Document Information

Date: 1986-10-15
By: Ray Hnatyshyn
Citation: Federal-Provincial Meetings of Ministers on Aboriginal Constitutional Matters, Equity of Access Profile, Doc 830-237/009 (Toronto: 15-16 October 1986).
Other formats: Click here to view the original document (PDF).

DOCUMENT: 830-237/009

FEDERAL-PROVINCIAL MEETING OF MINISTERS ON
ABORIGINAL CONSTITUTIONAL MATTERS

Equity of Access Profile

NCC

TORONTO, Ontario
october 15-16, 1986

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Equity of Access Profile

Introduction

In response to questions from several delegations, and in the light of a
lack of understanding reflected in several of the government letters of
response to the Equity questions we asked at the Halifax officials meeting,
we are submitting two documents on Equity of Access at this meeting.

The first is this “issue summary” which we hope will both simplify and
clarify the issue for all delegations.

The second is a larger printed booklet entitled “Access to Survival” which
explores in some detail the issue and its ramifications for NCC constitutients
For those who require, or are required, to familiarize themselves with the
“why and wherefores” of the issue, we hope this booklet will deepen the delegate
understanding of this critical issue.

Statement of Issue

All of the Aboriginal peoples of Canada must be able to access benefit from
Aboriginal Rights, Treaty Rights, and other rights pertaining to Aboriginal
peoples on an equitable basis.

What Equity of Access Does NOT Mean

Equity of Access to Aboriginal and Treaty rights does NOT mean every
Aboriginal person in Canada is entitled to all and exactly the same
specific benefits derived from those rights by specific populations of
Aboriginal people.

Obviously, an Aboriginal person who has no relationship to a specific
Treaty or claims settlement also has no claim to benefit under that
specific Treaty or claims settlement. Only those Aboriginal persons who
meet the criteria set out in that Treaty or in that settlement have
access to benefit from the rights involved.

What Equity of Access DOES Mean

Equity of Access to Aboriginal and Treaty rights DOES mean that every
Aboriginal person in Canada is entitled to equitable access to benefit
from those rights to which that person has an ancestral relationship.

Obviously, an Aboriginal person who has such a relationship should not be
unilaterally or abitrarily deprived of access to benefit from the rights
involved.

Need for Equity of Access

The entire constituency of the Native Council of Canada is living proof
of the need for Equity of Access provisions in relation to Aboriginal and
Treaty Rights. Historically and currently they are deprived of acknowledged
access to Aboriginal and Treaty Rights by unilateral and often arbitrary
application of government policy. Brothers and sisters, parents and children
find themselves cut off from benefit of Treaty and Aboriginal rights, and
from each other, by the dictates of federal and provincial laws originally
and deliberately designed to arbitrarily reduce the size of Aboriginal
populations who could claim benefit from right. Historically this might be
rationalized as the result of a narrow, racist, and mistaken point of view.
But the fact this situation still exists and –unless something specific is
done– will continue to exist is intolerable.

Where Inequity Exists

We might say that the “House of Aboriginal and Treaty Rights” as set out
in Section 35, is a triplex. It has three apartments, one for each of the
Aboriginal peoples named in Section 35. The doors to each of these apart-
ments require a very particular kind of key, or combination of keys. There
is the key marked S.91(24). Another is marked Treaty, (with an appropriate
name or numver.) Still another is marked “comprehensive claim.” There is
one more key called the “Indian Act.” There is talk of a fifth (trilateral)
key, but the rumour is yet to be confirmed.

Some Aboriginal people have two or even three of these keys. Others have
none. In fact, most of the Aboriginal people of Canada cannot enter the
House of Aboriginal and Treaty Rights at all. Metis are not allowed the
91(24) key. Non-Status Indians might have that key, but somehow it doesn’t
work. By governmental practice most Metis and Non-Status Indians are
excluded from Treaty, the Indian Act, and from most claims processes. By
any reasonable standards all of these people are Aboriginal people within
the meaning of Section 35, but are denied access to the house. That is the
situation that Equity of Access is addressing.

Federal Application

There are a number of obvious federal areas in which the Equity of Access
principle must be applied. As long as the status quo remains specific equity
of access mechanisms will be required in the context of constitutional amendment.

As long as Metis and Non-Status Indians are unilaterally excluded from the
bilateral federal relationship accorded other Aboriginal peoples under Section
91(24), specific equity of access accomodation will be required in the
context of constitutional amendment.

As long as Non-Status Indians are unilaterally excluded from registration under
the Indian Act, specific equity of access accommodation will be required in
the context of constitutional amendment.

As long as descendants of Treaty Indians are unilaterally deprived by Federal
policy from participation in treaty rights and benefits accorded other
descendants of the same Treaty Indians, specific equity of access accomodation
will be required in the context of constitutional amendment.

As long as Metis and Non-Status Indians are unilaterally excluded from specific
and comprehensive claims processes, south of 60, accorded to other Aboriginal
people, and to which they have a demonstrable relationship, specific equity
of access accommodation will be required in the context of constitutional
amendment.

Provincial Application

Similarly, if not quite so obviously, there a number of provincial areas
in which the Equity of Access principle must be applied. Again, as long as
the status quo is maintained, specific equity of access mechanisms will be
required in the context of constitutional amendment.

As long as Metis and Non-Status Indians have provincial laws applied to them
specifically because those peoples are not recognized under Indian Act,
equity of access accomodation will be required in the context of constitutional
amendment.

As long as Metis and Non-Status Indians are deprived of programs and services
accorded other Aboriginal peoples because, they are not registered under the
Indian Act. Specific equity of access mechanisms will be required in the
context of constitutional amendment.

As long as Metis and Non-Status Indians are deprived of programs and services
related to Section 92 heads of jurisdiction which are accorded other Aboriginal
peoples under Section 91(24), (i.e. education), specific equity of access
mechanisms will be required in the context of constitutional amendment.

Constitutional Accomodation

In the face of these inequities, the Native Council of Canada has both the
responsibility and the mandate to correct the situation in the only forum
open to it — the First Ministers’ Conference on Aboriginal rights.
The NCC has no option open to it, but to insist that any amendment to the
Constitution of Canada which affects Aboriginal and Treaty rights, specifically
ensures the Aboriginal rights of its constituents.

Given the status quo, in terms of Federal and Provincial policy toward Metis
and Non-Status Indians, there is no avenue by which NCC constituents can
equitably access benefit accorded other Aboriginal peoples. Whether the House
of Aboriginal and Treaty Rights is furnished or unfurnished, Metis and Non-
Status Indian people cannot get in without a key specifically fashioned for
that purpose. The creation of that key is the purpose of including equity
wording in constitutional amendments related to Aboriginal and Treaty Rights.

Self-Government Amendment

Over the last several months it mhas become increasingly apparent that neither
Federal nor Provincial governments intend to make “copies” of existing keys
for Metis and Non-Status Indian people. It is also apparent that we are on
the verge of drafting a self-government amendment. From the NCC’s point of
view, that amendment must include the crafting of a new “key” which will
ensure that whatever arrangements are constitutionalized must be at least as
available to NCC constituents as they are to other Aboriginal peoples.

Accordingly, the NCC has been examining the options in relation to Equity of
Access with the intention of bringing amendment language forward for the
consideration of delegates. The precise option and language we will propose
is currently under examination internally, and certainly will be affected
by the outcome of this meeting.