in the first?
Mr. Luce This is a matter for the Canadian Government. I do not think that it is right for me as a Minister in the British Governnment to comment on that, and this is consistent with the view I have already expressed. I will not go any further, because the Committee is well aware of the position of the British Government on these matters.
My hon. Friend the Member for Sevenoaks, backed up, I thought, by the right hon. Member for Orkney and Shetland (Mr. Grimond), and my hon. Friends the Members for Holland with Boston (Mr. Body) and Essex, South-East together with one or two others, exressed the hope that the attention of the Canadian Government would be drawn to the issues that have been discussed today and on earlier occasions, with particular reference to Indian matters. It is evident, as was borne out by the hon. Member for Sevenoaks, that the debate is being very closely followed in Canada and extremely widely reported in the Press. Members of the Committee will be aware that the Canadian Government have special representatives in London for the duration of the proceedings. I need hardly say this as I am sure almost every hon. Member is aware of it, but I think it is right to do so in response to the points that have been raised in the debate. The Canadian federal Government Minister for Justice, Mr. Chrétien, has, during the course of the proceedings, spent several days here in London and it will come as no surprise that I and my colleagues in Government have had a chance to talk to him and that he has taken note of the issues that have arisen here.
There can be no doubt, therefore, that the anxiety expressed by many of my hon. Friends that the Canadian Government would not be in a position to note the important speeches that have been made is groundless and that these speeches will not have gone unnoticed.
Mr. Body Mine was a short intervention at a time when the Minister was out of the Chamber. In his absence I asked the Front Bench if the Canadian Government had given any information to the United Kingdom Government about the reasons for their decisions and if there had been any talks at all with the Indian peoples to allay their fears and suspicions. There seems to be a conflict of opinion 358 about what has been said and it would be helpful to some of us to know exactly what has been said by the Canadian Government.
Mr. Luce I cannot answer for the Canadian Government, but I had hoped that my earlier remarks would be of some help in showing that they undoubtedly are noting the important speeches made here.
I owe it to my hon. Friend the Member for Essex, South-East to respond a little further on one point that he has raised before, that he raised again tonight, and that has weighed on my mind. My hon. Friend suggests that we are in danger of flouting, or in his view perhaps are actually flouting, the international civil and political rights covenant. No hon. Member can have anything but strong views on the importance of civil rights, human rights and our obligations under any international agreement.
I have given further thought to the matter, because I know that my hon Friend feels strongly about it. Having studied it further, I am satisfied that the United Kingdom would not be in breach of its obligation under the convenant if the Bill were enacted in its present form.
I go further. In the Government’s opinion 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 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. Therefore, if any aboriginal people believe that rights prescribed in the covenant are being violated, a remedy is open to them.
I took my hon. Friend’s points seriously. I hope that he will find what I have said to be of at least some help.
Sir Bernard Braine Not only I, but I am sure the whole Committee, will be grateful to my hon. Friend for what he has just said. I am not in the least surprised by his reaction and what he has just told us. What concerns us, however, is whether the Canadian Government are fully apprised of our anxiety on this score. We are being asked to enact legislation with this fear in our minds. Surely, there should be some sensitivity in Ottawa about the matter. Although my hon. Friend has said that representatives of the Canadian Government are here in London, and he has had talks with Mr. Chrétien and so on, may we have an assurance that this specific point, which reflects so much on the international personae of our two countries, will be discussed with the Canadian authorities before the Bill is passed?
Mr. Luce I appreciate the strength of my hon. Friend’s feelings, but I can go no further. I have already explained as fully as I can that I believe that the Canadian Government are taking careful note of the views expressed here.
Mr. English Will the same remedy be open if Canada is in breach of the convention on the elimination of all forms of discrimination against women?
Mr. Luce Such matters are the responsibility of the Canadian Government. I do not think that I should be drawn any further. I was trying to be as helpful as I could 359 be to my hon. Friend the Member for Essex, South-East. It is important that I should do so without going beyond what it is right for a British Minister to say.
With regard to all the amendments, which we have heard debated for a number of hours, any question of future arrangements to review the formula for amending the new constitution of Canada must be for the Canadian people themselves to decide. These amendments are based on that proposition. We believe that it is not for the British but Canadian Government and, in view of that opinion, it would be inappropriate for the Committee to support any of the amendments on the Order Paper.
Mr. Clinton Davis Despite the predictably disappointing reply from the Minister at one time I thought that we would see a miracle. That miracle has had to be delayed for a written answer. Nevertheless, we look with hope for that and, in all the circumstances, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
It being Ten o’clock, THE CHAIRMAN left the Chair to report Progress and ask leave to sit again.
Committee report Progress.