Federal-Provincial Meetings of Ministers on Aboriginal Constitutional Matters, Opening Remarks for the Honourable Ray Hnatysyn, Minister of Justice and Attorney General of Canada (19-20 February 1987)

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Date: 1987-02-19
By: Ray Hnatyshyn
Citation: Federal-Provincial Meetings of Ministers on Aboriginal Constitutional Matters, Opening Remarks for the Honourable Ray Hnatysyn, Minister of Justice and Attorney General of Canada, Doc 830-266/005 (Toronto: 19-20 February 1987).
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DOCUMENT: 830-266/O05
Ogening Remarks for the
‘ Honourable Ray Hnatyshyn
Minister of Justice and Attorney General of Canada
Check Against Delivery
TORONTO, Ontario
February 19 – 20, 1987

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It is hard to believe that only a month has
passed since we last met in Halifax. Indeed, this
could very well be our last Ministerial—level meeting
prior to the First Ministers‘ Conference.
The imminence of the FMC -~ now only five
weeks away and looming ever—larger ~— poses a special
challenge. It also imposes a significant
responsibility, because Canadians are looking to us to
bring these discussions to a successful conclusion. We
must all ask ourselves —- at this stage in the process
—— what are our chances of success.
If you were simply expecting appeals for
harmony and goodwill today, my opening remarks may be
disappointing. To be blunt, my colleagues and I left
Halifax extremely frustrated. I will not gloss over my
own personal disappointment both at the lack of
progress and at some of the comments made by
participants after the meeting. But I am absolutely
determined to redouble my efforts to reach an
acceptable accommodation.

_ 2 –
Our agenda over the next two days represents
a distillation of two years of negotiation and hard
work since the 1985 FMC. The agenda that we
distributed focussed on two items, but as I indicated
in my letter of February 6, 1987, under these two items
we will have to discuss, to the extent that time
permits, a variety of issues which we have been
addressing since October. The first item on the agenda
deals with a constitutional amendment on self-
government for aboriginal peoples; and the second, the
nature of a political accord.
with respect to the first item, I would like
to review current amendment proposals on the following
specific points: the nature of the right; the role of
the legislatures; the constitutional protection of
self-government rights; the commitment to negotiate;
non—derogation from existing rights; and equity of
access‘ These are the key components that any
constitutional amendment on aboriginal self-government
must include. Therefore, agreement on the nature of
these provisions is essential.

_ 3 _
I want to stress that there is no point in
turning to the second agenda item, a proposed political
accord, if we cannot agree on the elements of a
constitutional amendment. Therefore, I would prefer to
spend as long as it takes on agenda item one in order
to identify some common ground.
The second item, the nature of a political
accord, attempts to identify the key elements which can
be included in an accord at this stage in our
discussions. These include the scope of self-
government negotiations and the financing question.
These two agenda items, stripped to their
essence, must now be the focus of our negotiations.
They represent the absolute minimum we must agree upon
in the few short weeks which remain. But Halifax
dramatically underlined two very different perspectives
on the right of aboriginal peoples to self—government.
Let me now review, for a minute, my
own interpretation of the Halifax meeting.

_ 4 _
The federal government’s proposal would
recognize a right of aboriginal peoples to self~
government, in accordance with negotiated agreements
concluded with aboriginal communities. In discussing
this draft constitutional amendment, I sensed a fair
degree of support from provincial governments.
Aboriginal leaders, however, did not view the federal
proposal as going far enough, particularly with respect
to the nature of the right.
We also reviewed a proposed constitutional
amendment from the Assembly of First Nations. It
included an inherent right to self—government, which
would become immediately enforceable. Certain
participants indicated that there was significant
provincial support for the AFN draft, which the federal
government was somehow trying to discourage. when I
tried, as chairman, to gauge support for the AFN’s
proposal, it fell far short of the consensus necessary
for an amendment. And, as I made clear after the
canvass of provinces, this proposal is not acceptable
to the federal government.

_ 5 _
Specifically, the AFN proposal made several
references to “self~determination.” The federal
government believes that this term may imply sovereign
rights. Sovereignty, as it is commonly understood,
applies solely to Canada as a whole. Needless to say,
the federal position is that sovereignty is a non~
negotiable item. I believe our objective must continue
to be to ensure that aboriginal peoples have greater
control over matters which directly affect them.
In addition, any proposal which would
entrench a general right which would be immediately
enforceable would leave the following fundamental
questions unanswered:
— What range of powers and jurisdictions would
aboriginal governments have?
— What would be the relationship between laws
passed by aboriginal governments and those of
the provinces and the federal government?

_ 5 _
— who would have this right to self~
government? would it apply only to
aboriginal peoples residing in communities or
would it also apply to those not residing on
a land base?
— Over what geographical areas would aboriginal
governments have jurisdiction?
In my view, all of these questions should be
answered through negotiation, not litigation. Surely,
this is what aboriginal self-government is all about.
Another alternative which emerged at the
Halifax meeting omitted from the amendment any direct
reference to a right of self~government, but
established a process for negotiating self~government
agreements. Any self—government rights which might be
identified in these agreements would have the same
constitutional protection afforded to treaty rights
under section 35.

_ 7 _
This proposal appeared to attract some
interest. Indeed, three aboriginal groups and four
provinces were initially prepared to consider this
proposal very seriously. But since Halifax, I have
been informed that aboriginal organizations still wish
to pursue an amendment that would explicitly recognize
a right to aboriginal self—government in the
while we’ve used the phrase “the art of the
possible” on several occasions, it bears repeating.
Again and again, I have stressed that all participants
must be realistic about how far others are willing to
Negotiation is not a process of escalating
demands, whereby the threshold constantly rises. It is
a process of give and take which is designed to satisfy
all parties‘ concerns, a process where there are no
losers, only winners. And it is a process in which
agreement once given is only withdrawn in the most ‘
extenuating circumstances.

_ 3 _
Recently, I have heard accusations that the
federal government is not committed to this process;
that it is a “roadblock” to agreement; that it has
refused to accept a leadership role. So permit me, for
a moment, to step out of my role as chairperson, and
talk to you as the leader of the federal delegation.
The first point I wish to make is very
simple: the federal government can “propose”, but
cannot “dispose” in this process. We are discussing
an amendment to the Constitution, which is the
foundation of our political system. Our Constitution
has quite deliberately been written so as to make it
difficult to amend or revise. why? To ensure that it
reflects sober and careful considerations, which are
not based on sudden and transitory shifts in public
In our own negotiations, a total of seventeen
different parties are represented, including the
federal government, provincial governments, and
representatives of the two territorial governments and
the major aboriginal organizations. No matter what the
federal government is prepared to accept, it recognizes
that any amendment requires a minimum level of support
from other participants.

_ 9 _
with respect to the Canadian constitution,
that minimum level consists of the federal government,
and seven provinces representing 50 per cent of the
population. And given that we are discussing
aboriginal rights, governments are not likely to
proceed unless a proposed amendment has substantial
aboriginal support.
So when the federal government tables a
proposal, it is based on what we believe is in the
public interest and what offers the best chance of
meeting the criteria of the amending formula. We are
trying to be progressive, pragmatic and realistic,
without wasting valuable time on proposals which are
Now some people have called that the lowest
common denominator. I say we are seeking the highest
common factor. Furthermore, I think we are simply
acknowledging a vital safeguard which is there to
protect the rights of all Canadian citizens. No one
who has seen how far governments have come in a few
short years on the issue of aboriginal self—government
can claim that this is the lowest common denominator.

_ 10 _
Part V of the
Constitution Act, 1982
establishes the amending procedure, was a key to the
Constitution’s patriation. That is a reality —— a
political and a constitutional reality —— and that
reality establishes the parameters of our negotiations
around this table today.
The federal government is well—aware of the
differing perspectives that participants bring to this
table. Some feel that self—government is an inherent
right. Other garticipants feel that while aboriginal
communities may once have been sel?-governing, there
should now be a process of negotiation over how those
rights are exercised -~ given the context of our
current Confederation.
For our part, we seek to avoid what appears
to be a fundamentally irreconcilable difference OE
opinion. The courts have told us that self—government
is an issue to be settled through negotiation —— not
litigation. That is the Canadian way and one which, I
might add, the Federal government is firmly committed

_ 11 _
Let’s be clear. We are concerned here with
the rights of the aboriginal peoples that are, or are
to be, recognized in the Constitution. I would ask
everyone to keep that in mind for it means that we can,
without prejudice, agree to disagree on the matter of
the right while continuing to make progress in other
Essentially, our approach would allow Eor the
definition and implementation of the right to self-
government in the Constitution. we want to recognize
the right and also establish a process whereby both its
definition and exercise would be determined by means of
agreements among the parties directly concerned.
Make no mistake, there would be no legal
effect on the rights of aboriginal peoples which are
now recognized. Furthermore, through the non-
derogation clause, we have not asked aboriginal peoples
to put anything at risk. Existing rights remain
intact; no Principles are renounced; alternatives
ranging from the status quo to litigation remain open.

s 12 _
when my colleagues and I are accused of
following rather than leading this process, I can only
point to the record. Since the 1985 FMC, five
multilateral meetings have been held at the
Ministerial~level; five at the officials‘ level; in
addition to countless bilateral discussions with
individual participants. we have assumed
responsibility for organizing those sessions;
maintained lists of options and proposals; generated
the supporting documentation; and kept the dialogue
going. No one, but no one, can honestly say that the
federal government has either been selective in this
process, or remiss.
Now, let me turn to the Eederal government‘s
current proposal. I think we have come up with a
significant improvement. Here are the facts. We are
proposing a stronger recognition of the right of
aboriginal peoples to self—government. Upon
proclamation, governments would be committed to
negotiate self—government arrangements. Beyond
proclamation, specific rights identi?ied in agreements
would be constitutionally protected.

Frankly, I am unable to understand how some
participants can complain about lack of progress. Our
proposal offers a fair and reasonable solution which
goes a long way towards satisfying all
parties‘ concerns.
Of course, that does not mean that we should
not review other alternatives. Everyone seated at this
table has an obligation to consider any option, any
draft, which meets essential interests and offers the
possibility of the necessary consensus. My colleagues
and I would welcome a proposal which will lead us out
of the current impasse. But at this stage, I am not
overly optimistic that some completely new wording will
emerge that will satisfy everyone’s concerns.
So, where do we go from here?
I for one cannot accept that this process
need fail. My colleagues and I would be prepared to
double, triple, quadruple our efforts, if we thought
that a workable agreement lay within reach. But with
only five weeks remaining to the First Ministers’
Conference, we must make progress. Any agreement will
only be possible as a result of flexibility and

– 14 –
when Canada’s First Ministers and other
participants meet at the Con?erence Centre in Ottawa
next month, their success or failure will be ours.
Each of us seated around this table will bear
responsibility for what occurs.
So please, don’t let this opportunity slip
through our grasp.
Rise to the occasion; never forget that you
are part of an historic process. Let us, together,
begin translating the dream of Canada’s aboriginal
peoples into the letter and law of this land.

Angele Dostaler

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