Document Information

Date: 1980-12-15
By: Canada (Parliament)
Citation: Canada, Parliament, Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, 32nd Parl, 1st Sess, No 26 (15 December 1980).
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SENATE
HOUSE OF COMMONS

Issue No. 26

Monday, December 15, 1980

Joint Chairmen:

Senator Harry Hays, P.C.
Serge Joyal, M.P.

Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the

Constitution
of Canada

RESPECTING:

The document entitled “Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada” published by the Government on October 2, 1980

WITNESSES:

(See back cover)

First Session of the
Thirty-second Parliament, 1980

SPECIAL JOINT COMMITTEE OF THE SENATE AND OF THE HOUSE OF COMMONS ON THE CONSTITUTION OF CANADA

Joint Chairmen:

Senator Harry Hays, P.C. Serge Joyal, M.P.

Representing the Senate:

Senators:

Asselin
Austin
Goldenberg
Lamontagne
Lucier

Representing the House of Commons:

Messrs.

Beatty
Bockstael
Campbell (Miss) (South West Nova)
Corbin
Epp
Fraser
Henderson

Richard Prégant
Paul Bélisle

Joint Clerks of the Committee

Pursuant to S.O. 65(4)(6) of the House of Commons:

On Monday, December 15, 1980:

Mr. Beatty replaced Mr. Dantzer;
Mr. Fulton replaced Mr. Ogle;
Mr. Oberle replaced Mr. Hawkes;
Mr. Henderson replaced Mr. Lapierre;
Mr. Lapierre replaced Mr. Allmand;
Mr. Waddell replaced Mr. Fulton.

Pursuant to an order of the Senate adopted November 5, 1980:

On Monday, December 15, 1980:

Senator Stanbury replaced Senator Connolly;
Senator Thériault replaced Senator Cottreau;
Senator Goldenberg replaced Senator Lapointe;
Senator Asselin replaced Senator Donahoe;
Senator Roblin replaced Senator Murray;
Senator Tremblay replaced Senator Muir.

[page 4]

MINUTES OF PROCEEDINGS
MONDAY, DECEMBER 15, 1980

(46)

[Text]

The Special Joint Committee on the Constitution of Canada met this day at 8:05 o’clock p.m., the Joint Chairman, Mr. Joyal, presiding.

Members of the Committee present:

Representing the Senate: The Honourable Senators Asselin, Austin, Goldenberg, Hays, Lamontagne, Lucier, Roblin, Stan- bury and Tremblay.

Other Senator present: The Honourable Senator Williams.

Representing the House of Commons: Messrs. Beatty, Bockstael, Miss Campbell (South West Nova), Messrs. Corbin, Epp, Fraser, Henderson, Irwin, Joyal, Lapierre, Mackasey, McGrath, Nystrom, Oberle and Waddell.

Other Members present: Messrs. Friesen, Hargrave, Ittinuar, Manly, Robinson (Burnaby) and Rose.

In attendance: From the Research Branch of the Library of Parliament: Messrs. John McDonough and Louis Massicotte, Researchers.

Witnesses: From the Nishga Tribal Council: Chief James Gosnell, President; Chief Rod Robinson, Vice-President; Mr. Percy Tate, Executive Assistant to the President; Mr. Donald Rosenbloom, Legal Counsel; and Mr. Stewart Leggatt, M.L.A., Legal Counsel. From the German-Canadian Com­mittee on the Constitution: Mr. Dietrich Kiesewalter, Coor­dinating Chairman; Prof. Gunther Bauer, Vice-Chairman of German Speaking Alliance of Ottawa and Region; Prof. Klaus Bongart, Chairman, German-Canadian Council of Kitchener- Waterloo; Mr. Benno Knodel, Chairman, German-Canadian Alliance of Alberta; and Dr. Arthur Grenke, Historian.

The Committee resumed consideration of its Order of Ref­erence from the Senate dated November 3, 1980 and its Order of Reference from the House of Commons dated October 23,

1980, both relating to the document entitled “Proposed Resolution for a Joint Address to Her Majesty the Queen respect­ ing the Constitution of Canada” published by the Government on October 2, 1980. (See Minutes of Proceedings, Thursday, November 6, 1980, Issue No. /.)

In accordance with a motion adopted at the meeting held on Friday, November 7, 1980 and an agreement of Monday, December 8, 1980, the brief of the Canadian Council on Children and Youth, who appeared on Monday, December 8, 1980, is printed as an appendix to this day’s Minutes of Proceedings and Evidence. (See Appendix “CCC-3”.)

The witnesses from the Nishga Tribal Council made state­ments and answered questions.

In accordance with a motion adopted by the Committee at the meeting held on Friday, November 7, 1980 the Chairman authorized that the brief of the Nishga Tribal Council be printed as an appendix to this day’s Minutes of Proceedings and Evidence. (See Appendix “CCC-4” )

Senator Hays assumed the Chair.

The witnesses from the German-Canadian Committee on the Constitution made statements and answered questions.

[page 5]

At 11:11 o’clock, p.m,., the Committee adjourned to the call of the Chair.

Richard Prégent
Paul Bélisle

Joint Clerks of the Committee

FIRST ERRATA

Issue 14 of November 27, 1980.

The following four pages are to replace pages numbered 14:37, 14:38, 14:39 and 14:40.

Mr. Pearson: I believe that we do indicate that there is a chronological order of things to happen in the territory, and there is no doubt about it. A provincial status, we want the provincial status to be something that will be of benefit not only to the white people in the Yukon Territory but to the Indian people in the Yukon Territory too. We as white people are going to benefit from their land claim settlement, and they in turn are going to benefit from provincial status, there is no doubt about it.

Mr. Fulton: Thank you, Mr. Pearson. In relation to your brief, you touch on the concept of self-determination in rela­tion to the Yukon Territory. I wonder if you could touch on that in relation to the land claim settlement that was based on an entrenched aboriginal title within the resolution as to exactly how the self-determination, for example, of the Indian people of the Yukon would fit within that scheme in terms of the self-determination you speak of for the government and the peoples of the Yukon, and self-determination, as spoken of by many Indian groups, and certainly the CYI in relation to the Yukon Territory.

Mr. Pearson: A very, very difficult question and frankly, Mr. Chairman, I do not have the answer to that question. It is one that has been faced by Canada for some years now, a hundred and some odd years and far be it from me to sit here and say I am the expert on how this can be resolved. I am sorry, 1 just do not know. I do want to convey to the Commit­ tee the concerns of the people of the Yukon that this right has not been recognized in the constitution.

Mr. Fulton: Thank you, Mr. Pearson. My second part of the question is a follow up on Mr. Nielsen’s question in relation to the problems of mobility rights. If the resolution goes ahead unamended as it is, certainly with the promises we heard coming from the Lesyk inquiry and within the Pipeline Act itself, and all of the negotiations that have gone on in relation to that, having worked in the Yukon a few years ago, I appreciate the serious problems that the workforce has within the Yukon itself from southern contractors coming up and bringing the labour force with them, and having southern hiring halls essentially, sending workers up into the area.

[page 6]

Exactly how disastrous do you think it would be if the resolution went ahead, without an amendment, not only in relation to the Alaska Highway pipeline but in relation to other direct hiring and workforce programs that the Govern­ment of Yukon would bring in either still in territorial status, or in future provincial status.

Mr. Pearson: Mr. Chairman, we do have a unique situation north of the 60th parallel in Canada and it applies to the Northwest Territories as well as the Yukon. The problem is a real one in that we just cannot compete as a people, as a regional people with southern Canada when it comes to exper­tise on major projects, because we have not had that experi­ence, nor have we had that training.

All of the work that we have done for the past three years in preparing for this pipeline construction has been geared to these restrictions, if you will, being imposed upon the propo­nent in respect to the hiring of people, the in-migration of people into the territory. We do not suggest to anyone that this is going to be the end-all answer, but after taking a long hard look at what happened in Alaska, particularly in Fairbanks, it was felt that what we had proposed is the best possible solution to a problem that we are still going to have. It is just that it was going to be mitigated to some extent. We felt that to the extent that we could then cope with it, that without that mitigation we are facing a Fairbanks types situation, where they had the boom and the bust, that they still have not recovered from. It would just be absolutely devastating to the territory, and as I said before, would very likely cause our government to withdraw totally its support for the construction of that pipeline.

Mr. Fulton: One final question, Mr. Chairman. In relation to the 141st meridian, I have been in hot pursuit for some time of the old Hay-Herbert treaty and the 1903 problems that the government of this country brought upon us and the Pacific northwest, including the Yukon. At the present time, and on achieving provincial status, which I assume will occur in the not too distant future, is it your view that the offshore area in the Beaufort Sea running on the eastern side of the 141st meridian would be sovereign territory in terms of offshore resources to the territory or to the province?

Mr. Pearson: Yes, of course. Mind you we need an amend­ment to the Northwest Territories Act first, as well as the Yukon Act, because at the present time those waters are deemed to be sovereign Northwest Territories’ waters, not sovereign Yukon waters. Yukon is in the unique position, it has got a north coast, it has got an island, but it has not got any water.

Mr. Fulton: Thank you, Mr. Pearson. Again, I would just like to compliment you on your brief. It goes a long way, I think, to clearing up the picture that has been painted here in the east of the Yukon.

Mr. Pearson: Thank you.

[page 7]

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Fulton, for your co-operation. I would like to invite now the Honourable Senator Lucier.

Senator Lucier: Thank you, Mr. Chairman. I also would like to welcome Mr. Lang, Mr. Pearson and Mr. Morrison to Ottawa and to compliment them on their very fine brief. I think it is not only a very positive brief, because it outlines the areas of their concern, but it also has given us what they think our solutions to the problems are, which I think are very important when you deal with briefs like this.

I would like to apologize to Mr. Pearson who is one of my golf partners, for dragging him all the way from Hawaii to this, but I am just not going to because he knows I would not mean that.

Mr. Pearson, in your brief, dealing with the mobility rights, I am in full agreement with what you have stated: I have brought this up on the Senate Pipeline Committee with Sena­tor Olson; 1 have also brought it up with the Minister of Justice when he appeared before this Committee. I think that you have come up with a solution. I have asked before for a solution, not just what the problem was and I think you have come up with a solution. As I said before I am very pleased with what you have put in your brief.

On the ownership of resources, I am a little confused where you say in your brief that you want control and ownership, but in your summary you say control. It seems to me that there is a bit of a difference in the two.

Mr. Pearson: I do not think there is any difference in the two, Mr. Chairman. There can be no question in anyone’s mind of, if in fact the Yukon is ever going to be a province it should be given the right to become a province under the same terms and conditions as the other provinces in Canada. Mr. Chairman, that means control and ownership of the resources in the province.

Senator Lucier: Thank you, Mr. Pearson. It is just that you had “control” in one area and “control and ownership” in the other. I am just thinking of the Newfoundland situation where they have offered control but not ownership of the off-shore rights, and I was just wondering if it may not be something that you would want to make sure you had clarified.

On the aboriginal rights, Mr. Pearson, I have a problem. I think in aboriginal rights you are suggesting that it should be entrenched, and you recognize in your brief the difficulty of entrenching because you cannot delineate it at this time.

We will be hearing probably from the native people very shortly. I just wonder, I think their position will be something along the lines of full and unconditional use of lands which they have not surrendered, which is really what aboriginal rights, in their view, is. I would question whether you would be prepared to see that entrenched in the constitution when you talk about aboriginal rights.

I am just wondering if Section 24, as it is written, does not go about as far as you can go with protecting the rights of the native people when you say you are not going to take any of their rights away. I wonder if you would not get into some kind of trouble if you tried to entrench them right now without really knowing what they are.

[page 8]

Mr. Pearson: 1 do not think there is any doubt, Mr. Chairman, that there are going to be real problems created. As I said before, I do not profess to know the answer to this problem. It has been around a long time.

Mr. Chairman, I just think that is a basic fundamental principle that has been lost in the shuffle, and that is the Indian people of Canada have, in fact, had certain rights, under what was the constitution of Canada, the BNA Act and they are going to be losing all of those rights and have no recognition at all under the new constitution. I just question very much the propriety of such an amendment.

Senator Lucier: On your provincial status section, I again am in agreement with your stand. What you are saying in your brief, Mr. Pearson, is that the people of the Yukon will decide provincial status for the Yukon.

I suggest to you that that is much different than the previous government, the stand they had taken and I am very pleased to see that you have rejected the stand of the previous Conservative government.

Mr. Nielsen: That is rubbish, absolute rubbish.

Senator Lucier: Maybe, Mr. Chairman, before anyone goes too much further I should read out, on page 209 of Senate Debates I asked the question at one time of Senator Flynn when he was the Minister of Justice, the Conservative govern­ment’s position concerning provincial status and the reply from Senator Flynn was:

I have sought a complete legal opinion from my officials. On policy matter, the Prime Minister has said repeatedly that if the people, subsequent to full consultations, demonstrate in a referendum their wish to gain full provincial status, and if the provinces agree,

And then you will get provincial status.

Mr. Pearson, I submit to you that is probably the most dishonest approach I have ever seen to provincial status when they know you will never get provincial agreement from the 10 premiers. So, in effect, they are saying you will never get provincial status as long as they are the ones deciding how it is done.

Mr. Nielsen: You are the expert on dishonesty.

Mr. Pearson: Mr. Chairman, it is difficult for me to try and justify what Senator Flynn said at that point, but it should be clear to everyone that, once again, we expect to become full-fledged citizens of Canada, to have all of the rights and all of the privileges of everyone in southern Canada and we, for the life of us, cannot see any reason why that should not happen at the appropriate time. The key, Mr. Chairman, is that the people of the Yukon Territory, and I mean all of the people of the Yukon Territory, must be a party to that decision.

Senator Lucier: I fully agree with Mr. Pearson and I am merely stating that his proposal could not take place as it would be set out by the opposition, by the people who have continuously pretended that they were interested in provincial status for the Yukon and who have gone to great lengths to make sure that it would never happen under their regime.

Mr. Munro: It was our idea.

[page 9]

Senator Lucier: It was your idea, you just did not know how to carry it out.

Mr. Munro: Well, you have got the chance, let us see you do it.

The Joint Chairman (Mr. Joyal): Order, please.

Senator Lucier: Thank you, Mr. Chairman.

SECOND ERRATA

Issue 19 of December 4, 1980.

The text following is to replace lines 14, 15 and 16 of page 19:25.

Mr. Fred Pennington (Board Member, Canadian Council on Social Development): Thank you, Mr. Chairman, honour­ able members of the Committee.

Mr. McGrath: I interrupt to raise a brief point of order, Mr. Chairman. I apologize for interrupting; it has to do with preparation. This is a very important brief and quite an extensive brief and was only handed to us a few moments ago which really does not give us an opportunity to adequately and properly examine the presentation. We have to rely almost solely on the oral presentation.

Is there any way that we can get briefs submitted to us a little further ahead than has been the practice up to now?

The Joint Chairman (Mr. Joyal): I will receive your point of order. I think it is very useful for all of the honourable members of this Committee, as has just been pointed out, to receive the written submissions as much in advance as possible and if possible, at least a day before we hear the witnesses.

I will forward to our services your representation and make sure that in the near future we have those written submissions well in advance. We will be in touch with our witnesses because you understand that we rely on the co-operation of our witnesses to that effect. I will make sure that your request will be satisfied. Thank you very much.

Mr. Pennington.

Mr. Pennington: Thank you, Mr. Chairman, and honour­ able members of the Committee. My name is Pennington and I am

[page 10]

EVIDENCE

(Recorded by Electronic Apparatus)

Monday, December 15, 1980

[translation]

The Joint Chairman (Mr. Joyal): Order, please.

I would ask the honourable members of the committee to take their seats so we can resume our work.

[Text]

It is my pleasure both on behalf of myself and Senator Harry Hays, the Joint Chairman, as well as of honourable members of this Committee to welcome the Nishga Tribal Council represented by Mr. Stewart Leggatt, who is a close friend, and who is also well remembered in the House of Commons on both sides; Chief James Gosnell, who will be speaking on behalf of the Council tonight.

I would first like to invite Mr. Leggatt or Chief Gosnell to introduce the other members of the delegation so that we would be at ease with our guests tonight and to ask them to proceed with the usual statement of principle and position with regard to the proposed motion and to ask them also if they would be agreeable to receiving questions from honourable members of this Committee.

Mr. Leggatt.

Mr. Stewart Leggatt, M.L.A. (Legal Counsel, Nishga Tribal Council): Thank you very much, Mr. Chairman. I must say it is a pleasure to be back in Ottawa, for a couple of days anyway, although I can certainly say that the weather has not thrilled me.

First of all, I would like to introduce the delegation from the Nishga Tribal Council who appear before you this evening. Mr. James Gosnell is the hereditary chief of the Nishga people and President of the Nishga Tribal Council; Mr. Rod Robin­ son is the hereditary chief and Vice-President of the Nishga Tribal Council and Chief Councillor of the New Aiyansh Band; Mr. Herbert Haldane is the Vice-President of Prince Rupert, Port Edward Local; Mr. Jacob Nice is Chief Council­ lor of Canyon City and is the Vice-President of the Nishga Tribal Council; Mr. Ed Wright is Trustee of the Nishga Tribal Council and Secretary-Treasurer; Mr. Percy Tate is the Executive Assistant to the President; Mr. Donald Rosenbloom is the Legal Counsel and Advisor to the Nishga Tribal Coun­cil; Mr. James Aldridge is also a Legal Advisor to the Nishga Tribal Council.

I would also like to point out, Mr. Chairman, that Mr. Rosenbloom was Associate Counsel along with Mr. Justice Thomas Berger in the Landmark Supreme Court of Canada case, Calder et al versus the Attorney General of British Columbia, which was in 1973.

Since that time, the Calder case has been the leading case in Canadian jurisprudence on the question of aboriginal title in Canada. This is the famous Nishga case which set the prece­dent, the beginning of the concept of aboriginal title for Canada.

Mr. Rosenbloom will deal with the ramifications of the entrenchment of the doctrine of aboriginal title and with the impact of Section 24, as we see it from the point of view of the

[page 11]

Nishga Tribal Council; and he will make some specific recom­mendations to this Committee in terms of change to the proposed Canada Act.

But, Mr. Chairman, the principle submission tonight will be made by Mr. Gosnell and the other representatives of the Nishga Tribal Council.

They have always been their most eloquent, patient and persistent spokesmen.

The aboriginal title has bound them together as a people. Let me say, Mr. Chairman, that they have always paid their own way. The cost of establishing in our Canadian jurispru­dence the question of aboriginal title was paid for and support­ed entirely by the resources of the Nishga Tribal Council, and I can assure it was a most expensive process for them.

They have never, Mr. Chairman, resorted to violence, or to civil disobedience to achieve their ends. They have always worked within the law, within the Canadian law and within the white man’s law.

Now it is a privilege for me to be asked to come tonight to assist them in their presentation, particularly because it is a crucial time in the history of Canada, but I think an even more crucial time in the history of native people in Canada and the question of whether we will finally treat groups such as the Nishga Tribal Council with a sense of fairness and justice.

Mr. Chairman, and members of this Committee, we trust that you will not reward their patience and persistence, their trust in British justice and Canadian law by denying their request that, before patriation, there must be entrenchment of the doctrine of aboriginal title. To deny this would be an abdication of all responsibilities as Canadians. We have a golden opportunity now with this Committee and with these new beginnings to redress the grievances of hundreds of years.

We have the opportunity, Mr. Chairman, to become the first Western European colonizers to treat our original peoples with fairness and justice.

The Nishga Tribal Council still believes that British justice will prevail.

Please, I plead on their behalf, that you do not squander this opportunity. We must not let them down now.

Thank you.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Leggatt. Chief Gosnell.

Chief James Gosnell (President of Nishga Tribal Council):

Mr. Chairman and members of this Joint Committee, first of all, I would like to thank you and your Committee for giving us the opportunity to express our feelings in respect of this constitution.

To begin with, in the first constitution of this country, this nation, our people, the Indian people, were never given an opportunity to express ourselves. In every one of the laws affecting our people throughout Canadian history, never at any time were our people even approached. All the laws that you have made, that your governments have made, were made without the consent of our people.

[page 12]

This is the first opportunity that we have had to express ourselves. Mr. Joint Chairman, what we seek is the right to survive as a people and as a culture.

First of all, let me explain to you who we are and where we all have lived since time immemorial.

We are speaking here on behalf of our tribe known as the Nishga in the Pacific North-Western British Columbia. There are approximately 4,000 of our people living in this North- Western part of British Columbia, known as the Nass Valley today. There are four villages in that valley, Kincolith being the most seaworthy. Greenville, Canyon City and New Aiyansh.

We are not affiliated, even from the time our people started their struggle for justice, until very recently, the provincial organizations and the national organizations.

Mr. Chairman, we have struggled for justice for approxi­mately 113 years to this date.

Our ownership of our land is based upon our occupation of this land since time immemorial.

We have fought this issue of ownership when our people first came into contact with the white man in the mid-1800s; we have always done so peacefully. Our people respected the white man when they first came into contact with them on the mouth of the Nass River in the mid-1880s.

We have walked within your laws. At not time have we walked within your laws. At no time have we stepped outside the Canadian laws. As our title to our land has never been extinguished by treaty no one to our knowledge, back in the history of our people, ever gave away our land to the white man or signed any agreement whatsoever.

• 2015

Down through the years when the Royal Commission took place in 1888 we expressed the same feeling as we are express­ing to you now. The McKenna-McBride Commission in 1915, we are saying to you now what our grandfathers said then. Our grandfathers were the authors of the now famous Nishga petition of 1913 that went to England. We took part in the allied tribes in British Columbia for the struggle of justice for the settlement of our land. There have been many parliamen­tary Committees since that time, parliamentary Committees as you have today seeking what is wrong with the Indians, why are they so far behind? All those Committees have failed, Mr. Chairman, because the government did not listen to what the Indian people were saying. They listened on a floor like this, but this is where it ends.

In 1927 the government of those days offered a solution not only to the Nishga people but to all the peoples of British Columbia, a settlement as they called it, known as the B.C. Special. They also created fear in our people, laws, where we cannot meet and discuss the question of our land. Our people never accepted the so-called B.C. Special. We never did at that

[page 13]

Point in time and we have not accepted it to this time. Nevertheless our people continued to struggle, raising funds, we have worked financially for the last 100 years in our struggle for justice.

There were many people, Mr. Chairman, who thought this was a dead issue. Some people say the land question is a dead horse, it stinks. We never did give up the struggle. This is not a new issue, as I said before. Our people fought all during that time. Until 1969 we went through three court cases, we took our case to the Supreme Court of British Columbia in 1969; judgment was against us; we appealed to the Appeals Court in British Columbia; judgment was against us. In 1971 we finally reached our goal to take our case before the highest court in this land. The Supreme Court of Canada split on that issue of aboriginal title. Three judges said that we owned the land, three said we did not. One judge ruled on a technicality because we did not ask the provincial government to sue them. Imagine those laws, as we see them today. If somebody swiped your property do you ask permission from the crook before you sue him?

Mr. Robinson (Burnaby); Hear! hear!

Chief Gosnell: You do not, you simply sue that crook. That is the reason we say this judge sat on the fence. He never did pass judgment the way a judge should pass judgment.

The federal government saw in its wisdom, and I think the Prime Minister said at that time, that the Indians do have a right after all. Then the federal government reversed its posi­tion to commence negotiations to settle the question of our claim.

This is the point, Mr. Chairman, where we are now coming to, the point that we are about to ask you to recommend to your government. The government of British Columbia refused to recognize the concept of aboriginal title. No government, as a matter of fact, in British Columbia has ever recognized the concept of aboriginal title, yet we are still alive, Mr. Chair­ man, and as long as we are alive our title is alive with us.

I have often said this and I will say it now, that the white man should have done a darn good job the first time and killed us all, but because God saw in his wisdom that we should survive and we are the survivors of this land, the Indian people, the original owners of this land. We are still here today and as long as we are alive our aboriginal title lives with us.

We have been trying to negotiate for seven years now since that time when the federal government announced its reversal because the provincial government of British Columbia does not recognize the concept of aboriginal title.

When the first constitution was put together there were only two people mentioned in that constitution, the French people

[page 14]

and the English people. Yet we are the owners of the land.

This new constitution, Mr. Chairman, must include the Indian people if justice is going to be brought to us.

All during our struggle in these court cases Mr. Frank Calder was the President of the Nishga Tribal Council at that time and I quote Mr. Calder, speaking at our 10th Annual Convention at Canyon City when he said, Mr. Chairman, the Nishga people are not on trial; the Indians of British Columbia are not on trial in this issue; British justice is on trial; that is what he said. But again he said, British justice shall prevail. This is what we believe, Mr. Chairman and members of the Committee. If there was any time in the history of Canada, this is your golden opportunity now to correct the wrongs of the past.

• 2025

Our 100 years of struggle will not be forgotten and I submit, Mr. Chairman, that British justice must prevail in this issue, otherwise it cannot be justice to the Indian people in British Columbia. Not only the Nishga Tribe, the other Indian people in British Columbia.

Thank you.

The Joint Chairman (Mr. Joyal): Thank you, Chief Gosnell. I understand that Mr. Rosenbloom would like to conclude the presentation.

Mr. Rosenbloom.

Mr. Donald Rosenbloom (Legal Counsel, Nishga Tribal Council): Thank you, Mr. Chairman.

I would like to deal with the constitutional proposals as they are before you in this Joint Committee. I will be dealing with three separate issues as we see it. Those issues are as follows:

Firstly, an analysis of Section 24 of the Charter; secondly, the issue as to whether aboriginal title should be entrenched in the constitution; and the third issue, if there is to be an entrenchment of that principle, should it be done before or after patriation.

The Nishgas wish to go on record as strenuously objecting to the Charter of Rights and Freedoms as presently drafted and before you. We say to you, Mr. Chairman and members of this Committee, that it is pathetic that after more than 100 years of the Indian people having a special constitutional relation­ ship with the federal government, that the present proposed constitution is silent in respect to that relationship that they have had with Canadian society.

The purpose of a constitution, as we see it, is to protect the interests of the individual and of minority groups that are subject to discrimination and subject to being easy targets for abuse; but what do the Nishgas find for themselves in the present proposals that are before you? There is only one reference to native people in the proposed constitution act, and that one reference, Mr. Chairman and members of the Com­mittee, is of course Section 24 of the Charter, and I would like to read that section because I suggest to you that it deserves very careful scrutiny by this whole Committee before this Committee makes its recommendation to the Parliament of

[page 15]

this country. Section 24 of the Charter reads as follows, and I quote:

24. The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada, including any rights or freedoms that pertain to the native peoples of Canada.

That is Section 24 and that, I suggest, is the only section that refers to the native people.

Now, the question is this: what is the meaning of Section 24 and what does it confer to the native people? The Nishgas take the position that that Section is meaningless and is, indeed, a sham. It does not confer any rights whatsoever to the native people of Canada, and indeed, to the Nishgas who are before you tonight.

An analysis of Section 24 in the Charter, I submit, is that it is simply saying to the native people that although the Charter and the constitution generally will not entrench any native rights or interests, Section 24 is supposed to comfort the Indian people that whatever rights they may have outside of the constitution, at common law, that those rights will not be abrogated by any of the sections that are within the Charter of Rights and Freedoms.

That is all, I submit, Section 24 says, and it is very clear. It is telling the Indian people that their rights shall not be enshrined within the constitution but that the constitution, at least, will not be interpreted by the courts in any way to abrogate whatever rights they may have today at common law or tomorrow at common law.

Now, we had always perceived that a constitution was to be an affirmative declaration of an individual’s rights in a society, but Section 24, members of the Committee, and the Charter generally, offers no affirmative declaration whatsoever of pro­tections to the Indian people. It does not confer to the Indian people any affirmative declaration of rights or protections, and we say that that runs contrary to the traditions of what a constitution and a Charter of Rights is supposedly to confer to the citizens and minority groups of a community or of a nation.

The Charter only tells the native people of Canada that the courts are not going to interpret the Charter to abrogate their interests at common law. Now, this, I submit, is an intolerable situation to the Nishgas. If Indian rights, particularly aborigi­nal title, are rights that fall outside of the constitution, then you are telling the native people that they must fall back on the common law as it is today for whatever protections they are going to have.

Now, that means that it is tossing the whole subject of aboriginal title, and you are tossing the native people, out into
the political winds, subject to the whim and fancy of future governments, of the courts, and of the white majority society
that the native people live with. If you accept the interpreta­tion that I am putting before you of Section 24, then you must ask this question as a Committee: if you are not enshrining the rights within the constitution and you are telling the Indian people they are going to have to live with whatever rights the

[page 16]

common law has declared, then the question is this: what is the state of the present jurisprudence in this country on the subject of aboriginal title.

That is the question, and I suggest to you, with respect, that the Nishgas can speak more definitively on the subject of present jurisprudence in the country than anyone else because they have been litigants in the courts on this very subject.

The present state of jurisprudence in Canada on the subject of aboriginal title is in a confused and most unsatisfactory state. The highest court of Canada, in ruling on the Nishga case, deadlocked itself on the very substantive issue of aborigi­nal title. The Nishgas, in taking their historic case to the Supreme Court of Canada, had obviously desired a definitive judgment from the highest court in the land that would finally put to rest and resolve the subject of aboriginal title and the long outstanding dispute on land in British Columbia, but the court split, and as Mr. Gosnell has already stated, it split in such a way that of the seven members presiding on the bench, in that decision, three judges ruled that the Nishgas indeed had aboriginal title and continued to this day to have aborigi­nal title. That judgment, the very famous judgment of Mr. Justice Hall, concurred in by the now Chief Justice Laskin and by Mr. Justice Spence, all made a strong declaration that the Nishgas to this day maintaining their aboriginal title because they had never extinguished that title by way of treaty.

Three other judges sitting on the case ruled that although the Nishgas had at one time aboriginal title to those lands, they held that that title had been extinguished by colonial legislation passed prior to British Columbia joining Confedera­ tion in 1871. The legislation they spoke of were the routine enactments of the Forestry Act, the Fisheries Act, the Mineral Act, and a number of other statutes. None of those statutes spoke in express terms of extinguishing aboriginal title to land.

Now, there were three judges that held that the Nishgas maintained their title to this day, three judges of the highest court held that the Nishgas had had their title but it had been extinguished, and the seventh judge, who had the deciding vote as Mr. Gosnell has already pointed out, chose not to decide the case on the substance, but, rather, dismissed the action on the basis the Nishgas had not received the permission of the provincial government of British Columbia to sue the Crown in this action. That was a law in British Columbia that no longer exists, which required one to have a fiat before proceeding against the Crown in a legal action.

That seventh judge never spoke on the substantive question of aboriginal title and it is for that reason that the Supreme Court of Canada is said to have deadlocked itself three to three on the fundamental question, the doctrine of aboriginal title.

Now, this is the common law that we have to rely upon at this moment. This is the common law that this proposed constitution tells us to rely upon as opposed to a constitutional enshrinement of the principle, and I can say to the Committee that the subsequent jurisprudence in Canada after the Nishga case, which was rendered by the Supreme Court in 1973, that no cases since that time have made a definitive pronouncement

[page 17]

on the subject of aboriginal title. So we are in a state of confusion and uncertainty when we deal with the jurispru­dence today on this very subject.

Now, since the Supreme Court of Canada judgment in 1973, there have been negotiations carried out between the Nishgas, the provincial government and the federal govern­ment. Those negotiations have been fruitless. They have been fruitless for one reason: the provincial government of British Columbia refuses to recognize the concept or doctrine of aboriginal title. It is as plain and simple as that.

So we say to you in regards to Section 24 of the proposed constitution: you are forcing the Indian people to fall back on the common law and the judicial pronouncements on their rights, and by doing that you are casting our first citizens of this country into the uncertain winds of judicial and political process, indeed at present into the winds of an area of jurispru­dence of which there is no definitive judicial pronouncement. We, therefore, wish to state emphatically to you, this Commit­ tee, that Section 24 is meaningless in its present form, it misleads the Canadian public into thinking that the Charter is actually conferring rights to the native people and it is not.

I now come to the second point, that deals with the subject of entrenchment of the principle of aboriginal title. If indeed you recognize the need to enshrine the principle of aboriginal title into the constitution, then we ask of you to make a recommendation to Parliament that provides for a provision within the Charter that expressly states and pronounces that the Indian people maintain aboriginal title to the lands they inhabit until such interests are extinguished by treaty.

One of the most disturbing aspects of the government’s refusal to entrench aboriginal title in the proposed constitution up to this point is that the government has done so against the advice of many major studies on constitutional reform of the last few years.

• 1235

1 refer you in particular to the Canadian Bar Association in the 1978 report which that Association put out entitled “Towards a New Canada”.

In that report the Canadian Bar Association said—and I quote:

In particular, we must scrupulously abide by our agree­ments with native people and recognize their claims as they are established. Indeed, constitutional recognition of our commitment to abide by our obligation should be expressly set forth in the constitution. In taking this action we are responding to the claims of simple justice.

Now, the Pepin-Robarts Committee went even further in its recognition of this simple justice. It said—and I quote:

Canadian policy has traditionally accepted both the spe­cial status of native people and their permanent attach­ment to the land.

The Committee’s report went on—and I quote:

[page 18]

“We believe that it is now appropriate that specific atten­tion be paid to the constitutional position of the first Canadians. More specifically, both provincial and federal authority should pursue direct discussions with representatives of Canada’s Indians, Inuit and Métis, with a view to arriving at mutually acceptable constitutional provisions that would secure the rightful place of native people in Canadian society.”

There is no acceptable solution to native people that does not recognize aboriginal title. Not to include it in the Charter of Rights and Freedoms is to abandon forever the prospect of reaching this mutually acceptable solution spoken of by the Pepin-Robarts Commission.

The government’s present position with this proposal which is now before you of not entrenching aboriginal title in the constitution is even more difficult to understand in the light of the government’s previous willingness to entrench recognition of the Royal Proclamation of 1763, a document wholly con­cerned with aboriginal title, when the government made its 1978 constitutional amendment bill proposal to Parliament.

The Royal Proclamation of 1763 was part of that proposal in 1978 and that document, of course, is the strongest declaration of aboriginal title known to the Canadian native people.

The proposed Charter in its present form, by ignoring this whole subject of aboriginal title, flies in the face of all these contemporary proposals on constitutional change to which I have just referred.

We say, Mr. Joint Chairman and members of this Commit­ tee, that to entrench the concept of aboriginal title or the doctrine of aboriginal title in the constitution, will finally force the provincial Government of British Columbia to recognize the Nishga title to the land and to participate meaningful in a negotiation process leading to the settlement of this long outstanding dispute.

Such an entrenched provision will lead to a just and equita­ble settlement of the Nishga claim.

As both the federal government and the opposition parties in the federal House have all expressed frustration over the provincial governments unwillingness to recognize the aborigi­ nal title doctrine in British Columbia, you, as a Committee and the Parliament of Canada, have a golden opportunity to rectify that problem by enshrining the principle in the consti­tution which, in turn, will hopefully lead to a settlement of the land question of the Nishga’s and of British Columbia’s natives generally.

We perceive that you and the Parliament hold what may be the last key to the Nishga people being treated with justice by the white majority of our nation.

Now, the Prime Minister and the present Minister of Indian Affairs, Mr. John Munro, have said this to the native people. They have said to the native people, both in the House of Commons and before parliamentary Committees as well as outside the House in their speeches—they have called upon the native people to be patient and to wait until patriation of the

[page 19]

constitution at which time the Prime Minister and the Indian

Affairs Minister have said,

“We promise you that once the constitution is patriated the issue of native rights will be the first order of business at the First Minister’s meeting held after patriation.”

That has been their position up to this point. But we want to direct your attention very clearly to the fallacy of such direc­tion. Such a position is at best, members of the Committee, politically naive, or at worst, misleading and fraudulent.

We say that for this reason: the facts are simple. Constitu­tional amendment after patriation will require the consent of the provincial governments of this country under the amending formula that is proposed or any of the amending formulae proposed.

We ask you this. Accepting the fact that once there is patriation of the constitution that any amendment to the constitution will require the consent of the provinces of this country, then will the province of British Columbia ever consent to the entrenchment of the doctrine of aboriginal title into the constitution?

We can tell you, the Nishga Tribal Council can tell you better than anyone else in this country, that the province will never agree to that principle, and thus they will veto the enshrinement of the principle or doctrine into the constitution. The Nishgas can tell you about that better than anyone else for this reason. First, the history of all the political administra­tors in British Columbia, from colonial days through to the Liberal government, provincially; conservative governments provincially; Social Credit governments provincially; the New Democratic government provincially; through to the present social credit administration in Victoria—not one administra­tion in the Province of British Columbia has ever recognized the concept of aboriginal title; not one has ever recognized the doctrine of aboriginal title.

To suggest that we patriate the constitution and then seek the consent of the provinces of Canada defies and ignores the history of the provincial government and its relationship to the native people of Canada and focusing on British Columbia it defies the history of administrations in British Columbia at Victoria and their position on the doctrine of aboriginal title.

There will never be consent from the provinces to enshrine the principle and it is for that reason that we use our words cautiously when we say that the suggestions of the Prime Minister and that of the present Minister of Indian Affairs that Indian people should patiently wait until patriation, is, indeed, a suggestion which has to be a sham.

There will be no entrenchment after patriation.

The claim to aboriginal title to land is based on the time immemorial occupation by the Nishgas of the Nass Valley. At no time were the Nishgas the subject of conquest; at no time were they the subject of treaty. The Royal Proclamation of 1763 set out how governments were to respect the concept of native ownership of lands unextinguished by treaties.

[page 20]

Territory upon territory, as you colonized this land, treaties were signed; but you neglected to make settlement with the Nishgas, thus forming the grounds for the claim to ownership of the lands that the Nishgas inhabit.

It is with incredible dismay and great disappointment, Mr. Chairman, that we determined that the Indians’ special rights and interest were completely ignored in the proposed constitu­tion, even though the federal government had recognized the Nishgas’ just claim since 1973 when Mr. Jean Chrétien made his announcement reversing what had been up to that point federal policy.

You, as a Committee, and the Parliament of Canada, hold the onerous responsibility of charting the future course of aboriginal title and the issue of aboriginal title in this country.

The Nishgas’ destiny is in your hands. Aboriginal title must be entrenched in the constitution before patriation. To suggest it will happen after the constitution is brought home is to ignore the political reality, history and relationship of provin­cial administrations in British Columbia to the Indian people.

Therefore, to make such a suggestion is to mislead the Canadian public and, indeed, the Indian people about what will really happen after patriation.

The Indian people know better than anyone that the govern­ment is really telling them that their special rights and inter­ests will never be enshrined in the constitution.

If aboriginal title is not entrenched constitutionally at this time, there will never be a settlement of the British Columbia land question. That is the stark reality of the situation.

It is that legacy that you will leave to this nation.

We say, in conclusion, that we plead with you to recommend to Parliament that aboriginal title be a right conferred in the Charter to all nontreaty native people of Canada. Such an entrenchment of Nishga interests would give us the iron-clad protection that the Nishgas, as a minority in Canadian society, deserve and expect from a new Canadian constitution.

Mr. Gosnell has a few concluding remarks.

Chief Gosnell: Thank you, Mr. Rosenbloom.

Mr. Chairman, it is quite clear at this time that our destiny is in your hands—the hands of this Joint Committee. As I have said before, there were many Joint Committees of Parlia­ment. They have all failed.

Our aboriginal title to the Nishga land must be entrenched in the constitution before patriation. That is our position at these hearings. Without the title there can be no negotiation. Without negotiation there cannot be a just settlement of the land question; without a just settlement the Nishga people will have absolutely no economic base upon which to survive.

I thank you.

The Joint Chairman (Mr. Joyal): Thank you, Chief Gosnell.

[page 21]

1 would like to invite the honourable Jake Epp to open up our discussion with our guests.

Mr. Epp: Thank you, Mr. Joint Chairman. Chief Gosnell, I would like to welcome you and the Tribal Council of the Nishgas here this evening.

You have made your case quite clearly along the lines as was also argued before the Supreme Court in 1973.

I would like to start with one historical position which you have put forward, and then get into Section 24.

Perhaps 1 should direct this question, Chief Gosnell, at your Counsel, Mr. Rosenbloom.

I would like to ask you, Mr. Rosenbloom, whether you have had any assurances from either of the provincial political parties in British Columbia, having had some personal experi­ence in terms of trying to get negotiations started in British Columbia, but having had difficulty in terms of getting provin­cial agreement to start those negotiations, whether you have had assurance from any provincial party in British Columbia that they would accept the negotiation process and the aborigi­nal claim of the Nishga people?

Mr. Rosenbloom: I would be very pleased to answer the question put by the honourable member. The answer is this. Since 1975, after the New Democratic government fell from office, the Leader of the Official Opposition, Mr. Barrett, has since told us that his party, if they were returned to power, would be prepared to recognize the doctrine of aboriginal title.

But I would like to remind you, Mr. Epp, that the New Democratic Party, prior to 1972, prior to the date at which they took power, had resolutions at convention level which did indeed speak and pronounce that the party’s policy was that of recognition of aboriginal title.

After 1972, during the three years of an NDP administra­tion, nothing came from it.

So I say to you, that although the New Democratic Party in its present state of opposition has given us some assurance, 1 would only remind you that the Nishga have to look at the history of what happened with a New Democratic Party prior to taking office in 1972 and then watching their actions after they took power in the three years. Obviously there were no positive results from the three years when they were in charge of the administration.

Mr. Epp: Looking at Section 24—and we have not had great faith in the drafters; but maybe they did have some hidden
motive when they put it down to Section 24 and related it to Section 91/24. I would like to ask you whether the assur­ances—and the Minister has constantly said to us, and that is both the Minister of Justice, whose responsibility this proposed resolution is, and the Minister of Indian Affairs and Northern Development, that all the rights of the Indian people or native people now enjoy or have protected under Section 24 of the proposed Charter, and my personal view on a reading of that section is no; but I would like to ask you if there would be no change in amendment form along the lines you have suggested, namely that such interests are extended by treaty, in other

[page 22]

words that there be a process of treaty negotiation, are you better protected under Section 9124 than you are with Section 9124 patriation and the proposed Charter Section 24? In other words, you have to look at the whole process, obviously.

Mr. Rosenbloom: If I may answer that, I would say that Section 9124 of the BNA Act has given us no protection whatsoever on the subject of aboriginal title.

Mr. Epp: That is my point.

Mr. Rosenbloom: As a result I say to you that we are not pleased with the state of the law as it is at present with the BNA Act; but we are obviously also not pleased with the proposed constitution as we have it before us.

We have a golden opportunity, here, for the first time to draft a constitution which meets the needs of the native people and responds to the question of justice for the native people of this country who are still holders of the aboriginal title.

I say with regard to Section 24 that I am not seeking an amendment of that section in the sense that I would like to add or take words away, but I am simply suggesting that Section 24 is completely meaningless. We would like to have it deleted and a new section substituted. We would like it so that it does not mislead the Canadian public nor the native people about giving them something in the Charter and then hopefully adding a provision to the Charter which truly is the provision enshrining Indian interests—and I speak, obviously, in particu­lar of the doctrine of aboriginal title.

Mr. Epp: Two weeks ago when the Indian National Brother­ hood was meeting, especially with a number of Indian Chiefs from British Columbia, that province being well-represented at these hearings, the doctrine was put forward—it was not new, but probably received new expression—the doctrine of self- determination of nationhood: can you explain for the benefit of the Committee, in terms of the Nishga people, what or how you would interpret aboriginal title and define for us aborigi­nal title in those two parameters, namely, self-determination and self-government?

Chief Gosnell: Mr. Chairman, aboriginal title, as we inter­pret it—and anyone can interpret what is aboriginal title: aboriginal title is what we are setting out right now. Without this land there cannot be a title. Aboriginal title, as we define it, is that we own the land lock, stock and barrel, and if there is no settlement of our land claims, there cannot be any self-gov­ernment. It would be impossible.

That is why we said at the outset that, in order to survive, what we are seeking here is a right to survive. We cannot survive without an economic base, and you cannot have an economic base without a settlement of the land question.

Mr. Epp: For example, would you take the concept of self-government, or self-determination as you call it, to the point where the Indian people on lands that would be deeded to them by treaty would in fact extend to the position of having the ability to legislate laws as well?

Chief Rod Robinson (Vice-President, Nishga Tribal Coun­cil): Yes, I would like to answer that, Mr. Epp. In our position

[page 23]

paper we did not say we were going to completely dominate. We wanted to share. We wanted self-determination in local government; self-determination in regards to our own resources; we want to share with the people; we want our land claims to be settled, so that we could live side-by-side with the rest of the people in Canada—the sharing of our resources.

Mr. Epp: If I understand you clearly, I can go along with the position you took, namely that when you look at self-determination or self-government, you look upon it as determination at a local level.

I hate to bring up 1967 again on the white paper, because that obviously conjured up certain impressions immediately in the native people.

But if I understood you correctly, you are looking at it at the local government rather than as another level or third level of government. Am 1 correct in saying that?

Mr. Percy Tate (Executive Assistant to the President, Nishga Tribal Council): I would like, if I may, to respond to that.

Section 91(24) does not guarantee us to be citizens of Canada. It does not guarantee us in sharing our burdens or aspirations with the rest of Canada.

We are seeking an end; we are seeking to be a part of Canada. It seems like it is taking too long for the non-Indian people to allow us to be part of Canada which we owned in the first place.

It seems like there is a state of confusion, as our lawyer has just stated.

So that without strength in Section 91, will there ever be a guarantee that we can share the burdens of Canada with you, Sir?

This is what we mean by self-determination.

It is quite obvious that we could contribute a lot more, maybe we could get along a lot better in Canada than how you are presently doing.

You just recognize French and English. What about Indian? You have always dwelled on non-status Indians. 1 never heard of a nonstatus Frenchman or a nonstatus Englishman. It is just the Indians that you pick on.

Mr. Mackasey: A nonstatus Englishman is an Irishman.

Mr. Tate: Is that right?

Mr. Epp: Some of us do not even have that status, but go ahead.

An hon. Member: It is only you, Mr. Mackasey.

Mr. Epp: I just want to make clear because I think there was a misconception, if it is local government, the provision of services, the ability to pass the local laws, ordinances, it is

[page 24]

called in some places, I can accept that. I can understand your position and that 1 think would also allay a lot of fears of the Committee.

I take it then from your presentation, this will be my last question, Mr. Chairman, that the unilateralism which we speak of, in other words where the provinces are opposing the unilateralism of the proposed resolution that you look upon this as a unilateral action as well against the Indian people and their interest, and for that reason are opposing it as well.

Chief Robinson: Mr. Chairman, it sounds like we are a bunch of separatists, we are not talking about separatism in any form. What we want is to be a part of Canada. We want local government but within a framework of the Canadian government. That is the reason why we want the aboriginal rights entrenched so that we can be recognized, not only the two founding nations as they call them, they completely forgot about the Indian. So if you can entrench our aboriginal rights in the constitution then we will be a legal entity, we will be able to have our own self-government but within the frame­ work of the constitution, not as separatist.

Chief Gosnell: In other words, true Canadian unity, Mr. Epp, is what we are talking about.

Mr. Epp: Thank you, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Epp. I would like to invite now Mr. Fulton followed by the honour­ able Senator Williams.

Mr. Fulton.

Mr. Fulton: Thank you, Mr. Chairman. What I would like to do first is to try and wake the Committee up a little bit as to what the history of title is so that we all have something about when we are thinking about what a good amendment would be for Section 24.

If we go back to the 11th and 12th Centuries in Great Britain, for example, from where we adopted our common law in that period of time, when title was being formulated what would happen is a county court judge would travel around and have a kind of community meeting when he got out of his carriage and someone would say well, this goose pond was my great-grandfather’s and that stone fence over there was where my great-grandmother used to plant a few herbs; that fence line keeps our cow in and it always has, and they would pay the county court judge and they would receive title.

Now, in the 1700s and 1800s as various immigrants moved west across Canada and, for example, into British Columbia, the British Government recognized the Russian involvement in trading in the anhandle area and various treaties were made
and agreements were made and along the 49th parallel agree­ments were made because the Americans were there. Within
the context of British Columbia and most of Canada a sort of tacit agreement was reached, it was not title but a tacit agreement was reached between the native people and the

[page 25]

immigrants as they moved along. It was based on power, blood and guts. That carried on for some considerable period of time, and nine years prior to Confederation the Nishgas began their long journey to be here today. Thirteen years before British Columbia entered Confederation they began that very long journey.

I would like to remind members of this Committee of some very important things that I think as members of Parliament and members of this House we tend to forget. It was not until

1963 in this country that Indian people were allowed to vote, 1963. That is a tribute to a Western society; I think it is something we should dwell on when we are thinking of rewrit­ing Section 24. Earlier in this century it was illegal for groups such as Nishga to even discuss land claims even in their own homes, anywhere, it was illegal in this country for them to do that. I think we are aware of the mortality rates, the statistics that relate to native people in this country and as members of this Committee we have to k ourselves quite seriously exactly what are we proposing in Section 24 and why should aborigi­nal title be entrenched in there in a most serious way.

The first question I would like to ask to both Chief Gosnell and to Mr. Rosenbloom is in relation to what Section 24 really is, which is really a vacant balloon in relation to rights for native people, and the principle of aboriginal rights is not entrenched at this point in time exactly how long in relation to what has occurred to date would you expect it to be before there was any fundamental movement either through the courts or through Parliament again.

Mr. Rosenbloom: There will never be a movement through Parliament because the constitution, once patriated, will always be subject to the amending formula, and the amending formula will always recognize the right of the provinces to veto. That being the case, unless there is a change of heart provincially, we will never have the opportunity again to appear in Ottawa to make the submission we are making today. That is the whole thrust of our intervention before your Committee, that this is the last chance we all have to entrench the principle of aboriginal title.

I answer Mr. Fulton by saying that indeed I cannot specu­late as to when the Supreme Court of Canada might make a ruling that is definitive and is in favour of the Nishgas. It may be tomorrow, it may be the day after, but the point that we make to you is that if Section 24 is as we have analyzed it before you and if all Section 24 does is tell us that we have to rely on our common law rights, then you are really telling the native people that their rights will not be enshrined in the constitution but rather they will be subject to the whim and fancy of the courts today, tomorrow and 100 years from now; and none of us can ever speculate as to when the courts might make the judicial pronouncement that we, the Nishga Tribal Council, expected when they launched their action in the court over a decade ago. Thank you.

[page 26]

Mr. Fulton: If I might go on with the second question, I think it is something that I would like to hear several of the Council members respond to. The proliferation certainly around Parliament and I found in many areas of the country of the idea that if aboriginal title is settled all of a sudden real estate companies are going to go bankrupt, various cities are going to be expropriated, the economy is going to go into a slide, there are all sorts of rumours being circulated through­ out this country and here on Parliament Hill as to what it means if aboriginal title is entrenched and perhaps Chief Gosnell and Chief Robinson could respond in terms of the example of the Nishga claim, just exactly what does it mean in terms of your traditional tribal territory, what does it mean to Canadian Cellulose, to the Aluminum Company of Canada, to all of the developments that have gone on there, to the other towns that are there. Does it mean what a lot of the rumour machine would like members of Parliament and members of the Canadian public to believe? Have we been misled? I have heard many times, for example, the City of Penticton would suddenly be gobbled up in a land claim and there would be enormous social dislocations.

Could you respond in terms of development and in terms of how you view the Canadian fabric and the role you would play in it upon negotiation of land claims settlement?

Mr. Tate: Mr. Chairman, in response to Jim Fulton, first of all let me add on to what Mr. Rosenbloom, our Legal Counsel, missed in the first question that was asked by the honourable Mr. Jake Epp. This will also answer part of Jim Fulton’s question at this time.

Now, while the election campaign was going on in British Columbia we had a meeting with the Social Credit, at that time they were not the government, this was long before Bill Bennett became the Premier.

We had a meeting with them and he brought fourth a paper. He said here, gentlemen, if I am elected I am going to settle the Nishga land question, and here is the resolution. We read the resolution. The resolution did state that if elected they were going to settle the Nishga land claims. They also set out there the formula of how they were going to fund settlement. They were going to fund the settlement from the resources, a percentage of the timber resources in our area: So this is how we are going to do it. This is our basic position. We want a share. We are not going to kick anybody out. We are not going to kick out Columbia Cellulose, we want to put your fears at ease. We want a share. We want a share of the resources, this is basically what we want. We do not want to dominate. You would hardly notice any difference if there is a land claim settlement. Columbia Cellulose will still be operating after our land claims are settled, but there will be a difference, we are going to get a part of it.

I am not sure if I answered your question adequately but if I have not, my colleagues are here.

Chief Gosnell: At the moment, Mr. Chairman, we do not have one bit of all the resources, the salmon resources, the

[page 27]

timber resources, the mineral resources, not one bit have we ever realized at this time, nothing. That is why you hear the way we are talking here. Other people in this country are enjoying our natural resources, but not our people.

If you look at our villages, nobody has to tell you that it is an Indian village. You can tell with your own eyes, because we live in mud. Every other community throughout Canada are all paved; highways are paved; towns are paved. You take a good look at any Indian village, none of them—maybe one or two I think in British Columbia—but we live in mud. We are getting tired of living in mud like pigs yet our natural resources are going out of the Nishga Valley every day, 12 months of the year, fish, minerals, timber.

How can we kick anybody out of the land? How can we cause disruption or cause anyone not to be part of that. It is impossible. It is impossible to do, even if we wanted to, we cannot do that, it is impossible. If I could answer part of that question, even if we wanted to do it, how could we do it?

• 2115

Mr. Fulton: One final question, Mr. Chairman.

I understand from what Chief Robinson and what Chief Gosnell said, that, touching back on the question that Mr. Epp raised, is that the federal and provincial legal systems would still have paramountcy but the concept is to have resource sharing and utilization in terms of the land base.

In looking at Section 24 as it is now written, and perhaps if both Mr. Rosenbloom and the Council could respond to it, if the idea in terms of this resolution is to cast native people and the concepts of aboriginal title and rights back on to the common law, and with all due respect, do I hear you correctly in saying that perhaps the only time to go forward with further cases in relation to aboriginal title is when the mosiac or the composition of the Supreme Court changes or when different parts and segments of aboriginal title and rights are to be tested through the courts, and perhaps counsel could indicate to the Committee through the same answer as to what kind of a block the Nishga people found in pursuing this through the two provincial courts and on to the Supreme Court?

Mr. Rosenbloom: Well, let me first respond to your last point, which was what sort of block we encountered.

In the B.C. Supreme Court, where the action was launched, the court of first instance, Mr. Justice Gould of that court held that the Nishgas had had aboriginal title but that title had been extinguished by these colonial enactments that I referred to earlier in my submission.

The B.C. Court of Appeal, on appeal, went much further against the Nishgas than the trial judge did. The B.C. Court of Appeal held that the Nishgas had never had aboriginal title.

[page 28]

that such a concept was never recognizable at law, so that where the trial judge had held there was title earlier on but had been extinguished by colonial enactment, the B.C. Court of Appeal held that aboriginal title was not something to be recognized at Law, period, and therefore the subject of extin­guishment was not really an issue or did not have to be an issue.

The Supreme Court of Canada went back to the position really taken by the trial judge in terms of the three judges that decided against the Nishga. The three judges held that Mr. Justice Gould’s position was the correct one, that was that title had existed but was extinguished by colonial statute, and the three other judges, of which Mr. Justice Hall wrote the definitive judgment, those three judges of the court held that there was a doctrine of aboriginal title recognized in our British common law and that title continued to this day in respect to the Nishgas because the Nishgas had never extin­guished that title by way of treaty or surrender.

Does that respond to your question, Mr. Fulton?

Mr. Fulton: Yes, Mr. Rosenbloom. Perhaps you could respond a little further.

What I was getting at was is if the Parliament of Canada expects through Section 24 native people throughout Canada to settle their aboriginal title and rights through the courts, if they expect to ever have it settled after spending tens if not hundreds of thousands of dollars to reach the Supreme Court of Canada, they can just keep their fingers crossed and, with all due respect, trust that the composition of the court will be such that there will be more, either more like thinking justices as Mr. Justice Laskin and Mr. Justice Hall as opposed to the other side of the trial?

Mr. Rosenbloom: Well, I agree with that, and I will go one step further: in a number of learned journal articles that have been written about the Nishga case, and obviously these articles are easily obtainable, a number of scholars in the area of jurisprudence have written that the Supreme Court of Canada deadlocked itself with a purpose; that purpose was that they felt the issue of aboriginal title was not in fact a matter that should be decided in the courts but rather should be decided in a political forum. The court just over there looked your way, Mr. Fulton, and looked to the Parliament of Canada to seek a political solution to a political issue.

So we suggest that in reading the scholars who have written about the Nishga judgment, that really the Supreme Court of Canada was telling us something and we come before you today to enforce what the Supreme Court said, and that is that this is truly a political issue that has to be settled in a political manner through an entrenchment in this constitution that you have the luxury of dealing with today.

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The Joint Chairman (Mr. Joyal): Thank you, Mr. Fulton. The honourable Senator Williams.

Senator Williams: Thank you, Mr. Chairman.

I will try and make my questions short.

First I must commend the Nishga Tribal Council for their courage, their achievement in their efforts that are just about as old as Confederation, and in commending you I say to each and every one of you and your people back in your own reserves that you are standing on the solid ground of the past, you are standing on the solid ground of the present, and you are also engulfing the grounds that you are going to stand on in the future. Your great courage in carrying on, on your own resources, for over a hundred years, no other Indian organiza­tion in Canada has that distinction.

Now, Chief Gosnell, I think there are times when you must have given some thought to should the land claims, aboriginal rights, cultural rights be settled overnight by the government of our great country Canada. Sometimes 1 feel a little bit disturbed that the settlement may also have an extinction act in it that will settle the land questions for all time to come and, as the government of this country through its Prime Minister has said, all Canadians will be or shall be equal.

Will equality in your mind, Chief Gosnell, create other disadvantages for the Indian in his formative years into the engulfing or participating in this society? Will it take away their right to live, will it take away their right to be equal in the sense that he or she shall be a competitor to other nationals in this country? Do you think there is a possibility that settlement of the land claims, or whatever you want to call it, could also extinguish the rights of Indians?

Chief Gosnell: Mr. Chairman and honourable Senator, this is what negotiations are all about or will be all about. I do not think the question you have raised, Mr. Senator, can be answered because there is no negotiation. This is what we must negotiate about.

Senator Williams: And there has been references in many including yours and other organizations in our province. Now, my reference is to self-determination. I have had some experi­ence with your bands and I notice that you people practice self-determination, you have your own, the only one of its kind in Canada, a school district number 92 in British Columbia. I say, Chief Gosnell, that this is the part that has made it possible for self-determination am I right or am I wrong, and you are now enjoying the fruits of your own efforts in bringing back the culture to your people?

Chief Gosnell: Mr. Chairman, honourable Senator, 1 am glad you brought this point up in respect to what is known today as the school district 92, Nishga. That, Mr. Chairman, is an example of what our people have already achieved in

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speaking of self-determination. All I heard prior to this, Mr. Chairman, honourable Senator, that that school was to have been brought about as a result of negotiation. It did not happen that way, it came much sooner, and apparently, I think, we are the only people in the history of Canada that created the school district, that our people would one day hope to manage.

At this moment we are still not in full responsibility in respect to that school district, but do not forget, we are only, I think we are the youngest school district in Canadian history. I was told last week by the Terrace District Office that they had already done an analysis in respect to what is happening in that school and it looks very good. That is an example of what our people can do. You can imagine what our people can do if we had settled our land in respect to economic development.

If you look at what is going on in Canada today, and this is not my figures, these are the figures of your government, that it cost $12,000 to keep an Indian alive under the welfare system, and if that same Indian went to jail it costs your government $29,000, and that in the next ten years there would be approximately 50,000 more Indians looking for jobs. You can see what we are facing. You can see why we want the settlement. You can see why we want an economic base, because without that it is a hopeless case. It is hopeless without an economic base, there is no way that we can survive and there is no way we can reach that economic base without a true just settlement of our land.

Senator Williams: My final question: are your renewable resources in the Nishga valley, the area shown on the map, the area that is being claimed, are the renewable resources, are they diminishing in your own observation, such as timber, such as the salmon, as your river is one of the greatest reproduction areas of that renewable resource, and have you experienced some of the diseases that have come about by polluting waters? Is there any danger of pollution of waters in your area?

Mr. Tate: Yes, Mr. Senator, I would imagine you are referring to the timber. As all of you know, we live in North-Western British Columbia and it is heavily timbered with very valuable timber and there is an outfit in there harvesting that timber known as Columbia Cellulose. Now, we are not too uncomfortable with them at the moment, Mr. Senator, because they have a very, they keep very closely to the regulations that are imposed by the provincial government, that is the part of harvesting such as replanting.

We are not too uncomfortable with them because we know the trees are going to be growing back within a matter of years, but what we are concerned with at this time, Mr. Senator, is the activity of a mining company that is going into our land claims area such as Amax Molybdenum; as you know, Nishgas are involved in that sort of a battle. We are not battling them just to keep industry out of our area. As we

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stated in our position that we welcome development, we wel­come industrial development, economic development and so forth in our area, only if that development is not going to harm the environment in any way.

Now, Amax Molybdenum is going in there and it is ques­tionable how they obtained that special permit. They obtained a special permit to carry on their activity of mining and we are questioning how they are going to dispose of the mine tailings. We had a meeting today with the Minister of Fisheries and we have not yet assessed the new information that we have got from him, so I am unable to make a comment at this time, but we see the danger in the future, Mr. Senator, that if we allow this mining company to continue their activity, they will pollute the waters, they will pollute the food chain in that water and therefore we are going to be endangered because we depend so much on the shellfish that are in that inlet for our survival. We still use that, that is our traditional way of surviving.

Now, we are going to be in danger if we allow this so we are carrying on the battle today and I hope that now that this question has come out, I hope that we get some support from you people that are here.

Senator Williams: Thank you, and thank you, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Thank you, Senator Williams.

I have still four speakers on my list and I see the clock running and the honourable members know that we have other guests waiting for us in the room tonight. I would be ready to recognize two more speakers on each side if that is agreeable to the honourable members.

I would call Mr. Frank Oberle and I have the name of Mr. Ron Irwin on my list, or Senator Goldenberg, or the honour­ able Bryce Mackasey.

I am in the hands of the Committee on that. I would call Mr. Frank Oberle.

Mr. Oberle: Thank you, Mr. Chairman, Chief Gosnell and Councillors.

I am somewhat surprised that your presentation mainly dealt with the question of land claims, knowing how important that is with respect to everything else that you have been trying to achieve, and all of us who understand or have tried to understand the problems that the Indians face in Canada can have nothing but the greatest respect for the efforts that you have made, the initiatives that you have taken on behalf of yourself, of course, but all Indians in Canada, first of all to take your case to the courts and to continue to advocate it in the manner you are doing here tonight.

I could not agree more with what you have said about Section 24, in fact I have questioned the Minister in Commit­ tee, pointing out quite clearly to him that it would take at least four and a half years after the resolution has been returned

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from Britain before any changes can be made to the constitution, and I am talking of course of the amending formula which will undergo a two-year waiting period during which we will try and find an improved version to the Victoria Charter, then the prospect of a referendum. At least four and a half years if not six years, and it is just simply dishonest, in my opinion, and I agree with you wholeheartedly, to say that there would be immediate action with respect to Indian rights. There will not be immediate action because there has not been any action since 1973 when the concept of aboriginal title was first mentioned in Parliament. So let us not be fooled by that, there has to be action now.

I also said to the Minister in Committee and in my speech in Parliament that in my opinion I am not at all turned on by the concept of entrenching rights in the constitution because the constitution, in my opinion, is not the source of rights, it is a result of history and tradition; but if there is any need to entrench anything, surely it must be the need to entrench the rights of native people, the aboriginal people of this land, because every other ethnic group, every other cultural group in this country does not draw the source of its culture from the North American continent and you do, you have no place else to go to replenish your culture. The land is your soul, is your culture, is all of your existence and if there is any need to entrench anything, it should be your rights and the traditions that you have established here. I doubt very much if there is anyone among my colleagues here that would not agree on that particular proposal.

1 also share with Chief Gosnell his definition of what an Indian village looks like. I am painfully aware of what it looks like because I represent the other one third of the Province of British Columbia which is North-East British Columbia. I said in the House of Commons on Friday that there are people starving in North-Eastern British Columbia as a result of certain measures that were contained in the budget, in the energy statement. The Prime Minister could not believe that, he wants names. I intend to give him some names of some native people who live in isolated communities, the Porcupine Lakes, until the next welfare cheque comes. Then this whole question of transfer of revenue, if it is in a white community it is transfers from government to government and transfers from government to people; if money goes to an Indian com­ munity it is welfare, and there is that discrepancy and that dishonesty about it.

I would like to get back, though, and ask you why it is that you have not, when you talk about land claims and resources, why you have not, like all other native groups have done that appeared before the Committee or will be appearing and appear occasionally before the Indian Affairs Committee, why you have not tied land to culture and to language, why you have not made the connection between your culture, which is

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part of nature and which is the land, why you have not made this connection?

Chief Gosnell: Mr. Chairman, in answer to that, that is what 1 said before, there is no way we can do it at this time. It is absolutely impossible for us to talk about our language unless we negotiate on a just and equitable basis and there is no way we can do it without aboriginal title.

We intend to do what you have said and I appreciate your thoughts in that resect, that is why we are already one step ahead of it in establishing our schools, that is exactly what we are doing, but here again this is what we want to negotiate about.

When negotiation comes, then our language is part of that negotiation. It all hinges on that entrenchment of our aborigi­nal title in the constitution, that is the key. Without that there is nothing that we could do, it is meaningless. We have gone through seven years and we have not gotten anywhere.

Mr. Oberle: I would say this, that some of us have a better perception of what the term aboriginal title means. I would daresay if you go around the Committee here everyone would come up, likely, with a different version of what aboriginal title means. There is no jurisprudence, the courts have never decided what it means, what aboriginal title means, and I daresay it means different things to different Indian groups in different parts of the country as well. So the entrenchment of aboriginal title, there has got to be a definition to it, or are you relying on the Declaration of 1763 to define the term aborigi­nal title?

Mr. Rosenbloom: I would like to respond to that, Mr. Oberle, because I think you have raised a very fundamental question that I am sure is on the minds of everyone in the Committee, and that is that if the concept of aboriginal title has not been defined from A to Z, would it be dangerous to enshrine the concept or the doctrine in the constitution? That certainly has been spoken about in this Committee and outside as being a dangerous situation.

Clearly, once you enshrine the doctrine of aboriginal title, there will be judicial interpretation made on the meaning of that term. We concede that once there has been an entrench­ment of the principle, that principle will require continuous interpretation by the judicial bodies of this nation, but that is no different, Mr. Oberle, from the requirement to continuously go through a definition process in terms of freedom of speech, freedom of assembly, freedom of religion, issues about whether under freedom of religion Jehovah’s Witnesses can refuse to have their children take blood transfusions; issues about free­dom of assembly, whether that freedom entitles a group to obstruct traffic through a roadway. Every day in this country the courts are being called upon with the present Bill of Rights to define what is meant by the principle as it is placed in the Bill of Rights. Indeed, if you look at the history of the United States with their Constitution and their rights enshrined in a

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document, the courts are being called upon to give an interpretation.

It is the essence of this country that the courts go through an interpretation process, a definition process to refine princi­ ples that are placed in documents and in legislation in a general way. We do not pretend that the courts will not be called upon to take your move one step further, but we say that it is false to say we cannot enshrine the principle of aboriginal title in the constitution because we are not com­pletely sure of all its elements for definition, but you are willing to enshrine all the other freedoms as listed in your Charter that I suggest are equally vague, that equally will call upon the courts of this nation to interpret, and we say that we just want equal treatment in terms of aboriginal title with all the other freedoms that are in their present day form in the Charter as the Charter is before you.

Thank you.

Mr. Oberle: Are you drawing any comfort from the fact that there has been some movement in British Columbia last year, when we had another government here and with the consent of the British Columbia government as well, we had as you know a settlement with respect to resources in Fort Nelson, a very significant breakthrough there. Do you draw any comfort from that, do you see that as a breakthrough to further negotiations?

Mr. Rosenbloom: Mr. Chairman, I will be very brief in responding.

The answer is that that is no comfort whatsoever to us. The settlement in Fort Nelson was not an aboriginal title issue, it was an issue regarding a reservation and the issue of ownership of sub-surface rights at that reservation.

The issue before you today is not, in terms of the Nishgas, is not an issue about reserve land. It is an issue about the lands they have occupied from time immemorial, it is an issue of aboriginal title.

The answer to the honourable member is: there is no comfort or relevance in the settlement of the Fort Nelson band with the provincial government of B.C.

Mr. Oberle: Thank you, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Oberle. The honourable Senator Goldenberg.

Senator Goldenberg: Thank you, Mr. Chairman.

I want to congratulate the representatives of the Nishga Council on the very forceful presentation they have made. It could have only one result and that is arouse our sympathy and understanding.

My question is to Mr. Rosenbloom. I well understand your reaction to Section 24. Now, as Mr. Rosenbloom mentioned in the course of his presentation, there was a different wording in

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Bill C-60. Section 26 of Bill C-60 was much stronger, it reads like this:

26. Nothing in this Charter shall be held to abrogate, abridge or derogate from any right or freedom not declared by it that may have existed in Canada at the commencement of this Act, including, without limiting the generality of the foregoing, any right or freedom that may have been acquired by any of the native peoples of Canada by virtue of the Royal Proclamation of October 7, 1763.

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There is no reference to the Royal Proclamation in the Charter under discussion. My question to whichever of you gentlemen of the delegation would like to reply, is this: assum­ing—and I am not prophesying—that for some reason or another the aboriginal rights are not entrenched at this time, would you not prefer a provision similar to Section 26 of Bill C-60 to the provision of Section 24 in the Charter under discussion?

Mr. Rosenbloom: Section 26 of the 1978 bill does make reference to the Royal Proclamation of 1763, a proclamation which is, of course, a major document on the subject of doctrine of aboriginal title.

But we are also not happy with Section 26.

1 only refer to Section 26 of the 1978 bill because at least that Section did make reference to the Royal Proclamation; but it is not an acceptable solution to the problem.

It is not responding entirely to the concerns we have expressed in our submission. The reason is this honourable Senator, that there is a judicial debate in Canada as to whether the Royal Proclamation of 1763 even applies to my clients, the Nishga tribe.

Senator Goldenberg: Well, three judges said it did and the other three said it did not.

Mr. Rosenbloom: It is a moot issue, because of the dispute as to whether the lands in the Nass Valley were terra incognito at the time of the passage of the Royal Proclamation in 1763.

So we do not want to rely on the Royal Proclamation of 1763 for the rights of our aboriginal title.

We say further that Section 26 of the 1978 bill is still a negative rather than a positive declaration of rights. It is still basically saying that the bill is not to be interpreted in court as having abrogated any rights the native people might have at common law. It gets us back to the problem we speak of when we are dealing with the present proposals before you. It is a negative statement and is not an affirmative declaration of rights and still requires us to fall back on the common law.

We fell back on the common law and went to the Supreme Court of Canada, and as the honourable Senator has quite

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rightly pointed out, there was a split even on the issue of the application of the Royal Proclamation of 1763.

So, we would ask you to consider that Section 26 of the 1978 bill is not responding to our satisfaction to the problems as we have set them out in our submission.

Senator Goldenberg: I fully understand your reply, Mr. Rosenbloom.

I did not think it would. But I was really asking whether, if the worst came to the worst, you might not have a preference for the wording of Section 26 in the 1978 act to the wording in Section 24?

Mr. Rosenbloom: The answer is that I always have a preference to only have one foot in the grave as opposed to two.

Senator Goldenberg: That is exactly what I was hoping you would reply. Thank you.

The Joint Chairman (Mr. Joyal): Thank you, Senator Goldenberg.

I see we have overspent our time on our agenda that we would have liked to consider your presentation and our exchanged.

It is my privilege and honour on behalf of the honourable Senator Hays, our Joint Chairman and honourable members of this Committee, to thank you and to commend you for your faith in this country, a faith that we share.

I think we have heard your call for justice. As honourable Senator Goldenberg said, the policy of the worst is not the best policy; and if we are to address ourselves to what should be the basis and foundation of this country in the future, then I think the question which you have put to us tonight requires an answer.

When a citizen has a grievance and he goes to the final court of the land, the Supreme Court, and cannot expect a definite and a final answer, I think he is entitled to expect an answer from the elected representatives.

I would like to thank you very much.

Chief Gosnell: I would like to take this opportunity to thank you on behalf not only of our delegation but our people, and to say that our submission as of today’s date to this special Joint Committee of the Senate and the House of Commons on the constitution should be officially recorded.

The Joint Chairman (Mr. Joyal): I will make sure that your brief tonight is printed in the appendix to our proceedings this evening.

Thank you.

Mr. Leggatt: Thank you very much, Mr. Chairman, for the extra time which we very much appreciate.

The Joint Chairman (Senator Hays): Order, please.
At this time 1 would like to invite the German-Canadian Committee on the Constitution to come forward, please.

We apologize for holding you up; but I am sure you realize that the last group we had is a very important group, and they presented a long brief, but nevertheless we will not cut down

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on your time although you may not get home quite as early as you anticipated before you came.

Mr. Kiesewalter, I would hope that you would now introduce your colleagues and make a brief statement so that honourable members could question you.

On behalf of honourable members and my Joint Chairman, we welcome you on behalf of the Committee.

Mr. Dietrich Kiesewalter (Co-ordinating Chairman, Ger- man-Canadian Committee on the Constitution): Thank you.

Mr. Chairman, honourable members of the Committee, we thank you very much for giving us this opportunity to appear before you.

We are honoured, and, if I may say so, we are also excited to have this chance to contribute to this important and noble task.

I would like first of all to introduce our Committee. We are here as representatives of the German-Canadian communities in Canada. We are organized in a number of umbrella organi­ zations, associations and regional alliances. There are literally hundreds of German-Canadian organizations in this country with a large variety of interests, ranging from culture oriented, such as choir association, language schools, councils of art, and so on, to social clubs, professional organizations and benevo­ lent societies.

The fact that German Canadians have their roots in many parts of Central Europe is reflected in a number of large organizations each representing a different, however, very homogeneous group. For instance, we have Baltic Germans, Transalvania, et cetera.

Our German-Canadian Committee on the Constitution was formed to express our views on this proposed Charter of Rights and Freedoms. All Presidents and Chairmen of the various umbrella organizations—and we have circulated a list amongst you tonight—are ex officio members of this Committee.

With your permission, I would like to introduce our delegation.

To my immediate left is Professor Klaus Bongart who is the Chairman of the Association of German-Canadian Language Schools and President of the Co-operative Council of German- Canadian Clubs and cultural centers in Kitchener, Waterloo, and a former member of the Canadian Consultative Council on Multiculturalism.

To my far left is Professor Gunther Bauer who is Vice- Chairman of the Alliance of German Speaking Organizations in Ottawa and Region; on my right is Mr. Benno Knodel, Chairman of the German-Canadian Association of Alberta. On my far right is Mr. Arthur Grenke, a German Historian, who is with the National Archives of Canada.

My name is Dietrich Kiesewalter, and I am the Chairman of the Alliance of German Speaking Organizations in this area and Co-ordinating Chairman of this Committee.

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1 would like to further mention that there are some other

distinguished personalities of our community who are amongst us tonight. Behind me is Mr. Kurt Brockish, President of the Trans-Canada Alliance of German Canadians, Ontario Branch; and also Mr. Gert Taudien, President of the German Canadian Choir Federation.

I would like to proceed as follows with your Committee, Mr. Joint Chairman. We will make a few opening statements, not necessarily all of us, and they will be rather short, in which we will elaborate on points of our submission rather than reading the whole brief to you.

We will then invite your questions and try to answer them sort of collectively if that meets with your approval.

The Joint Chairman (Senator Hays): Go ahead, sir.

Mr. Kiesewalter: It is our understanding that the Charter of Rights and Freedoms is designed for the protection of the weak against the strong as well as for the protection of those who have no influence and power from those who have.

When we look around us within the German-Canadian community searching for someone with political power and influence who could speak for us we see, indeed, very few, if any.

The very same thing can be said, of course, of other minorities in this country.

Although the Canadian record in the observance of human rights compared with other nations is quite a good one, there is undoubtedly a great deal to be improved upon.

In principle, therefore, we have to be—and we are—in favour of better protection of our rights and freedoms.

So far, however, we have not been convinced by the argu­ments of those who are for an entrenchment of these rights in a federal charter, and we are quite concerned about the way you are attempting to go about doing this.

There seems to be so much confrontation, so much energy wasting confrontation built into our political system as it presents itself today, and we who are sort of on the fringe are really dismayed to observe how little is done really to find solutions which do more than serve merely short-term political or economic objectives.

The many changed realities of modern times, demographic, economic, political, may require more substantial remedies if one ever expects to reach a concept of this federal system.

Our political institutions, our electoral system, may have to be adjusted and changed, and, perhaps, if we are really to have a workable federation.

How can we ever expect consent on an amending formula for this constitutional proposal, if we do not provide a frame­ work for possible consent first.

I say that in the opening sentence we consider this task to be very important and noble. But where are the historians going to place us if this attempted building of a constitution, this

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proposed legal roof for all of us, turns out to be divisive rather than a unifying document?

This constitution process is not supported either by the majority of the provinces nor by all the major political group­ings at the federal level. None of the minorities in the coun­try—and they are more than just the Franco-Canadians out­ side of Quebec and the Anglo—Celtic inside Quebec—has any input in the drafting of this proposal.

If a constitution is to be respected by all the people, it will have to be a just one for all. It cannot give rights to one group and deny the same rights to another.

Much has been said in this Committee on Section 1 of the proposed Charter of Human Rights and Freedoms, and the limitation it proposes.

I believe all groups have argued that this is quite unaccept­able because it means ultimately that the parliamentary majority may tomorrow take any rights which it grants today.

We will merely add our voice in support of those who would like to see that limitation removed.

We leave this point with a short comment and concentrate now on some other clauses in the proposal that we find the rather divisive and potentially of a discriminating nature if left unchanged.

We are extremely worried to see that to the already existing alienation and drift between the different forces of the land, political, regional, cultural, which is being expressed daily more and more, and now another element of potential aliena­tion, one, for sure, of great frustration and disappointment is added.

We, as German Canadians, find ourselves right in the midst of this movement and, I should say, totally against our desire and wish, a movement which includes all those who feel threatened in their pursuit to retain their cultural heritage.

We see ourselves classified as second class Canadians, if the proposal contained under the section dealing with minority language educational rights becomes the law of the land. When I say “we”, I am talking about a few millions of Canadians and not only the first generation Canadians like myself. To the already existing problems of Canadian unity, we see another one added.

This proposal is dividing the population into two classes: those with protected cultural rights, and those without. We find this absolutely unacceptable.

German Canadians have as much right to retain their cultural heritage as other groups. German Canadians have
played a very important role in the building and shaping of this country. We were amongst the first to come here in substantial numbers and settle and to pioneer entire areas, a fact that is not widely known today in this country.

If honourable members of this Committee are interested, and you may want to listen for a few minutes to historian Mr.

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Grenke when he speaks about this tremendous difficulty for us to retain our pride, our heritage within a society which has stereotyped us as it has done with no one else, with the exception of our native brothers.

But they have very legitimate reasons to be proud of our achievements in this country and resent being given less rights than other groups.

We have no problems with the official language legislation, and have always fully supported the bilingual aspect of Canadian society.

We have a tradition of accepting academic challenges, and have no difficulty whatever to motivate our children in any aspect of learning experience. We have been in the forefront of arguments made in this country to elevate and improve educa­tional institutions in this country and wished certainly in the area of vocational training that our voice would have fallen on more fertile ground.

We strongly believe it to be of paramount importance to enable all Canadians in all parts of this country to acquire fluency in one of the official languages and a good knowledge of the other. But we also feel that all Canadians should be allowed the opportunity to acquire a capacity in languages other than the official, if they so desire.

For us, the German language is the key to our culture. We also believe that the knowledge of language is one of the most valuable Canadian resources and should be treasured as such.

Everyone of us is an ambassador for this country when we are abroad. We suggest that the provincial wishes in legislat­ing in the area of language should be respected.

I will now ask Professor Bongart to speak on our position on the concept of multiculturalism that we see totally ignored in the proposed Charter.

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Professor Klaus Bongart (Chairman, German Canadian Council of Kitchener Waterloo): Thank you. Mr. Chairman, I will keep my remarks brief and just touch on the highlights.

In our opinion Canadians have accepted and do accept the value of a multicultural, multireligious and multilingual socie­ty. Our government has created a variety of programs to encourage the development of such a society. Canadians by birth have joined Canadians by choice in their commitment to the preservation of their ethnocultural heritage. Ethnocultural values have enriched our lives. We want to share these values with the community in which we live so that it may be enriched by a variety of cultural traditions. There is no better way to destroy the walls that separate us than by a generous exchange of ideas and a mutual enjoyment of art.

We are Canadians and we aspire to a citizenship which ensures full equality both in our rights and in our responsibili­ties. We in Canada have the unique opportunity to create a society in which by retaining our ethnocultural values and sharing them with others, we are equal builders of a common destiny and also creators of a distinctive Canadian identity

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based not on conformity but on a healthy and invigorating diversity. Because this is so, Mr. Chairman, we would like to see in the constitution a phrase that should say that all Canadians are guaranteed the right of choice in the preserva­tion and development of their cultural and linguistic heritage. Thank you very much.

Mr. Kiesewalter: I would like with your permission to have Professor Bauer to give our point of view on freedom of expression. We have certain thoughts on that subject that I think you would be interested to hear.

The Joint Chairman (Senator Hays): Professor Bauer.

Professor Gunther Bauer (Vice Chairman of German Speaking Alliance of Ottawa and Region): Thank you, Mr. Chairman. Allow me, Mr. Chairman, to make a few introduc­tory remarks in order to give you and the members of your Committee the proper background information. Many of the people represented by this Committee here at the table came from parts of Europe which belong today to other countries, such as Poland, Czechoslovakia, USSR, Romania and others. Most of the people who came to Canada after World War II had suffered greatly during and after the war. Half of my family and relatives, for example, perished during and after the last war. There are many families in Ottawa, whom I know of, that had similar losses. You may say of course, and many Canadians have said this to us, you started the war so do not blame us; and we accept this to a certain degree. Let me refresh your memory about one important fact, namely that 2.5 million Germans from the eastern provinces of Germany lost their lives shortly after the war had ended. That is after the Potsdam Agreement had been signed. Many of those 2.5 million Germans who, by the way, were mostly children, women and elderly people were relatives of German Canadi­ans. We fully realize that no human rights charter or Geneva Convention did or could have prevented this from happening.

We think this background information is necessary for you to understand why we feel so strongly about Section 2(b) and why we would like to see some means and ways incorporated in the proposed constitution to make the mass media account­ able for negative stereotyping. In this country of ours every­ thing bad and evil connected with war is German; every war criminal is German; every German alive or dead is or was a Nazi. I know, Mr. Chairman, these are very strong statements but they stem from our own life experiences.

We have appended to our submission of our brief to you a copy of an article from Macleans October issue which we hope
you have an opportunity to read. In this article, a third generation German Canadian who is now presently a member of the Manitoba Legislature describes his experiences of being discriminated against because of his German descent.

I do not wish to say more about this at this particular time but would rather, with your permission, Mr. Chairman, ask Mr. Grenke to share with you a few observations he has made regarding the problem of human rights as it relates to the German communities in North America. Thank you for your time.

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The Joint Chairman (Senator Hays): Thank you. Mr. Grenke.

Mr. Arthur Grenke (Historian, German-Canadian Commit­ tee on the Constitution): Thank you, Mr. Chairman. When speaking on human rights, Mr. Chairman, as these relate the German Canadian community, I must say that our rights as citizens of Canada were repeatedly violated.

During World War I, for example, 8,500 so-called enemy aliens, many of them German, were interned. During World
War II some 2,500 Canadian citizens, many of them of German origin, were interned repeatedly without due respect to the processes of law. In 1917, so-called foreigners who were naturalized after 1902 were disenfranchised. Many of these were German Canadians. During World War I groups of soldiers walked down the streets of Winnipeg and other main urban centers of Canada, broke into German homes and beat up the inhabitants so as to defeat Kaiserism in Canada.

Despite this I do question whether a bill of rights, and in particular one poorly drafted, could protect our interests better than British common law presently does.

Let me read to you the following quote from David Flint’s book on The Hutterites: A Study in Prejudice in which he describes experiences of Hutterites in the United States:

“During World War I impetuous fanatics stole Hutterite’s sheep and cattle from their pastures and like common thiefs sold them at a fraction of the cost to eager buyers. Mobs attacked colonies and some elders were abused and beaten. The Hutterites passively looked on in bewilder­ment at these actions. The Hutterites appealed to Presi­dent Wilson for liberty to live according to the dictates of our conscience by committing themselves to be loyal to our God-ordained government and to serve our country in ways which do not interfere with our religious convictions. But American wartime nationalism seemed to be insulted by the Hutterite insistence on their divine authority.”

The U.S. government tried 503 conscientious objectors for refusing enlistment. 142 received life imprisonment and 17 were sentenced to death. No one was executed and all were pardoned by the President shortly after the war.

Of the Hutterites tried, four; Joseph, Michael and David Hofer and Jacop Wipf were sentenced to 37 years in prison for refusing to enlist. In short order they were confined in the infamous military prison on the Island of Alcatraz in San Francisco Bay where they were handcuffed and at night chained to each other by their ankles. When these men ada­mantly refused to put on military uniforms, they were thrown into solitary and told that only upon complying would they be released from the dungeon. For five days they had the wet, cold concrete floor for a bed, clad only in their underwear. They endured long hours without food and with only meager rations of water. At times they were clubbed and tied to the ceiling. After four months in Alcatraz they were transferred to Fort Levenworth Kansas, in chains. From the railway station

[page 43]

to the military prison they were prodded with bayonnets and herded like oxen through the streets. When they arrived at the prison they were forced to remove their sweat soaked clothing and to wait for two hours chilled to the bone until a prison outfit was given to them. Even then they still had to wait outside in the cold early morning hours. Joseph and Michael Hofer collapsed and were taken to hospital. Jacob Wipf and David Hofer were confined to solitary and placed on a starva­tion diet. They were made to stand nine hours each day with hands tied and stretched through the prison bars, their feet barely able to touch the floor. Joseph Hofer died in a few days. When his wife came to claim his body the guards at first would not let her near. Finally, when she was allowed to see the casket, she found that Joseph had been dressed in the uniform that to the end he had refused to wear. Michael Hofer perished a few days later.

Within two years most Hutterites had sold or abandoned their colonies at considerable economic loss and moved to Canada. From the above it may be seen that the American Bill of Rights did little to protect the life and integrity of this minority group.

I would also like to add the following. In the Bill we are presenting a point of view of human rights in terms of con­cepts, beliefs, peculiar to our society at this time and place. The designers of the American constitution prepared a Bill of Rights to protect rights and freedoms as they saw them. The American Bill of Rights did little to protect groups such as the Hutterites. At the same time it hindered Roosevelt from resolving the problems presented by the depression. The ques­ tion may be asked, may the present bill of rights be placing us into a straight jacket which will hamper future generations of Canadians from resolving presently unforseen problems and at the same time not protect human rights. Thank you, Mr. Chairman and honourable members.

The Joint Chairman (Senator Hays): Thank you very much. Is that your submission?

Mr. Kiesewalter: Yes it is.

The Joint Chairman (Senator Hays): I shall call on Mr. Oberle followed by Mr. Waddell.

Mr. Oberle: (Speaks in German Language)

The Joint Chairman (Senator Hays): You made your point well.

Mr. Oberle: I am glad you agree, honourable Senator. Your colleague in the Chair understands the language. He has travelled with me to the land where I have my roots and may I say that he has a great understanding of the deep cultural roots from which 1 myself.. .

The Joint Chairman (Senator Hays): I live next to a Hutterite colony, and have for 25 years.

Mr. Oberle: Mr. Kiesewalter can I first ask you a question and share with you my experience over the last few weeks. I have been in Parliament for eight years and in Canada since 1951 and I have of course been a very keen observer of the activities of the German ethnic community in Canada, and

[page 44]

with pride I observe that the Germans as much or more than any other ethnic group has no difficulty whatever to assimilate or to integrate completely into the main stream of life in Canada. In fact there are not any identifiable political German ethnic groups. The German ethnic community does not lend itself readily to political exploitation, as other groups have been accused of.

But in the last few weeks I have been amazed at the numbers of phone calls and letters that I have received in my office from all parts of the country from German people representing different groups and organizations. With respect to this constitutional business, they would like to know more about it. They are very anxious, if not fearful, about what is about to happen in our country with respect to the renewal of separatism.

Could you explain to me why it is that Germans are all of a sudden so concerned about what we are doing, and what is this fear. How can it be described? I see us been polarized and as a member of an opposition political party I look at that as good news because I do not think personally, looking at this consti­tutional package that any person who is a new Canadian from any part of the world would vote for a government that would bring something like that in, so that is good news for the opposition party, but it is bad news for my country. I do not want any ethnic group polarized from the main stream of life and particularly not the German ethnic group. Can you make a comment on what I have observed?

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Mr. Kiesewalter: Yes, Mr. Oberle, I am afraid there is some truth to your observation. There seems to be at least a consensus on a number of the contentious issues of the pro­posal in front of us and we as a group, so far we have really tended to mind our own business and not be very active in other large ethnic associations, but I have been called by a number of Presidents or Chairmen of similar organizations, some of them that have presented briefs here, and in fact it was one of the groups that appeared here that sort of said: come on now, what are you waiting for? It is about time you do something and speak up on certain of the issues; and only then did we get together and look at the proposals and saw that there were indeed issues we had to be very concerned about.

So you are quite right in saying that there is, I do not want to call it a movement yet but there is a tendency amongst all ethnic minorities, and I exclude the Franco-Canadians outside of Quebec and the anglo-celtic inside Quebec, to get together and show a united front on certainly minority language rights. It is a real concern because everyone of us feels threatened by the prospect of being into a second class citizen status.

Mr. Oberle: Your brief, Herr Kiesewalter, is not too specific as to where you stand on the entrenchment of the Charter of Rights. Mr. Grenke, I would take from your comments that you would be against the entrenching of a Charter of Rights. I have very strong feelings about that myself, and particularly I feel strongly about it because I do not believe that an entrenched Charter of Rights is workable in the British judicial

[page 45]

process, in the British advisory judicial process as we have adapted it from Great Britain and I draw from the understanding that I have from the system in Germany and to some extent in the United States. You have a constitutional court in Germany that does nothing else but deal with constitutional questions and the individual has free access to these courts. There is no adversarial nature to that process, and half of that particular court is elected by the members of the Lower House and the other half by the members of the Upper House so there is accountability back to the people.

In the American system, of course, the appointment to the Supreme Court is ratified by the Congress and the Lower Courts are elected by the people; again accountability. 1 cannot believe that you can have one without the other and 1 feel very, very strongly about that, but as I say your brief is somewhat vague in this regard. Do you share with me the same fear that if we entrench the Charter of Rights in the context of the British judicial process that we have here, that you would have a situation where the courts would not only make the laws but they would also interpret them. Do you share that fear with me?

Mr. Grenke: To some extent, yes, but I am sure that the people who are drafting this particular bill are aware of this to some extent and all I am trying to say is that they be aware of what they are doing, that they be aware of the limitations and the advantages derived, that this be done intelligently and that they take cognizance in particular of the problems which a bill may involve us in the future.

Mr. Oberle: In the way I look at the situation there are two crucial questions that have to be answered by the guardian of the rights that we are about to entrench. The first question is, of course, what is the extent to which each individual in a society, in any organized society, has to surrender a portion of his freedom and his independence and his right to accommo­date the community, the common good to the collective will, and having asked that question, then the question arises, what is the common good, the collective will, and if the Supreme Court of Canada were to define both these questions, in my opinion that would be exceedingly dangerous and would be a practice that is not consistent with western democracy but would be a practice, rather, that is consistent with so-called democracies behind the iron curtain.

Mr. Grenke: I would not go so far as to say that.

Mr. Oberle: The question of multiculturalism is an impor­tant component of your brief and there again may I say that some of the people that have written to me and called me are saying: why is it that Canada being a model in the world, really, we are not like the Irish and the Lebanese, we do not fight amongst each other or with each other, we are a model to the world in terms of the expression of many cultures, all Canadians have benefited from the rich cultures that have come to this land from the different parts of the world. Why is it that these changes are necessary at this point in time? Why do we not build on what we already have and strive to perfect it?

Do you fear that the concept or the idea of multiculturalism as a result of this resolution has been pushed in the background

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as most people feel, and do you see that multiculturalism indeed could survive if we proceeded with this resolution as it is proposed now?

Professor Bongart: Mr. Oberle, Mr. Chairman, if I may answer that question, I do think 1 believe very strongly in the concept of multiculturalism and, as you probably are aware of, the federal government pronounced the policy of multicultur­alism in 1971 and ever since that time, from 1973 on, the multicultural council was formed, it has become an ingrained part of our awareness, I think, in the ethnic community in Canada from coast to coast, and what we would like to see in the constitution is something that takes it away from the majority of the day in Parliament and puts it in a constitution­ al framework, and as i said in my opening remarks that would have something that is general enough and yet is still to the point where it does say that all Canadians are guaranteed a right of choice in the preservation and development of their cultural and linguistic heritage. A phrase like this or some­ thing to that effect would then put it on the level of a guarantee, which then would remove it from the favour or disfavour of the Parliamentary representation of the day.

Now, if I may, Mr. Chairman, refer to Mr. Oberle’s remarks with regard to the value of our Canadian multicultur­al concept, I might point out that not too long ago Sweden has adopted the Canadian concept almost in its entirety, to a great extent anyway, and made it its own Swedish concept of how to deal with the several questions they also have.

I might also point out that the West German government, due to the increasing amount of workers in Germany from other countries, from the European Common Market, and so on, that they are very impressive and looking at our concept, and 1 do think that Canada is leading the world in this concept, is giving signals as to the possibility and here is a political reality that can be realized, and I do think that the ethnic communities in Canada would like to have this guaran­ tee in the constitution that makes it possible to continue and extend that which it has already achieved in the relatively short time from 1973 to the present time.

The Joint Chairman (Senator Hays): Thank you very much, Mr. Oberle.

Mr. Waddell followed by Mr. Oberle.

Mr. Waddell: Thank you, Mr. Chairman.

Mr. Oberle opened in German and I was very pleased to hear that. 1 am sorry, I am a Scottish immigrant, Mr. Oberle, 1 came here in 1947 and 1 cannot speak German, although I might try some Gaelic.

Mr. Oberle: We will not hold that against you.

Mr. Waddell: I understand there are certain similarities.

I was very pleased, Mr. Chairman and members of the delegation, that you pointed out in your oral brief and you point out in your written brief that I have in front of me that there are over 1.3 million Canadians of German origin in Canada, and that in a number of provinces German Canadians are second only to the anglo-Canadian majority.

[page 47]

You say further on page 3 of your brief, by a wide margin the second largest group of Canadians in my province of British Columbia are of German origin and you say we are Canada’s largest group of neither French or British origin and I must say, on a personal level, in my constituency in Vancou­ver I always assumed that it was Italian people or Portugese people, and so on, that were the other cultural group and when I looked at the figures 1 was surprised to see that it was really Canadians of German origin and you reflect this in your brief.

I want to ask you specifically with reference to multiculturalism. It seems to me that we have three choices in dealing with it: the first is there can be no mention at all in the constitution; the second one could be that there is a mention in the preamble of a constitution. Now, I do not see any preamble here but there could be a mention in the preamble. Now, that could be some sort of affirmative guidance to us, a kind of let-us-show-the-nature-of-the-country-we-are, but perhaps of no legal authority; and the third possibility would be that it could be mentioned in the body of the constitution, let us say in Section 15 here, which would give specific legal rights.

I wonder whether you would agree with me that those are the choices, there may be other choices, and which choice would you prefer?

Mr. Kiesewalter: If I may answer, I think we would prefer to have it in the body of the Charter that you have in front of you rather than in the preamble. The preamble, to me, would be more of a statement of intent.

I think our Ukrainian friends recommended an addition to Section 15 and it reads as follows:

“Everyone has the right to preserve and develop their cultural and linguistic heritage.”

I think this would be quite acceptable to us.

Mr. Waddell: That would be a clause in addition to Section 15. I will just read Section 15(1):

15.(1) Everyone has the right to equality before the law and to the equal protection of the law without discrimina­tion because of race, national or ethnic origin, colour, religion, age or sex.

(2) This section does not preclude any law, program or activity that has as its object the amelioration of condi­tions of disadvantaged persons or groups.

So we are really dealing with Section 15(1). 1 wonder would you advocate that we perhaps add in that Section . . .

Mr. Kiesewalter: Subsection (3).

Mr. Waddell: You say we should add a subsection 3 rather than putting in Section 15 (1), for example, mother tongue, or a right to education?

Mr. Kiesewalter: This would be then a matter of legal discretion or getting lawyers to properly draft it. We basically agree with the Ukrainian proposal for an additional subsection (3).

Mr. Waddell: All right, just so I have got that clear and without going into lawyers language, heaven forbid, what do you mean by multicultural rights? If I asked you to be very

[page 48]

brief and say what do you mean by multicultural rights, how could you say that in a paragraph or two?

Professor Bongart: That is a big order but I will try.

Multicultural rights is based on the respect, 1 would think, for the rights of the other Canadians. Multicultural rights have their basis in recognition of the rights of all other Canadians and in the will to share your ethnocultural heritage, that which you have inherited, with all the other Canadians, and to make sure that there is a possibility of sharing, there is a possibility of freely exchanging without discrimination and without being hindered in doing so.

So you asked for one paragraph, I think the bottom line would be to share your heritage, your ethnocultural values, with the rest of your fellow Canadians and expect the same from all the other groups.

Mr. Waddell: Well, I took two things from what you said, if I might. 1 took the positive side as sharing your heritage, being proud; in my community of Vancouver-Kingsway we have Canadians of German speaking origin, and we are; and a kind of negative idea, if I can put it that way, that there should not be discrimination in law.

I wanted to ask you specifically what happened around World War II or shortly thereafter in British Columbia, during the War, to Canadians of German origin in the area of Vancouver and in British Columbia? Could you answer that shortly?

Mr. Grenke: I am not really that familiar with World War II but I can tell you what happened at the time of World War 1.

One thing, at the time of the sinking of the Lusitania rioters in Victoria went through the streets smashing windows, they went to the German Club and broke the windows and so on and so forth.

After the war the problem became not only that of fighting Kaiserism, but this was somehow synthesized with fighting Bolshevism, and the people, the war veterans who at the end of the war went out to fight the Wobblies, also chose to do their share in beating up Germans and so on, so forth.

Mr. Waddell: Well, I am told that the Japanese Canadians were here and told us a similar story during World War II. There has been some suggestion that this was extraordinary, that it only happens in time of war, not in peace time, but I note the War Measures Act 10 years ago which now historians say was wrong and unnecessary, and I wonder if your organi­zation has taken any position with respect to the use of the War Measures Act in peace time?

Mr. Kiesewalter: We have said in our brief that we find Section 1, with the exemption it proposes, quite unacceptable. I think this would cover that. If you have entrenched rights they should be entrenched without the limitation in Section 1.

Mr. Waddell: I see and I agree. I just wanted to ask you perhaps one last question. You make reference to hate propaganda

[page 49]

in your brief, the difficulties of any community that is faced with that kind of evil. I understand that the Criminal Code has some protection against hate literature and I wonder if you think that is adequate or whether you would ask that there be some additional provisions in the constitution document.

Are you in a position to be able to comment on that? I know it is a tough one.

Mr. Grenke: May I first of all add in relation to World War 11, during World War II the Germans were not treated as badly as the Japanese, the prime reason being that because of World War II. Germans tended to shed their identity to a great extent and the main people who suffered during the Second World War were the members of the Deutsch- Canadeschr Aabeiter and Famer Verbend, which was a leftist organization, and the members of the Bund. Now, these peoples, many of them were interned and so on and so forth, but generally the German community as a whole tended to be left alone.

Regarding hate propaganda, this is really a very difficult issue and it affects us not the same way as it affects many other communities. It affects us largely in such films as Holocaust, Hogan’s Heroes and so on, so forth. Now, as I understand it, the Broadcasting Act does not allow or permit an ethnic community to challenge a certain program, the broadcaster can present what he wishes but at the same time he is required to, and I will read what I was told by Bill Howard of the Legal Branch of CRTC, that the station is obliged to provide the opportunity for expression of different views on matters of public concern. Now, this does not apply to drama as yet, it applies largely to public opinion programs.

Now, what we would like is if, somehow, in someway, if a program is presented which presents us in a negative view, that laws be passed which enable us to present our point of view on that particular television station which presents a program which stereotypes Germans in a negative way.

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Mr. Waddell: I will finish with a comment, Mr. Chairman, if I may, namely that I appreciate that answer, because it is a growing difficulty. We have seen it with Canadians of Chinese origin with the W-5 program, and an apology coming from the program; we have seen it with Italian Canadians with the Mafia references encompassing the whole community. It is the first time I have heard it expressed by the German Canadian community. 1 am very grateful, hearing your comments tonight. I know it is not an easy problem to solve, but I am very grateful that you have brought it up.

Thank you.

The Joint Chairman (Senator Hays): Thank you. Mr. Mackasey, followed by Mr. Epp.

Mr. Mackasey: Thank you, Mr. Joint Chairman.

On behalf of my party I would like to welcome such a distinguished group as we have here this evening.

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Reading your brief 1 get the impression that you have some ambivalence about the enshrinement of a Bill of Rights as proposed in the Charter. Could you elaborate one way or the other?

Mr. Grenke: We believe that a Bill of Rights is a great thing. However, we feel that in trying to create a utopian society through bills of right we may end up doing more harm than good.

Mr. Mackasey: May I stop you for a moment there. I would like to develop a theme here, if 1 may. Forgetting your reservations about the bill—and I share your concern that maybe we are creating expectations which we may not be able to meet and 1 will talk to you a little later about that.

But assuming for a moment that your reservation about a limitation clause were removed, or there was wording of such nature that a greater onus was placed on the courts than on the legislature, if you had no reservations about Section 1, would you feel more inclined to support the concept of a Bill of Rights being enshrined?

Mr. Kiesewalter: Mr. Mackasey, how would you deal with the court cases? Which courts? We are not familiar with any provisions being made for dealing with the problems that may arise. Who is going to apply the law of the land?

Mr. Mackasey: Well, eventually, people who feel that their constitutional rights which are enshrined are being infringed upon by some authority, can go all the way to the Supreme Court, and the Supreme Court will be dealing not with a Bill of Right which is not enshrined, such as Mr. Diefenbaker’s laudable piece of legislation, but with rights which are funda­ mentally enshrined in the constitution. It will then be for the courts to determine whether the case comes within the defini­ tion or intent of the constitution.

If you are asking me who would enforce it, then it would be the Supreme Court.

Mr. Kiesewalter: As it is now, not enlarged or anything of that sort.

Mr. Mackasey: Well, as you know one of the weaknesses of the present Bill of Rights of Mr. Diefenbaker is that the Supreme Court can, and has, ruled that it does not supersede any other piece of legislation, with one exception—one ruling.

Surely, once something is enshrined or spelled out in the constitution as your individual rights, as opposed to the common law system—and, if I may say so, I am a little concerned and perturbed, because I respect your group when you realize, that representing the riding of Lincoln I have had a chance, as you know, to discuss this matter for many, many months. It has been fascinating to get the multicultural views of that community which I was not always exposed to previ­ously when I was in Quebec.

But it seems to me that, with Canadians of German origin who have been subject to the type of discrimination which you have touched upon in your brief, the atrocities which were committed against Canadians of German, Ukrainian, Japanese background well before World War I it would seem to me that you, more than any other group, would want to see your individual rights enshrined in the constitution. I am a little

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perplexed by your reservation. Is it because of the drafting or its limitations?

Surely, philosophically, you cannot be opposed to it.

Mr. Kiesewalter: The atrocities which have been committed against our groups were in countries which had entrenched rights.

Mr. Mackasey: I do not want to leave you with the impres­sion that the entrenching of rights will eliminate these atrocit­ies, anymore than it could eliminate discrimination. But all things being equal, if you had the case to pursue, after you felt you had been discriminated against individually or collectively, surely you would want to go to the Supreme Court armed with entrenchment in the constitution rather than relying on the common law?

Mr. Grenke: The example which I gave you, they appealed to the President; and because the society was intolerant the Supreme Court did not help them at all.

Let me give you another case. In April 1918, a mob lynched R. H. Praeger for supposedly making disloyal remarks during an address. He was dragged out of court where he had been brought and eventually lynched.

Now, let me give you another case. A man by the name of Arnold T. Drumheller was acquitted by a court after shooting Tim Blair, one of twenty who broke and attacked his farm and harassed him. In this case the man was better protected by common law than the man who was in the American situation.

So it is society—the right atmosphere—which creates human freedoms, not law.

The Russians possibly have one of the most liberal of constitutions, but they are really one of the most enslaved societies.

Mr. Mackasey: The Russian constitution does not give you the right to court. Ours will, and that is the fundamental difference.

Mr. Epp: It does.

Mr. Mackasey: Go ahead, you do not have to listen to interruptions at all.

Mr. Grenke: I was going on to add that it is a particular environment at a specific time which seems to determine the rights which individuals have. It is not any legal system. This has been our experience.

Mr. Mackasey: The point 1 am trying to make is that I am not disagreeing with your right to differ with what we are doing. What I am trying to do is to find out what is your opinion one way or another.

Mr. Grenke: As I said before, we feel that if we are going to have a Bill of Rights we should certify that it will be intelli­ gently drafted, that the people who draft it take cognisance of what they are doing, and realize both their limitations and their advantages and present us with a Bill of Rights. That is all we are saying.

Mr. Mackasey: What you are saying is that you want one that is perfectly drafted.

Mr. Grenke: As perfectly as possible.

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Mr. Mackasey: And that is the purpose of these hearings, to weigh contributions such as your own and to take them into consideration and to reflect it in better drafting.

Mr. Grenke: We see our role as trying to help you do this.

Mr. Mackasey: You are doing it well.

If I were the belligerent type, which I am not,—and I would suggest to Mr. Orberle that the fight amongst the Irish is their own business and one which is fought on very historical grounds, based upon language, religion and things which only the Irish can understand.

But I do not pretend to be an expert on your culture. When I first came here in the 60’s one of the things which perplexed me as a back bencher was a reference to our Committee, set up to study the elements that were adding to dissension in this country, tension, and a lot of us were very concerned; the Commission was called the B and B Commission—Bilingual­ ism and Biculturalism; and I have to say that in defense of my Prime Minister because, again, Mr. Orberle introduced some­ thing which is very rare in this Committee, an element of partisanship suggesting that somehow we were contributing to separation. I hope you do not agree with him on that.

It seems to me, gentlemen, you have very eloquently remind­ ed me of the degree to which this government and this parliament—all members—have brought this country to the stage where we no longer call it B and B. It is bilingual and multicultural. In the early 1970s, all Canadians of various cultural backgrounds had an opportunity to make their cul­ture, language and so on known to other Canadians. So, by all means. Would you like to comment?

Mr. Bongart: I would like to say that 1971 was the year when the government adopted the official policy of multiculturalism. The ethnic community in Canada over the last seven years have worked very hard and in concert with other organi­zations to achieve what we have in fact achieved up to this point.

Now is the time, when we are talking about the constitution, to entrench this guarantee, to put a guarantee or something of that nature which guarantees freedom of choice for each Canadian, and we consider the ethnic community or the third group; whatever name you would like to use, as Canadians who love this country very much, and who would like to contribute to it, but we would also like to make sure that in the future we have a guarantee which makes it possible for us to extend what we have achieved and work in freedom and to contribute even more to the Canadian fabric or mosaic.

Mr. Mackasey: I share your views, and Mr. Waddell put it correctly when he pointed out three different ways in which we can do it, either by way of a preamble which would give us a little more opportunity to express the deep feeling which all of us have for this great nation.

I am particularly impressed by the contribution of Canadi­ans of German background, because Mr. Waddell said they were not very much up-front with Canadianism. They are not all living in the past as other groups are. I find that wherever you look, schooling, Parliament, you find the contribution of Canadians of German origin are there.

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Perhaps we could have placed in the preamble some of the deep feeling and conviction we have for this country, particu­larly those who chose it. Our problem in writing the preamble was to write one which was acceptable to all groups, jealous of our heritage, our contribution—so even the preamble was difficult; hence, no preamble.

The question of enshrining in the constitution your very legitimate concern—I am not saying we would not do it, but again, it stems from the concern of other groups who say, “We should have this and we should have that”. We are trying very hard to come up with a good constitution.

I resent the fact that it is creating dissension in this country. 1 am not resenting anything you have said.

Thank you.

The Joint Chairman (Senator Hays): Thank you very much, Mr. Mackasey.

Mr. Epp, followed by Mr. Lapierre.

Mr. Epp: (Speaking in German)

I would like to start with the concept of multiculturalism. We have had before this Committee a general acceptance of groups that are now termed ethnic, a term which I personally somewhat resent. Maybe only if one has that label given to one that one could understand the resentment.

There is a general acceptance that, in the constitution and in the daily lives of Canadians, government services should and must be provided in the two official languages. There is no argument there, nor did your brief put forward any argument on that point.

Then we get into the real difficulty, the area of grey, and that is how do you establish, either by constitution or provision or a policy provision, the validity of—-and another term I resent is a third language option because it is all gradation; but I will use the term because we all understand it now; a third language option which, without entrenching could still give the option to Canadians who want to follow that option?

Mr. Kiesewalter: You may be aware that there are a number of provinces with programs.

Mr. Epp: You are thinking of Alberta.

Mr. Kiesewalter: There is another one, and maybe Mr. Knodel may want to say something.

Mr. Knodel (Chairman, German Canadian Alliance of Alberta): The Ukrainian groups have a bilingual pro­ gram. For the past two and a half years the Germans have had something going in Edmonton and it works quite well.

At the same time it does not mean to say that we are taking anything away from the French program. It is, in fact, growing in the province of Alberta. We have a university where you can take up to two years of French in the program, and in fact there is a demand for French teachers in Alberta which goes to show that it is expanding and at the same time other so-called third languages would like to get into the system.

[page 54]

Mr. Epp: Do you share the view that many other groups, such as yours, for example the Polish Congress, the Ukrainian Committee, have put forward that if the word “multicultural” or “multiculturalism” were included in the Bill of Rights in the constitution—and I am not here to define whether it should be in Section 15 or Section 2. In other words, if the concept—because it would be the first time in the Canadian experience that we would have had or given it legal form; in a constitution we would have also given it constitutional validity: would that fact, that Canada is bilingual, bicultural and multicultural, a multicultural society, enhance multicultural­ ism in Canada? In other words, it would take it away from the political arena in the sense that while it is valid to have our dances and our language and food and ethnic occasions, valid though they may be in themselves, they do not have that constitutional position or position in jurisprudence; would that, to some degree satisfy you, and would it reverse or at least end the trend which you have identified whereby ethnics “shed their identity”.

Mr. Bongart: May I say, Mr. Epp, that I share your abhorrence against terms like “ethnic” and all these things, especially since these terms have a way of coming back every ten years either in a negative way or maybe even in a positive way, but the other way around.

These terms are not very good, but they are used for want of a better one, because the term “multiculturalism”, quite apart from being a tongue twister—well, it is not such a nice word— but we have not got anything else at the moment.

Coming to the main point of your question, it would be a step in the right direction.

I would like to point out—something I have said three or four times tonight—Canada has an official policy of multicul­turalism, and I would like to point out further that the Prime Minister said at that time that Canada is a bilingual but multicultural country. If that is so—and there is no doubt about it that it is so—then we, the majority of the German Canadians do not see anything wrong putting it in the constitution to give us that right and to conclude, you might say, that which has been started in 1971.

So I very much agree that would be a very desirable thing from all points of view.

Mr. Epp: Thank you, and I share your view and thank you very much for it.

The Joint Chairman (Senator Hays): Thank you very much, Mr. Epp.

Mr. Lapierre.

[translation]

Mr. Lapierre: Thank you, Mr. Chairman. Gentlemen, I read your brief with great interest.

Taking the recommendations that it contains, one by one, you are asking us to amend Clause 1, which is already admitted by all members of this Committee.

[page 55]

As for Clause 2(b) on freedom of expression, I will say that 1 am from Quebec and I have lived under Mr. Duplessis’ repression. Therefore, I believe that if we limit freedom of expression in Canada, we would be in a very difficult situation and 1 must admit that very few groups have asked us to limit that freedom because it is one of our greatest freedoms and it does contribute to the greatness of our country.

I looked at the examples that you are giving, to prove that, with or without a charter, the rights have not been well protected. But all the examples you have given referred to war time. You know as well as I do that a charter of rights is valid only in peaceful times and that in war time, during an insur­rection etc., the same yardsticks do not necessarily apply because those do not represent a normal situation.

What concerns me most, are your comments regarding Clause 23 because, as a francophone, 1 give great importance to that clause. You ask that education remain a provincial jurisdiction. 1 must admit reading and rereading that clause that there is no question that education would cease to be a provincial jurisdiction. The only new element in Clause 23 is the minority language educational rights, not the majority language. I do not understand how you cannot admit the linguistic duality. I recognize multiculturalism as a fact. Per­sonally, I would favour more than mentioning it in the pream­ble. I think it could be included in a particular clause in the charter so that the multicultural character of Canada is reco­gnized but that does not mean that we have to give up the linguistic duality of Canada and cease to protect minorities which historically, especially outside of Quebec, have been grossly and unjustly neglected.

Do you not think that at the same time we recognize the multicultural nature of Canada we can also recognize the bilingual characteristics of our country? Do you not think that both can be included in the charter?

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[text]

Mr. Kiesewalter: May I answer at least one part of the number of questions that you have had. At first you indicated that you cannot agree with our thoughts on freedom of speech and you have the right to say that it is very important to have freedom of the press and so on. You pointed out the example of the implementation of the War Measures Act.

1. Lapierre: Non, loi du Cadenas.

Mr. Kiesewalter: Yes, I know. The point we are trying to make is that there should be some provision in the law and we are not arguing for the importance of freedom of speech, or freedom of expression because we value it as highly as anyone else. But there should be some provision that provides for accountability of the mass media towards groups that feel discriminated by films, newscasts, documentaries, whatever. This is the only thing we are trying to get across and I think you will agree that this is, especially in our case, a real problem; that we have no way of getting back at the mass media that has portrayed us in a rather negative way for generations.

[page 56]

[translation]

Mr. Lapierre: Is it necessary that that section be included in the Constitution? Do you not think that ordinary statutes could allow protection against libel or such things? Such laws did exist before the Constitution any way.

[text]

1. Kiesewalter: We understand that there are provisions in the human rights charter, especially in regard to freedom of expression that has a clause where it says that groups that feel unjustly treated by the media have the right to expect from the same media the possibility to present their own point of view. I think something like this would be quite acceptable. We know that in the Criminal Code there is a provision for us to go to the courts and take radio stations or television stations to court but what we would rather have is a provision made in the Bill of Rights that makes the media, do it the other way around, accountable for the position they have taken.

[translation]

Mr. Lapierre: I would like your comment on Clause 23.

[text]

Mr. Kiesewalter: The problem with minority language rights, you must appreciate our position there, too. It does, in fact, and I know we are not the only group that has argued that point, it does in fact make us into second class citizens. Nobody argues the importance of the bilingual nature of the country. There is no one; but you must admit by protecting or enshrining or entrenching the rights of two cultures and, you know, you cannot separate the language from the culture. It is of vital importance. By entrenching the rights of two, you discriminate against all others.

The Joint Chairman (Senator Hays): Thank you very much, Mr. Lapierre.

Mr. Friesen, you have a question.

Mr. Friesen: Thank you, Mr. Chairman. I could not help thinking of my own growing up years when you were recount­ing the history of the Germans. I was a teenager during World War II in a Mennonite community of Mennonite parents, all of whom were pacifists; and yet during World War II, we had to register. But we were not allowed to register as Canadians, we had to be Germans. You can well imagine the tension that there was among, the kids my age, when it came to schoolyard fun, if you had a pure German name you were easily identi­fied. But if you had a name that could be fudged as being maybe Dutch or one of the other Nordic languages, man, the tension that it created in that community because you see the aspersion was always there that if you had a German back­ ground then you were not a good Canadian.

Mr. Waddell wanted to know what happened. I could tell him stories about that, of Germans in the community who had to move beyond Hope—that is a capital H, that is the town Hope—maybe beyond hope, too; just as the Japanese had to move on. So, I remember that very well, and a classmate of mine who went to medical school and had a hard time getting through because of the anti-German feeling, is now a specialist in medicine. But that all changed. It all changed without the National Guard standing at the doors of the school and

[page 57]

without bussing or any of those things and 1 cannot help but think that you have a real point when you point out that maybe we can bring about change through legislation and growth in our community, growth and understanding, better than through the judicial process as the American experience has been.

You mentioned, I believe, in your brief, that the German community has had trouble getting its story told in history. Did I understand you correctly? Could one of you elaborate on why it has been difficult?

Mr. Bongart: Mr. Chairman, if I may, this is a very interesting question and I do not think it was by design— maybe Mr. Grenke will oppose that view—but I think it was simply not done because until about seven or eight or nine years ago, until the German community, that is some scholars, some academics, and I am proud to say that 1 am one of them, we took the initiative and we did do some serious research that had been done before, but in a concerted effort to look at the contribution of Germans in Canadian history. We looked at the German settlers in the maritimes. I would like to remind you that the very name of New Brunswick is really a transla­tion of Neu Braunschweig and 1 could name a few more examples.

But to come back to your questions, 1 will not take too much of your time, but basically I believe, and I am a founding member of the Historical Society of Upper Canada, Mecklen­burg, which was by the way the name of part of Ontario in the 18th Century, the main reason was that German academics, German Canadians, in the last 200 years up to the last 10 years, perhaps, have not really taken the initiative. In the spirit of multiculturalism and in the spirit of the new awakening, of working together, of sharing things, there has been now an effort on the part of German-Canadian academics to delve into the thing, and let me assure you, Mr. Chairman, and Mr. Friesen, that we are finding out astonishing things in our research. I am quite sure and confident in saying that the next five years or so when all of the research will be published, and we are making great strides towards that, there will be quite a change in the image and in the concept of the German contribution in the last 200 years to this country, which we all love so much. Thank you very much.

The Joint Chairman (Senator Hays): Thank you very much, Mr. Friesen.

Mr. Friesen: One more question, sir. My great grandparents came here in 1875 and lived in sod huts in Manitoba and I think that they would be very surprised if they were here today and found that they were not part of the founding nation of Canada. I wonder if one of you could give me your definition of what the founding race or the founding people of Canada are.

Mr. Grenke: That is, of course, a very difficult thing for us to deal with. I am not quite sure what is generally meant by founding races. 1 think what they mean is when Canada became a nation there was somehow a union of French and English to create a united Canada. Now, if they mean that, of course, they are quite wrong because this union was only in Canada East and Canada West but you had in this union also

[page 58]

Nova Scotia, New Brunswick, Prince Edward Island and so on and so forth, and later other provinces, and these united with Canada largely to perpetuate economic interests. So, rather than seeing Canada in terms of founding races, to me it makes more sense to see it as a realistic alternative to American expansionism at that time and attempt to create a nation which was British, and would preserve British culture and so on and so forth.

I do not want to say this but 1 believe that the idea of founding races is a myth created largely by the Liberal government in order to justify the present course which it is taking and the course which it has taken to a greater extent since the turn of the century; but by this 1 am not saying that I disagree with it but I think that it is largely a myth rather than a reality. If it is a reality, it relates only to Central Canada and it is in a new and different way an attempt to push Central Canada down the throat of the remainder of Canada, that is the western provinces and the maritime provinces.

The Joint Chairman (Senator Hays): Thank you very much. That concludes our list of speakers and on behalf of the Committee, I should like to thank the German-Canadian Committee on the Constitution, Mr. Kiesewalter, Professor Bauer, Professor Bongart, Mr. Knodel and Mr. Grenke for being here tonight. We appreciate you being here and I sincerely hope that down the road when we are finalizing the Committee that you will, I am sure, have some input. 1 also, as a Canadian, hope that all the ethnic groups, although we are mindful of their beginning and great contribution, that one day, though, we will stand up from sea to sea and say, “We are Canadians.” Thank you very much.

Mr. Kiesewalter: Thank you very much, Mr. Chairman, and members of the Committee.

• 2315

The Joint Chairman (Senator Hays): Tomorrow morning our first witnesses are representatives of Canadians for One Canada, at 9.30 a.m. This meeting is adjourned.

[page 1]

APPENDIX “CCC-3”

THE CHILD AS CITIZEN A SUBMISSION TO THE

SPECIAL JOINT COMMITTEE OF THE SENATE AND THE HOUSE OF COMMONS ON THE CONSTITUTION OF CANADA

BY: The Canadian Council on Children and Youth

Professor David A. Cruickshank, Faculty of Law, University of Alberta, Calgary, Alberta; vice-president, Canadian Council on Children and Youth.

Dr. Joseph C. Ryant, Professor, School of Social Work, University of Manitoba, Winnipeg, Manitoba; member of the Board of Directors, Canadian Council on Children and Youth.

Andrew Cohen, Executive Director, Canadian Council on Children and Youth.

December 8, 1980

INTRODUCTION

The Canadian Council on Children and Youth is a national non-profit organization dedicated to improving the situation of Canadian children. For over 20 years, the Council has acted as an informal umbrella organization, bringing together individuals and groups who share an interest in children and develop­ing a variety of coalitions to advocate together for changes in the conditions affecting children. In 1978, the Council’s report, “Admittance Restricted”, examined in depth the citizenship status of Canada’s 7 million children.

Also, in 1978 the Council organized a coalition of over 200 national associations to work together for the International Year of the Child. That group planned and organized the Canadian Commission which was eventually put in place for the Year. The legacy of the Commission is less what was accomplished during 1979—despite the excellence of those achievements—than it is the thousands of people across the country who became sensitized to the special situation of the 7 million Canadians under 18 years of age and dedicated to the improvement of their status. At the conclusion of its mandate, the Canadian Commission for the International Year of the Child asked the Council to accept that legacy to ensure that those who care about children continue to work together on their behalf, and to ensure that they are heard. So we appear before this Committee partly on behalf of our own organiza­tion, but also on behalf of the many thousands of Canadians who feel that children are at an unfair disadvantage in our society. What we want, simply stated, is full citizenship status for Canadian children.

PRINCIPLES

Our definition of citizenship status for children rests on four distinct principles:

[page 2]

The Rights of Children

We believe that human rights are indivisible. They are not to be parcelled out to different segments of a society at different times and under different circumstances. The concept of universal human rights hinges entirely on the indivisibility of those rights. Every being defined as human is entitled to the rights, otherwise either the being is not human or the rights are not universal.

The rights of children are not usually expressed and/or exercised directly by children but indirectly through inter­mediaries such as families, school systems, family courts and child welfare agencies. Although it is through these intermedi­aries that the child’s rights are often defined and exercised, the rights are no less indivisible or unalienable.

Support for the Family

Accepting the premise that the family is the most appropri­ate place for a child, while applauding the evolution of the institution itself, requires the re-examination of the traditional family support structures in the community which must now be redesigned to meet new conditions.

For the past 20 years, the view of the nuclear family as the basic institution of our society has been open to serious question. The very definition of what constitutes an acceptable family role has undergone some fundamental changes. There are a growing number of families in which both parents work; others in which neither parent is employed; and many which are single-parent families.

In the Council’s view, the evolution of family role and function is a positive thing, not a step towards the disintegra­tion of the institution. The long overdue arrival of some acceptance of women’s roles outside the home has generally been a positive and liberating force in our society. However, the resultant hasty arrangements which have been made for child care are sometimes less progressive in their effects.

The answer does not lie in refusing to accede to women’s demands for equal treatment in the workplace. Rather it requires an understanding that a new attitude towards working women has implications for all members of society, including children.

The growing and unmet need for quality daycare is not a reason to deny women the choices they deserve. It is a demon­stration of the kind of family support service the community must develop to go along with its appropriate new attitudes. In fact, regardless of the situation of parents, quality daycare is, in and of itself, a provider of educational, social, and cultural experiences of undeniable value for children.

Important as it is, daycare is just a single pillar in the kind of support structure society must build to strengthen its family units.

[page 3]

Canadian families are not what they were 100 years ago.

We cannot predict how they will be 100 years from now. We do know that we cannot turn back the clock by merely asserting traditional values in pious tones. Viable family life has always had the support of the society around it. That need is no less present today, but the form of society’s support must catch up with the enormous changes in work, mobility, hous­ing, and lifestyle.

Equality of Opportunity

No matter how radically or progressively one may pursue and encourage a re-definition and strengthening of the family role, one aspect of it remains unalterable: children are depend­ ent on the care of others during the most significant part of their lives. Neither utopian reverie nor ideological exhortation can change this fact. Neither should its acceptance amount to the abdication of child care responsibility to the parents alone.

Most important in this regard is the question of equality of opportunity. Because of the dependent status of children, it is difficult to separate the opportunities of children from those of their parents and it is important that every effort be made to ensure that the right to equal life chances be provided for dependent people. Supporting the family assumes that its socializing role is a desirable and positive influence. But equality of opportunity for children must not be completely and solely dependent on family circumstances, on family income and status.

Individuality of Interest

One question which bears special examination in a discus­sion of the place of children in the family is that of identifying circumstances in which their best interests may not be served by the interests of their parents. Here again, merely stating that each individual has the right to personal interests is not enough to guarantee these rights to the child. For a variety of obvious reasons, it is often impossible for children to identify, articulate or defend their interests. To recognize the primacy of the child’s interest is to accept:

—that a child does have an individual interest within his or her own living situation, whether he or she is capable of identifying it or not;

—that as a result of the existence of this interest, the child has an inalienable right to its recognition and its represen­tation in circumstances where it is being ignored, threat­ened or denied.

The family and educational situations of children should be used as mechanisms to ensure their growth as individuals, progressively better able to make their own decisions and to take responsibility for their own lives. Until the child achieves independent adulthood, society has a responsibility to identify and safeguard the child’s interest.

[page 4]

THE CURRENT SITUATION

Canada’s most significant constitutional document, the

BNA Act, makes no reference to children. We view the Resolution which Parliament has placed before this Commit­ tee as the best opportunity in over 100 years to ensure that children have full citizenship rights in our country, to create the context for improvement in their situation, and to banish forever the repugnant notion of children as chattels of their parents or of society. The rest of our brief will discuss the ways in which our principles can be applied to the proposed “Canadian Charter of Rights and Freedoms”. This includes a discussion of entrenchment, our position on the rights of children, and the legal rights proposed in the Charter.

THE ENTRENCHMENT QUESTION AND THE RIGHTS OF CHILDREN

GENERAL

The Council takes no strong position in favour of, or against, entrenchment. However, in connection with children and youth, the courts have not served us very well. Entrenchment would give greater authority to the courts under section 25 of the proposed Charter. But will youth fare better under the proposed Charter than under the Canadian Bill or Rights’!

EQUALITY BEFORE THE LAW—THE BURNSHINE PROBLEM

In R. v. Burnshine (1974), 44 D.L.R. (3d) 584, the Supreme Court of Canada examined “equality before the law” in connection with a young offender. Although the boy faced a maximum of six months’ imprisonment or a $500 Fine under the Criminal Code (Can.), he was sentenced to three months definite and two years less a day indeterminate. The sentence, passed under the Prisons and Reformatories Act (Can.), was upheld even though an apparent inequality existed in law on the grounds of:

(1) age (the longer sentences applied to persons under 22); and

(2) geography (the facilities for indeterminate sentencing were available only in British Columbia and Ontario)

“No inequality” said the Supreme Court. Since the indeter­minate sentence was designed to “reform and benefit persons within the younger age group”, it was not the Court’s function to call it “unequal” and render it inoperative. The “benefit” of two years’ imprisonment was put ahead of the maximum six months an adult would receive.

Any child care worker, probation officer, or young person in the corrections system will admit that the large institutions used for indeterminate sentencing are, in fact, schools for learning crime, not preventing it.

[page 5]

These “training schools” are juvenile prisons and the odds of  “reformation” are slim. But the court, using paternalistic assumptions, was able to turn down an apparently strong case of inequality. This case is to young persons what Lavell is to native women—a demonstration that we can place little hope in judicial interpretation of “equality before the law”.

With entrenchment of the Charter, a decision like R. v. Burnshine could be even more disappointing because it would require a constitutional amendment to undo.

WILL PARLIAMENT AND THE LEGISLATURES PRO­ TECT RIGHTS?

On the other hand, the provincial Legislatures and Parlia­ment have not performed well in protecting the needs and rights of children. The problems of abused and neglected children, outlined in Admittance Restricted, are often related to out-of-date, inadequate provincial legislation. Some prov­inces have forged ahead—Quebec’s Youth Protection Act (1977) sets forth rights of children in care. Ontario’s Child Welfare Act (1978) amendments guarantee a voice for the child and frequent reviews of the child’s progress in care.

But other provinces, like British Columbia in its Family and Child Service Act (1980), consolidate governmental power over children in care with little attention to the child’s needs. The British Columbia government virtually ignored the com­ prehensive recommendations of the B.C. Royal Commission on Family and Children’s Law and the views expressed in hun­dreds of submissions since the Commission reported in 1975. Are these the legislators we can count on to update and advance children’s needs and rights?

Parliament’s record is hardly praiseworthy. The Juvenile Delinquents Act (Can.), hardly changed since 1908, has been slated for replacement since 1965. Fifteen years after the promises, we are still waiting—and still seeing unacceptable, paternalistic practices carried out under the existing Act.

In 1978, the Council made submissions to the Commons Standing Committee on Justice and Legal Affairs when it examined Bill C-204 (A “Canadian Bill of Rights for Chil­dren”, introduced by Mr. James McGrath). Although we did not support a distinct Bill of Rights for Children, we advocated a series of changes in federal law under the heading “Omnibus Legislation for Children’s Rights”. To our knowledge, none of our recommendations, nor those of the Standing Committee, have been acted upon. Should voluntary organizations and citizens continue to lobby in the expectation that Parliament will respond quickly to needed changes in the law?

[page 6]

Some legislators claim that the Legislatures and Parliament will best protect human rights and fundamental freedoms. Without entrenchment, let those same legislators demonstrate how speedily and competently their Legislatures have protect­ ed the rights of children in education, health care, child welfare, and other fields.

POSITION ON CHILDREN’S RIGHTS

It is apparent that entrenchment or non-entrenchment could still cause problems for children and youth. As we have pointed out in Admittance Restricted, some fundamental changes in attitude are required. Consistent with our philoso­phy that children are “persons”, we believe that any entrenched Charter should simply apply the rights of all persons to children and youth.

Except for some clarification of the “Legal Rights” and “Equality Before the Law”, no special Bill of Rights for children is necessary. Nevertheless, the recognition of children as persons is a significant step away from existing legal assumptions. It recognizes that children are not the chattels of their parents or the state. They have individual interests to acknowledge.

Assuming that an entrenched Charter assigns to the courts the protection of basic rights for children, the Legislatures and Parliament will not be able to relax. Nor can they expect Human Rights Commissions to cover the cases. In 1979, the International Year of the Child, the Canadian Human Rights Commission reported that not a single complaint was filed by or on behalf of children. This illustrates a perceived lack of connection between general anti-discrimination law and the rights of children. Children’s rights will have to be specified in the legislative areas they most frequently arise—child welfare, education, juvenile delinquency, and health care. Initiatives like the Quebec Youth Protection Act (rights of children in care) will have to be pursued.

LEGAL RIGHTS

GENERAL

Legal rights under the Charter must clearly apply to persons under the age of majority. With some exceptions related to detention and police questioning, the rights in Sections 7 through 15 ought to apply to “everyone” in the fullest sense of the word.

RIGHT NOT TO BE DETAINED—SECTION 9

The right not to be detained has such a vast exception that it is hardly a right. Nevertheless, we submit that one of the “procedures established by law” should be separate detention for adults and young persons. Separate detention is the current law (in the Juvenile Delinquents Act) but it is often breached in practice. However, any separate detention for young persons

[page 7]

should fall under the same legal regime as that of adults. Longer remands should not be authorized. Bail should be available. Review and release from detention should be avail­ able on the same grounds.

RIGHTS UPON ARREST—SECTION 10

Two new clauses should be added to the existing Section 10. An accused should be entitled to be informed of his right to remain silent. Furthermore, a young person should be entitled to have an independent adult present during police question­ing. These additions would go a long way toward protecting young persons accused of crime. Most convictions in juvenile court are now based on the confessions of the accused. The combination of a confession and the absence of counsel leads to many questionable guilty pleas. These rights will become even more important if new young offenders legislation adopts a more punitive philosophy.

RIGHT TO COUNSEL—SECTION 10

The right, as stated, is meaningless to most young persons unless a Legal Aid Duty Counsel is available in Juvenile Court. Duty Counsel is not provided in many rural areas and the legal advice comes too late if at all. Therefore, we recom­mend that indigent persons, including accused young persons, have the right to have counsel provided at the time of plea and trial. In time, this right should be extended to arrest procedures.

RIGHT TO AN INTERPRETER—SECTION 14

Section 14 should be broadened to include the right to an interpreter where age or a disability is a barrier to understand­ ing the language and the process of the courts. This would cover, for example, the 13-year-old who finds it impossible to follow legal proceedings. At the same time, someone with a hearing handicap would be protected.

RIGHT TO EQUALITY BEFORE THE LAW—SECTION 15

The existing Section 15 could roll back even the meagre advances of “equality before the law” cases under the Canadi­an Bill of Rights. The cases have decided that one of the stated forms of discrimination is not a prerequisite to finding an inequality. Geography (Burnshine case) and the method of prosecution (Smythe case) have been two forms of discrimina­tion found to be potential additions to the list. But the present wording of section 15(1), which combines the equality right and the non-discrimination list, seems to restrict findings of inequality to race, national or ethnic origin, colour, religion, age, or sex.

The problem is straightforward. So is the solution. The Section should be amended to read:

“… without discrimination on a prohibited ground”.

An added subsection should read:

[page 8]

“Prohibited grounds of discrimination include race, na­tional or ethnic origin, colour, religion, age, sex, having the care and control of children, or a disability.”

This is the draftman’s technique for not limiting the dis­ crimination list. The courts will have specific guidance on some forms of discrimination, but they will be free to add other forms in the future without a constitutional amendment.

ADDITIONAL FORMS OF DISCRIMINATION—SEC­ TION 15

We have also suggested two additions to the anti-discrimina­tion list parenting status and disability. Many children are disabled from birth or develop a physical, mental or emotional handicap. These children suffer the greatest discrimination in the education system. They have no legal right to an education in most provinces—it is a privilege dependent upon the good will of their local school board. Equality before the law must mean that they can have the same opportunities and the same investment in the future that is accorded the non-disabled child.

The addition of “having the care and control of children” follows recent proposed amendments to the Ontario Human Rights Code. In the Charter, it would mean that laws could not discriminate because a person has children. This form of discrimination, practiced in “adult-only” housing and restau­rants, is usually discrimination in fact, not in law. However, statutes and regulations should also have to meet this stand­ard. This addition would also recognize that parents meet discrimination simply because of their status as parents.

“DISADVANTAGED PERSONS OF GROUPS”—SEC­ TION 15 (2)

Subsection 15(2) requires a person or group to be labelled “disadvantaged” before receiving unequal, but beneficial, treatment. This has an obviously distasteful connotation in connection with age discrimination. Will our senior citizens have to be labelled “disadvantaged” to receive old age pen­sions? Will all Canadian children and their families be termed “disadvantaged” in order to get family allowances? We sug­gest that “disadvantaged” be dropped in favour of “persons or groups having a special need related to a prohibited ground of discrimination”.

A second problem arises with the wording “… that has as its object the amelioration of conditions . ..”. The Burnshine case difficulties again come to the fore. If a court decides that the object of longer sentence for young offenders is “the amelioration of conditions”, the court can authorize unequal treatment. They cannot go beyond the stated object of the “law, program or activity” to find the real substance of the so-called benefit. The courts should have the power and the initiative to question whether a law in fact produces a benefit that justifies unequal treatment.

This would allow courts to question, for example, the resi­dential treatment programs conducted in provincial child welfare

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fare and delinquency facilities. If “behaviour modification” requires and unequal form of detention and sentencing, does it really work? Or would the child be better off facing the penalties that all other young offenders encounter? It should be clear in Section 15(2) that the courts can go beyond the object of a “law, program or activity,” get to the facts, and decide whether “amelioration of conditions” is really taking place.

CONCLUSION

In Admittance Restricted, the Task Force on the Child as Citizen asks, “Who is to protect the child from its adult protectors?” This question can have its answer in the new Canadian Constitution. The CCCY does not believe that a Charter of Rights and Freedoms can in any way be considered complete if it does not include a set of guarantees that children be defined as persons so as to enjoy the same protection of constitutional status as all other persons. We view this is a necessary but still not sufficient protection of these most vulnerable of Canadians, children.

The vulnerability of children needs to be underlined. Chil­dren have their needs met through the actions of others. How well or badly these “others” discharge their responsibilities to the children in their care is widely variable. Normally, only the most flagrant derelictions of responsibility by parents, teach­ers, or other caregivers evokes an official response. In most of these cases, decisions about what is best for the children is tempered by a keen awareness of the “natural rights of parents” and the care that must be taken not to infringe upon these rights. Parental rights are not to be taken lightly, and we would be the last to suggest that they be dismissed as unimpor­tant. However, as we have noted in our discussion of entrench­ment, children’s rights have yet to enjoy similar legitimacy either in the eyes of our Legislatures. What we seek is to redress an imbalance, a disproportionate neglect of the view that, as persons, children ought to enjoy the same protection of their rights as all others, as well as that extra measure of protection that comes with being dependent upon others and having diminished responsibility.

How else can we avoid the sad spectacle of native children not receiving the same protection of a provincial child welfare act as other children because the federal and provincial gov­ernments cannot agree about who shall bear the cost of service and in what proportions? How else can we indicate to a child-caring authority which has removed a child from the custody of his or her parents for neglect, that it is no less neglectful to keep moving the child from one foster home to another to another and another? If those who are responsible for the child are to be held accountable for their acts, by what standard shall such accountability be measured, and with what authority shall it be exacted? Where else should we begin to define such standards and such authority than in the Charter of Rights and Freedoms of the Constitution of Canada? The needs and rights of 7 million Canadians demand inclusion in any proposed Charter of Rights and Freedoms for Canada.

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APPENDIX “CCC-4”

SUBMISSIONS OF THE NISHGA TRIBAL COUNCIL TO THE SPECIAL JOINT COMMITTEE OF THE SENATE AND HOUSE OF COMMONS ON THE CONSTITUTION OF CANADA

December 15, 1980

The Nishga Tribal Council would first like to take this opportunity to thank the Committee for giving us the opportu­nity of filing this brief and appearing before you to make a formal submission.

The Nishga Tribal Council represents approximately 4,000 Nishga people, living primarily in the Nass Valley of north­ western British Columbia. Our lands lie adjacent to the south­ ern extremities of the Alaskan panhandle. We are, for the most part, a coastal people.

The history of our people since the first white contact is the history of our struggle for recognition of aboriginal title to our lands. Our people are resolved to carry this struggle on until the Canadian nation, your Parliament, the Courts, and your people, see fit to justly settle our claim to the ownership of our lands.

You must understand our situation. No government, coloni­al, provincial, federal, or imperial, has signed a treaty with our people to extinguish our ownership of lands we inhabit. We maintain that we are the lawful owners of our lands. We are not foolish in taking such a position. In 1887 one of our Chiefs, David Mackay, speaking to an 1887 Royal Commission appointed to inquire into the conditions of the Indians of the North West Coast said this about our land:

“They (the government) have never bought it from us or our forefathers. They have never fought and conquered our people and taken the land in that way, and yet they say now that they will give us so much land—our own land. These chiefs do not talk foolishly, they know the land is their own; our forefathers for generations and generations past had their land here all around us; chiefs have had their own hunting grounds, their salmon streams, places where they got their berries; it has always been so. It is not only during the last four or five years that they have seen the land; we have always seen and owned it; it is no new thing, it has been ours for generations. If we had only seen it for twenty years and claimed it as our own, it would have been foolish, but it has been ours for thousands of years. If any strange person came here and saw the land for twenty years and claimed it, he would be foolish. We have always got our living from the land; we are not like white people who live in towns and have their stores and other businesses, getting their living in that way, but we have always depended on the land for our food and clothes; we get our salmon, berries, and furs from the land.”

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Many years later one of our elders, Gideon Minesque, told the McKenna-McBride Commission sitting in 1915:

“We have heard that some white men, it must have been in Ottawa; this white man said that they must be dreaming when they say they own the land upon which they live. It is not a dream—we are certain that is land belongs to us. Right up to this day the government never made any treaty, not even to our grandfathers or our great-grandfathers.”

To this day we take the position that until governments sit down and negotiate a settlement with us, we maintain the aboriginal title to our lands. Such a position is completely consistent with the traditions of how settlement took place in this country. Our position is consistent with British common law which dictated that aboriginal people within British colo­ =nies maintained their aboriginal title until such title was extinguished by treaty. Our position is also consistent with British colonial policy that directed the colonial government to come to agreement with native people before settlement pro­ceeded. Our position is consistent with policies carried out in the colonization of Canada, where your governments carried out a treaty-making process as you proceeded to settlement of this nation. Indeed, our position is consistent with the Royal Proclamation of 1763, which declared our aboriginal title.

Regrettably, through a series of unfortunate circumstances, your governments neglected to make settlement with our people.

For well over a hundred years, our people have fought for a just and equitable settlement of our claims. We have par­ticipated and made representations before the Royal Commis­sion hearings of 1887 referred to above. Again, we also appeared before the McKenna-McBride Commission hearings between 1912-1916. We were the authors of the famous

Nishga Petition of 1913 that was directed to the Privy Council in England. We also were active participants in the formation of the “Allied Tribes of British Columbia” organization of 1916, a powerful inter-tribal organization which held meet­ings, raised funds, and sent petitions to Ottawa. Finally, after so many years of frustration and anger, we launched the Supreme Court case (Colder et al v. The Attorney-General of British Columbia), a court case where we sought a court declaration that we have maintained our aboriginal title to our lands.

As no doubt you are aware, the Supreme Court of Canada deadlocked on the substance of our lawsuit. Of the seven members of the Court who sat judgment in our case, three judges held that our people maintained aboriginal title to our lands, and three judges held that although we had had an aboriginal title to our land, our title was extinguished by colonial legislation. The tie-Breaking judge chose not to decide the case on the merits of the action; rather, he dismissed the case on a technicality.

Up to this point, the federal government refused to even recognize the justice of our claim to ownership of the lands. Even the present Prime Minister rejected the concept in

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Vancouver on August 8, 1969, a position that was consistent with the “Statement of the Government of Canada on Indian Policy, 1969’’.

After reviewing the weighty decisions of the Supreme Court of Canada in our case, the Liberal government headed by the present Prime Minister announced a reversal of policy on August 8 1973. We would like to take this opportunity of expressing our deepest thanks and gratitude to the federal government for finally recognizing our special proprietary rights to our lands. We would also like to take this opportunity of thanking the Conservative and New Democratic Parties for their contemporary support of our position.

After the federal government made its 1973 announcement that it wished to negotiate with us to settle this outstanding dispute, we were forced to approach the provincial government to seek their participation in the negotiations. As the Province owns all the Crown land in British Columbia, it was unrealistic to consider a negotiation process without provincial involve­ment. Our people since that time have spent seven frustrating years trying to convince the provincial government to recog­nize aboriginal title. During this period, both the previous NDP administration and the present Social Credit government have refused to recognize the concept of aboriginal title to recognize that we have any special propreretary interest to talk about at the negotiation table. Although the present govern­ment in Victoria announced in 1976 their willingness to par­ticipate in “discussions” with us and the federal government, there has been no meaningful progress to those negotiations as the provincial government refuses to recognize our underlying proprietary interest in the land.

The Canadian Constitution, 1980

The history of our people, and our struggle for recognition of aboriginal title, brings us to our reason to make this historic mission to Ottawa and to appear before the Canadian Charter of Rights and Freedoms as presently drafted. It is pathetic to think that after our people have had such a long history of a special constitutional relationship with your government, this proposed Constitution for our country is silent about our distinct special role in your society. We thought the purpose of a constitution is to protect the interests of the individual, of minorities, especially groups that were easy targets for abuse and discrimination. What do we find for ourselves with the present proposals?

We discover only one reference to native people in the proposed Charter. To our astonishment, that reference, found in Article 24, simply tells us that the Charter of Rights and Freedoms will not be interpreted in such a way as to deem any of our common law rights to have been taken away. We always perceived that a nation’s constitution and charter of rights should be an affirmative declaration of an individual’s rights and protections in a society. Article 24 and the Charter generally offer us no affirmative declarations or protection.

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The Charter only tells us that the courts will not deem any

provisions of the Charter to be taking away whatever rights we may have at common law. This situation is intolerable to us. To tell us that our only rights are those outside of the Constitution is to tell us that we must fall back on the common law as it is today or might be tomorrow. It tosses us out into the political winds, subject to the whim and fancy of future governments, the courts, and the white majority of our society.

Any student of the present jurisprudence on aboriginal title in this country, especially anyone who has analyzed the judg­ment of the Supreme Court of Canada in our case (Calder et al v. Attorney-General of B.C.), will immediately recognize that this area of law is presently in a confused and unsatisfactory­ tory state. Yet the Charter, as presently drafted, only tells us that, unlike other Canadians, our special rights must be left in the uncertain winds of judicial and political process, indeed at present, into the winds of an area of jurisprudence in which there is as yet no definite judicial pronouncement.

We seek an expressly stated provision in the Charter which pronounces that Indian people maintain aboriginal title to lands they inhabit until such interests are extinguished by treaty.

One of the most disturbing aspects of the government’s refusal to entrench aboriginal title in the Constitution at this point is that it has done so against the advice of many major studies on constitutional reform of the last few years.

For example, the Canadian Bar Association, in its 1978 report entitled “Towards a New Canada”, wrote:

“In particular, we must scrupulously abide by our agree­ments with native peoples and recognize their claims as they are established. Indeed, constitutional recognition of our commitment to abide by our obligations should be expressly set forth in the Constitution … In taking this action, we are responding to the claims of simple justice.”

The Pepin-Robards Committee went even further in its recognition of this simple justice. “Canadian policy has traditionally accepted both the special status of native people and their permanent attachment to the land.” The Committee’s Report went on:

“We believe that it is now appropriate that specific attention be paid to the constitutional position of the first Canadians. More specifically, both provincial and federal authorities should pursue direct discussions with representatives of Canada’s Indians, Inuit and Metis with a view to arriving at mutually acceptable constitutional provisions that would secure the rightful place of native people in Canadian society.”

There is no acceptable solution that does not recognize aboriginal title. To not include it in the Charter of Rights and Freedoms is to abandon forever the prospect of reaching this “mutually acceptable” solution.

The government’s present intransigence is even more dif­ficult to understand in light of its willingness to entrench recognition of the Royal Proclamation of 1763, a document

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wholly concerned with aboriginal title, in its 1978 “Constitu­tional Amendment Bill”.

The proposed Charter, in its present form, by ignoring the whole subject of aboriginal title, flies in the face of all of these contemporary proposals on constitutional change.

To entrench the concept of aboriginal title in the Constitu­tion will finally force the provincial government to recognize our title to the land and to participate meaningfully in a negotiation process leading to the settlement of this long outstanding dispute. Such an entrenched provision will lead to a just and equitable settlement of our claim. As both the present government, and the opposition parties, all express their frustration over the provincial government of British Columbia’s intransigence in refusing to recognize the concept of aboriginal title, you as members of the Committee, and the Parliament of Canada, have this precious opportunity to finally force the provincial government of British Columbia to recog­nize our special rights and to negotiate towards a settlement. We perceive that you and the Parliament hold what may be the last key to our people being treated with justice by your society.

In calling for the entrenchment of aboriginal title in the Constitution, the Prime Minister and the Indian Affairs Min­ister John Munro tell us to patiently wait for patriation of the Constitution. They then tell us that we will be the first order of business when the first ministers sit down to discuss constitu­tional amendment after the Constitution is in Canada.

Such a position is at best politically naive, and at worst misleading and fraudulent. The facts are simple. Constitution­ al amendment after patriation will require the consent of the provincial governments. As British Columbia is the only prov­ince with large tracts of untreated land, entrenchment of aboriginal title in the Constitution would require consent of the Province of British Columbia. To suggest that that consent would be forthcoming defies and ignores the history of our relationship with the provincial government from the begin­ning. Indeed, this history dates back to colonial administra­tions. One theme remains constant in the colonial governments’ policy 1849-1871, through the period of Liberal, Conservative, New Democratic and Social Credit provincial administrations. No government in British Columbia has ever recognized the concept of aboriginal title. No government in British Columbia has ever recognized we have special proprietary interests in our land. Over and over again the present Social Credit govern­ment in Victoria states in unequivocal terms their refusal to recognize the concept of aboriginal title.

Do we not have reason to assume that this government, which will be called upon to consent to a constitutional amend­ment after patriation, will vehemently resist entrenching our title within the Constitution? If they are not even willing to recognize informally our title for purposes of our present negotiations, how can anyone expect them to consent to the enshrinement of our title constitutionally?

The claim to our land is based on our time-immemorial occupation of our Valley. At no time were we the subject of conquest. At no time were we the subject of treaty. The Royal

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Proclamation of 1763 set out how governments were to respect

the concept of native ownership of lands unextinguished by treaty. Territory upon territory, as you colonized this land, treaties were signed. But you neglected to make a settlement with our people—thus forming the grounds for our just as rightful claim to ownership of the lands we inhabit.

It is with incredible dismay and great disappointment that we realized that our special rights and interests were complete­ly ignored in the proposed Constitution, even though the federal government has recognized our just claim since 1973. You as a Committee, and the Parliament of Canada, hold the onerous responsibility of charting the future course of the aboriginal title issue in this country. Our destiny is in your hands. Aboriginal title must be entrenched in the Constitution before patriation. To suggest that it will happen after the Constitution is brought home is to ignore the political reality of our history and relationship with the provincial administra­tions in British Columbia. To make such a suggestion is to mislead the Canadian public and indeed our people about what really will happen after patriation. Such a suggestion will not pacify our people. We know, better than anyone, that the government is really telling us that our special rights and interests will never be enshrined in the Constitution. If aborigi­nal title is not entrenched constitutionally at this time, there will never be a settlement of the British Columbia land question. That is the stark reality of the situation. It is that legacy that you will leave to this nation. That in turn will leave a festering sore of discontent that we, the Nishga nation, are resolved never to let you forget.

We plead with you to recommend to Parliament that “aboriginal title” be a right conferred in the Charter to all untreatied native people of Canada. Such an entrenchment of our interests will give us the iron clad protection we as a minority in Canadian society deserve and expect from a new Canadian Constitution.

WITNESSES

From the Nishga Tribal Council:

Chief James Gosnell, President of N.T.C.;
Chief Rod Robinson, Vice President of N.T.C.;
Mr. Percy Tate, Executive Assistant to the President; Mr. Donal Rosenbloom, Legal Counsel;
Mr. Stewart Leggatt, M.L.A., Legal Counsel.

From the German-Canadian Committee on the Constitution:

Mr. Dietrich Kiesewalter, Coordinating Chairman;

Prof. Gunther Bauer, Vice Chairman of German Speaking, Alliance of Ottawa and Region;

Prof. Klaus Bongart, Chairman, German-Canadian Council of Kitchener-Waterloo;

Mr. Benno Knodel, Chairman, German Canadian, Alliance of Alberta;

Dr. Arthur Grenke, Historian.

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