Canada, House of Commons Debates, “Resolution Respecting Constitution Act”, 32nd Parl, 1st Sess (24 November 1981)
Document Information
Date: 1981-11-24
By: Canada (Parliament)
Citation: Canada, House of Commons Debates, 32nd Parl, 1st Sess, 1981 at 13164-13226.
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[English]
THE CONSTITUTION
RESOLUTION RESPECTING CONSTITUTION ACT, 1981
[…]
[Page 13194]
Mr. Hal Herbert (Vaudreuil): Madam Speaker, when my remarks were interrupted by the adjournment motion last evening, I had said that I accept that the inclusion of the Canada clause is the best we can expect in the circumstances. Obviously I am acknowledging that I would have liked something better. In the next few minutes I will try to explain why I am prepared to accept a compromise.
I should say, first, as I said last evening, that as an immigrant who has enjoyed almost 40 years in Canada, maybe longer than most people who are presently Canadians who are living in Canada, I have always felt that the immigrant coming to this country must try to accept conditions as they are and not try to change the inherent culture, nature and character of the people. Of course, I cannot hide the fact that I am an anglophone. With an accent such as mine, I am unable to hide the fact that I am an immigrant. As a result, I have been part of what I might term a sort of minority caucus in my party, and my good friend who sits beside me, the hon. member for Ottawa-Vanier (Mr. Gauthier), has been fighting—even today in question period–for the rights of Les francophones hors Québec. My job today is to explain why l feel that the anglophones in this country, and specifically the anglophones in the province of Quebec. should accept as the best possible compromise the insertion of what is commonly termed the Canada clause in the constitutional proposition.
Section 23 will apply to Quebec with the exception of subsection 23(1)(a). The minority language of education rights which will go into effect immediately are the Canada clause—Section 23(1)(b)—and the continuation of education right—Section 23(2). These two sections provide the minimum of reciprocity between Quebec and the other provinces, which the PQ government itself acknowledged as desirable in the 1977 St. Andrews and the 1978 Montreal agreements with the other provinces and for which provision was made in Quebec’s Bill 101. In fact, the resolution does little more than give effect to section 86 of that law, something Quebec was unable to do, because the consent of the other provinces was a prior requirement. That consent has now been achieved through the Charter of Rights and Freedoms.
The charter also gives Quebec the right to opt in to constitutional provisions protecting the language of education rights of citizens according to their mother tongue. Section 23(1)(a) will not apply in Quebec until the National Assembly has given its approval. In the meantime, however, its protection will be available to French-speaking Canadians in other provinces, a matter of great importance for them.
Subsection 23(1)(a), the mother tongue test, permits immigrants who become citizens and whose first language is English or French to have their children educated in English or French. In Quebec this right will not be extended to new citizens, to meet the concerns of Quebec that the majority of new citizens will assimilate with the minority language group when the desire is to have them identify with the majority language population.
Subsection 23(1)(a) also gives the right to parents who are Canadian citizens and received their primary school education in Canada, but not in their mother tongue, to have their children receive their education in the mother tongue. This right is important to francophones residing in many provinces where facilities for French language education have not been generally available until very recently. The right is also important in Quebec. However, anglophones in Quebec have always had access to English language instruction.
Put in concrete terms, in Quebec a citizen who received his primary school instruction in Canada in English—Section 23(1)(b)—or a citizen whose child was educated or is being educated in English in Canada—Section 23(2)—will have a right to have all his children educated in English at the primary and secondary level. On the other hand, a new citizen who did not attend primary school in English in Canada would not have the right to send his children to English schools even though his mother tongue was English, unless he had previously lived in another province and his children had already begun their education in English.
However, there is an opt-in provision for Quebec, and we are going to have to hope that we can eventually change the government in the province of Quebec so that we can exercise that option. Section 58, which has been added to this resolution, will provide a mechanism for Quebec to opt in the Section 23(1)(a) once the National Assembly signifies its approval of this section in respect of Quebec.
Because my children have been educated in both English and French schools in the province of Quebec, I feel that I am in somewhat of a privileged position. I am concerned, however, and will continue to be concerned that there will be other Canadian immigrants like myself whose children have not yet entered the educational system in this country who will not have that same choice or right. However, I am also well aware that there are many francophones in the province of Quebec who would like to be able to exercise their right to send their children to English schools and who at the present time do not have that right.
Life is a compromise. To live with each other in peace and harmony we must try not only to respect the opinions of others but also attempt to understand the reasons for their concerns.
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It is my belief that the constitutional proposal we are debating is the best compromise that could have been compiled in a country as diverse as our country, Canada.
In conclusion, I congratulate all those who have participated in making this agreement possible. I would like to express particular gratitude to the Prime Minister (Mr. Trudeau) and the Minister of Justice (Mr. Chrétien) who, by their courage and determination, have achieved the seemingly impossible, We are all very proud to be Canadian.
Hon. Flora MacDonald (Kingston and the Islands): Mr. Speaker, I rise to take part in this debate today in a mood vastly different from that which would have characterized my approach had I spoken yesterday. My remarks then would have conveyed my anger that once again the fundamental principle of the equality of women and men was under siege and my despair that an 80-year-old struggle for the basic rights of women in this country had brought us but such a short distance and, finally, I would have expressed my fervent hope that right and reason would yet prevail.
I am glad to say that hope has won the day. I feel a deep and overwhelming sense of relief—and then of jubilation— that the amendment before us is to be accepted and Section 28 entrenched without qualification and without any override provision in the charter. That section merits repeating:
Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.
But as we accept this amendment before us, let us not forget the hurdles that had to be overcome to achieve it nor the hard work and effort of thousands of Canadian women and men who made it possible.
Section 28, as hon. members will remember, was not in the original constitutional proposals introduced into the House in October of 1980. Neither was it a product of the weeks and months of the hearings of the joint parliamentary committee on the Constitution. That hard-working committee produced many amendments, but Section 28 was not among them. No, that section was the creation of hundreds—indeed, thousands—of Canadian women who converged on Ottawa last spring to speak their minds about what they considered their fundamental rights.
Who were those women and what did they represent? They were of all political affiliations and no political affiliation. They came from all parts of Canada and all backgrounds. They were housewives and students, professional women and store clerks, grandmothers and their children and their children’s children bound togethen by one great common bond, to see thatjustice prevailed.
The lobby that ensued in the weeks following the women’s ad hoc committee on the Constitution was one of the most successful and resourceful that Parliament Hill has ever witnessed. They convinced party member individually and collectively that a Charter of Rights and Freedoms, to be worthy of The Constitution its name, must declare forthrightly and nobly the true equality of women and men.
On a historic day last April, April 21, Section 28, which I read a little earlier, was accepted unanimously by all members of the House of Commons. That is the way it remained until earlier this month when the first ministers met in one last effort to make federalism work. They met to see if they could come up jointly with an agreedupon constitutional resolution. At that time Section 28 was left untouched, either through neglect or oversight or because it was considered to be of no great importance.
At that conference earlier this month Section 28 was not even discussed, as various first ministers have admitted. But bureaucrats, who have a way of dealing with what they consider technical details, soon put an end to that. They persuaded their political masters to emasculate Section 28 by subjecting it to a legislative override. Women, once again denied full equality in law, by their thousands took up anew the battlecry of equal rights.
During these past two weeks we have witnessed their tremendous effort with admiration and have been proud to be a part of it. The results are as we see them today—full restoration of the guarantee of equality in law to women and men, I am almost tempted to say, Mr. Speaker, “Let us hurry and get this resolution off to Westminster before somebody changes his mind”.
Some hon. Members: Hear, hear!
Miss MacDonald: What has for me been one of the most rewarding aspects of this year-long battle has been the political awakening and mobilization of thousands of Canadian women, women who never before had taken part in a political campaign but who now recognize the virtue of that word “solidarity”.
In all the battles that lie ahead, and there will be many, women know that they have forged bonds which will stand them in good stead whenever the need arises, and the need will arise. What has been achieved today is not an end but a beginning.
You will notice that I have used the phrase on several occasions “equality in law” because it is still sadly true that there is no equality in fact. I look at this little pamphlet put out by the Canadian Advisory Council on the Status of Women entitled “Women and Poverty: What are your Chances?” There is a section headed “Poverty: More likely if you’re a woman”. These are some of the points it makes:
There are 1.4 times the number of poor women as poor men in Canada.
Two-thirds of all minimum-wage workers are women.
Single mothers are especially at risk:
-83 per cent of all single parent families are headed by women.
-44 per cent of these families are living below the poverty line.
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It goes on:
And your chances of being poor increase if you are old and alone:
-6 out of 10 single, divorced or widowed women over 65 have annual incomes under $5,000.
-Less than 1 in 4 widows can expect to get a widow’s pension from a private pension plan.
-One-half of all unattached women over 55 depend entirely on government pensions for their support…
Getting a job does not necessarily insure women against poverty.
One out of six women employed full-time earns less than $6,000 per year.
Women employed full-time earn only 62 per cent of what men earn.
The Canada/Quebec Pension Plan … the average income for a woman … is $99 per month while for a man it is $141.
Women did not choose to be in this position of deprivation and poverty, but society, attitudes and laws have combined to relegate hundreds of thousands of women to a life bereft of self-dignity and hope. We can ask, are women guaranteed equal treatment under the Criminal Code with respect to sexual assault? Do women receive equal pay for work of equal value? Should Indian women who marry non-Indians lose their status whereas Indian men do not?
The reinstatement of Section 28 in the Charter of Rights and Freedoms is a great step forward, but we have to recognize that it will not materially or magically change the status of women overnight. Attitudes are deeprooted and hard to dislodge. Decision-making in most fields will continue to be dominated by men. The provisions of this charter itself must undergo a three-year time lag before it can be used by individual Canadians to challenge discriminatory practices. That three-year period can be used by both Parliament and the provincial legislatures to change existing laws that deny the equality of women in fact, or to introduce new legislation advancing the status of women.
But why wait the three year period? Why not undertake a crash program now to bring all other legislation into accord with Section 28? The Government of Canada can set the example. It can do so by eliminating immediately the most glaring inequity in the country, the one for which we are internationally renowned. I refer to the lot of Indian women, condemned by Section 12(1)(b) of the Indian Act to lose their Indian status if they marry a non-Indian. Indian men, as we all know, do not lose their status if they marry a non-Indian.
When Sandra Lovelace, an Indian woman from New Brunswick who had lost her status, took her case to the United Nations Human Rights Commission, the federal government in its defence stated, and I quote from United Nations Human Rights Commission Communication R6/24 dated July 30, 1981:
Legislative proposals are being considered which would ensure that no Indian person, male or female, would lose his or her status under any circumstances other than his or her own personal desire to renounce it …
Legislative recommendations are being prepared for presentation to cabinet for approval and placement on the parliamentary calendar for introduction before the House by mid—1981.
That promise has already been overtaken by time. Let the government now come forward with legislation to correct this injustice and I am certain it will receive speedy passage, It will also be an earnest indication of the govcrnment’s firm resolve to accord the highest priority, both symbolically and substantively, to the full equality of women and men.
The battle for equality takes many forms and it will go on in many arenas, but in this past year the women of Canada have shown that they are more than up to it. They have won a signal victory and the country is the better for it. So, too, our system of federalism has been reaffirmed and the country is the stronger for it. Unilateralism has been rejected.
Canadian women have kept faith with those great pioneers of the feminist movement who, in their day, had to overcome much greater obstacles. In the early years of this century, it was Agnes McPhail, Emily Murphy, Nellie McClung and others who blazed the path. And more recently, Therese Casgrain, Ellen Fairclough and Judy LaMarsh.
Yes, the women’s movement of I981 has indeed kept faith. Parliament and legislatures have responded to their efforts and, as a result, we can take pride in the fact that our Constitution will be a nobler, a loftier document. Women’s rights have been confirmed.
I have no doubt, Mr. Speaker, that these women of 1981, worthy successors of the early suffragette movement, had and will continue to have as their rallying cry Nellie McClung’s fighting words of the 1920s:
Never retreat, never apologize, never explain. Get the job done and let them howl.
Mrs. Margaret Mitchell (Vancouver East): Mr. Speaker, it gives me great pleasure to rise today in the House, a very important day for all of us in this House and indeed for the people of Canada. As we all know, last night the Minister of Justice (Mr. Chrétien) announced that the nine provinces which signed this provincial accord agreed that Section 28 of the equality of men and women would apply in the new Constitution, and would apply without the provinces being able to override this section.
The minister also announced that the provinces had now agreed to enshrine existing aboriginal rights in our new Constitution, the word “existing” being added to the former Section 34 which will be reinstated. I need not say once again how delighted we in the New Democratic Party are, after all the struggles of so many people in our party and in other parties and indeed citizen organizations across this country, that these new developments have taken place and are now approved across our land.
Some hon. Members: Hear, hear!
Mrs. Mitchell: As a member of the New Democratic Party and caucus, I am very proud that Section 28 was introduced by the New Democratic Party last spring. It was done in conjunction with many advocates from women’s groups who had legal advice among their own members and worked very hard to make sure that there were provisions in this Constitution that would make absolutely certain that equal rights for men and women would be entrenched.
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I am also very proud that it was my leader and my party that over the past three or four years have made this a major issue in our campaigns and indeed in our performance in this House. There is certainly no issue more important than the whole question of the rights of aboriginal peoples and women of Canada.
Some hon. Members: Hear, hear!
Mrs. Mitchell: We in the New Democratic Party rejoice that equal rights for men and women once again will have paramountcy as a national goal which no province can ignore and, indeed, which the federal government also cannot ignore.
Women of Canada can take great pride in their very successful lobby which they organized over the past two-week period and previously last spring. They were able to protest the federal-provincial accord which had overridden equal rights for men and women in Section 28.
We should not forget, Mr. Speaker, that the first ministers of our provinces did not see this as a national right and priority. They did not consult with Canadian women. They had no Canadian women in their ranks sitting at the table making decisions. The Prime Minister (Mr. Trudeau) himself was willing to trade off protection of women’s rights for an accord that protected other rights but not the rights of women in Canada.
These attitudes, I must say made by male politicians who control decisions in this country, will not soon be forgotten by Canadian women, even though we are rejoicing that the changes have been made. I want to quote one woman lobbyist who said:
Hell hath no fury like a woman scorned.
This proves once again with dramatic clarity that it will be absolutely essential in the future to have women politicians in local, provincial and federal governments.
Another point which makes me very proud to have been associated with women’s groups who have lobbied so hard for equal rights and who have worked along with their parliamentarians in this regard is the solidarity which they showed toward the rights and efforts of native people, and the commitment which they still have to try to remove the provincial override from all sections which affect people’s rights generally.
This morning a member of the ad hoc women’s committee said to me, and I quote:
Last night’s announcement is a good beginning, but we have only won half the battle. We must get rid of the override completely regarding fundamental freedoms in Section 2 and also the Sections 7 to 15 regarding rights and freedoms which must be universally applied across Canada with no override clause for provinces.
This will be an effort to be continued not only by women’s groups but by all of us who are concerned about equality in our country that applies equally from sea to sea, regardless of which province we may live in.
For example, in British Columbia it happens that we have a very weak Human Rights Commission. The permanent members to this commission have not yet been appointed by the government. I regret to say, Mr. Speaker, that recently members of this commission were chastised because of their attitude and their language toward women. It is very reminiscent, incidentally, of Senator Hays, our famous representative on the Constitution committee. Is this the kind of body, in a province such as British Columbia, that we want to protect people’s rights and put pressure on the government?
Also in British Columbia we have a government which recently has forced women on welfare who have a young child to go to work. It uses very punitive measures to do this by depriving them of a certain amount of their welfare cheques. This is the kind of thing, again, that makes women fearful, especially if they think provinces may have undue authority with regard to certain rights, particularly as they apply to women.
On the other side of the continent, I want to say that I was told this morning by a woman from St. John’s that their premier worked very hard to keep offshore resources under provincial jurisdiction. We agree with that decision, but it is ironical, Mr. Speaker, that women who are applying for these very jobs in offshore resources have been refused work and have appealed to the Human Rights Commission.
I mention these examples to reinforce the importance of this change and the importance of having a national policy, not a policy that can be changed from province to province.
Some hon. Members: Hear, hear!
Mrs. Mitchell: I agree with the ad hoc women’s committee—I am quoting them rather frequently because I have seen them on many occasions in my office—that we have a long way to go and that there will be many cases to test these constitutional provisions. But we are pleased that such a good start has been made. By including Section 28 with no override, we expect, for example, that the Supreme Court of Canada will never again be able to rule against women as it did in the Lavell, Bédard and Bliss cases, as well as in other instances mentioned by the hon. member for Kingston and the Islands (Miss MacDonald) and yesterday by the hon. member for New Westminster-Coquitlam (Miss Jewett).
Some concerns have been expressed that guaranteeing equal rights for male and female persons may undermine affirmative action programs designed to open opportunities for women and for other minorities, such as the handicapped and ethnic groups. Of course, this will be tested in the courts. However, it is our clear understanding that equality is a constitutional goal, a goal which will apply to all provinces as a result of the change. Provincial affirmative action programs are the means of achieving equality through equal treatment of women and other minorities. This means the goal of equality will be entrenched and that affirmative action will be constitutionally protected as a means to achieve equality. We now have a federal principle, Hopefully this will be an impetus to encourage affirmative action programs within federal jurisdictions,
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provincial jurisdictions and also in the municipal levels of government.
Before I move on to other aspects of discrimination and constitutional rights upon which I should like to touch today, I want to place in the record a summary of the evolution and development that has occurred in the Canadian women’s movement as a resultof their fight for equality over the past few months. Never have Canadian women organized so quickly, realized their potential and lobbied so effectively for so just a cause.
Some hon. Members: Hear, hear!
Mrs. Mitchell: This is a summary of how they did it and what they gained through mass action and organization. It is important for women across Canada to know this and to learn from experiences so that they can go on to further actions of this kind. It reflects an awakening and the involvement of a whole new generation of women, along with many concerned men and many of us who are in older generations.
The ad hoc committee, for example, is connected with hundreds of organizations across the country. In January, 1981, women found out that the second promised conference on issues relating to the Constitution was cancelled. An ad hoc committee was formed to work with women in Parliament because there were so few of us in the House of Commons. The ad hoc conference was held on February 14. Hundreds of women attended on very short notice. There were no funds available from the government to help them get here or even to pay for telephone calls and stamps. They met, they lobbied, they learned, and they took many actions which caused many of us to become much more actively concerned about the Constitution, as it did not cover the rights of women at that time. They met with each caucus, with party leaders and with powerful people at all levels of government.
Of course, the committee was also connected with many groups across the country, such as the National Association of Women and the Law, provincial advisory councils, the Canadian Teachers’ Federation, the YWCA, the Ottawa women’s lobby, business and professional women, women in trade unions and women concerned with political action. It was a very democratic process and a very enlightening one. I know my colleagues will agree when I say that this was the major reason for having an expanded Constitution today, with the removal of the provincial override on women’s rights in Section 28.
Some hon. Members: Hear, hear!
Mrs. Mitchell: Why is Section 28 so important? I should like to mention quickly some examples of discrimination which were perhaps mentioned in questions posed in the House. These are examples of which I have been personally aware in my short experience of three years since becoming a member of Parliament. first, immigrant women. We know that the Immigration Act in some ways discriminates against women. Certainly the settlement services of the federal government do not provide adequate coverage for individual women who want to come into our country with rights equal to those of their male partners. For example, settlement services apply equally to women and their children, They do not allow them equally to take courses, to go to work and to learn English or French. Also we know that domestic workers, most of whom are women, experience difficulties when they come to Canada. Will the Constitution now help to protect their rights and move them toward citizenship more quickly?
There are many examples of women who are trying to get into the whole field of non-traditional jobs. Today I met with some of our brothers from the fishermen’s union in British Columbia. I was reminded of a case there where fisherwomen who were working as partners with their husbands were refused unemployment insurance benefits on an equal basis. Of course, they took their case to the Human Rights Commission and after a long struggle they won, I hope this discrimination will no longer be possible under the new Constitution.
I am reminded of women in Stelco, the women in the steel industry in Hamilton. I visited groups last year and discovered that Rosie the Riveter was welcomed in the steel industry during the war; in fact there was day care provided in the workplace. As soon as the war was over, there were no jobs for women in the steel industry. The Minister of Indian Affairs and Northern Development (Mr. Munro) should take note of this instance. The women in steel are certainly not putting up with this. Many have now regained their right to work in the industry. There are others fighting for equal opportunities to work in CNR, Douglas Aircraft and many other industries.
In my own riding I talked with members of the painters’ union and of the International Woodworkers of America. I am pleased that the labour movement and many unions which are dominated largely by male trade union members are now much more aware of the rights of women in this area. For example, members of the painters’ union are saying to their employers, “Look, if you are going to employ us, you are going to make jobs open equally to any person who can qualify for them, regardless of sex”. They have found that women can carry ladders and paint cans just as well as men.
Some hon. Members: Hear, hear!
Mrs. Mitchell: Last week I attended a meeting in Ottawa concerned with women in trades. I was told that there were many women with interests in mechanical, electrical and other trades traditionally considered as being in the field of male employment who want very much to get into these trades. One thing which happened in our society was that women in their education have been forced into sex roles and perhaps do not have the background or training for such skills. They find that there has been a cutback in the federal government of training programs and pre-employment upgrading programs to assist women to get into trades on an equal basis. The same thing applies to women wishing to enter high technology fields of the future, particularly in this area of the country, and to other areas where women must have equal rights and opportunities for employment with no question of sex involved. We hope the Constitution will now support the whole movement in which
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we believe very strongly, as do our trade union friends—equal pay for work of equal value.
Last year in my riding there was a Kenworth Industries, CAIMAW strike, and women eventually won equal pay. They won that after a six-month strike. They should not have had to wait six months or to go on strike for equal pay, Mr. Speaker. This is another inequity which I hope they will challenge as the result of the constitutional changes.
There are many examples that have been raised in the House in the past year of women clerks in the public service, general service workers, research technicians doing jobs equal to those done by many male employees but who are being paid on a higher basis. This we will no longer tolerate, Mr. Speaker.
I cannot go on without mentioning bank workers, nurses and hospital workers who traditionally work at lower rates of pay than they should. Daycare workers are another important example.
Not only is this protection now in our Constitution, which will allow all people concerned with human rights to go before the courts, but I suspect it is the beginning of a change in attitude in the country—a change in the attitude of employers and workers themselves who will demand their rights.
Women in the home must also be recognized as workers who do an extremely important job in raising the children. They have the right to pensions, benefits and an income as well as the recognition that they are doing just as important a job at home as they would in the work force. We hope there will be changes and that the government will support this.
I have two more points to deal with before my time expires, Mr. Speaker. I am speaking primarily to Section 28 of the constitutional amendment dealing with women’s rights but I should like hon. members to know that this party is equally concerned with the whole question of aboriginal rights. The women of Canada have gone on record as showing solidarity with the native people in their struggle for the changes that will benefit them and protect their present rights but most important, perhaps, will protect their rights in the future.
When we speak of the future of the aboriginal people, I think the best way to make the point clearly is to speak about the necessity for federal action on behalf of native children. Last spring I was a member of the Standing Committee on Health, Welfare and Social Affairs subcommittee on children, whose report has not yet gone to cabinet and certainly has not yet been mentioned in the House. In a minority report which I presented on behalf of the NDP we recognized the rights of Indian children and their desperate situation as being a first priority. We recommended that Indian, Inuit, Metis and nonstatus Indians in all regions be protected by constitutional provisions. We also felt that it was essential that, based on this recognition, adequate funding be provided for economic and educational programs that would ensure that native children would be proud to be Indian, Métis or Inuit.
We recommended that there be changes in the whole health care service and that, in consultation with native people, children of Indian and native background have the opportunity to grow up in the native environment. I hope this new Constitution will mean that native children will no longer be taken from their homes or native communities and put in foster homes of nonnative people.
Some hon. Members: Hear, hear!
Mrs. Mitchell: Finally, Mr, Speaker, I want to refer briefly to Section 15 which deals with equality rights and states as follows:
Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
I am saddened that this position, which is so important and should be so universal, still has the provincial override. I should like to illustrate the importance of this by citing the example of what happened to the Chinese and Asian people of Canada. This demands that there must be full protection of their rights. In my riding as in other parts of western Canada, many Chinese were brought to Canada to work on the CPR. There was a head tax imposed by the federal government of $50 per person. It was raised to $100 in 1900 and to $500 in 1903. In 1907 a riot occurred in Vancouver’s Chinatown, instigated by the Asiatic Exclusion League, which was formed in 1907 in response to the increased Japanese, Chinese and East Indian immigration. These people were being excluded because they were Asian. Splinter mobs went through Chinatown breaking windows, then they moved to Powell Street in the Japanese quarter for more of the same. Some Chinese domestic and kitchen workers tried to oppose this but, of course, they were subjected to all kinds of discrimination.
The exclusion act was not repealed until 1947, when immigration was permitted but with increased restrictions on Asian groups. finally, in 1967 the federal government adopted the universal merit system which ended discrimination. However, it was not until 1947 that Canadians of Asian origin finally won the right to vote.
We are also very familiar with the internment of Japanese Canadians and the shame and nightmares that continue for all Canadians who think of this situation.
I should like to draw to the attention of the Minister of Employment and Immigration (Mr. Axworthy) the present concern of East Indians in our country. We have expressed our view in questions. We must be sure that under the Immigration Act there is equal treatment for all people, regardless of their country of origin, their race and ethnicity.
Some hon. Members: Hear, hear!
Mrs. Mitchell: In conclusion, Mr. Speaker, I want to say once again that we are very proud that we are reaching the conclusion of this very historic process. I am particularly proud that it was this party that fought so hard for inclusion of both
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the aboriginal rights section and Section 28 which protects the rights male and female persons.
I want to congratulate all members of the House and all people across Canada who worked so hard for this great day for Canadians.
Some hon. Members: Hear, hear!
Mr. Deputy Speaker: Is the House ready for the question?
Some hon. Members: Question.
Mr. Deputy Speaker: The question is on the amendment. Is it the pleasure of the House to adopt the amendment?
Some hon. Members: Agreed.
Mr. Deputy Speaker: Carried.
Mr. Nielsen: No, no, no.
Mr. Deputy Speaker: All those in favour of the amendment will please say yea.
Some hon. Members: Yea.
Mr. Deputy Speaker: All those opposed will please say nay. In my opinion, the yeas have it.
Mr. Nielsen: No. And more than five members having risen:
Mr. Deputy Speaker: Call in the members.
The House divided on the amendment (Mr. Clark), which was agreed to on the following division:
(Division No. 125)
YEAS
Messrs.
Allmand
Althouse
Andre
Anguish
Appolloni (Mrs.)
Axworthy
Bachand
Baker (Gander-Twillingate)
Baker (Nepean-Carleton)
Beatty
Beauchamp-Niquet (Mrs.)
Bégin (Miss)
Benjamin
Berger
Blackburn
Blaikie
Blaker
Blenkarn
Bockstael
Bosley
Bradley
Breau
Broadbent
Bujold
Burghardt
Caccia
Campbell (Miss) (South West Nova)
Campbell (Cardigan)
Cardiff
Carney (Miss)
Chrétien
Clark (Yellowhead)
Clarke (Vancouver Quadra)
Collenette
Comtois
Cook
Cooper
Corbin
Corriveau
Cosgrove
Côté (Mrs.)
Cousineau
Crosbie (St. John’s West)
Crosby (Halifax West)
Crouse
Cyr
Dantzer
Daudlin
Dawson
Deans
De Bané
de Corneille
de Jong
Demers
Deniger
Desmarais
Dick
Dingwall
Dion
Dionne (Chicoutimi)
Domm
Dubois
Duclos
Dupont
Dupras
Ellis
Elzinga
Epp
Erola (Mrs.)
Ethier
Evans
Fennell
Ferguson
Fiser
Fleming
Flis
Forrestall
Foster
Fox
Francis
Fraser
Fraser
Fretz
Friesen
Frith
Gulton
Garant
Gauthier
Gilchrist
Gimaiel
Gingras
Gourd (Argentueil-Papineau)
Gourde (Lévis)
Gray
Greenaway
Guibault
Gurbin
Gustafson
Halliday
Hamilton (Qu’Appelle-Moose Mountain)
Hargrave
Harquail
Hawkes
Heap
Herbert
Hervieux-Payette (Mrs.)
Hnatyshyn
Hopkins
Howie
Huntington
Irwin
Jarvis
Jelinek
Jewett (Miss)
Johnston
Joyal
Kaplan
Keeper
Kelly
Kilgour
Killens (Mrs.)
King
Kushner
Lachance
Lajoie
Lambert
Lamontagne
Landers
Lang
Laniel
Lapierre
Lapointe (Charlevoix)
Lapointe (Beauce)
La Salle
Lawrence
LeBlanc
Lefebvre
Lewis
Lonsdale
Lumley
MacBain
MacDonald (Miss)
MacGuigan
Mackasey
MacLaren
Malone
Maltais
Manly
Marceau
Massé
Masters
Mayer
McCauley
McCuish
McDermid
McGrath
McKinnon
McLean
McRae
Miller
Mitchell (Mrs.)
Munro (Hamilton East)
Murphy
Nielsen
Nowlan
Nystrom
Oberle
Olivier
Orlikow
Paproski
Parker
Petterson
Pelletier
Penner
Pepin
Peterson
Pinard
Portelance
Prud’homme
Regan
Reig (St. Catharines)
Reid (Kenora-Rainy River)
Riis
Roberts
Robinson (Burnaby)
Robinson (Etobicoke-Lakeshore)
Roche
Rompkey
Rose
Rossi
Roy
Sargeant
Savard
Schellenberger
Schroder
Scott (Hamilton-Wentworth)
Scott (Victoria-Haliburton)
Shields
Siddon
Simmons
Skelly
Smith
Stevens
Tardif
Taylor
Tessier
Thacker
Tobin
Tousignant
Turner
Vankoughnet
Veillette
Waddell
Watson
Weatherhead
Wenman
Whelan
Wilson
Wise
Wright
Yanakis
Young
Yurko—222.
NAYS.
Messrs.
Nil
[Translation]
Madam Speaker: I declare the motion carried.
[English]
Hon. John C. Munro (Minister of Indian Affairs and Northern Development): Madam Speaker, this moment gives me the greatest pleasure I have experienced as Minister of Indian Affairs and Northern Development. The opportunity to move the motion put before the House is the highlight not only of myself as minister, but of any minister who could occupy this portfolio. I might also add that it is a welcome and dramatic conclusion to one of the most intensive periods of
[Page 13201]
agonizing discussion that I have experienced in all my days and years as a member of this House.
Members of the House, I cannot overemphasize the significance that I place on the events of the last couple of days in view of the outcome. The distance that native people have come in those few short days, by gaining recognition for their aboriginal and treaty rights in what is soon to become the highest expression of the law of this land, is immeasurable at this time. However, I predict that history will prove it to be a giant step.
Let it be said now that the disappointment that I and others felt earlier this month on the eve of the accord, when it became evident that some provinces declined to endorse the concept of aboriginal rights, was second only to that of the native people themselves.
Let it be said now for the record that many of us share a high degree of elation today. I recall, moving out of the Convention Centre with native leaders, what I and some of my colleagues had to face when Section 34 was dropped. One cannot measure the terrible grief, disappointment and utter frustration that they expressed on that particular day.
I want the Indian people especially to understand why I feel as I do. To be sure, the contrast between my disappointment of a few days ago and my mood today is uplifting, But that is not the only reason. Hon. members, we are here today in the House of Commons with a motion that proposes to accord to native peoples a unique status in the highest law of the land. Not only are we as Members of Parliament about to consider this historic amendment; we are here to do so with the specific endorsement of the nine provincial governments which were parties to the November 5 accord on patriation of the Constitution.
Some hon. Members: Hear, hear!
Mr. Munro (Hamilton East): It is the involvement of those provinces that is most significant to me. It is the fact that they are in this resolution that makes me so encouraged today. The people of Canada and their leaders have concentrated on this question with an intensity such as has been seldom experienced. What they have decided irrefutably is that an expression of this country’s highest principles is simply not acceptable without due recognition for native people, the first Canadians.
To be sure, the constitutional resolution with this amendment will not resolve all the outstanding issues. It will not put to rest all the questions about the future relationship of native people to the rest of the country. If the motion before the House is passed, it will set the stage for a whole new series of issues yet to be raised. It represents, however, an enormous gain over where we were after the signing of the November 5 Accord.
In the depressing moments of reflection which followed that initial jubilation of reaching agreement on patriation, who would have thought in these few short days that this was possible? Aside from the gentle pressure which my colleague The Constitution the Minister of Justice (Mr. Chrétien) referred to last week, it took some considerable sou1—searching and accommodation on the part of certain provinces to get us where we are today. Let us trust that, as the process unfolds and as we begin to address, in preparation for a constitutional conference, those outstanding issues I have already mentioned, this new spirit of co-operation will be sustained.
I would like to review the critical provisions in this package that refer to natives. first, under the proposed amendment to the resolution the most critical section recognizes and affirms aboriginal and treaty rights of all aboriginal peoples in the highest law of the land. While the clause differs in one minor respect from the previous Section 34, it has the identical effect as the previous section. This is borne out by the legal opinions afforded the government.
Second, I would like to emphasize that the resolution also contains other important provisions respecting native people. Specifically Section 25 of the Charter of Rights and Freedoms states:
The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada, including
(a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and
(b) any rights or freedoms that may be acquired by the aboriginal peoples of Canada by way of land claims settlement.
This section, then, is purposely open-ended and protects those rights which may flow to natives from future land claims settlements.
Third, the resolution also provides for the establishment of a constitutional conference at which there will be an item on the agenda respecting matters that directly affect the aboriginal peoples of Canada. Representatives of aboriginal peoples will be invited to participate in this conference. This agenda item will include the identification and definition of the specific rights of native peoples to be included in the Constitution of Canada. I hope that all parties, including the provincial governments and the federal government and the native people, will do all they can to ensure that that conference is a success. Considerable effort will be needed to find common ground among Indian peoples, other native peoples and Canadians in general before understanding and acceptance is reached on all issues. But I am sure this can be achieved.
It is a great accomplishment today. I should like to pay my respects to all the work and effort of so many members of this House, not the least of which is the colleague sitting beside me, the Minister of Justice (Mr. Chrétien), who has worked tirelessly for many months and who has certainly been on the telephone during the weekend and the last two days to bring about this most beneficial result that we have before us today.
Some hon. Members: Hear, hear!
Mr. Munro (Hamilton East): To the Prime Minister of Canada (Mr. Trudeau), who led the fight for the Charter of
[Page 13202]
Rights and Freedoms from the beginning, I think all of us owe a debt of gratitude.
Some hon. Members: Hear, hear!
Mr. Munro (Hamilton East): To the hon. member for Nunatsiaq (Mr. Ittinuar), I think we agree, and so will many of my friends in the New Democratic Party, that he has worked under very difficult circumstances, night and day, with his people to be as constructive as possible to bring this result before us today.
Some hon. Members: Hear, hear!
Mr. Munro (Hamilton East): With some minor deviations, these congratulations would apply to the entire New Democratic Party and their leader who fought during the months for the entrenchment of aboriginal and treaty rights. The Northwest Territories government people, the executive committee and the assembly, have all been most supportive during the past week, and I think they should also take some real credit in this unique achievement.
Perhaps I should now refer to my predecessor minister of Indian affairs who worked so hard all during the constitutional conference to attain this result. I hope that makes the member from Edmonton feel better.
An hon. Member: And the hon. member for Yukon (Mr. Nielsen).
Mr. Munro (Hamilton East): And, of course, the hon. member for the Yukon.
Perhaps I should now refer to my responsibilities for northern affairs, what this resolution does and what impact it has in that very important area. I want to stress what the earlier and the present version of the resolution has to say about the participation by the territorial government in future constitutional discussions. Territorial representatives will be invited to participate in discussions on any item of the agenda of the conference that directly affects the Yukon and Northwest Territories.
Hon. members will also recall that the resolution has generated some discussion in connection with the application of the Constitution Act to the potential creation of new provinces in the Yukon and the Northwest Territories, or the extension of existing provinces into the two territories. As hon. members are aware, this issue is not a new one. For example, the issue concerns the appropriate role of provincial governments in the consideration of the creation of new provinces and/or in the extension of existing provinces.
The principal question being asked about the Constitution Act by many of the people north of 60 is how it applies to Canada’s territories. The question they are asking is why it should be necessary to make the federal power to create new provinces subject to the amending formula. There is also a concern about the mention in the amending formula of the power to extend provincial boundaries northward.
The entire assembly of the Northwest Territories came to Ottawa to express to the Prime Minister, to the Minister of Justice and to myself their serious concern about this matter and other matters. We have had extensive meetings to discuss this matter. The depth of their concern at having provinces involved in the creation of a province to the north, formerly a purely federal responsibility, is well understood. It should be noted, however, that the government leader in the Yukon has indicated a certain degree of approval of the new provision in the belief that it is beneficial to have the provinces take the role in a decision to create provinces in the north.
An hon. Member: Rubbish.
Mr. Munro (Hamilton East): It was a direct quote and I shall be pleased to show my hon. friend what he had to say. Moreover, it has been the federal government’s recent practice to consult the provinces when considering the creation of new provinces, in any case. It should be noted that the manner in which the resolution deals with the possible extension of existing provinces to the north provides northerners with extra protection against the eventuality that only the consent of those provinces that extend their boundaries will be necessary.
In any event, in concluding my remarks I should like to note especially that native Canadians are gaining mightily from this recent turn of events. Through their eloquence and their steadfast insistence they have built on a historical federal pledge that goes back to the Royal Proclamation of 1763. In fact, they have turned a legalistic federal obligation for native people into a national confirmation of their special place in the consciousness and fabric of Canada
Quite the contrary to what some would suggest, this is not an erosion of federal obligation. It is an additional confirmation, not once but nine times, that provinces do share in that commitment.
Therefore, with great pleasure, Mr. Speaker, I move, seconded by the hon. member for Abitibi (Mr. Gingras):
That the proposed Constitution Act, 1981 contained in the motion in the name of the Minister of Justice (Government Business. Government Motion No. 56), as primed in the Order Paper of Monday, November 23, 1981, be amended
(a) by adding, immediately after line 19 on page 24 of the Order Paper, the following:
PART II
RIGHTS OF THE ABORIGINAL PEOPLES OF CANADA
35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
[Page 13203]
(2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada.
(b) by renumbering the subsequent parts and clauses accordingly.
Some hon. Members: Hear, hear!
Hon. Warren Allmand (Notre-Dame-de-Grace-Lachine East): Mr. Speaker, I should like to direct a question to the Minister of Indian Affairs and Northern Development (Mr. Munro). Due to some confusion, I should like to ask the minister for clarification with respect to the word “existing” which has been added to the original Section 34. Does the addition of the word “existing” eliminate the aboriginal rights of Indians or Inuit whose rights at one time were unilaterally extinguished by legislation of a provincial legislature or of the federal Parliament? In other words, if a provincial legislature or the federal Parliament extinguished in a unilateral manner in years past the aboriginal rights of an Indian band or an Inuit community, does it mean that those rights no longer exist and consequently are eliminated from the charter by the addition of that word?
My second question is a related one. Would the Indian bands who were not able to exercise their rights because the white man’s world grew up around them—their cities, factories and so on—for example, the Musqueam near Vancouver, lose their rights? Was it considered that the word “existing” takes away those rights because they have not been able to exercise them and cannot exercise them today?
Hon. Jean Chrétien (Minister of Justice and Minister of State for Social Development): Mr. Speaker, I think I should answer the hon. member’s question. In fact he is asking for a legal opinion at this time, and I am not about to give one. Today the House of Commons is affirming and recognizing the rights of aboriginal people as they exist. It will be up to the courts to make a legal interpretation of the facts. The rights of natives, in the mind of the government, are the rights which flow from the Royal Proclamation of 1763. It will apply in Canada because in fact we are recognizing the obligation which was vested on the Crown at that time by King George II or III. It is now recognized as such for the first time in the Canadian Constitution. It is an affirmation of the rights of natives.
What the courts will decide later on is how they will implement it in the case where, as the hon. member said, a town or city was constructed on land which would have belonged at one time to the natives. Of course this cannot be redressed by returning that land; in my own judgment I think the Crown will be obliged to offer other lands or financial compensation.
The Acting Speaker (Mr. Blaker): Order, please. I sense that there may be other hon. members who wish to rise on points of order or possibly to continue to ask questions. The House will recognize the custom that hon. members, unless there is objection, can be recognized under the expression “point of order” for that purpose, as long as there is time remaining to the hon. member or minister who had the floor at the time the points of order or questions began.
Mr. Nielsen: Or by unanimous consent.
The Acting Speaker (Mr. Blaker): Or by unanimous consent. In the circumstances, therefore, until I hear otherwise from hon. members I will recognize points of order. The time allotted to the hon. minister was such that his time will expire at approximately 5.15 o’clock. If the Chair hears no objection, points of order in that regard will be recognized.
The hon. member from Notre-Dame-de-Grace-Lachine East on a fresh point of order.
Mr. Allmand: Mr. Speaker, I have a supplementary question. The minister answered the second part of my question concerning whether the word “existing” would take away rights which could not be exercised because the white man’s community grew up around Indian bands. What about the first part of my question? Would those Indians and Inuit lose their rights. Would they be considered non-existent if a provincial legislature or the federal Parliament unilaterally extinguished their rights by legislation? Would it mean that they do not exist in terms of the new addition to Section 34? While I congratulate the minister for bringing back this section we want to make sure what it says before we give our agreement to it.
Mr. Chrétien: Mr. Speaker, I would inform the hon. member that I have checked with the legal adviser of the Crown and with some outside counsel yesterday and this morning. The addition of the word “existing” is absolutely not changing the substance of what was proposed to the House previously. Section 35 or the new resolution has the same meaning, according to the legal advice I received, as the previous Section 34.
Mr. F. Oberle (Prince George-Peace River): Mr. Speaker, I should like to ask the Minister of Indian Affairs and Northern Development (Mr. Munro) or the Minister of Justice (Mr. Chrétien) a question. If the inclusion of the word “existing” really does not change the meaning of Section 35(1) of the resolution, why was it included?
I should also like to follow up on the question asked by the hon. member for Notre-Dame-de-Grace-Lachine East (Mr. Allmand) but in a more practical sense. Both gentlemen are very much aware of this matter, both having been ministers of Indian affairs. I am referring to the question of the British Columbia cut-off lands where the legislature, with the consent of the people of the province and following the recommendation of a commission, took away certain lands from Indian people. If we are looking at existing rights, these rights no longer exist. Would the minister agree with me on that?
Finally, when we go to former acts of 1763 which mainly dealt with lands, what about native people who aspired to certain cultural rights or rights to self-determination which would require in some sense self-government? These rights do not now exist. Will it rule out any opportunity for native
[Page 13204]
people to negotiate certain rights such as cultural rights, education and self-government? These are the concerns. As we all know, we are dealing with a very, very serious matter. If so many rights for native people exist now, why are they in the position they are in? Why are they so deprived, if they had so many rights and the government was so compassionate with them in the past? These questions must be answered.
Mr. Chrétien: Mr. Speaker, the hon. member is entering into debate. I should like to answer the first question as to why it is there. It is because some provinces did not want Section 34 at all. I negotiated with them and on Friday some new words were proposed by the Alberta government. I talked with the premier on Sunday and with his ministers on Monday morning. They asked to make what was implicit explicit, the word “existing”. If there are rights they must have existed before, so they asked us to make what was implicit explicit. I have checked with lawyers and they said it does not change the substance of what we were doing, In order to have an agreement and not to break the accord, I made that concession being satisfied, as the Minister of Justice, that we were not changing the substance of the proposition.
We are back now and what is great is that nine provinces are part of the accord. They have accepted these words and they are accepted by the House of Commons. It is a great achievement because before we were planning to impose it upon the provinces. Now it is very significant that we have nine provinces which virtually have exactly the same wording in the Canadian Constitution.
In terms of the British Columbia land question, I think the Minister of Indian Affairs and Northern Development (Mr. Munro) could reply, but I could as well because I have been involved in that matter. We have already settled cases involving land which had been cut off from Indians in the past. If the rights were irregularly taken away from the natives, the recognition that their rights flow from the Royal Proclamation will give them a stronger case in court than they had before.
Mr. Cyril Keeper (Winnipeg-St. James): Mr. Speaker, my question is for the Minister of Justice (Mr. Chrétien). Both he and the Minister of Indian Affairs and Northern Development (Mr, Munro) have said quite clearly that the addition of the word “existing” in Section 34 does not change its impact. They have said that they make that assertion based on legal advice. I should like to know whether the minister is going to table those legal opinions so that the native people of this country may know the true meaning of Section 34 as it is now before the House. ‘
Mr. Chrétien: Mr. Speaker, the custom of this House is that when the Minister of Justice stands up in his seat and expresses an opinion like that, he speaks on behalf of the government and the legal advisers of the Crown. I do not have to table a written legal opinion. Most of those legal opinions have been researched over the weekend by different counsel to the government. They were all unanimous.
If the hon. member does not want to vote for aboriginal rights he can vote against the amendment.
Mr. Munro (Hamilton East): Mr. Speaker, referring to the question put by my hon. friend on the cut-off claims, as he may know, there is a sound body of legal opinion that would cast some very real doubt on the legal validity of the action taken by the province at that particular time. The province has met with the federal government and is prepared to make adjustments in terms of settlements combined with this government, putting in its own resources to rectify what is clearly felt to be an injustice of the past.
That situation is based on legal views as to improprieties and disorders in terms of powers exercised by the province in the past. The manner in which that has been settled stands on its own merit and, I believe, has been settled to some degree to the satisfaction of the Indian peoples involved.
As far as the latter part of the hon. member’s question is concerned, Mr. Speaker, many of the cultural rights, the rights to self-government and all these matters, have already been assured to the Indian people. They will be the first items on the agenda when we discuss matters at the constitutional conference.
I think the hon. member was privy to the many legal opinions expressed on this historical occasion in this House on what “aboriginal rights” precisely means now that it is entrenched. Suffice to say that the opinion is afforded to the native peoples themselves that it greatly strengthens the basis of their claims to unique status in Canada and strengthens them in their desire and aspirations along the lines the hon. member just referred to.
The Acting Speaker (Mr. Blaker): In this rather unofficial question period, perhaps hon. members might agree if I try to limit the points of order, which is what we are calling them, to a main point of order and a supplementary. I will recognize the hon. member for Winnipeg-St. James.
Mr. Keeper: Mr. Speaker, my supplementary question is for the Minister of Justice. He indicated that it is not customary to table such legal opinions. I would remind him that the action being taken in this House is unprecedented and that what we are really dealing with is a question of trust between peoples. If he were to table those legal opinions on the meaning of Section 34, it would create a climate of trust. People would understand clearly what is proposed for entrenchment in the Constitution. I wonder if the Minister of Justice would not consider this unprecedented action in light of the fact that we are dealing with a historically unique situation.
Mr. Chrétien: Mr. Speaker, I said that I have received this legal opinion. The hon. member has to take my word. We never table legal opinions. In fact, I never received lengthy legal opinions on that; it was just a word that was added at the request of the provinces. I asked my legal advisers if it was changing the meaning of what we were doing and they said it
[Page 13205]
was not. I did not have piles of documents. It was just one word that was implicit and became explicit.
I have checked that with other legal advisers outside the government in order to satisfy myself. Some were in Toronto and some were in the west. They indicated they came to the same conclusion.
This does not call for great research. We are voting a law of Parliament. It will be for the court to decide if that changes something. I am satisfied that it does not. I am entrenching in the Constitution the concept of aboriginal rights. No one is questioning the wording that we used in the first instance.
In committee we tried to improve many of the words that we are legislating at this time. The wish of this Parliament is to entrench in the Constitution the concept of aboriginal rights. That is clearly stated in the speeches. In the judgment of my legal advisers the words are satisfactory, and I accept that legal opinion which has been sustained by others.
I do not have a document to table. I discussed this with my legal advisers and we even discussed with some lawyers the possibility of what the court might decide on this and that. Regarding the charter, the courts may take some decisions that we will not be completely happy with but we will have the remedy to change that in this House through the amending formula. We will have an amending formula in Canada that will permit this Parliament and the provinces to correct things if eventually the court decides something contrary to the wishes of Parliament.
The Acting Speaker (Mr. Blaker): The hon. member for Algoma (Mr. Foster) on a point of order, followed by the hon. member for Yukon (Mr. Nielsen).
Mr. Maurice Foster (Algoma): Mr. Speaker. I have a question for the Minister of Justice (Mr. Chretien) which relates to the operative effectiveness of the amendment relating to aboriginal rights when it comes into effect, assuming it is passed by this House and the British House. I ask this question because a number of court cases have been postponed since last July or August, awaiting the outcome of the debate and passage of this constitutional amendment. Could the minister explain if it is just a case of the House adopting the resolution here, it being adopted in the U.K. and then being proclaimed? Does it become effective at that moment or are there other delays which would further postpone these pending court cases?
Mr. Chrétien: Mr. Speaker, it is up to the parties to a case to decide to proceed. I presume we will vote in this House very quickly. The resolution will be passed eventually by England and when it comes back to Canada it will be proclaimed. The aboriginal rights of Canada’s first citizens will be in the Canadian Constitution. It will then be for the parties to decide how to use it in front of the court. It will strengthen the case of the natives in front of the Canadian court. We should all be proud of it.
The Acting Speaker (Mr. Blaker): The hon. member for Yukon (Mr. Nielsen) followed by the hon. member for Edmonton East (Mr. Yurko).
Hon. Erik Nielsen (Yukon): Before proceeding to debate, I presume I would need consent, since we have now gone past 5.15 p.m., Mr. Speaker.
The Acting Speaker (Mr. Blaker): I should explain to the hon. member that I was in error earlier. The minister’s time will expire at 5.25 p.m. If the House wishes to continue with these so-called points of order, it can do so until 5.25 at which time I will put to the House the question whether there is unanimous consent to proceed.
Mr. Nielsen: I have one brief question which should elicit a very brief answer. The Minister of Justice (Mr. Chrétien) has consulted the nine premiers in order to bring this amendment back into the resolution. That is commendable; that is the way it should be in our system. He has also consulted with the elected representatives of the Northwest Territories legislative assembly. Could I ask if he was thoughtful enough to consult with the elected representatives of the Yukon legislative assembly in order to get their input and their approval of what he is doing today?
Mr. Chrétien: Mr. Speaker, on the question of the accord, it was signed with the nine provinces and the federal government. We have not had to consult anybody else in terms of governments. The Northwest Territories expressed their views to us and we received them. I have not received any request personally. I do not know if the Minister of Indian Affairs and Northern Development received some representations from the Yukon council, but I have not received any communication from them.
The accord which I am respecting at this time is an accord signed and agreed upon by the nine provinces and the federal government on November 5. The agreement of yesterday was made by me with either the premiers or the attorneys general of the different provinces on the phone. That was the only formal communication there was. Their words were good enough for me, and I guess my words were good enough for them.
Mr. Nielsen: Since I did not get a simple answer, may Ijust put the question abundantly simply and directly in the hope that I will get a “yes” or “no”. Did the minister consult with the elected assembly
Mr. Chrétien: No. I said, “no”.
Mr. Nielsen:—in the Yukon’?
Mr. Chrétien: I said, no, not personally. They did not call me and I did not call them.
Mr. Munro (Hamilton East): Mr. Speaker, just to get the record straight, I think the hon. member should be aware that
[Page 13206]
my office did get advice from the Yukon. I will check as to its accuracy, but it was advice that was much appreciated and was that, yes, the leaders of the government of the Yukon were concerned about and supportive of the entrenchment of aboriginal rights since these were dropped from the accord.
Mr. Bill Yurko (Edmonton East): Mr. Speaker, I have a short question for the Minister of Justice (Mr. Chrétien). I know he will not be around to answer it, but I want to pose it so that it is on the record.
First of all, I want to indicate how pleased I am that, indeed, a new accord has been arrived at concerning this matter. My question is this: does the insertion or the inclusion of the word “existing” impose, suggest or include any distinction between surface land rights and mineral rights, which are generally well below the surface, particularly on provincial lands involving the Metis people? Again, I do not expect an answer. I just want to leave the question standing.
Mr. Nielsen: The answer is “no”.
Mr. Munro (Hamilton East): Do you want an answer?
Mr. Ray Skelly (Comox-Powell River): Mr. Speaker, my question on this particular matter would arise from remarks made that the possibility of extinguishing or not recognizing rights which have been extinguished by the legislature, I am sure, would be an advantage to the province of British Columbia facing the cut-off problem. The minister said that negotiations were going on between the Government of Canada and the government of the province of British Columbia concerning those cut-off claims. Can the minister clarify whether those have taken a more progressive turn than the discussions which have been dragging on for aeons and whether there is, in fact, some real progress there? If so, could he tell us what it would be?
The second question is, what role did the province of British Columbia play in inserting the word “existing”? I presume that it would benefit more than any other province in terms of the present prernier’s attitude toward dealing with cut-offs and native people.
Mr. Munro (Hamilton East): Mr. Speaker, with reference to the latter question the hon. member asked, let me tell him what the Minister of Justice has already said. The Minister of Justice was the one who, in his role as the minister responsible for constitutional discussions, was negotiating on the phone and talking to all the provinces with respect to trying to find wording to get the entrenchment of treaty and aboriginal rights back in the package. Therefore, the question as to what role B.C. or any particular province played would have to be directed to him.
Suffice it to say that the legal advice that the Minister of Justice and I have received states that the insertion of “existing” in this particular amendment has an identical effect. There is no change with respect to the effect of this clause with “existing” in it and the old Section 34 which did not have it. I am just saying that I am gratified to have been assured on several occasions during the course of today and late last night that this, indeed, was the legal view that the Minister of Justice received and relayed to me.
Concerning the previous question asked by the hon. member, I can just tell him that where there was past action taken by provincial legislatures of the type he described in terms of extinguishing certain rights, and where this was felt to be improper, either as a result of court action taken or because of legal views which ministers previous to myself obtained from the justice department, as a result of discussions the provinces themselves have come forward with this government to endeavour to set in process a means by which we could receive and obtain a settlement. This, in itself, is indicative of legal views casting some doubt on the propriety of what was done.
The Acting Speaker (Mr. Blaker): Order, please. I see that a considerable number of hon. members are still rising.
[Translation]
I believe the hon. member for Joliette (Mr. La Salle) is rising to be recognized by the Speaker, either to take part in the debate or perhaps on a point of order.
Mr. La Salle: I am rising to take part in the debate, Mr. Speaker.
The Acting Speaker (Mr. Blaker): So it is to take part in the debate—
[English]
It is 5.25 p.m. I now have to ask whether there is unanimous consent that questions be permitted of the Minister of Indian Affairs and Northern Development (Mr. Munro). One presumes that the time limit on it would be left to the discretion of the Chair, if that is agreeable.
Some hon. Members: Agreed.
The Acting Speaker (Mr. Blaker): Therefore, the question is whether or not there is unanimous consent to continue a form of questions and answers with the minister.
Some hon. Members: Agreed.
Mr. Nielsen: No. We have now had 25 minutes of questions and answers, and the hon. member for Joliette (Mr. La Salle) would like to have his entire speech on the record before we break for dinner.
The Acting Speaker (Mr. Blaker): There is not unanimous consent.
An hon. Member: The Tories said no.
The Acting Speaker (Mr. Blaker): The Chair has been handed a motion put forth by the hon. Minister for Indian Affairs and Northern Development. That motion is under consideration at the moment, but, subject to the caveat of a later decision respecting its admissibility, the Chair will indicate that debate is acceptable on the motion. Therefore, I do
[Page 13207]
not think it is necessary to read it at the moment, and I will recognize the hon. member for Joiiette (Mr. La Salle) once I have given notice of the questions to be raised tonight on the adjournment motion at ten o’clock.
[…]
GOVERNMENT ORDERS
[Translation]
THE CONSTITUTION RESOLUTION RESPECTING THE CONSTITUTION ACT, 1981
The House resumed consideration of the motion of Mr. Chrétien on the Constitution of Canada, as amended.
Hon. Roch La Salle (Joliette): Mr. Speaker, the last time I had the privilege of speaking on this very important subject in the House was last March. I remember clearly that I asked Parliament to be careful, to take its time, and I see that today we are still discussing the same subject—not for long, probably-but I feel that once more I shall have to caution the members of this House to beware and take the time to make sure that all Canadians agree to these so very important amendments.
Thank you, Mr. Speaker, for allowing me to speak about a matter that is very dear to my heart. I am both happy and sad to talk about the constitutional draft. I am happy because, like most Quebecers, I thought that at last we would succeed in achieving constitutional renewal in a way that would be satisfactory to all Canadians and Qucbecers, and I am sad because The Constitution the resolution ignores the eminently relevant recommendations made by the Pepin-Robarts commission on what has been commonly called the Canadian reality. In doing so, I feel the resolution has betrayed the history of Canada and has refused to recognize the Canadian duality and Quebec’s distinctive position among the other provinces. A reality that has in fact been recognized and endorsed by federalists who want federalism to have respect for the partners concerned. I have no intention of giving government members a course in political science, but I think a country’s basic laws, in other words, its constitution, should truly and accurately reflect every aspect of that country, while respecting and entrenching in its clauses the inalienable rights and freedoms of all citizens. When the Fathers of Confederation after much pondering gave us the British North America Act in 1867, they had broadly defined the basic principles that were to lay the foundation of our country, namely, duality and the sharing of powers between two levels of government. That is what has always been referred to as Canadian federalism. A few years ago, a famous Canadian said, and I quote:
Federalism is by its very essence a compromise and a pact. It is a compromise in the sense that when national consensus on all things is not desirable or cannot readily obtain, the area of consensus is reduced in order that consensus on some things be reached. it is a pact or quasi-treaty in the sense that the terms of that compromise cannot be changed unilaterally.
That famous Canadian was none other than the Prime Minister of Canada (Mr. Trudeau). In his book “Federalism and the French Canadians”, the same Prime Minister wrote, and I quote:
The centralists are the ones who should be in a hurry to change the Constitution.
In any case, in his book on federalism, the Prime Minister did not seem to have boundless confidence in constitutional reforms that are hastily construed in order to solve our problems. In my opinion, he wrote, it would be an illusion to look for (a solution) in sweeping constitutional changes.
As for the Charter of Rights, Mr. Speaker, which the present Prime Minister sees as having exceptional merits, at the time he did not look on it as a panacea. Legal guarantees by themselves are far too fragile to ensure the survival of the French language and culture. And he added the following sentence which today both he and the members of his party could usefully ponder over.
People who think such guarantees arc enough may be the most dangerous enemies of the traditions we wish to safeguard and perpetuate.
Mr. Speaker, that is exactly what we are discussing today, some 114 years after our first Constitution Act. Can the terms of an agreement be changed without the consent of one of the parties that was already recognized at the time as one of the two founding peoples of this country? It is important that all Canadians know that Quebecers, as much as the government they freely elected on April 13 last, object to a breach of
[Page 13208]
agreement that by a stroke of the pen deprives them of any possibility of a compensating formula, that would allow the federal government to impinge on a jurisdiction that heretofore had been the exclusive domain of the provinces ever since 1867.
We, members from Quebec—and I say we because we sit on both sides of this House, although not many on this sidevmay have something in common all the same. And I would like to remind the Quebecers opposite that under the governments of Maurice Duplessis, Jean Lesage, Daniel Johnson, JeanJacques Bertrand as well as Robert Bourassa, which was not so long ago, we all supported those Quebec premiers in difficult periods and for different reasons, those premiers who steadfastly defended the educational rights of Quebecers against any invasion by the federal government. All those premiers, Mr. Speaker, swore that never would the federal government infringe on that basic right of Quebecers. As much for historical and geographical as for linguistic and cultural reasons, those premiers realized they represented the people in Quebec. All members from Quebec who sit opposite today supported, encouraged and applauded as much as I did, those federalist governments of the province of Quebec, whatever their political affiliations. Those Union Nationale and Liberal governments in Quebec always had a strong sense of belonging to the Quebec identity, and they never strayed from it.
I believed, and probably all those hon. members believed in such a philosophy, and I still do. How can we now betray what we so steadfastly defended all our lives, Mr. Speaker? I, for one, have not changed, I have respected and still respect my Quebec origin and that philosophy that was not incompatible with the national objective pursued by every federal government.
How can one imagine today, Mr. Speaker, that the objections of the present Quebec government are sacrilegious, since we supported the previous premiers for identical reasons, and we even commended them for their courage in defending steadfastly the future and the emancipation of the people in Quebec?
If I may, I would like to recall that when I first came to Ottawa in I968, I was warned that I would first have to meet the challenge of convincing my Englishspeaking colleagues in the House. I accepted the responsibility to defend my province honestly and to convince my colleagues that they should ensure the fundamental rights of my province. I believed then and I still believe in a federalism respectful of its partners. What I find embarrassing today, Mr. Speaker, is that, to meet my basic responsibilities, I have to plead with my Frenchspeaking colleagues about the issue now before the House in front of my colleagues from the other provinces. I had never imagined that this could be possible, especially since the 74 Liberal members from Quebec could have avoided putting their province in this strait-jacket. Where are they now, these proud representatives of the people of Quebec in Ottawa? This is the question now being asked by thousands of Quebecers.
If I may, I would like to take this opportunity to congratulate my leader who showed his open-mindedness and his statesmanship during this debate last Friday when he made an original and positive contribution in his capacity as Leader of the Progressive Conservative Party. All the government members should read and re-read this speech and many of them should reflect on their own position instead of trying to ridicule the comments made by my leader last Friday in this House, The speech made by the leader of our party is a model of clarity and understanding during this troubled period of our history, Mr. Speaker. The Progressive Conservative Party has moved three amendments of which two have already been accepted unanimously, and I have every reason to believe that the Canadian people will be grateful for the leadership shown not only by my leader, but also by my party concerning the rights of women and the native people.
I believe that the third amendment will be agreeable to both the government and the people of Quebec. Last April, the Quebec government relinquished its veto right in exchange for a reasonable guarantee of financial compensation if ever they decided to opt out of a constitutional amendment. We want to grant this full financial compensation. The day after the conference, Mr. Ryan, the leader of the Liberal Party in Quebec, also stated that he would not have signed the accord. Even Mr. Bourassa, the former premier of Quebec, stated a few days ago during an open-line program that he would not have signed the accord either given the conditions that prevailed then. Most of the responsible political observers in Quebec have come to the same conclusion. They say that the government’s resolution proposal is even worse than the status quo. It is clearly a step backwards for Quebec generally. The federal government cannot claim the right to rewrite our Constitution without the consent of one of the two founding peoples, This situation is highly explosive, Mr. Speaker. This government should relinquish its arrogant and cynical position. Unfortunately, for several members of this House, Canada is simply Ottawa. They have forgotten that negotiating in good faith is the basis of federalism. I very much fear that their centralizing approach to federalism and narrow view of the future have made them so blind that they cannot see that they are dividing rather than uniting Canadians. They are so blind that they refuse to respect the Canadian fact. I also want to take this opportunity, Mr. Speaker, to appeal to the premiers to ponder a little over the implication of the isolation of Quebec. And since any appeal to the Prime Minister of Canada would fall on deaf ears, I wonder if they could not convince the Prime Minister of Canada to shift his position, explore possible solutions and try to find one that would be acceptable for the people of Quebec so that Quebec would agree to sign this resolution before it is sent to London.
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I seldom have the opportunity to urge the members of another party to reconsider what they are doing, Mr. Speaker, but I urge them just the same to dare state the views of hundreds of thousands of their fellow-citizens who elected them to represent them with dignity rather than betray them. They can imagine what they will find to say to justify themselves when they face a swarm of furious electors blaming them for their irresponsibility, their utter lack of respectability and dignity. It is completely shocking and distressing, Mr. Speaker, to find that their sense of belonging is no longer consistent with that of their electors. They are the only ones in great enough numbers to prevent something irrevocable from happening. Instead of forcing on Quebec a plan whose terms it cannot decently accept at present, why does the federal government not allow tempers to cool off, why does it not calm down and make a final attempt to conclude an honourable agreement with and for Quebec instead of driving the present government to something irrevocable and running the risk—
Mr. Tousignant: I rise on a point of order, Mr. Speaker.
The Acting Speaker (Mr. Blaker): The hon. member for Témiscamingue (Mr. Tousignant) on a point of order.
Mr. Tousignant: Could the hon. member for Joliette (Mr. La Salle) tell us what Mr. Levesque would be ready to accept?
The Acting Speaker (Mr. Blaker): I am sorry, but without the consent of the hon. member for Joliette, the Chair cannot accept that intervention as a point of order. The hon. member for Joliette.
Mr. La Salle: Thank you, Mr. Speaker. The Prime Minister of Canada, in the speech he made in Quebec City, said that even if his proposal were passed without Quebec’s consent, it will remain on the table for a future federalist government in Quebec. If he is consistent, Mr. Speaker, why not wait for that future federalist government in Quebec, since he has pointed out that the federal government will maintain its position until a government agrees to it? We would then see whether or not a federalist government in Quebec would accept the current proposal. A little more time will not matter much in the history of Canada but, at least in the meantime, Quebecers, even the most nationalist amongst them, will have time to reflect on such constitutional compromise as might prevent breaking the federal tie. If the federal government persists in its present approach, I fear it may lead the country headlong toward a catastrophe of such magnitude that the word “Canada” might within a generation or two become a mere historical footnote.
The Quebec government is being blamed for having given up its traditional veto right as provided for in the amending formula contained in the April agreement; if, in the eyes of the Minister of Justice, giving it up is such an infamy, why then, The Constitution on his own authority, does he not reinstate it on behalf of Quebec which he claims to represent even better than the government of that province itself? The minister knows that the loss of the veto right was conditional upon fiscal compensation. Everyone knows that the notorious veto right is a cause of tension and disagreement, that it is bound to disappear sooner or later. In fact, if the veto right is so essential to Quebec, as the Minister of Justice maintains, why then did he not use it during the night of November 5 and demand that the approval of Quebec be an essential condition of the agreement? How could I possibly support the present resolution when it grants one province the right to opt out of a constitutional amendment without financial compensation, except in the case of linguistic and cultural programs? To begin with, where do the boundaries lie between cultural, social and economic matters? In fact, do they not overlap? Where are the limits of each to be drawn? Those are some of the problems the courts will eventually have to solve, But one point is more important still. Since when can one be penalized for exercising a right the Constitution has recognized for 114 years? The right to opt out with financial compensation, the terms of which would be agreed upon by the parties, must not be weakened. Otherwise, no province, and not only Quebec, would ever be able to develop integrated policies either in the area of social security or even its own economy planning. The Prime Minister acts as though he were afraid some rich province might, at the expense of the poorer ones, opt out of a new federal program and use the accrued funds to serve its own selfish ends. The Prime Minsiter does not seem to trust the fair play and common sense of his provincial counterparts. Why does he not think of the unfair burden he would impose on a poor province which, for whatever reason, could not accept the new constitutional amendment?
The right to opt out without full financial compensation and non obstante clauses is an illusion which may lead us into centralization and deny the provinces their right to act in their own jurisdiction in their people’s best interests. When, on the morning of November 5, the Prime Minister simply removed the compensatory clause, his intention was clearly to put Quebec in chains. The time may come, before long, when other provinces may find it difficult to bear the iron collar they have themselves agreed to wear. As to the manpower mobility clause, it does not take into sufficient account Quebec’s social and cultural structure. It seems to me that it should be possible to carry out a more in-depth analysis of its potential effects on provincial economies, and find ways to give local workers better protection against a possible massive invasion from other provinces. I suggest that the provinces’ manpower training programs and local manpower preference policies should not be jeopardized, as this would prevent local workers from finding employment or developing new skills while workers from other provinces would take over their jobs.
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The Acting Speaker (Mr. Blaker): The hon. member for Manicouagan (Mr. Maltais) rises on a point of order.
Mr. Maltais: Mr. Speaker, with respect to the statements by the hon. member for Joliette (Mr. La Salle) concerning mobility, perhaps I should again mention Mr. Brian Mulroney who took advantage of a mobility program to help the Iron Ore Company workers he had laid off.
The Acting Speaker (Mr. BIaker): Order, please. I have the same difficulty I experienced a moment earlier. This is not a point of order. If the hon. member for Manicouagan wants to debate a point with the hon. member, that is something different, but certainly not a point of order. Is the hon. member rising on a point of order?
Mr. Maltais: When the hon. member for Joliette states that mobility
The Acting Speaker (Mr. Blaker): Order, please. I can quite understand that the hon. member for Manicouagan would like to ask a question. The hon. member for Joliette has the floor.
Mr. La Salle: If the hon. member for Manicouagan (Mr. Maltais) has anything to say, he will have an opportunity to do so. We still have two or three days left for this debate. When he talks about lost jobs, I would say that I recall when I arrived here in 1968 there were 300,000 people unemployed but we now have 1,300,000 of them and the Liberal government was in office during all that time except for eight months. I therefore leave the hon. member for Manicouagan to reflect upon the administration of the last 14 years. Here again, Mr. Speaker, any hurrying up can only be dangerous for the unity of the country and the legitimate aspirations of Quebecers who are anxious to find a job in their own province. Knowing their openmindedness, I do not believe that the people’s protest—because as we all know in Quebec the government is not the only one who has voiced objections—stems from the fear of being invaded by English-speaking workers. There has to be a limit to what you can try to get people to believe.
Mr. Speaker, I have said how I feel about the government’s constitutional project. I do not like the fact that it was hastily thrown together over Quebec’s objections and without due regard for the basic duality of our country. Nor do I like the haste with which the government wants to force it upon us, and I strongly urge the government to continue negotiations with Quebec which might lead to’a satisfactory arrangement for both governments. Today, of course, the Liberal majority may very well flash a smile of victory, and insult and deride the Quebec government, but the people of Quebec will have the final say. This government’s moment of triumph might be very short indeed. Let’s not forget that Canada cannot exist without Quebec, the worthy representative of the Frenchspeaking founders of this country. Hastily sending a document to London over the head of Quebec may very well cause a ground swell which is likely to destroy any hope for a renewal of Canadian federalism, as envisaged by the Pepin-Robarts Task Force.
I find it rather strange in fact that we never hear of that report now that one of the co-chairmen of that commission sits in the House. Has he forgotten about it? That is impossible. Would the members from Quebec have forgotten this near masterpiece of understanding and the seeds of harmony that it contained? I think it would have been wise to fouder somewhat longer upon the very important recommendations of that report. I believe that study reflected, like no other study before it, a Canadian entity and contained recommendations relevant to any constitutional reform. I trust, Mr. Speaker, that the Quebec membership, especially those who sit in cabinet–and I clearly remember that some cabinet members proudly spoke up for the right, for instance, of air traffic controllers to use French—in particular of the minister now responsible for Quebec and the Minister of Regional Economic Expansion (Mr, De Bané)—
Miss Begin: Bravo!
Mr. La Salle: who would wave the Canadian flag while speaking up for the air traffic controllers’ right to use French. So perhaps I could call on those two members of cabinet today and ask them to pressure the government into continuing and increasing its efforts—
Mr. Rossi: What about Stewart!
Mr. La Salle:—so that Quebec can be party to this consensus and can sign this accord. And I warn all those who are listening to us today not to think that we are going to solve the problem and achieve unity or national harmony without Quebec. Those who wish to ignore Quebec’s importance and special status within Canada can expect rough times ahead. I do trust that all hon. members from Quebec will seriously consider the matter. Not only can I speak to other members from Quebec, but I can do so in great seriousness because I know that they realize the big gap which results from Quebec’s exclusion from this accord.
An hon. Member: What about Stewart!
Mr. La Salle: I know that they realize how big this gap is and I hope that as a result of these comments and speeches and I call upon them to try to speed up the process—Quebec can be party to this accord. I also hope that no resolution will be sent to London without Quebec because otherwise the problem will remain unsolved. That is why I am urging French-speaking members to make their English-speaking colleagues truly aware of the situation. We know that opinions are split. Quebecers, like many other Canadians, are sick and tired of hearing about constitutional reform, yet this remains
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an important and crucial matter. I do hope that my appeal will not be in vain, because I do so with the best intentions in the world, Mr. Speaker, despite the rumbles from the other side. It is not the first time I have heard that. But I do think that I can convince members opposite and I am doing so with the best intentions and the best will in the world. And I would be the happiest man in the world, Mr. Speaker, if Quebec succeeded in presenting valid arguments and in having sufficiently successful negotiations to sign this agreement so that we could speak of a true federalism which respects now, and will respect in the future, the ten provinces which make up this country.
Mr. Speaker, the resolution was to be approved without including the rights which would show respect for the identity of the Quebec people. I suggest that our children and their children remembering the heritage we have left them, which was wanting in so many ways, will perhaps be ashamed to be Canadian. However there is still time to go back to the basic principles of federalism. There is still time to do so, Mr. Speaker! I have heard such stupid statements for the past l4 years in this regard, Mr. Speaker. However, I am patient and I still believe that most members of this House are responsible people, that there is still time to go back to basic principles and to find solutions which will make anyone proud to sing: “O Canada, terre dc nos aieux. .. Ta valeur, de foi trempée, protégera nosfoyers er nos droits”, including those of Quebec!
The Acting Speaker (Mr. Blaker): The hon. member for Manicouagan (Mr. Maltais) on a point of order.
Mr. Maltais: Would the hon. member for Joliette accept a few questions following the statements he just made?
Mr. La Salle: No! My colleague has more interesting things to say.
[English]
The Acting Speaker (Mr. Blaker): The Chair will recognize the Minister of National Health and Welfare (Miss Begin) in a moment. Earlier I indicated that the admissibility of the motion put by the Minister of Indian Affairs and Northern Development (Mr. Munro) would be considered. That has been done, and it is the decision of the Chair that his motion is admissible. The motion having been found to be in order, debate is accordingly in order.
The Chair has recognized the Minister of National Health and Welfare who, with the cprisent of hon. members, may wish to call it six o’clock.
[Translation]
Hon. Monique Bégin (Minister of National Health and Welfare): Mr. Speaker, indeed I would like to do like several short-sighted members and not see the time on the clock, but I want first to address the hon. member for Joliette who has just spoken some rather cutting words in the House, and who said hardly five minutes ago, and I will quote him to the best of my The Constitution ability: “Let’s not forget that Canada cannot exist without Quebec.”
I think this is indeed true. As a Quebecer, I know full well, like all my colleagues in this House, that it is true. However, I would rather he had added the other part of the premise without which the country cannot exist. He took great care to omit other part of the premise, but it would have been more honest to say that, on the other hand, Quebec has no future outside Canada. This is the great difference that throws a new light on this debate.
The Acting Speaker (Mr. Blaker): The hon. member for Joliette on a point of order.
Mr. La Salle: I would like to remind the hon. minister that I indeed said in my speech that I still believe in a federalism respectful of its partners, that is the provinces. This is what I actually said, as will be seen in tomorrow’s Hansard. I still believe in a federalism respectful of its provincial partners.
Miss Bégin: I call it six o’clock Mr. Speaker, and will proceed when the sitting resumes at eight o’clock,
[English]
The Acting Speaker (Mr. Blaker): It being six o’clock, I do now leave the chair until eight o’clock this evening.
At 5.58 p.m. the House took recess.
AFTER RECESS
The House resumed at 8 p.m.
The Acting Speaker (Mr. BIaker): Order, please. When the House rose at six o’clock, the Minister of National Health and Welfare (Miss Begin) had the floor.
[Translation]
Miss Bégin: Mr. Speaker, Saturday morning when I was preparing my speech for the House, some Jehovah’s Witnesses rang my doorbell, to talk about their faith and leave some religious pamphlets. It made me think of Duplessis and the unfair lawsuits he brought against them, at a time when I was a young teacher in one of the provinces, my own province which was then Catholic, monolithic and intolerant of the beliefs of others. I was reminded of the padlock law, the Roncarelli case and also the landmark decision handed down by Justice Ivan Rand. All this was only 25 years ago, In looking back on this arduous struggle for basic freedoms, freedom of expression and freedom of religion, my intention is not to pass judgment on my own province, certainly not.
[English]
Everywhere in Canada, in small communities and in large cities, and even in big government, we have been guilty of
[Page 13212]
attacking or limiting freedoms and rights. History is full of examples.
May I be permitted, in lieu of illustrations, simply to read the chapter headings in Mr. Justice Thomas Berger’s newly released book “Fragile Freedoms: Human Rights and Dissent in Canada”. They read like this: The Acadians: Expulsion and Return; Louis Riel and the New Nation; Laurier and the Separate Schools; The Banished Canadians: Mackenzie King and the Japanese Canadians; The Communist Party and the Limits of Dissent; Jehovah’s Witnesses: Church, State and Religious Dissent; October 1970; the Nishga Indians and Aboriginal Rights.
We can all remember many other cases where society as a whole would not leave any space for a weaker group or individual that became threatening just because he or she was different.
Nothing illustrates better the deeply rooted intolerance that all of us must keep fighting than the childhood souvenir in NDG Montreal where we landed at the end of the war when my family immigrated to Canada in the heart of the winter. We used to wear knee high heavy wool stockings sent to us by my Belgian grandmother instead of the long, ugly, drab Canadian stockings of the little Canadian girls. During the night charitable societies, which I will not name, used to leave boxes of Canadian clothes, and insulting letters to my parents because allegedly they were not raising us properly, That was done simply because we were different.
That is only a minuscule example. I could give numerous examples of the discrimination, often subtle, suffered by all those who came from elsewhere or who were born of families who had been here for centuries but were different. We were threatening to the surrounding milieu, its values, beliefs and lifestyles. However, because there have always been voices to raise doubts and push for safeguards, slowly but constantly our institutions have adapted to protect the members of the very distinct societies which form Canada today.
[Translation]
All these events involving minorities may seem very remote from us, from the majority of Quebecers and Canadians. These people may look to us as society’s dropouts and they may irritate us because they are different. However, it is exactly because they are not like most of us that we must protect their rights, and paradoxically, by being able to protect their rights we are guaranteeing our integrity and democracy. Some day, somewhere, we shall be the ones who are different and who want to see our rights and freedoms protected. I would like to end with these words by John F. Kennedy:
[English]
“When the rights of one man are diminished, the rights of every man are threatened”.
[Translation]
In the view of many the Canadian people actually enjoy a good many rights and all those constitutional conferences are a waste of time. You often hear people saying that the charter is no use at all. It is true that in Canada, we have enjoyed basic freedoms and equal rights in varying degrees for decades now. It is a fact that the charter cannot “give” us our rights: these are granted by society. But by entrenching them in the constitution, the charter will protect them forever, because nothing is more fragile than a right and nothing is more vulnerable than freedom. In the section of the newspapers dealing with international news, numerous are the cases of intolerance and oppression. For instance, the problem of refugees and migrants which has now become worldwide, should make us appreciate how lucky we are in Canada. Therefore, Mr. Speaker, I can say that I am truly happy today to see our rights as citizens, rights that are new and not so new, that were more or less guaranteed and familiar and not so familiar, entrenched in the Constitution of Canada.
In endless discussions on the Constitution which we have with one another, at least in Quebec at the present time, there is always some relative, friend or neighbour who will come out with the statement that it was unnecessary to go to all this trouble because at any rate we have had these rights for a long time, and we are not getting anything more. I would like to say to these people who usually, in the same breath, accuse the federal government of not preserving symbols that are dear to us Quebecers that the most important aspect of the rights now entrenched in the Constitution is their importance as symbols and how they are perceived by people. I would say, walk down Jean-Talon in little Italy in the east end of Montreal or go to the Haitian fruit or fish market in St. Leonard or attend a meeting of Moroccan Jews at Cote-des-Neiges or talk to Ukrainian senior citizens in Rosemont, there you will sense the immense pride and the feeling of security the Charter of Rights has given these new Canadians, the fact that these rights apply to them and to their family forever, and that discrimination against them, in any form, because they speak Creole, because they are black or because they came from another country and are different from the majority, will no longer be tolerated.
Of course everything is not perfect, and it is with perhaps a broken heart the other night that I had to say to a group of Canadians of Italian descent in my constituency that we could not give them back the right to choose the language in which their children will be educated. And I attempted once more to explain the point of view of one group to another group, the feelings of Quebecers who see their survival threatened by immigrants who have no difficulty speaking French anyway, but cannot get to learn English without schools, and who do not want to deprive their children from opportunities in the continent they chose. Of course, the provincial government
[Page 13213]
could easily decide to make excellent English courses compulsory in every school, but that is another matter. Once more I tried to explain to them that even though we are culturally very healthy even though Quebec society has reached a critical point where its survival has not been endangered for quite some time, the feeling of insecurity still remains. That is why the entire population in Quebec wanted to give themselves the tools to ensure that the main centre of French culture in America will have all the odds in its favour. And this is indeed recognized by our new Constitution.
People in Quebec are often concerned right now. They ask us: “Did you deprive us of our Bill 101? “No, we decided to respect Bill I01 in order to maintain social peace in Quebec. All the provisions of the existing Bill 101—the predominantly French schools, French as a working language, posting in French, business in French, etc., all this remains. We propose one amendment only, in fact we change one single word, and anyway all Quebecers recognize this as simple justice. We have the Canada clause instead of the Quebec clause. But what does this mean? It means that we want to give Englishspeaking Canadians from other provinces the right to go on sending their children to English schools in Quebec. Will the opposite be possible? Yes, French-speaking Quebecers who go and work outside Quebec where there is a sufficient number of people to warrant French schools will be given that right throughout Canada by the Constitution.
All nine provinces signed that agreement and they cannot even temporarily opt out, because by passing Bill 101, Quebec chose a kind of community, likewise the Canada clause means a choice of community. As long as Quebecers have decided to be part of a larger unit, as long as their country is Canada, it logically follows that they can enjoy every benefit such as mobility anywhere in Canada. Being part of Canada means, for example, that their young people can go and look for a job in any province, gain some experience for a few years and return to Quebec without being penalized.
If we take, for example, the Common Market, which the péquistes like to refer to, we see that the mobility of goods and individuals is totally unhampered among member countries and is benefical to everyone. The Canada clause merely constitutionalizes the benefits Quebecers can enjoy as Canadians. For example, no thought has been given during the four or five past years to some 300,000 Quebecers, many of them Frenchspeaking, who went to work outside their native province, most likely in Alberta.
Are we to infer from the temporary migration of Quebecers to areas of economic growth that Canadians from other provinces, mostly English-speaking Canadians, will come and steal our jobs in James Bay, in construction projects, in the Bombardier plants or the F-18 program? However weird that assumption, the fact is that the Parti Québécois has deluded some people into believing that the Constitution would invalidate all proficiency cards delivered by corporations and trades The Constitution and that Quebec would be invaded by outsiders. This is false. All provincial regulations, all established procedures will still be enforced by the same people. It is spelled out in the Constitution. Any Canadian can earn his living in the province of his choice, provided that he abide by its laws and customs. For example, if that province is suffering from too high a level of unemployment, it will be entitled, Quebec included, to carry out special programs to protect and encourage its own underprivileged groups.
Now, what about the million francophones outside Quebec, to whom we attach so little importance, amongst Quebecers’? Where do they fit into all this? Our brothers and sisters, from Acadia, Ontario, British Columbia, which we were the ones to discover? Those francophones outside Quebec, those million francophones are the very foundation of the communities scattered about in English Canada that will enable families from Quebec who are transferred by their companies to Vancouver, Edmonton, Calgary, or Toronto to get the benefit of French schooling for their children. In fact, for the very first time, those francophones see their right to French education becoming an inalienable right: thus, they will no longer be treated as hostages by their politicians. Of course, this is just a beginning, but I hope that in the very near future Ontario will recognize the rights of its French minority in its legislative assembly, its courts, its administrative agencies, rights which are already beginning to be recognized in practice.
[English]
Let me note how gauche and damaging to understanding and respect for us all, French-speaking and Englishspeaking Canadians, were the letters and statements released by Premier Davis this weekend. It is unacceptable for political leaders to speak out of both sides of their mouths on such sensitive issues.
Some hon. Members: Hear, hear!
[Translation]
Miss Bégin: I believe that the final issue which concerns Quebecers is whether their future will be protected when other amendments are made to the Constitution. Speaking about the new rules of the game to amend the Constitution leads us of course to talk about the issue of the veto right. The Quebec Premier himself, Mr. Levesque, had agreed to an amending formula without any veto right for Quebec when he signed the St. Andrews declaration on April 16, 1981. As a Quebecer, I believe that Mr. Levesque should never have relinquished Quebec’s veto right as proposed by Prime Minister Trudeau in the Victoria Formula in 1971. However, if we look at this issue soberly and ask ourselves when the veto right is essential, we have to conclude that it is critical when it concerns the special position of Quebec, what makes Quebec different, namely, its language and its culture. However, with the amendment wrested by the 74 members of the Quebec caucus in Ottawa on
[Page 13214]
behalf of those who elected them, Quebec will now be able to receive if it so desires full fiscal or financial compensation for any future constitutional amendment concerning educational or cultural affairs it is not interested in implementing, which means that Quebec would remain autonomous in these key areas.
Up to this point, I have spoken at length about the Constitution as a whole. I have spoken about the Constitution as it concerns Quebecers, and in this regard, I can assure my fellow-Quebecers who four times in a row have elected me to this House that, like dozens of us, I shall always be able to confirm that the Constitution is something good and that it takes away none of Quebec’s powers while guaranteeing enough rights for any one of us to say out loud and without any hesitation: “Yes, it was worth it!”
Some hon. Members: Hear, hear!
Miss Bégin: Before closing, Mr. Speaker, I also believe that it may be just as important to ask ourselves this question: Why should Mrs. Langelier or Mr. Desir or Mr. Vaccaro be interested in the Constitution? Is there a reasonable chance that some aspect of the Constitution will affect them directly at some time in their life? The answer is yes. In the long list of individual equal rights now being entrenched in the Constitution and which it is of course impossible to summarize here, the following examples may be mentioned: women will be able to claim not only equal pay for equal work, but also equal rights to pension and fringe benefits anywhere in Canada and whoever their employer is.
A handicapped person will never again be denied employment simply because he or she is in a wheelchair, walks with difficulty or does not communicate the way most people do. That reminds me of someone who came to see my colleague, the hon. member for Hochelaga-Maisonneuve (Mr. Joyal), someone who was slightly mentally retarded and who wanted a daycare job with a school board. She has just been told: Don’t try to get a job, go on welfare instead. That is the kind of situation which will no longer be tolerated because that is outright discrimination.
Or again take the case of a man or a woman, say 51 years of age, who will no longer be legally turned down for employment when applying for employment with a company or at our own manpower centres anywhere in Canada simply because he or she is too old. That type of discrimination on the part of employers will henceforth be banned under the Constitution, That provision goes even further because any employer, including the federal or provincial governments, may implement special employment programs giving priority to such people over other applicants so as to redress past injustices. Similarly, wherever he or she may work, an employee will no longer be subject to be laid off simply because he or she is 58, 60 or 65 years old. Age discrimination at the time of retirement will no longer be allowed in Canada. Of course, I have not mentioned the case of native women who will be able to recover their Indian status they had forsaken by marrying a non—Indian and return to the reserve with their children.
[English]
I have directed most of my comments to the people of the Montreal riding of Saint-Leonard-Anjou who elected me to represent them in the House of Commons. But I think the House will agree that the people of Saint-Léonard-Anjou have many characteristics in common with Canadians from coast to coast. They or their ancestors came from Italy, Greece, Portugal, France and England, to name only a few of their countries of origin. Some came 300 years ago, some came three years ago. Today they are Canadians and Quebecers, they are proud to be both. No one has asked them to choose between one or the other; both belong to them. They are proud, just as those from other provinces in this country are proud of their provinces and of the Canada we all share. In a sense, my constituency is a little Canada. But there are those in my constituency, as there are in all parts of Canada, who are asking, “Why all this fuss over the Constitution?” A constitution is the very fibre which holds the nation together.
[Translation]
I should like to borrow from my colleague the hon. member for Laurier (Mr. Berger) a wonderful thought which I have found in a text he has just devoted to the Canadian Constitution. I quote:
Each time the rights of a Canadian are infringed upon, the social fiber of the whole nation deteriorates a little.
[English]
A constitution defines the responsibilities of governments, it guarantees the rights of individuals, and it establishes the ground rules for nationhood. By having our own Constitution after 114 years, Canadians together will be able to define the kind of Canada we want. We will become masters of our own destiny.
[Translation]
We owe this to the Prime Minister of Canada (Mr. Trudeau) and to the Minister of Justice (Mr. Chrétien) who have put all their heart, intelligence and determination into something which I dare call an act of civilization. We owe this also to their officials, to the new Minister of State who is sitting beside me this evening, and to a number of provincial representatives who had faith in something. Now we owe this directly to the Canadian people and especially to the Indians and Inuit. We owe this finally to the Canadian women, and I know that I will not surprise anyone when I say that there are now Mothers of Confederation. The hon. minister from Nickel Belt (Mrs. Erola) is one of them. Our children will appreciate this.
But there remains a sour note, and it is Mr. Lévesque’s refusal to negotiate, when Quebecers insist the discussions be resumed and a possible agreement be sought. I could not conclude, therefore, other than by saying that as a native Quebecer and a Quebecer for ever, I hope the Quebec government will agree to represent our interests and reopen the dialogue. And as they are currently saying in their own advertising campaign: “Now is the time to talkl”.
[Page 13215]
[English]
Hon. Ray Hnatyshyn (Saskatoon West): Mr. Speaker, I welcome the opportunity to participate in this historic debate this evening on a resolution that will have a profound effect on shaping this nation’s written Constitution. It is a resolution which will affect the very nature of confederation as we have known it.
By way of preface to my remarks I want to hark back to the proceedings this afternoon in order to underline some of the points that I want to make tonight, The Minister of Indian Affairs and Northern Development (Mr. Munro) rose in his place and presented an amendment to the resolution which will now include the so-called existing rights of the aboriginal peoples of this country. Following the introduction of the amendment, a number of questions were posed in a sort of mini-question period by members on both sides of the House with respect to the meaning and the full extent of the motion. To put the response of the Minister of Indian Affairs and Northern Development and the Minister of Justice (Mr. Chrétien) in simple terms, it was to the effect that this would give full protection to the aboriginal peoples of our country; that we were not to be concerned with the terminology because the Minister of Justice had telephoned a number of lawyers on the weekend and had received legal opinions to the effect that the rights of the aboriginal peoples would be protected by the wording of the amendment.
When the minister was not prepared to explain the legal basis upon which he was proceeding but simply said that he had advice to that effect, I asked myself if this was not a crazy way to build a constitution.
I am one who has been disturbed by the nature of the so-called constitutional renewal process undertaken by this government. The entire country has been ordered out on a forced march designed to achieve the Prime Minister’s (Mr. Trudeau) personal objectives. It is a march that has to date imposed great costs on the country, and the journey is by no means over.
The Prime Minister’s obsession with deadlines and with hasty progress in this whole matter, concerns me greatly. Lord Randolph Churchill once described Gladstone as “an old man in a hurry” in relation to his tactics in trying to ram through a proposal for home rule for Ireland. We have our own “old man in a hurry” in this country—the right hon. gentleman who now occupies the chair of Prime Minister.
A constitution or a constitutional document is not just any other statute. It is the embodiment ofa fundamental consensus on the rules under which a country should govern itself. That consensus cannot be created by a decreee from on high or by the stroke of a pen; it must be developed through long and careful debate at all levels of the national community. It is The Constitution certainly not something that magically appears at the appropriate spot in a script written in the Prime Minister’s office.
Senator Forsey, with his characteristic flair, has said that a constitution is:
Like a marriage—in the words of the Anglican prayer book, “Not by any to be enterprised, nor taken in hand, inadvertently, lightly or wantonly… but reverently, discreetly, advisedly, soberly and in the fear of God.”
This government has clearly not given credence to Prime Minister Pearson’s advice that “the most delicate of all question” should be the way in which the balance within a federal system is altered. Rather than attempt to encourage a full and wide-ranging debate on the proposals before us, the government and the Prime Minister have systematically attempted to minimize public debate and ram their proposals through Parliament as quickly as possible.
The litany of their sins is well known to us all—a $6 million advertising campaign to set the stage; the use of closure to force the resolution to committee; a refusal to allow the committee to travel; fierce opposition to television and radio coverage of the committee proceedings; an initial reporting deadline that would have effectively made a complete farce of the hearings; an extended reporting date that still obliged the committee to work at a back-breaking pace and that gave little time for sober reflection; severe limitation on the number of expert witnesses who were allowed to speak to the committee; a series of “less than candid” representations as to the nature of the British commitments, and, after the historic Supreme Court decision, a first ministers’ conference that was faced with too much haste and too many deadlines, designing a document that will shape the lives of Canadians for years to come.
We have seen the same government that so self-righteously refused to barter fish for rights, demonstrating an incredible capacity to play politics with the basic values of our society. In order to gain support for its initiative, the government initially refused to consider extending institutional bilingualism to Ontario. It did a cynical flipflop on the entrenchment of property rights in an attempt to keep Premier Blakeney onside. It bought federal NDP support with promises of expanded resource jurisdiction for the provinces. It has played politics with the women’s rights and aboriginal issues as well. The government negligently refused to take the time to hammer together a full resolution on these issues—so basic and so important to those involved—but is quick to point the finger at the provinces when critics of the accord of November 5 point out that these aspects are missing. Rather than put it together through reasonable negotiation with time for sober reflection, the government deals in timetables measured in hours and in accusation against any province or individual who fails to understand or agree completely.
The same can be said for the handling of negotiations with Quebec. That is a worrisome matter to all in the House, or it should be. A hasty negotiation purportedly leaves the Quebec government in isolation. Whether that is in fact the case is not as important as how the government’s handling of Quebec is perceived by the people of that province. The Prime Minister,
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in order to placate Quebec, begins to make his piecemeal compromisea-day offerings. Negotiations with a province that has such complex concerns and problems could surely have been handled on a different timetable, rather than through the overnight cloak and dagger one-upmanship, engaged in by this government. The Prime Minister is in such a great hurry that he is prepared to do anything to speed his mission.
The government’s approach to constitutional revision and the strategies and tactics it is using to gain its objective carry with them a number of serious consequences and repercussions. I am afraid that they will be around to plague and haunt Canadians long after this government and this Prime Minister have passed from the scene.
first of all, the government’s initiative has, without question, caused very, very serious divisions in our country. These can only be partially healed by the Accord of November 5 and the subsequent revision. The lingering suspicions and concerns of the federal government will remain in the hearts and minds of Canadians long after this document returns from London. The government especially runs the risk of providing to the Party Québécois’ ammunition it could never have assembled itself.
History may view this period_ as a critical turning point in our search for unity-let us hope people are able to view it as a time when unity was renewed and not irreparably fractured.
A second consequence of the government’s strategy is simply this: I am afraid that we will discover that the Charter of Rights and Freedoms is something less than flawless. In its frantic work, the joint committee adopted 67 amendments—an incredible number for such a relatively short resolution.
We have not had time to fully explore all of the ramifications of the words before us or to investigate alternative phrasing and modifications in the content. The committee heard from few experts and there has simply not been a wide-ranging or sophisticated public debate about the nuts and bolts of the package. This is doubly true now that the accord is to be pushed through the House without committee examination.
What is the full consequence and effect of the revised accord, now arrived at, with respect to aboriginal rights? How will the provisions of Clauses 41(1)(e) and (f), dealing with the extension of provincial boundaries into the territories and the establishment of new provinces, affect that enormous and important part of our country north of the 60th parallel? These and many other questions cry out for answers. Many have commented on the increasingly complex nature of the document and, in particular, the application of the notwithstanding or opting-out clause. In my submission, such a massive change, be it good or bad, needs the thorough consideration of the House, and indeed consideration in committee.
It is not possible to write constitutions to fit a predetermined deadline. I am prepared to wager that one day the government, and indeed all of us, will wish that we had heeded the words of Thomas Jefferson, a truly great constitutional draftsman, when he said to George Washington that delay is preferable to error.
There is a third point I wish to make concerning the government’s approach to this matter. I am concerned that, in its passion to sell a charter of rights and freedoms to Canadians, the government has created misapprehensions and misunderstandings about the effect of an entrenched charter. Much as I favour an entrenched bill of rights, I do not see it as a great and shining panacea for the problems of civil rights and freedoms in this or any other country. I was interested in listening to the Minister of National Health and Welfare (Miss Bégin) when she listed the great and glorious things which would automatically flow by the mere passage of this particular resolution. We must be careful that we do not lull the public into a state of complacency by speaking of the concept of a charter in terms that are too glorifying or too glowing.
There are several factors which must be kept in mind. We must not delude ourselves concerning the power of the courts to act contrary to the sentiments of the general public. At some point, a decree from the courts will be simply nullified by the force of public opposition. For example, in the United States, there was a violent reaction to the bussing orders which followed Brown v. the Board of Education. Some American jurisdictions have flatly refused to comply with the school prayer decision. The courts simply cannot move too far from the general views and values of the public.
Even though the Prime Minister appears not to like it, at least the notwithstanding clause in the resolution recognizes the reality that the courts are not necessarily more in tune with public opinion and morals than are legislative bodies. At least in this country we will have a mechanism for adjusting court decisions which fall out of step with public opinion. Some may view this as the charter’s downfall; but the argument is that, particularly in the early years of a charter and because of our federal nature, we need a route which will allow Parliament and the provinces to deal with judicial pronouncements without having to resort to a constitutional amendment.
My point is that, important as the entrenched bill of rights is, let us not woo the Canadian people into believing that it is the final solution. The price of freedom is vigilance by individual citizens. We do our country a great disservice by failing to stress that particular responsibility.
My fourth concern is one relating to the role of the judiciary in interpreting the new charter. We have a charter which will affect the lives of all Canadians. A good deal of authority has now been handed to the courts, authority to determine the application and parameter of our rights. It will take several years of litigation before the words of the charter will have full discussion and are given a certain meaning. We have, however, a bench that is trained in the common law practice of relying on precedent to reach a decision. Now, however, judges will be called upon to rule on every aspect of social and political life in a sweeping fashion. They will be called upon to make these vast pronouncements with major sociological and political implications.
[Page 13217]
Canadians will be faced with a judiciary which will be obliged to exercise a quasi-legislative role in interpreting the new Charter of Rights and Freedoms. We will soon realize that the composition of the courts and the political and social beliefs of our judges will be an extremely important factor in the determination of the rights and prerogatives of citizens and institutions in the country. Indeed, the power of appointment of judges from time to time will be of immense importance in the ultimate determination and interpretation of fundamental rights in Canada.
My final concern is of a technical nature. I would ask the government to consider for a moment an argument put forward by several legal scholars concerning the possible legislative frailty of the resolution. It is argued that this legislation could still be challenged in the Supreme Court of Canada as it is not truly an amendment to the British North America Acts, 1867 to 1930 but, rather, a brand new act. As we are aware, the original British North America Act contained no provision for amendment. Convention after I895 dictated that change to the Constitution would be made by the British parliament to Her Majesty on a joint resolution of the Canadian House of Commons and the Senate. In 1931, the British parliament, by the Statute of Westminster, relinquished its power to legislate for Canada, with certain specific exceptions. first of all, under Section 7(1) it could legislate with respect to the repeal, amendment or alteration of the British North America Acts, 1867 to 1930; second, by Section 4, the British parliament could legislate for Canada if requested and consented to by Canada.
The first problem is that this may not be an amendment or alteration required by the Statute of Westminster. When one looks at the form which the resolution takes, it is clear that this is a brand new enactment. It is not styled as an amendment to the specific acts of 1867 to 1930 but, rather, styled as a new act with incidental amendments to those acts. The Supreme Court of Canada could conceivably strike most of the legislation on this basis. The government would then say, if this be the case, that it could still rely on Section 4, which allows Britain to legislate for Canada if the legislation is requested and consented to by the Canadian Parliament.
The problem here is that if the legislation falls under Section 4 rather than Section 7(1), it could be repealed by Parliament or the legislatures in those areas where it has legislative competence. Therefore, depending on the interpretation given to those sections, portions of the Constitution could conceivably be struck out as being outside the legislative competence of the British parliament as it affects Canada or, if saved by Section 4, be then subject to repeal by Parliament or the legislatures. Without doubt, this would be just the tool Mr. Levesque is seeking. Therefore, in all seriousness, I caution the govcrnment and ask it to give serious consideration to this question of the form of the resolution. I have listened to many hon. members speak on the government side, and particularly the Minister of National Health and Welfare.
I have listened to a long list of wrongs which will, in fact, be cured by this new Constitution and this new The Constitution charter. I note that in each of these instances, reference was made to many of the contraventions of human rights and civil liberties which have taken place in governments other than the federal government. However, I now wish to deal with another aspect of the way in which the government has conducted itself during the past few months.
Miss Begin: You didn’t listen.
Mr. Hnatyshyn: I listened and I heard—
Miss Bégin: Read the speech tomorrow.
Mr. Hnatyshyn:—only the most casual reference to government in a general sense. I listened with great interest and I will read with great interest the minister’s remarks.
During these past few months and years, we have seen the government championing civil rights and personal freedoms. I have sat in the House and watched hon. members on the other side, particularly the Prime Minister, label opponents of this particular resolution as people who hate Liberals more than they love freedom. The imposition of a charter of rights on the provinces has somehow become a crusade against infidels who cannot be trusted to protect freedom within their own boundaries and within their own spheres or jurisdictions.
However, it must be pointed out that while the government may paint itself lily white, we on this side of the House know, as do many, many Canadians, that its closets are crammed with skeletons. The government is guilty of both non-feasance and malfeasance in dealing with the issue of human rights. Although the government and the Prime Minister have been in a position for years to do a great many of the things they now push so urgently and so righteously, they have done nothing.
Let me point out some examples of what I mean. The Liberals have been in a position for over a decade to strengthen Mr. Diefenbaker’s Bill of Rights. A few simple amendments by ordinary statute could have given it some real teeth and done much to halt the retreat from the Drybones decision. The government has done absolutely nothing in that regard.
We should note too that the greatest violation of civil liberties in recent times took place at the instigation of the Liberal government during the October crisis of 1970. The same Prime Minister who invoked the War Measures Act, now styles himself as a white knight, duty bound to impose a charter on the provinces. The governments own backyard is not a very happy sight.
The provisions of the Indian Act, which discriminate blatantly on the basis of sex by providing that an Indian woman who marries a white man loses her Indian status, has been allowed to stand by the government. A simple amendment by ordinary statute could have corrected this great injustice, but nothing was done. Indeed, the government sent its own lawyers to the Supreme Court in 1973 to argue that this outrageous provision should not be struck down by the court.
[Page 13218]
The list of similar situations is a long one. Let me just point out a couple of examples. In a decision called Hogan v. the Queen in 1974 the Supreme Court ruled that evidence of a breathalyser test obtained in violation of an accused’s right to counsel was admissible at trial. In a similar vein, Canadian courts have consistently held that illegally obtained evidence is admissible. Although the government has for many years been able to provide that such evidence should be inadmissible, it has done nothing. Although a simple amendment to the Criminal Code or the Canada Evidence Act could have given judges the power to exclude illegally obtained evidence, and although such changes have been called for from many quarters, it has only been in the last few months that our government has become the champion of that concept.
The government has been neglectful of the needs of the handicapped. Amendments should be introduced by the government to the human rights code in keeping with the recommendations of the special committee on the disabled and the handicapped. Such legislation would be met with enormous goodwill on this side of the House. Some provisions with respect to the Canadian Human Rights Act were promised in the Speech from the Throne some two years ago. The government House leader has been advised of the willingness on our part to let this legislation be brought forward and dealt with expeditiously, yet no legislation has been brought forward, and the ones to suffer for it are the thousands of mentally and physically handicapped Canadians. In this international year of the handicapped person, the government sits mute with regard to this particular legislation, legislation which would be tangible evidence of its commitment to human rights.
Another example, one that is currently in the -news, and one which I find particularly difficult to understand, is that of the current Solicitor General (Mr. Kaplan) day in and day out advocating the lifting of the moratorium on the issuance of writs of assistance. How can a government minister who advocates this drastic measure stand behind a resolution calling for the right of everyone to be secure from unreasonable search or seizure?
These writs have been banned in Britain and they have been prohibited in the United States of America by the bill of rights. An officer having such a writ in his possession may barge into any home he believes may contain prohibited goods. No justification is required by any judge, and no special permission is required under this writ. It is an ongoing writ without any time limitation. I have submitted to this House and to the government on different occasions that this is totally undesirable, and the practice should be banned.
Another example of current government thinking with respect to fundamental principles of justice in this country is that the government has now issued an emergency planning order providing the various ministries with authority to plan for the placing of virtually every facet of the public and private sector at their disposal should an emergency occur. However, the ministers make all their plans without one piece of enabling legislation. They make these plans not for a situation in which war may be declared but, indeed, in cases of environmental tragedies, disasters or situations where there may be civil disobedience in certain areas of our country, something short of an actual declaration of war. The powers they are giving themselves under this order are far-reaching, and there is no legislation which in fact allows them to bring forward this particular order.
The government will say it will not do anything without legislation. I say to you, Mr. Speaker, if you believe that, you should read the remarks of the government House leader, the President of the Privy Council (Mr. Pinard), in the June-September Emergency Planning Digest where he suggests that the government could and would act extra-legally; that is, outside the law, should Parliament be dissolved and an emergency arise. This is a very telling comment on the government’s understanding of the rule of law.
One might also comment on the government’s management of the RCMP. A significant amount of evidence exists that would suggest the government was aware of illegal acts engaged in by the RCMP for a decade and chose to do nothing about it. The public of this country is proud of the RCMP, and with just reason, but if this had occurred in the United States, I suggest it would be tantamount to a Watergate scandal. Not only has the government participated in the clear violation of the law in this respect, it has made every effort to roadblock any investigation of the part it played, and this from the self-righteous Prime Minister and a succession of solicitors general making their contributions as they went through a revolving door.
I would like to make a comment on my party’s contribution to this constitutional process. We stand as a party firmly committed to the entrenchment of rights and freedoms in a Constitution made in Canada, arrived at through consensus by Canada and the provinces. The Prime Minister enjoys accusing this party of failing to support the substantive aspects of the former resolution. We in fact worked as hard as any party to see that the resolution was as beneficial and as workable as possible. We have, however, steadfastly opposed the unilateral actions of the Prime Minister and his associates in the New Democratic Party. We have opposed the process, and it gives me a great deal of pride to look at what has been accomplished because of our efforts to have the Supreme Courts of Canada rule on the constitutionality of the resolution before final debate.
We now have a made-in-Canada Constitution, albeit without the support, as I mentioned before, of the Parti Québecois government. This has been a negotiated settlement, and we in this country have been relieved of watching the spectacle of provinces having to go to the parliament in London on their knees begging for relief.
The absence of the government of Quebec from the accord is a matter that is worrisome, as I have mentioned, to all Canadians. There is still much work to be done. My party’s amendment to this resolution is indicative of our determination to address the concerns of the people of Quebec.
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This historic compromise would never have taken place without pressure being put on the government by this party, particularly through the leadership of the Leader of the Opposition (Mr. Clark) and of my seatmate, the hon. member for Provencher (Mr. Epp). It gave to the Supreme Court as well the opportunity to instruct the government in its responsibilities and gave the provinces a solid foot in the door to force the government to compromise, to slow down our Prime Minister in his determination to push this matter through according to his own personal timetable.
It will be viewed historically as a turning point in this constitutional debate. I am confident that we will view the new amending formula as more in keeping with the federal nature of the country.
Now, Mr. Speaker, the proposal for the referendum contained in the original resolution is not included. That proposal was received with great resentment in the part of Canada from which I come, namely, western Canada. The veto powers given to certain provinces have been removed. I suggest that this is an advance and an improvement on our constitutional amending process. These improvements would never have seen the light of day were it not for the persistence and effective action of my party.
In short, let me say that when the provinces were finally given an opportunity to be heard and when the Supreme Court finally told the Prime Minister and the federal government that they must now listen, an agreement was reached. Our party has been the party of compromise. We now invite the Prime Minister to finish the job properly—not necessarily by moving with undue haste. We have accomplished very much by the delay we have been able to bring about but let us not now spoil the great effort. Let us move carefully and deliberately to ensure that this charter, this revised Constitution, truly reflects the aspirations of all Canadians. Let us be able to stand up with our colleagues from coast to coast with a Constitution in which we will all feel great pride in saying in our own language, “I am Canadian”.
Mr. Jim Fulton (Skeena): As I begin, Mr. Speaker, I would like to say how puzzled I am at the members who have spoken since the Minister of Indian Affairs and Northern Development (Mr. Munro) made his speech. In fact, at this point we are debating an amendment that affects about one in 20 Canadians. I would like to start my speech by moving an amendment. I move:
That the amendment of the Minister of Indian Affairs and Northern Development be amended by deleting the word “existing”.
Before submitting that amendment, I want to mention a second concern. I would like to read the formal motion in English and in French. I believe the law officers and the Clerk at the Table will confirm my understanding from a brief reading of the amendment put forward today by the Minister of Indian Affairs and Northern Development, that there has The Constitution been a serious deletion in the French version. The formal Notice of Motion read:
Moved that the motion of the Minister of Justice of November 18, 1981, that an address to be presented to Her Majesty the Queen be amended in schedule B of the measure to be laid before the Parliament of the United Kingdom by deleting the Word “existing” from the amendment now before the House so the clause would read:
“Part 1.1. Rights of the aboriginal peoples of Canada. 34.1(1) The aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. (2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Metis peoples of Canada”.
My concern, Mr. Speaker—and I am sure the Clerk will be able to check this in terms of the translation, which was not done by the minister today is that it should read as follows, and I will dispose of the first part. It says in French;
[Translation]
Partie II Droits des peuples autochtones du Canada 34(1): Les droits aborigènes ou issus de traités des peuples autochtones du Canada sont par les présentes reconnus et confirmés.
[English]
It is in that section, I believe, that the amendment tabled in French by the Minister of Indian Affairs and Northern Development was incorrect.
[Translation]
The Minister of Justice (Mr. Chrétien) deserves our warmest congratulations for this last effort, as well as for his leading role in the initial agreement concluded with the nine provinces.
[English]
Before getting into the main text of my speech, I would like to give the history of Section 34. I do not think that too many of us remember that in October of last year, when the resolution was put before the House, there was no positive statement in the resolution in relation to aboriginal and treaty rights, and no amendments were proposed by the Tories at the committee stage. In fact, the precise Section 34 that is before the House was drafted by this party in direct consultation with the native people of Canada. This was after a fierce battle by the aboriginal peoples, a battle that found a firm ally in this party, and a firm and trustworthy spokesman during those negotiations in the leader of this party. After unanimous all-party support on January 30 for inclusion of the motion moved by my colleague for Nunatsiaq (Mr. Ittinuar), it remained in place until November 5, when it was ditched by the Prime Minister (Mr. Trudeau) and by some of the first ministers at that famous meeting. In the following days, this party made it clear where we stood on aboriginal and treaty rights. We made it clear that we would not support the Constitution if there were not inclusion and entrenchment of aboriginal and treaty rights.
Various comments have been made since the statement made by the Minister of Justice in the House last night. The addition of that word has been described by one famous Canadian as “quintessentially a Liberal compromise. The changes to Section 34 add unnecessary ambiguity to it. It symbolically impairs the section.” I think that is most crucial because the native people have been treacherously dealt with,
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not only in terms of the original resolution with no positive statement, but on November 5 when the first ministers never said publicly, either in their own provinces or when they came to Ottawa, that it was their intention to dump it. Nor was it ever indicated by the government or any of its officials before the consensus was signed that that treacherous deal had been struck.
Much praise should be directed at the aboriginal people of Canada tonight for their continued fight as a result of which Section 34 is back in its present state. I am hopeful that in the coming days all members of the House will reflect on the original January 30 all-party unanimous agreement to the wording and will agree to delete a word that is, at best, ambiguous.
Another important point, Mr. Speaker, is that the addition of that word affects the mind set of government and bureaucrats about the need to move in good faith to settle land claims, not only in British Columbia and north of 60 in the Yukon and the Northwest Territories but throughout the country. Another famous Canadian described the addition of that word as “a clever attempt to fight the groundswell support that native Canadians were finding in every household across the country.”
This section introduces weasel words. One weasel word, to be exact, is that word “existing”. There could have been a resounding affirmation in the House, supported across the country, because nine months had passed and native people in every village and town, urban and rural area of the country had had an opportunity to look at it and think about it. To add this word now is extremely unfair.
A few days ago six provinces and if one is to include British Columbia, seven provinces—supported the old wording of Section 34. Again, that is something we need to think about in the House. We had unanimous all-party support here and in the Senate and we had seven provinces on side just a few days ago. It is the insistence of Alberta, and possibly that of some other provinces, along with the federal Liberals, that moved that small opposing opinion against the growing tide of public, aboriginal and provincial support.
The agreement struck last night to force the word “existing” into Section 34 was done without consultation with the aboriginal peoples of Canada, despite the fact that ever since unanimous all-party acceptance on January 30 of this year it has been the wording considered and studied by those people all over Canada.
My colleagues and I deeply wish to see the principle of consent included but have found no support for the principle from any member on the government side and from few members of the Conservative Party. If they are ready to support it now, let us hear from them.
I have consulted 20 lawyers in Canada over the past 18 hours since the Minister of Justice included the word “existing” in Section 34. The majority of those lawyers feel that the word does not damage the legal thrust of the section but that it taints it. However, all agree that the section is better without the word.
The Minister of Justice said this afternoon that it makes absolutely no difference to the legal meaning. Well, Mr. Speaker, this is a Constitution. If concerns are raised—and we all know that a principle of law is that the word speaks when it is written in the law-how can “existing” be implicit in the original and then, on addition, be no more than explicit?
Never in my life have I heard weaker constitutional arguments than those I heard today from the Minister of Indian Affairs and Northern Development and the Minister of Justice (Mr. Chrétien). If I cannot find a lawyer who thinks the word “existing” improves the section, where has the government found these masterminds who say that adding words to a constitution has no effect? Common sense and a sense of decency requires removal of the word “existing”. It is at once superfluous and ambiguous.
I would like to move briefly into the history of how the resolution came to be here and my concerns about it, and also I should like to give some direct, factual information which I think all members of the House should consider in the next few days before we vote on the subamendment and the amendment itself so that we do find unanimity again on removing that word. The process which has brought us to this final stage of debate can at best be described as inappropriate. In its rush to meet some unknown deadline, the government has forced upon the House and the nation a resolution which will forever bear the savage tatters of first ministers’ consensus. I must say that the presence of a native or a woman at the final phase of negotiation might have saved this debate. Better yet, if Parliament had truly been a leader, consensus would have been built at the family, community and regional levels. No Supreme Court ruling would have been required, no late night bargaining over non obstante clause, no last minute ditching of equality rights for male and female persons and no last minute treachery by ll men whose smiling, outward reassurance put the knife to over one million aboriginal Canadians.
Rather than a process of nation building in which all political parties played a role of listening, understanding and developing a document in the Canadian spirit, we have before us a much watered down charter, but we have consensus; we have an amending formula with provincial equality, but without Quebec; and somehow we have a government still champing at the bit to get it through and to take all the credit while passing all the blame and then blasting the Canadian public with a multimillion dollar advertising campaign to prove it was all worth while, I must say that if time, care and more love for this nation, this land and all its occupants had been the operating principles rather than political expediency, we would have before us a social blueprint for the future. Instead, we have a debt list of the showdown at the Conference Centre corral.
So much for the problems of process. Let me deal with substance. We recognize, as do all members of the House, that
[Page 13221]
the search of the Prime Minister (Mr. Trudeau) for support from the premiers went too far in arriving at an accord that denied rights to the majority of Canadians, to women, rights returned with the Section 28 paramountcy a few hours earlier today, and to Indian, Inuit and Metis people, soon to be entrenched, minus one single word, I trust, with the unanimous all-party support that we witnessed on January 30 of this year, and I would dearly like to sec that repeated in a couple of days.
Previous speakers have dwelt on the contents, ranging from patriation, the amending formula and the charter to equalization and provincial control of resources, but let me deal with the need to entrench the recognition and affirmation of aboriginal and treaty rights. My colleagues, the hon. member for New Westminster-Coquitlam (Miss Jewett) and the hon. member for Vancouver East (Mrs. Mitchell), among others, have dealt very well with the issue of equality.
It is now some 500 years since Columbus set foot in North America, heralding the voluntary flood of Europeans to this land. It is my intention in the next few minutes to put on the record a brief glimpse of the events which have brought us to today.
As Mr. Justice Thomas Berger said in his recent book, “Fragile Freedoms”, the issue of aboriginal rights is the oldest question of human rights in Canada. It may be hard for some members of the House to understand—perhaps impossible for some premiers—nevertheless, some of us in this debate are not promoting a radically new idea, a changed idea or a partisan formulation. We are addressing the living and historical reality of the aboriginal peoples of Canada. The thrust of the amendment to recognize and affirm aboriginal rights goes far beyond any political ideology presently in existence in Canada or, I might say, in most areas of the House. The time has come for their view of their laws, land title and tradition to be entrenched in the foundation laws of this nation. The cultural, social and economic expression of aboriginal rights through self-determination, through cultural activities and so forth will surpass, in my view, what we can even imagine today. The northwest coast Indians’ culture, for example, is often compared with the cultures of ancient Greece and Rome. The robust art and tradition of the plains and northern and eastern Canadian native people are similarly renowned around the world in history and at present. We shall not forget, in our support for this historic move to entrench, that the development and re-emergence of native culture and institutions through the affirmation of rights to renewable and non-renewable resources will simultaneously bring about the decline and extinction of such bureaucratic institutions as the Department of Indian Affairs and Northern Development. Such institutions, which were created to manage native people for the convenience of the French, then for the convenience of the English and now of Canadian systems, will no longer be allowed.
Let me now take the House on a speedy but important tour of the legal history which has delivered to Parliament historic propriety in entrenching aboriginal rights forever into the The Constitution Constitution. The Europeans, who voluntarily came to Canada, asserted their sovereignty over the land based on the principle of discovery. lt was not a principle of law but one of supposed moral and cultural superiority, which is something we should bear in mind in this debate. This “moral superiority” was consolidated in European minds solely by superior arms. However, Europeans did acknowledge throughout the past four centuries that Canada’s Indians retained a legal interest in the land because they had been the original occupants. The interest was and is known as aboriginal or Indian title.
I think we should reflect in this debate on the fact that many of our forefathers—many of my forefathers—recognized the rights of aboriginal people, recognized their title to the land and recognized their rights to all kinds of traditions in various areas of Canada, and it is only in this last century that we have seen the terror and terrible repression which has been used against the aboriginal peoples of Canada.
In setting the record straight I think it is important that there be unanimity on the exclusion of the word “existing” because on January 30 there was all-party support. The Minister of Justice does not have a single argument that holds water as to why it should be there, and I think all members of the House should think about it carefully and not vote like a bunch of seals because some deal was made over the telephone. We should make it clear to the native people of Canada that they can trust, not just a few members of the House, but Parliament, and that they can trust and be part of Canadian institutions.
Some hon. Members: Hear, hear!
Mr. Fulton: So, in most of North America title was acquired from the Indian people by way of treaties or, in the United States where negotiations did not work or broke down, by war. The legal question of aboriginal property rights was not faced by the United States Supreme Court until 1955. The policy of treaties was established in Canada and enshrined by our forefathers in the Royal Proclamation of 1763.
By 1850, treaties had brought about the surrender of almost the whole of eastern Canada and were fast being made across the prairies. By 1885, Canada had its first major legal battle of aboriginal title, the now famous St. Catharines milling case. In that case the counsel for the province of Ontario argued: “We say that there is no Indian title at law or in equity. The claim of the Indians is simply moral and no more.”
The St. Catharines milling case dealt with Treaty 3, the Lake of the Woods area in Ontario and, although related to aboriginal title, Indian people were never directly represented in the litigation. The real conflicting parties in the case were the interests sought by the governments of Canada and Ontario. Strangely enough, it was the logging company that argued that Canadian policy had always recognized Indian land rights. That is something we in the House should remember in this historic debate to set Section 34 as it should be. It was a logging company 100 years ago that fought for the
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rights of the aboriginal people, not Parliament and not the government of Ontario.
This strange Supreme Court of Canada case was followed, in 1888, by a ruling of the Judicial Committee of the Privy Council, the then highest court of appeal in Canada, that Indians had property rights in their lands prior to the signing of Treaty 3 in 1873. This affirmed, for the first time in Canadian law the legal, real property character of the Indian usufructuary title.
Judicial opinion has wandered somewhat since then. For example, in 1934 the Ontario Supreme Court said that the Crown could do whatever it wished, even with reserve land, whereas the exchequer court, as recently as in I964, said in essence that Indian band land is the same as title in fee simple.
The great Metis leader, Louis Riel, twice elected to the Parliament of Canada, was hanged in I885 for his views on aboriginal rights in western Canada.
By the turn of the century, politicians were fast moving to remove the rights of native people through abuses of human rights. In British Columbia, for example, my home province, in 1895 the right to vote was taken away from every Indian person in the province and was not returned until 1949. In the same year, 1895, the federal Department of fisheries restricted the Indian food fishery. By 1915, Indian hunting and trapping was brought under strict provincial regulation, these actions at that time being taken against the population which was reduced from 50,000 in 1850 to 10,000 in 1900.
Ravaged by smallpox, forced on to small reserves and excluded from wage labour, it was illegal for Indian people in British Columbia to work and be paid for it. They were excluded from the fishery. They were excluded from their traditional hunting and guiding territories. They were excluded from forest activities and then they were put on reserves. Members of the House in the past had, and even today have, the audacity and pomposity to stand in the House and say that native people should not have land and both renewable and non-renewable resources returned to them. It is an atrocity.
It was not until 1960, in fact the 1963 federal election, less than 20 years ago, that native Canadians could first vote. We are just at the threshold of leaving the darkest of dark ages in the history of human rights violations by the Government of Canada done upon the indigenous people of this land. The big breakthrough came in 1969 when the Nishga people of the Nass Valley in British Columbia finally forced the government of British Columbia into court to have the question of aboriginal title adjudicated.
By this time it had been 50 years since the federal government had moved to help the Indian people in any way on the question of aboriginal claims in British Columbia. The first stage of the famous Nishga case was presided over by Mr. Justice Gould who held that if there was aboriginal title, it had been extinguished before the colonies had entered confederation.
The case next went to the B.C. Court of Appeal where it was held that the law had never acknowledged any such concept as aboriginal title. The court seemed stuck on the prejudices that native people could have one, a sophisticated legal system, two, with communal property but no recorded system of title deeds, three, because there was no written language. It is unbelievable.
As Mr. Justice Thomas Berger said recently about the assumptions “white society” placed upon native culture, “they are not locked into the past: we are exlcuding them from the present”. It is something we all need to reflect on. We should take ourselves outside of the petty politics that has damaged and tainted Section 34. We as members of the House should reflect on the history of the native people and the need, after the treachery of November 5 and the treacherous acts we have seen since then, to demonstrate to the native people that they can in fact trust the institution of Parliament.
During 1969 while the Nishga case was proceeding through the courts, the Prime Minister spoke on the subject in Vancouver. On August 8 he said the following:
Our answer is no. We can’t recognize aboriginal rights because no society can be built on historical might-have-beans.
That statement may well have been in the Prime Minister’s mind on November 5, 1981, and prejudiced his ability to stand firm on the unanimous view of this Parliament.
It was at this point, only 12 years ago, that the issue came to a temporary standstill in Canadian history. Neither the courts nor the federal government would acknowledge aboriginal claims. There was no one 12 years ago in this nation standing by the native people of this country.
An argument that was used at that time has been used in the House and by various premiers. Why should there be special status for native people, they say. Why should they not be assimilated like the Irish, Poles or Swedes? Section 91(24) of the British North America Act, written 114 years ago by our forefathers, gave exclusive legislative jurisdiction over the affairs of native people to Parliament to be safeguarded. They never were. Far more important, those who came to Canada by choice set up to a largely parallel culture, not an assimilated culture of the Indian people, something that was not true of the Indian, Inuit and Metis people. Until very recent times they remained primarily a people outside of the general system and general institutions of Canada.
In 1969 the then minister of Indian affairs, now Minister of Justice, refused to intervene in the Nishga case because of the federal policy at that time to refuse recognition of aboriginal rights.
In November, 1971, the historic Nishga case was heard here in Ottawa for fivc days before seven judges of the Supreme Court of Canada. It was a split decision, with Mr. Justice Emmett Hall speaking for the three judges in favour. He found that the Nishgas had aboriginal title, that it had never been lawfully extinguished and that this title could still be asserted. That was probably one of the most important legal decisions ever made in Canadian history.
[Page 13223]
The crucial point, however, is that all six judges who participated in the ruling and addressed the question supported the view that English law in force in British Columbia when colonizations began had recognized lndian title to the land. That is a very important point. A long time ago our forefathers recognized aboriginal title to the land, yet here we sit in this quagmire with provincial and federal politicians idly jerking at the levers.
It is important that we start to move in settling the question of aboriginal rights in this country, not only on tradition, culture and adoption and so on, but to give to the native people a resource base so that they can be equal with all Canadians. That is my intention in speaking here tonight.
Canada’s highest court unequivocally affirmed the concept of aboriginal title in February, 1973. Parliament at last began to move after 100 years. On August 8, 1973, the federal government announced the intention to settle native land claims in all parts of Canada where no treaties had yet been made. Thus the federal government has agreed to settle aboriginal claims. The crucial context in which we are about to act as Parliament is to obligate the provinces, by the constitutional entrenchment of recognition and affirmation of aboriginal rights, to negotiate a settlement of native claims. To all of those people who work for the federal and provincial governments, and to all of those elected members, the message that Parliament is giving is that it is time to settle aboriginal claims. It is not time to quibble about little bits of wording here and there. The message that the native people have passed to this chamber and that this chamber is passing to the Canadian public is that Parliament is going to move and, if necessary, we will help to move those provinces that are intransigent on this issue and get a settlement of aboriginal claims in Canada.
The crucial context in which we are about to act as Parliament is, as I said earlier, by way of the constitutional entrenchment of recognition and affirmation of aboroginal rights to negotiate in good faith a settlement of native claims. It is a sad reflection of the events of November 5, 1981, when the first ministers met privately to dump treacherously entrenchment of Section 34, never having said a word publicly of their opposition or any reasons for such opposition. Only Saskatchewan put forward Section 34 for inclusion.
Bill Bennett and Peter Lougheed were the last of the Premiers to be bickering about wording and cost. It is shameful for legislators to be publicly crying about the costs of enacting human rights. When were they last without a vote federally and provincially, forced out of work by law, forced to live on a reserve? Need I go on? I would like to see Bill Bennett and Peter Lougheed live under those sorts of circumstances.
On January 30, 1981, the NDP put forward an amendment to the Constitution for the entrenchment of aboriginal rights that carried unanimously with the committee. The original Liberal resolution had nothing, the Conservative Party proposed nothing, yet we all agreed on Section 34, and I am thankful for it.
We have general support now of the aboriginal people of Canada, the firm support in law of the Supreme Court of Canada, the British North America Act, Section 91(24), the overwhelming majority of the provinces, and now their premiers, the churches of Canada and all parties in the House. Is it not time that Canada’s history was set straight, even if a province or two might continue to object?
l urge all members of the House to reject the ambiguity created by the proposed inclusion of the word “existing”, primarily for symbolic reasons. I think we need to think of that when we vote on the subamendment, Mr. Speaker. It is the symbolism, the treachery of 500 years of white supremacy in this land. It is time the record was set straight and we set straight what the premiers did on November 5. They committed a treacherous act. ln order to regain that fragile faith of the native people, we must put Clause 34 back in in its original wording. This is the second time in three weeks that the aboriginal people have been excluded from the process without consultation.
In concluding, Mr. Speaker, let me say that it is their rights, not the rights or views of any premiers or bureaucrats or ministers of the Crown, that are being tampered with. I urge all members of the House to support the subamendment for the sake of the Indian, Inuit and Metis people and all the people of Canada.
Mr. Deputy Speaker: Order, please. It has been moved by Mr. Fulton, seconded by Mr. Broadbent that the amendment be amended by deleting the word “existing”. The question is now on the amendment to the amendment.
Mr. Ian Watson (Chateauguay): Mr. Speaker, I am particularly happy to be participating in this debate on the constitutional resolution at this point, now that most of the controversy and animosity have subsided.
Last night, thanks to the efforts of all three parties in the House, Mr. Chrétien was able to announce that both the aboriginal rights and the womens rights clauses would be reinstated with the consent of the provinces. I would like to pay tribute to those members of both the Conservative and NDP parties who leaned on their provincial counterparts and thus assisted Mr. Chrétien and his colleague Mr. Munro, Minister of Indian Affairs and Northern Development—
Mr. Deputy Speaker: Order, please. It is the practice in the House, and I note the previous speaker also fell into the same habit, of referring to hon. members by their constituencies or ministers by their functions, not by personal names.
Mr. Watson: The other colleague who was so invaluable in her assistance to the Minister of Justice and Attorney General (Mr. Chrétien) was the minister of state responsible for the status of women. The result that was achieved by these efforts has been welcomed by all members of the House. The Minister of Justice deserves our most heartfelt congratulations for this
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latest effort on his part as well as for the leading role he played in the initial agreement with the nine provinces.
The Minister of Justice and Attorney General obviously subscribes to the axiom that politics is the art of the possible and he possesses the fairness, the flexibility, the give and take and the openness which are the basic ground rules for achieving political objectives in a democratic society. As an example of effective politics, I hope it would both impress and influence some of our other ministers, Mr. Speaker.
[Translation]
I should now like to broach subjects of concern to some of my francophone and anglophone constituents. The francophones are concerned with the conflict that opposes Quebec and Ottawa with regard to the three points on which they failed to agree. Concerning the right to mobility and to gain livelihood, the Government of Canada proposes to guarantee, and I quote:
6. (1) Every citizen of Canada has the right to enter, remain in and leave Canada.
(2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right
(a) to move to and take up residence in any province; and
(b) to pursue the gaining of a livelihood in any province.
Those rights, Mr. Speaker, would prevent the provinces from imposing unfair restrictions to the hiring of workers from Quebec or Newfoundland. Yet, this section offers some protection when unemployment is particularly severe. The Right Hon. Prime Minister (Mr. Trudeau) offered to add special terms in order to meet the objections of the Quebec government. In view of the provisions of Bill 101 concerning the working language, the danger of a massive migration of workers from the other provinces to Quebec is minimal.
Section 6 will protect mostly Quebecers. As for Section 23, which recognizes for the first time the right of every francophone in the country to education in his mother tongue, let us keep in mind Mr. Speaker, that our society is becoming increasingly mobile. Enormous energy projects will cause temporary movements of population throughout the country. Quebecers will now be able to move with their whole family and be assured that their children may pursue their education in French. As for the objections of Quebec to the Canadian proposal, it should be noted that Mr. Levesque himself proposed a reciprocal agreement on education in both official languages in St. Andrew’s two or three years ago. The third point in dispute between Quebec and Ottawa concerns the lack of compensation for a province which decides to opt out of an amendment affecting its powers. The resolution now before the House make an additional concession to Quebec in Section 39.
Section 39 reads as follows:
39, Where an amendment is made under subsection 37(1) that transfers provincial legislative powers relating to education or other cultural matters from provincial legislatures to Parliament, Canada shall provide reasonable compensation to any province to which the amendment does not apply.
Quebec will therefore have a veto in matters of education and culture.
Another element of this resolution should be of interest to all Quebecers. I am referring to Section 35:
Equalization and regional disparities
The equalization system is of great benefit to all Canadians since it promotes equal opportunities throughout the country, but it is of special benefit to the provinces receiving money, including Quebec. Section 35 of the charter guarantees this principle of sharing and makes it a cornerstone of our Confederation.
What does equalization mean for Quebecers? It means that the wealth produced by the natural resources of western Canada will be shared with Quebecers and maritimers. When the west is prosperous, all Canadians benefit from new job opportunities, economic spin-offs for industry and the sharing of tax revenues guaranteed by equalization.
[English]
The concerns of my Englishspeaking fellow Quebecers relate particularly to the optional applicability of the maternal language clause, Section 23(1)(a). They are asking why the maternal language clause is being applied in the other nine provinces but not in Quebec. Apart from the political arguments, with which I will deal in a moment, the practical argument which the government employs is that the absence of French schooling facilities in most parts of English Canada means that many French Canadian families would be ineligible under the other subsections of Section 23 to send their children to French schools. They would not have benefited from French schooling facilities since none exist. That handicap does not affect the English-speaking inhabitants of Quebec who have long had excellent school facilities provided by the government of Quebec and supported by all taxpayers of Quebec.
The number of people affected by the non-applicability of Section 23(1)(a) is fairly small. Perhaps we are talking about 2,000 to 3,000 naturalized Canadian citizens, couples who came to Quebec from elsewhere in Canada after the passage of Bill 101. They had not started families or did not have children in school prior to moving to Quebec. They are families with at least one parent whose maternal language is English. Bill 101 allows all inhabitants of Quebec whose maternal language is English, domiciled there at the time of the passage of the bill, to send their children to English language schools. We are faced with a situation where admittedly the 2,000 to 3,000 and I do not know if my figures are accurate—couples who moved to Quebec since Bill 101 from other parts of Canada will not have rights which are available to other Canadians anywhere else in the country. We are also talking about another group of a few thousand or more naturalized Canadians who came to Quebec since the passage of Bill 101 from outside Canada and whose mother tongue is English. In this case the people who came knew what they were facing when
[Page 13225]
they came; the bill had been passed, and they are not stuck with a situation which was thrust upon them after the fact,
The reason I am quoting these statistics is to underline that the numbers are insignificant from a demographic viewpoint or from the viewpoint of a threat to Quebec’s French majority.
There is a third group which is potentially affected by the section, that is the English language immigrant group that could be expected to total perhaps 2,000 to 4,000 per year over the next few years, if the statistics of the last several years hold accurate. This group is of particular importance. These people usually come from the United States or Great Britain because their skills are particularly in demand by sectors of the Quebec economy.
[Translation]
Whether we like it or not, we in Canada suffer from a shortage of skilled workers in various fields, including geologists and geophysicists in western Canada as well as aerospace technicians in Quebec. The blame rests squarely on the federal and provincial governments as well as on industry. Nevertheless, if we fail to improve our technical training programs, Canada will continue to import those skilled workers from other countries. It is precisely those skilled technicians and their availability to develop Quebec’s aerospace industry which will be affected by our lack of courage with respect to Section 23(1)(a). Mr, Speaker, we are not talking about waves of English-speaking immigrants who will severely upset the demographic balance in Quebec but instead just a few thousand couples.
[English]
The statistics of the last decade demonstrate that Quebec’s native English-speaking population, young people in particular, educated at the expense of Quebec taxpayers, has been moving westward to take advantage of greater opportunities in far larger numbers than they have been replaced by Englishspeaking immigrants. The English—speaking percentage of Quebec’s population has been diminishing rapidly over the years. We are not talking about any threat to the French-languagc majority in Quebec. Even the Parti Québécois now admits that the demographic views, which were a major factor behind the growth of the separatist movement, are no longer justified by statistics.
As I have already alluded, if the absence of the maternal language clause in Section 23(1)(a) will be bad for Quebec’s economy, in particular the aerospace industry, and if there is no demographic threat, why are we showing such lack of courage?
It is the political judgment of my colleagues in the House of Commons from Quebec, that imposing Section 23(1)(a), the maternal language clause now, would provide the Parti Quebecois separatists with a rallying cry, to the detriment of the acceptance of the entire package by the Quebec population, It is more important, they argue, to win the larger war against separatism than to jeopardize popular Quebec, as distinct from The Constitution the Quebec government, acceptance of the present constitutional package.
While I accept that argument, I frankly do not believe the battle for the minds and loyalties of Quebecers will be greatly affected by this issue. Wisdom dictates a quick, clearcut decision, rather than to leave it a festering cause of future discussion and perhaps controversy.
I believe that the Quebec public is far better informed and better able to judge the facts than they are given credit for by both federal and provincial politicians.
By leaving out Section 23(1)(a) now and allowing Quebec to opt in later, we are, in effect, surrendering to the threat of Parti Québécois demagoguery. I do not think we should succumb to that threat.
Quebec members are in a strong position to handle Parti Québécois arguments regarding the application of Section 23(1)(b) which allows Canadians who have received their education in English or French anywhere in Canada to pass on that right to English or French language education to their children. We can also handle the argument relating to Section 23(2) which allows the family of any child of a Canadian citizen who has started his education in English or French to continue the education of all the children of the family in that same language anywhere in Canada, because Mr. Lévesque himself proposed such a formula based on reciprocity at a premier’s conference in St. Andrews a few years ago.
Why not have Section 23(1)(a) as well or, I would urge the Prime Minister, at least have an exception to the non-applicability of Section 23(1)(a) to allow Canadians who moved to Quebec since passage of Bill 101, the choice of language? Maternal English language immigrants who came to the country after that time were clearly aware what they were coming to as were Canadians who moved to Quebec. To me it seems that a distinction can and should be made in favour of Canadians, perhaps without families, who moved to Quebec for a year or two, then decided to stay and raise families, that they be allowed to make the choice that their Englishspeaking co-inhabitants of Quebec have under the existing Quebec law and should have as a result of the changes proposed in the Constitution. To do otherwise, I would argue, is not in keeping with the contents and spirit of the resolution we are debating tonight.
[Translation]
A moment ago I expressed some reservations about the wisdom of excluding Quebec at this time from the application of section 23(1)(a). Except for those reservations, I must say that I am proud to support the endeavour of the Prime Minister who has been anxious to guarantee full sovereignty for Canada. His initiative, his perseverance and, in recent weeks, his flexibility have now brought us to the point where patriating the Constitution has almost become a mere formality. It is indeed thanks to the courage and tenacity of the Right Hon. Prime Minister at each stage of the long process that his efforts will be successful. The charter will establish the principle of sharing our wealth among all regions of our country. It
[Page 13226]
will give Quebecers the assurance that they will enjoy the right to go anywhere without restrictions and to work in all parts of Canada.
The charter will guarantee that workers from Quebec will enjoy the right to have their children educated in French anywhere in Canada.
[English]
Canadians can be proud of the Charter of Rights and Freedoms. They can be proud too that the political leadership of the country, both federal and provincial, has shown a new maturity in achieving consensus on the resolution we are debating tonight. The process has been a victory for the Canadian federal system, and all Canadians are the winners.
Some hon. Members: Hear, hear!
Mr. Nielsen: Mr. Speaker, rather than trying to crowd all my remarks in the time remaining between now and ten o’clock, perhaps hon. members might be disposed to allow me to call it ten o’clock.
Some hon. Members: Go ahead.
Mr. Deputy Speaker: There does not appear to be unanimous agreement.
Some hon. Members: Agreed.
Mr. Deputy Speaker: Is it agreed that we call it ten o’clock?
Some hon. Members: Agreed.
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