Manitoba, Legislative Assembly, Debates and Proceedings, “Constitutional Amendment Re: Aboriginal Rights”, 32nd Parl, 2nd Sess (18 August 1983)

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Date: 1983-08-18
By: Manitoba (Legislative Assembly)
Citation: Manitoba, Legislative Assembly, Debates and Proceedings, 32nd Parl, 2nd Sess, 1983 at 5331-5334.
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Second Session — Thirty-Second Legislature
ot the
Legislative Assembly of Manitoba


31-32 Elizabeth II

Published under the
authority of
The Honourable D. James Walding

VOL. XXX1 No. 153 – 2:00p.m., THURSDAY, 18 August, 1963
Printed by the Office of the Queens Printer, Province of Manitoba

Thursday, 13 August, 1933

his staff on the Toronto Transit System and say, look,
could we sell you guys some buses like this one, or
even better than this. Wouldn’t he have been better
advised to ride the bus?

HON. H. PAWLEY: Let me tell the Honourable Member
for Russsell l’d prefer to walk and I do walk when l
have the opportunity and the time to do it. I’d sooner
walk than ride a pony, than to ride a bus, or to ride
in a car and, given the appropriate opportunity, Mr.
Speaker, let me assure the honourable member l’d
prefer to walk it’s better for one’s health.

ChiIdren’s Aid Society

MR. SPEAKER: The Honourable Member for Fort

MR. L. SHERMAN: Mr. Speaker, would the First Minister
say that when he was out walking on the streets with
his colleagues, the other First Ministers, that it was a
case of the bland leading the bland? Although that
actually was not my question. Actually, Mr. Speaker,
the thought just came to me, but i want to direct a
question to the Honourable Minister of Consumer
Services and ask him that now that he is rushing
headlong towards the end of what has been a very
difficult session for him, and a very difficult session for
the child welfare system in this province, can he advise
the House when he intends to dismantle the Children’s
Aid Society of Winnipeg and replace it with six smaller
independent agencies?

MR. SPEAKER: The Honourable Minister of Community

HON. L. EVANS: Well, Mr. Speaker, we have discussed
this subject on other occasions, during the discussions
bill, during our Estimates, and we have had various
discussions, I guess, in the public media, but what we
intend to do, Mr. Speaker, is to proceed methodically
with the co-operation of people who are concerned and
interested in improving qualities of services for children
and their families in the City of Winnipeg. We are going
to do this with the co-operation of the Children’s Aid
Society of Winnipeg and Eastern; we’re going to do
this with the co—operation of professional workers; we’re
going to do it with the co-operation of people who are
interested and concerned, as we are, and as this
government is in improving the quality of services and
care for children in need in this province.

MR. L. SHERMAN: Mr. Speaker, I understand all that
and l’ve heard it all before, so has everybody else on
this side of the House. That was not my question, Sir,
my question, which is related to the fact that the Minister
is not interested in announcing it in this House, and
will do so outsidethe House when the Legislature is
not in Session, my question to him is what is the target
date, when is he going to dismantle CAS Winnipeg and
replace it with those other agencies?

HON. L. EVANS: Mr. Speaker, first of all, the Member
for Fort Garry is wrong in his earlier question when he
alludes to the fact that the passage of Bill 107


dismantles the CAS Winnipeg because that doesn’t
happen, that doesn’t occur with that bill. That bill simply
relates to the makeup of the Board of Directors of the
Children’s Aid Society of Winnipeg, whether the Board
of Directors changes or not does not affect a
reorganization or a dismantling of the Children’s Aid
Society of Winnipeg, not at all. So the Honourable
Member for Fort Garry is wrong on that particular issue.

I indicate to him, as We indicated public in the past,
that we are working on a major revision to the Child
Welfare Act of Manitoba which will be brought in next.
year; that we have a lot of homework to do, a lot of
research to do and then that work is being done in
co-operation with the broad community out there who
is as concerned as we are, and l hope the Member for
Fort Garry shares our concerns, as concerned as we
are to have a better system than we’ve had to date.
Far better so that we can minimize litigation in courts;
so that we can reduce the costs per child spent by this
very large Children’s Aid Society we have in Winnipeg;
so that we can have a system that is more community
based, a system that is more culturally relevant and a
system that is going to be more sensitive to the needs
of children in this province. We care about the children,
we care about these families in need, the members
across the way can be flippant about it but were going
to do something about it.

MR. SPEAKER: Order please, order please. The time
for Oral Questions has expired. Are members prepared
to proceed?


MR. SPEAKER: The Honourable Member for Emerson.

MR. A. DRIEDGER: Mr. Speaker, l have a committee
change under Privileges and Elections: Brown for

MR. SPEAKER: The Honourable Member for Riet.
MRS. D.gDODlCK: Mr. Speaker, I have a committee
change under Privileges and Elections: The Member
for The Pas for the the Member for St. James.


MR. SPEAKER: The Honourable Government House

HON. R. PENNER: Mr. Speaker, by agreement with
the Opposition House Leader, the Standing Committee
on Privileges and Elections will meet immediately in
on of the committee rooms to consider some of its
organizational work. The business of the House will
continue and the Deputy House Leader will be calling
business, the first item of which will be the Aboriginai


MR. SPEAKER: On the proposed motion of the
Honourable First Minister, proposed Resolution

regarding Aboriginal Rights, standing in the name of
the Honourable Member for Emerson.

MB. A. DRIEDGER: Mr. Speaker, we’re prepared to
see the resolution go.

MR. SPEAKER: Are you ready for the question? The
Honourable Minister of Northern Affairs.

HON. J. COWAN: Thank you, Mr. Speaker. l rise to
participate in this debate primarily due to a number
of questions which were addressed to the House and
to members on this side by the Member for Turtle
Mountain during his contribution to the debate on the
resolution. I will be brief in my comments in that much
that has been said before me has been done so much
more eloquently and in much more detail than i could
do on this occasion. However, i do want to specifically
answer the questions as much as is possible that were
put forward by the Member for Turtle Mountain.

As you are aware, Mr. Speaker, the resolution was
passed unanimously in the House of Commons on June
29, 1983. The Senate, on the same day, adjourned
debate on the resolution, referring it to a Senate
Standing Committee on Legal and Constitutional Affairs
for the purposes of further study and report back. The
Senate is holding hearings on the resolution on
September 7th to the 9th of this year, and I am informed
that it will most likely resume sitting on September 22,
1983. The Legislatures of New Brunswick, Nova Scotia,
Prince Edward Island and Alberta have also adopted
the resolution by way of similar motions in their
respective Houses. It has been tabled in Ontario, British
Columbia, Saskatchewan and, of course, in Manitoba.

Without going into the detail on the resolution, I do
want to specifically address some of the specific
questions that the Member for Turtle Mountain put to

The first question was one concerning the effect of
Section 25(b) in regard to the Northern Flood Agreement
and perhaps the Forebay Agreements in Manitoba. That
section, of course, read previously that “ . . . any rights
or freedoms that now exist by way of land claims or
agreements or may be so acquired . . . “ in the previous
amendment to the Constitution; the amendment as it
reads now talks about “ . . . existing treaty rights that
may now exist by way of land claims settlements or
may be so acquired . . .

The Member for Turtle Mountain asked the question
as to what effect that retroactive provision of the new
wording would have in respect to the Northern Flood
Agnt. We both had opportunity this morning, during
the committee hearings on this matter, to seek advice
and to hear comments mostly by way of opinions as
to any suggested impact. I learned by way of those
conversations and dialogues that others are of the
opinion, firstly, that if indeed it were to constitutionalize
the Northern Flood Agreement and the Forebay
Agreements, the impact, in actuality, would not be
significant. We heard from a learned lawyer to that
effect. At the same time, we heard that same individual
say that he could not give an opinion as to whether
or not this particular provision would bring under the
Constitution those two agreements. Not being a lawyer
and not having studied the matter in fullness enough


Thursday, 18 August, 1983

to be able to suggest differently, I would have to accept
— and i heard no other. differences expressed in the
committee – that in fact that would be the case.

l also have to indicate that it was not the intention
of those individuals who are reviewing the drafting of
the amendment at the time it was being put forward
for approval by those at the Constitutional Conference
that such would be the case. The First Minister, in his
comments on debate ’ on this item in this House,
suggested that that provision was designed to apply
more or less to settlements such as the James Bay
Agreement and similar settlements.

I am not of the opinion, nor have I heard others
express the opinion, that the Northern Flood Agreement
is similar in enough respects to be placed in the same
category as the James Bay Agreement. As a matter
of fact, we requested one of the persons making
representation to the committee today to comment
upon that. The question that was put to him directly
was in the context of the dialogue which was ongoing
about the constitutional amendment. Was he of the
opinion that the Northern Flood Agreement was similar
to the James Bay Agreement? He’indicated – and l
believe i understood him properly – that there were
certain similarities in that they were agreements, but
that there were a larger number of dissimilarities when
put in the context of the Northern Flood Agreement.
That is certainly the opinion of this government.

We had not intended that the Northern Flood
Agreement be constitutionalized by way of this
amendment. I heard of no remarks by others who were
involved in the discussions at the time that that was
an intention, and it certainly is our opinion that, in fact,
that is not theieffect. in other words, to state. very
clearly for the record, we do not believe that the
constitutional amendment as put forward would improve
the Northern Flood Agreement and/or the Grand Rapids
Forebay Agreements.

Now that is an opinion, and I very carefully have
crafted my words today to indicate that it is our opinion.
it is a very strong opinion and one which we firmly
hold. it is opinion based on our reading of it; it is an
opinion based on our understanding of the discussions
that went on in the preparation of that actual wording.

There may be those who disagree with that opinion
and certainly the question which the Member for Turtle
Mountain put forward is one that bears further
consideration, but at this time we have not been advised
of anything that would dissuade us from our original
opinion that, in fact, we were not including those two
agreements or any other agreement of that nature
existing across the country, by way of adoption of this

We very specifically felt that it dealt with agreements
such as the James Bay Agreement where there was
extinguishment of treaty obligations. in the Northern
Flood Agreement, that was not the case. There was a
settlement proposed as a result of land that had been
used for extinguishment purposes being reacquired by
the province and compensation being paid for that.

So we believe that the significant difference between
those agreements, in fact, differentiate enough to allow
us to have the opinion that the Northern Flood
Agreement and the Grand Rapids Forebay Agreements
were not a part of the discussions and will not be
affected by the passage of the resolution.

Thursday, 18 August, 1983

it might be important to note that the particular
amendments which we’re talking about now were
adopted fairly much at the insistence of the ICNI and
the AFN delegations at the March conference to
safeguard the rights of their constituent organizations,
who either had never formally entered into treaties or
agreements with the Federal Government but are in
the process of doing so as is the case with the ICNI,
or who have already done so and wanted to see some
protection afforded to those agreements, which is the
case with the AFN and the James Bay situation.

These agreements are expressly referred to as
modern treaties, and I put the word “modern” treaties
in quote. They were referred to in that way at the March
conference and the James Bay Agreement was cited
as an example. The Federal Government refers to these
as comprehensive settlements by the Federal
Department of lndian Affairs Claims Policies Group.
They are intended to extinguish aboriginal right where
it continues to exist in non-treaty areas. They are quite
different from the Northern Flood Agreement and Grand
Rapids Forebay Agreement, which are basically
compensation agreements concluded in areas long
extinguished of aboriginal title through the signing of
specific treaties.

l hope that has answered the questions of the Member
for Turtle Mountain. I have attempted to provide him
with what l_ believe was the intent of the drafters of
the particular amendment. l’ve done that because he,
himself – and l agree — indicated that if that amendment
were taken to court, it might be helpful to have on the
record, very explicity so, some reference as to the
intentions behind the wording. I hope that l have been
able to allay some of his concerns by providing my
perception of what transpired as part of that drafting,
and the opinion of the government as to the effect of
the amendment as it now stands. l’d be pleased to
elaborate upon it by way of questions after my
contribution if he feels that might be required.

The other question which he had was in respect to
the proposed Section 35(4) which provides, quote:
“Notwithstanding any other provisions of this act, the
aboriginal and treaty rights referred to subsection (1)
are guaranteed equally to male and female persons.”

This amendment was brought about by the insistence
of the Provincial Government and other organizations
contained within the umbrella lndian organizations. As
the Member for Turtle Mountain clearly suggested, and
he is right in his opinion, there was some concern about
the impact of that agreement by delegations
representing lndian organizations. They suggested that
the matter of who was a member of a Band was a
matter that would be reserved to that Band to decide.
Of course, The lndian Act says differently and there is
an ongoing debate that is not new and is not settled,
around that particular issue. What we attempted to
accomplish in the drafting of this particular section was
to indicate that there were equality provisions in respect
to the aboriginal rights referred to in subsection (1). it
does not extend rights, but it just says, where those
rights exist they shall exist equally and shall be
guaranteed equally to male and female persons.

The clause specifically addresses the problem within
The lndian Act legislation which denies lndian status
and attendant rights of lndian women who marry non~
lndian persons and also confers lndian status to non-
Indians who marry status lndian males.

I do not” want to speak on behalf of the Indian
organizations at this time but I do want to indicate to
members of House who were not present at the
committee meetings, what they had to say when
questioned directly on this item by the Member for
Turtle Mountain.

The question – and I believe it is one that bears some
consideration and certainly was appropriate to address
at that time – was, would this mean that if a non-lndian
male married a status Indian woman, would the non-
lndian, non-status male obtain status by act of that
marriage. Or does it mean, converseiy, that if a status
lndian male marries a non~status lndian woman, as is
the case now, the non~status lndian woman attains

They indicated a couple of things: 1. They believe
that the matter of Band membership is a matter that
the Bands should decide internally and, 2. I think two
representatives or two Chiefs of two Bands stated very
clearly that, no, they did not ‘believe that this would
require a Band to give status to a male who was non»
status who married a status Indian woman. l concur
with their interpretation of the particular amendment,
although there are some differences of opinion that
exist in that regard as well. But again, it was to make
certain that rights were guaranteed equally and not to
extend or derogate from rights that existed already.

l don’t believe that I can add more to that answer,
other than to reference individuals to the particular
debate which went on in the committee hearings.

I hope that we have been able to answer the two
main questions which the Member for Turtle Mountain
requested us to review. Of course, as l indicated earlier,
if he wishes to ask further questions, i will attempt to
answer them at this time, if possible, or to return with
the answer at a later date, if that is not possible.

Having said that, Mr. Speaker, I wish to add my voice
to the committee which commended this resolution to
the House. It provides an opportunity for an ongoing
process to deal with some very complex issues in what
I believe to be the appropriate fashion, through political
representatives of respective organizations who will be
affected by any such changes and in an atmosphere
of mutual trust and co-operation.

For that reason i commend it to you and look forward
to the ongoing constitutional conferences which are
mandated by this particular amendment.

MR. SPEAKER: The Honourable Member for Turtle
Mountain. –

MR. B. RANSOM: Mr. Speaker, the Minister indicated
that he would entertain a question and l have at least
two questions that l’d like to put to the Minister.

He indicated this morning that we had listened to
submissions and opinions expressed by chiefs and by
a lawyer who was in fact representing the lndian Bands.
But did the government seek advice from any
constitutional lawyers with respect to the possible
meaning and ramifications that might flow from this

MR. SPEAKER: The Honourable Minister of Northern

HON. J. COWAN: l’m aware, generaily, that we have
sought advice in that regard. I would have to refer you

5333 .

specifically to the Attorney-General to provide details
as to the occasions on which we sought that advice
and the direct advice that was forthcoming. i had asked
staff of my own department who had been involved
with this matter to review it and to seek advice, as
well. The comments which I have provided to you today
are in part their response and, of course, in part an
analysis of my personal reflections on the process as
a participant.

But, yes, we have sought such advice to perhaps try
to anticipate the, second question, or another question.
The advice is such that one can, at the end of all that
review and analysis, say there still is a question that
remains unanswered. However, the opinion and the ,
consensus, as much as is possible to develop around
this issue‘, seems to indicate that, in fact, the Northern
Flood Agreement and the Grand Rapids Forebay
Agreement would not be constitutionalized by this
particular amendment, but there is a difference of
opinion among experts, as oftentimes there are on
matters such as this.

MR. SPEAKER: The Honourable Member for Turtle

MR. B. RANSOM: Perhaps, Mr. Speaker, then the
Minister would undertake to provide us with some
copies of the opinion if the opinion is a written opinion.
One further question, I want to have this phrased in
such a way that it isn’t ruled out of order by seeking
a legal opinion, l’m interested in whether or not the
Minister can give an indication, if he knows of situations
where an Indian woman marrying a non-lndian man
has been deprived of aboriginal rights through applicatin
of The Indian Act.

HON. J. COWAN: Again, that’s a question that I would
have to take as notice and, in response to the other
suggestion, l indicated the Attorney-General had
undertaken some of that activity, my staff had
undertaken some of that activity. if there are written
opinions l’ll certainly be prepared to forward them to
the member opposite.

MR. 8. RANSOM: Can the Minister tell me whether
or not an Indian woman then who has married a non-
lndian man loses any rights, at the moment? Does that
woman lose any rights that she otherwise would have
by way of being a band member or having treaty status?

HON. J. COWAN: My general perception is that she
does; perhaps, the Member for Rupertsland, who is far
better versed in this particular subject, might want to
elaborate upon the specifics if you have questions as
to how that would apply specifically. if I understand
your question correctly, yes, they would lose certain
rights which accrue to them by way of status.

MR. SPEAKER: The question before the House is the
proposed resolution by the Honourable First Minister
referring to Aboriginal Rights. Do you wish the resolution

QUESTION put, MOTION carried.
MR. SPEAKER: The Acting Government House Leader.

HON. A. MACKLING: Yes, Mr. Speaker, we go to Report
Stage on Bill 87 and Bill 60.

Thursday, 18 August, 1983




MR. SPEAKER: Shall the Report of the Committee on
Bill 87 be concurred in?

MOTION presented.

MR. SPEAKER: The Honourable Minister of Northern

HON. J. COWAN: Mr. Speaker, l move, seconded by
the Minister of Natural Resources

THAT subsection 40(1) of Bill 87, An Act to amend
The Workplace Safety and Health Act be amended by
striking out the words “or any addition to” in the 2nd
line of Clause (c) thereof. ‘

MOTION presented and carried.

MR. SPEAKER: Shall the Report of the Committee on
Bill 87, as amended, be concurred in?
The Honourable Minister of Northern Affairs.

HON. J. COWAN: Yes, excuse me, Mr. Speaker, there
is another amendment.

THAT Bill 87, An Act to amend The Workplace Safety
and Health Act be amended by striking out the
proposed subsection 40(1.1) of the Workplace Safety
and Health Act set out in Section 6 thereof and
substituting therefor the following subsections:

Exception of limitation to clause (1)(a).

40(1.1) Notwithstanding clause (1)(a), the Lieutenant-
Governor—in-Council may designate an individual
business office or retail store or classes of business
offices or retail stores or similar workplaces where safety
and health committee is not required to be established
until the number of workes exceeds 50.

Determination of number of workers.
40(1.2) For the purposes of clauses (1)(a) and 41(1)(a)

and the subsection (1.1) the number of workers»

employed“ at a workplace shall be determined by
averaging over the previous 12 months the number of
full and part-time workers present each working day.

I move that, seconded by the Minister of Highways
and Transportation.

MOTION presented and carried.
MR. SPEAKER: Shall the Report of the Committee on
Bill 87, as amended, be concurred in?

The Honourable Minister of Natural Resources.

HON. A. MACKLING: Yes, Mr. Speaker, with leave, call
third reading of Bill No. 87.

MR. SPEAKER: We have the vote on the concurrence
before it is at third reading.

HON. A. MACKLING: Very well.
MR. SPEAKER: The question before the House is shall

the Report of the Committee on Bill 87, as amended,
be concurred in?

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